[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 15 to 28

                         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

[[Page ii]]

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                            Table of Contents



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

  Title 48:
          Chapter 15--Environmental Protection Agency                3
          Chapter 16--Office of Personnel Management Federal 
          Employees Health Benefits Acquisition Regulation         113
          Chapter 17--Office of Personnel Management               175
          Chapter 18--National Aeronautics and Space 
          Administration                                           179
          Chapter 19--Broadcasting Board of Governors              341
          Chapter 20--Nuclear Regulatory Commission                353
          Chapter 21--Office of Personnel Management, Federal 
          Employees Group Life Insurance Federal Acquisition 
          Regulation                                               405
          Chapter 23--Social Security Administration               443
          Chapter 24--Department of Housing and Urban 
          Development                                              447
          Chapter 25--National Science Foundation                  507
          Chapter 28--Department of Justice                        517
  Finding Aids:
      Table of CFR Titles and Chapters........................     559
      Alphabetical List of Agencies Appearing in the CFR......     579
      List of CFR Sections Affected...........................     589

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 48 CFR 1501.000 
                       refers to title 48, part 
                       1501, section 000.

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
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 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
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 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
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.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
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

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

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
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 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected].

SALES

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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.ofr.gov. For more 
information, contact the GPO Customer Contact Center, U.S. Government 
Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal-
register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Printing Office. It is 
available at www.ecfr.gov.

    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, Robert J. Sheehan, III 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 15 to 28)

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

chapter 15--Environmental Protection Agency.................        1501

chapter 16--Office of Personnel Management Federal Employees 
  Health Benefits Acquisition Regulation....................        1601

chapter 17--Office of Personnel Management..................        1733

chapter 18--National Aeronautics and Space Administration...        1801

chapter 19--Broadcasting Board of Governors.................        1901

chapter 20--Nuclear Regulatory Commission...................        2001

chapter 21--Office of Personnel Management, Federal 
  Employees Group Life Insurance Federal Acquisition 
  Regulation................................................        2101

chapter 23--Social Security Administration..................        2301

chapter 24--Department of Housing and Urban Development.....        2401

chapter 25--National Science Foundation.....................        2501

chapter 28--Department of Justice...........................        2801

[[Page 3]]



               CHAPTER 15--ENVIRONMENTAL PROTECTION AGENCY




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


  Editorial Note: Nomenclature changes to chapter 15 appear at 65 FR 
47325, Aug. 2, 2000.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1501            General.....................................           5
1502            Definition of words and terms...............           8
1503            Improper business practices and personal 
                    conflicts of interest...................           8
1504            Administrative matters......................          11
                   SUBCHAPTER B--ACQUISITION PLANNING
1505            Publicizing contract actions................          12
1506            Competition requirements....................          12
1508            Required sources of supply..................          13
1509            Contractor qualifications...................          14
1511            Describing agency needs.....................          18
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1513            Simplified acquisition procedures...........          20
1514            Sealed bidding..............................          20
1515            Contracting by negotiation..................          21
1516            Types of contracts..........................          28
1517            Special contracting methods.................          36
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1519            Small business programs.....................          38
1520            Labor surplus area concerns.................          41
1522            Application of labor laws to Government 
                    acquisitions............................          41
1523            Environmental, conservation, occupational 
                    safety, and drug-free workplace.........          42
1524            Protection of privacy and freedom of 
                    information.............................          43

[[Page 4]]

1525            Foreign acquisition.........................          43
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1527            Patents, data, and copyrights...............          44
1528            Bonds of insurance..........................          44
1529            Taxes.......................................          44
1530            Cost accounting standards...................          45
1531            Contract cost principles and procedures.....          45
1532            Contract financing..........................          45
1533            Protests, disputes and appeals..............          47
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1535            Research and development contracting........          48
1536            Construction and architect-engineer 
                    contracts...............................          49
1537            Service contracting.........................          50
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1542            Contract administration.....................          52
1545            Government property.........................          54
1546            Quality assurance...........................          55
1548

Value engineering [Reserved]

                     SUBCHAPTER H--CLAUSES AND FORMS
1552            Solicitation provisions and contract clauses          56
1553            Forms.......................................         111

[[Page 5]]

                          SUBCHAPTER A_GENERAL

                            PART 1501_GENERAL

Sec.

Sec. 1501.000 Scope of part.

               Subpart 1501.1_Purpose, Authority, Issuance


Sec. 1501.101 Purpose.

Sec. 1501.104 Applicability.

Sec. 1501.105 Issuance.

Sec. 1501.105-1 Publication and code arrangement.

Sec. 1501.105-2 Arrangement of regulations.

Sec. 1501.105-3 Copies.

              Subpart 1501.3_Agency Acquisition Regulations


Sec. 1501.301 Policy.

Sec. 1501.370 OMB approvals under the Paperwork Reduction Act.

                        Subpart 1501.4_Deviations


Sec. 1501.401 Definition.

Sec. 1501.403 Individual deviations.

Sec. 1501.404 Class deviations

        Subpart 1501.6_Contracting Authority and Responsibilities


Sec. 1501.602-3 Ratification of unauthorized commitments.

Sec. 1501.603 Selection, appointment, and termination of appointment.

Sec. 1501.603-1 General.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8835, Mar. 8, 1984, unless otherwise noted.



Sec. 1501.000  Scope of part.

    The Federal Acquisition Regulation System brings together, in title 
48 of the Code of Federal Regulations, the acquisition regulations 
applicable to all executive agencies of the Government. This part 
establishes a system of Environmental Protection Agency (EPA) 
acquisition regulations, referred to as the EPAAR, for the codification 
and publication of policies and procedures of EPA which implement and 
supplement the Federal Acquisition Regulation (FAR).

               Subpart 1501.1_Purpose, Authority, Issuance



Sec. 1501.101  Purpose.

    This subpart establishes Chapter 15, the Environmental Protection 
Agency Acquisition Regulation (EPAAR), within Title 48, the Federal 
Acquisition Regulations System.

[60 FR 38505, July 27, 1995]



Sec. 1501.104  Applicability.

    The FAR (48 CFR chapter 1) and the EPAAR (48 CFR chapter 15) apply 
to all EPA acquisitions as defined in part 2 of the FAR, except where 
expressly excluded.

[62 FR 33572, June 20, 1997]



Sec. 1501.105  Issuance.



Sec. 1501.105-1  Publication and code arrangement.

    The EPAAR will be published in: (a) The Federal Register, (b) 
cumulated form in the Code of Federal Regulations (CFR), and (c) a 
separate loose-leaf form in a distinctive light blue color.

[49 FR 8835, Mar. 8, 1984. Redesignated at 62 FR 33572, June 20, 1997]



Sec. 1501.105-2  Arrangement of regulations.

    (a) References and citations. This regulation may be referred to as 
the Environmental Protection Agency Acquisition Regulation or the EPAAR. 
References to EPAAR materials shall be made in a manner similar to that 
prescribed by FAR 1.105-2(c).

[49 FR 8835, Mar. 8, 1984. Redesignated and amended at 62 FR 33572, June 
20, 1997]



Sec. 1501.105-3  Copies.

    Copies of the EPAAR in Federal Register and CFR form may be 
purchased from the Superintendent of Documents, Government Printing 
Office (GPO), Washington, DC 20402. Copies of loose-leaf EPAAR are 
distributed within EPA and may be obtained from

[[Page 6]]

the EPA Facilities and Support Services Division.

[49 FR 8835, Mar. 8, 1984. Redesignated at 62 FR 33572, June 20, 1997]

              Subpart 1501.3_Agency Acquisition Regulations



Sec. 1501.301  Policy.

    The EPAAR is prescribed by the Director, Office of Acquisition 
Management.

[49 FR 8835, Mar. 8, 1984, as amended at 59 FR 18976, Apr. 21, 1994]



Sec. 1501.370  OMB approvals under the Paperwork Reduction Act.

    The information collection activities contained in the EPAAR 
sections listed below have been approved by the Office of Management and 
Budget (OMB) and have been issued OMB numbers in accordance with section 
3504(h) of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501, et seq.

------------------------------------------------------------------------
                                                             OMB control
                      48 CFR citation                            No.
------------------------------------------------------------------------
  Specification, Standards and other Purchase Descriptions
 
1510.011-70 through 1510.011-72............................    2030-0005
1510.011-80 through 1510.011-81............................    2030-0023
Contract delivery or performance 1512.104..................    2030-0023
 
  Small Purchase and Other Simplified Purchase Procedures
 
1513.505 through 1513.570..................................    2030-0007
 
                     Contract Financing
 
1532.170(a)................................................    2030-0016
 
        Solicitation Provisions and Contract Clauses
 
1552.209-71................................................    2030-0023
1552.209-73 through 1552.209-74............................    2030-0023
1552.210-72................................................    2030-0005
1552.210-80................................................    2030-0023
1552.212-71................................................    2030-0023
1552.215-72 through 1552.215-76............................    2030-0006
1552.227-76................................................    2030-0023
------------------------------------------------------------------------


[59 FR 18619, Apr. 19, 1994, as amended at 59 FR 32134, June 22, 1994; 
61 FR 29316, June 10, 1996]

                        Subpart 1501.4_Deviations



Sec. 1501.401  Definition.

    A deviation to the EPAAR is defined in the same manner as a 
deviation to the FAR (see FAR 1.401).

[49 FR 8835, Mar. 9, 1984; 49 FR 24734, June 15, 1984]



Sec. 1501.403  Individual deviations.

    Requests for individual deviations from the FAR and the EPAAR shall 
be submitted to the Head of the Contracting Activity (HCA) for approval. 
Requests submitted shall cite the specific part of the FAR or EPAAR from 
which it is desired to deviate, shall set forth the nature of the 
deviation(s), and shall give the reasons for the action requested.

[65 FR 37291, June 14, 2000]



Sec. 1501.404  Class deviations.

    Requests for class deviations to the FAR and the EPAAR shall be 
submitted to the HCA for processing in accordance with FAR 1.404 and 
this section. Requests shall include the same type of information 
prescribed in 1501.403 for individual deviations.

[67 FR 5072, Feb. 4, 2002]

        Subpart 1501.6_Contracting Authority and Responsibilities



Sec. 1501.602-3  Ratification of unauthorized commitments.

    (a) Applicability. The provisions of this section apply to all 
unauthorized commitments, whether oral or written and without regard to 
dollar value. Examples of unauthorized commitments are;
    (1) Ordering supplies or services by an individual without 
contracting authority;
    (2) Unauthorized direction of work through assignment of orders or 
tasks;
    (3) Unauthorized addition of new work;
    (4) Unauthorized direction of contractors to subcontract with 
particular firms; or
    (5) Any other unauthorized direction which changed the terms and 
conditions of the contract.
    (b)(1) Ratification Approval. The Chief of the Contracting Office 
(CCO) is delegated authority to be the ratifying official. In order to 
act as the ratifying official, a CCO must have delegated contracting 
officer authority. A CCO cannot approve a ratification if he/she acted 
as a contracting officer in preparing the determination and findings

[[Page 7]]

required under paragraph (c)(3) of this section.
    (2) The CCOs defined in 1502.100 for purposes of ratification 
authority only must meet the following criteria:
    (i) Must possess a contracting officer's warrant and be in the 1102 
job series;
    (ii) Are prohibited from re-delegating their ratification authority;
    (iii) Must submit copies of ratification actions to the cognizant 
Office of Acquisition Management Division Director at Headquarters; and
    (iv) As with other ratifying officials, must abide by the other 
limitations on ratification of unauthorized commitments set forth in FAR 
1.602-3(c) and the EPAAR.
    (c) Procedures. (1) The program office shall notify the cognizant 
contracting office by memorandum of the circumstances surrounding an 
unauthorized commitment. The notification shall include:
    (i) All relevant documents and records;
    (ii) Documentation of the necessity for the work and benefit derived 
by the Government;
    (iii) A statement of the delivery status of the supplies or services 
associated with the unauthorized commitment;
    (iv) A list of the procurement sources solicited (if any) and the 
rationale for the source selected;
    (v) If only one source was solicited, a justification for other than 
full and open competition (JOFOC) as required by FAR 6.302, FAR 6.303, 
and 1506.303, or for simplified acquisition procedures exceeding the 
competition threshold in FAR 13.106, a sole source justification as 
required by 1513.170;
    (vi) A statement of steps taken or proposed to prevent reoccurrence 
of any unauthorized commitment.
    (2) The Division Director (or equivalent) of the responsible office 
shall approve the memorandum. If expenditure of funds is involved, the 
program office shall include a Procurement Request/Order, EPA Form 1900-
8, with funding sufficient to cover the action. The appropriation data 
cited on the 1900-8 shall be valid for the period in which the 
unauthorized commitment was made.
    (3) Upon receiving the notification, the Contracting Officer shall 
prepare a determination and findings regarding ratification of the 
unauthorized commitment for the ratifying official. The determination 
and findings shall include sufficient detail to support the recommended 
action. If ratification of the unauthorized commitment is recommended, 
the determination and findings shall include a determination that the 
price is fair and reasonable. To document the determination, additional 
information may be required from the Contractor. Concurrence by the 
Office of General Counsel is not mandatory, but shall be sought in 
difficult or unusual cases.
    (4) The ratifying official may inform the Inspector General (IG) of 
the action by memorandum through the Head of the Contracting Activity 
(HCA). For ratification actions exceeding the small purchase limitation, 
the ratifying official shall submit a memorandum to the Assistant 
Administrator for Administration and Resources Management through the 
HCA for transmittal to the Assistant, Associate, or Regional 
Administrator (or equivalent level) of the person responsible for the 
unauthorized commitment. This memorandum should contain a brief 
description of the circumstances surrounding the unauthorized 
commitment, recommend corrective action, and include a copy of any 
memorandum sent to the IG. Submission of a memorandum to the appropriate 
Assistant, Associate, or Regional Administrator for unauthorized 
commitments at or below the small purchase limitation is optional and 
may be accomplished at the discretion of the ratifying official.
    (d) Paid Advertisements. (1) EPA is generally not authorized to 
ratify improperly ordered paid advertisements. The ratifying official, 
however, may determine payment is proper subject to the limitations in 
FAR 1.602-3(c) if the individual responsible for the unauthorized 
commitment acted in good faith to comply with Agency acquisition 
policies and procedures.
    (2) The paying office shall forward invoice claims received in its 
office for improper paid advertisements to the

[[Page 8]]

cognizant ratifying official for a determination regarding ratification 
of the action.
    (3) If the ratifying official determines that an unauthorized 
commitment cannot be ratified by the Agency, the ratifying official 
shall instruct the submitter to present its claim to the General 
Accounting Office in accordance with the instructions contained in 4 CFR 
part 31, Claims Against the United States, General Procedures.
    (e) Payment of Properly Ratified Claims. After the unauthorized 
commitment is ratified, the Contractor must submit an invoice (or 
resubmit an invoice if one was previously submitted) citing the 
appropriate contract or purchase order number.

[55 FR 18340, May 2, 1990, as amended at 59 FR 18976, Apr. 21, 1994; 60 
FR 38505, July 27, 1995; 61 FR 57337, Nov. 6, 1996; 62 FR 33572, June 
20, 1997; 65 FR 37291, June 14, 2000; 65 FR 80792, Dec. 22, 2000; 67 FR 
5072, Feb. 4, 2002]



Sec. 1501.603  Selection, appointment, and termination of appointment.



Sec. 1501.603-1  General.

    EPA Contracting Officers shall be selected and appointed and their 
appointments terminated in accordance with the Contracting Officer 
warrant program specified in chapter 8 of the EPA ``Contracts Management 
Manual.''

                 PART 1502_DEFINITION OF WORDS AND TERMS

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

                       Subpart 1502.1_Definitions



Sec. 1502.100  Definitions.

    Chief of the Contracting Office (CCO) means the Office of 
Acquisition Management Division Directors at Headquarters, Research 
Triangle Park and Cincinnati. For purposes of ratification authority 
only, CCO is also defined as Regional Contracting Officer Supervisors 
and Office of Acquisition Management Service Center Managers. (See 
1501.602-3(b)(2) for the criteria for this ratification authority).
    Head of the Contracting Activity (HCA) means the Director, Office of 
Acquisition Management.
    Senior Procurement Executive (SPE) means the Director, Office of 
Acquisition Management.

[67 FR 5072, Feb. 4, 2002]

PART 1503_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

Sec.

Sec. 1503.000 Scope of part.

                        Subpart 1503.1_Safeguards


Sec. 1503.101-370 Personal conflicts of interest.

Sec. 1503.104-5 Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.

Subpart 1503.2--Contractor Gratuities to Government Personnel [Reserved]

Subpart 1503.3--Reports of Suspected Antitrust Violations [Reserved]

                     Subpart 1503.4_Contingent Fees


Sec. 1503.408 Evaluation of the SF 119.

  Subpart 1503.5_Contractor Responsibility To Avoid Improper Business 
                                Practices


Sec. 1503.500-70 Policy.

Sec. 1503.500-71 Procedures.

Sec. 1503.500-72 Contract clause.

  Subpart 1503.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them


Sec. 1503.600-70 Scope of subpart.

Sec. 1503.600-71 Definitions.

Sec. 1503.601 Policy.

Sec. 1503.602 Exceptions.

Sec. 1503.670 Solicitation disclosure provision.

   Subpart 1503.9_Whistle Blower Protections for Contractor Employees


Sec. 1503.905 Procedures for investigating complaints.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8837, Mar. 8, 1984, unless otherwise noted.



Sec. 1503.000  Scope of part.

    This part implements FAR part 3, cites EPA regulations on employee 
responsibilities and conduct, establishes

[[Page 9]]

responsibility for reporting violations and related actions, and 
provides for authorization of exceptions to policy.

                        Subpart 1503.1_Safeguards

    Source: 64 FR 47410, Aug. 31, 1999, unless otherwise noted.



Sec. 1503.101-370  Personal conflicts of interest.

    (a) Each EPA employee (including special employees) engaged in 
source evaluation and selection is required to be familiar with the 
provisions of 40 CFR part 3 regarding personal conflicts of interest. 
The employee shall inform the Source Selection Authority (SSA) in 
writing if his/her participation in the source evaluation and selection 
process could be interpreted as a possible or apparent conflict of 
interest. The SSA will consult with appropriate Agency officials prior 
to the SSA's determination. The SSA shall relieve any EPA employee who 
has a conflict of interest of further duties in connection with the 
evaluation and selection process.
    (b) Each EPA employee (including special employees, as defined by 
1503.600-71(b)) involved in source evaluation and selection is required 
to comply with the Office of Government Ethics ethics provisions at 5 
CFR part 2635.



Sec. 1503.104-5  Disclosure, protection, and marking of contractor bid 
          or proposal information and source selection information.

    (a)(1) The Chief of the Contracting Office (CCO) is the designated 
official to make the decision whether support contractors are used in 
proposal evaluation (as authorized at FAR 15.305(c) and as restricted at 
FAR 37.203(d)).
    (2) The following written certification and agreement shall be 
obtained from the non-Government evaluator prior to the release of any 
proposal to that evaluator:

        ``Certification on the Use and Disclosure of Proposals''

RFP :__________________________________________________________
Offeror:________________________________________________________________
    1. I hereby certify that to the best of my knowledge and belief, no 
conflict of interest exists that may diminish my capacity to perform an 
impartial, technically sound, objective review of this proposal(s) or 
otherwise result in a biased opinion or unfair competitive advantage.
    2. I agree to use any proposal information only for evaluation 
purposes. I agree not to copy any information from the proposal(s), to 
use my best effort to safeguard such information physically, and not to 
disclose the contents of nor release any information relating to the 
proposal(s) to anyone outside of the evaluation team assembled for this 
acquisition or 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 of Execution)

                          (End of certificate)

    (b) Information contained in proposals will be protected and 
disclosed to the extent permitted by law, and in accordance with FAR 
3.104-5, 15.207, and Agency procedures at 40 CFR part 2.

Subpart 1503.2--Contractor Gratuities to Government Personnel [Reserved]

Subpart 1503.3--Reports of Suspected Antitrust Violations [Reserved]

                     Subpart 1503.4_Contingent Fees



Sec. 1503.408  Evaluation of the SF 119.

  Subpart 1503.5_Contractor Responsibility To Avoid Improper Business 
                                Practices

    Source: 65 FR 57103, Sept. 21, 2000, unless otherwise noted.



Sec. 1503.500-70  Policy.

    Government contractors must conduct themselves with the highest 
degree of integrity and honesty. Contractors should have standards of 
conduct and internal control systems that:
    (a) Are suitable to the size of the company and the extent of their 
involvement in Government contracting.
    (b) Promote such standards.

[[Page 10]]

    (c) Facilitate timely discovery and disclosure of improper conduct 
in connection with Government contracts, and
    (d) Ensure corrective measures are promptly instituted and carried 
out.



Sec. 1503.500-71  Procedures.

    (a) A contractor's system of management controls should provide for:
    (1) A written code of business ethics and conduct and an ethics 
training program for all employees;
    (2) Periodic reviews of company business practices, procedures, 
policies and internal controls for compliance with standards of conduct 
and the special requirements of Government contracting;
    (3) A mechanism, such as a hotline, by which employees may support 
suspected instances of improper conduct, and instructions that encourage 
employees to make such reports;
    (4) Internal and/or external audits, as appropriate.
    (5) Disciplinary action for improper conduct;
    (6) Timely reporting to appropriate Government officials of any 
suspected or possible violation of law in connection with Government 
contracts or any other irregularities in connection with such contracts; 
and
    (7) Full cooperation with any Government agencies responsible for 
either investigation or corrective actions.
    (b) Contractors who are awarded an EPA contract of $1 million or 
more must display EPA Office of Inspector General Hotline Posters unless 
the contractor has established an internal reporting mechanism and 
program, as described in paragraph (a) of this section.



Sec. 1503.500-72  Contract clause.

    As required by EPAAR 1503.500-71(b), the contracting officer shall 
insert the clause at 1552.203-71, Display of EPA Office of Inspector 
General Hotline Poster, in all contracts valued at $1,000,000 or more, 
including all contract options.

  Subpart 1503.6_Contracts with Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 1503.600-70  Scope of subpart.

    This subpart implements and supplements FAR subpart 3.6 and sets 
forth EPA policy and procedures for identifying and dealing with 
conflicts of interest and improper influence or favoritism in connection 
with contracts involving current or former EPA employees. This subpart 
does not apply to agreements with other departments or agencies of the 
Federal Government, nor to contracts awarded to State or local units of 
Government.



Sec. 1503.600-71  Definitions.

    (a) Regular employee means any officer or employee of EPA who is 
employed or appointed, with or without compensation, to serve more than 
130 days during any period of 365 consecutive days, including regular 
officers of the Public Health Service Commissioned Corps and reserve 
officers of the Public Health Service Commissioned Corps while on active 
duty.
    (b) Special employee means an officer or employee of EPA who is 
retained, designated, appointed or employed to perform, with or without 
compensation, temporary duties either on a full-time or intermittent 
basis for not more that 130 days during any period of 365 consecutive 
days and who actually served more than 60 days during such 365-day 
period.



Sec. 1503.601  Policy.

    (a) No contract may be awarded without competition to a former 
regular or special EPA employee (or to a business concern or other 
organization owned or substantially owned or controlled by a former 
employee) whose employment terminated within 365 calendar days before 
submission of a proposal to EPA.
    (b) No contract shall be awarded without competition to a firm which 
employs, or proposes to employ, a current regular or special EPA 
employee or a former EPA regular or special employee whose employment 
terminated

[[Page 11]]

within 365 calendar days before submission of a proposal to EPA, if 
either of the following conditions exits:
    (1) The current or former EPA regular or special employee is or was 
involved in development or negotiating the proposal for the prospective 
contractor.
    (2) The current or former EPA regular or special employee will be 
involved directly or indirectly in the management, administration, or 
performance of the contract.



Sec. 1503.602  Exceptions.

    The Assistant Administrator for Administration and Resources 
Management may authorize an exception, in writing, to the policy in FAR 
3.601 and 1503.601 for the reasons stated in FAR 3.602, if the exception 
would not involve a violation of 18 U.S.C. 203, 18 U.S.C. 205, 18 U.S.C. 
207, 18 U.S.C. 208, or EPA regulations at 40 CFR part 3. The Assistant 
Administrator shall consult with the Designated Agency Ethics Official 
before authorizing any exceptions.

[60 FR 38505, July 27, 1995]



Sec. 1503.670  Solicitation of disclosure provision.

    The Contracting Officer shall insert the provision at 1552.203-70, 
Current/Former Agency Employee Involvement Certification, in all 
solicitations for sole source acquisitions.

[50 FR 14357, Apr. 11, 1985]

   Subpart 1503.9_Whistle Blower Protections for Contractor Employees



Sec. 1503.905  Procedures for investigating complaints.

    The Assistant Administrator for Administration and Resources 
Management is designated as the recipient of the written report of 
findings by the Inspector General. The Assistant Administrator shall 
ensure that the report of findings is disseminated in accordance with 
FAR 3.905(c).

[61 FR 57337, Nov. 6, 1996]

                    PART 1504_ADMINISTRATIVE MATTERS

                    Subpart 1504.6_Contract Reporting

Sec.

Sec. 1504.670 [Reserved]

                      Subpart 1504.8_Contract Files


Sec. 1504.804 Closeout of contract files.

Sec. 1504.804-5 Detailed procedures for closing out contract files.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); 41 U.S.C. 418b.

    Source: 49 FR 28246, July 11, 1984, unless otherwise noted.

                    Subpart 1504.6_Contract Reporting



Sec. 1504.670  [Reserved]

                      Subpart 1504.8_Contract Files



Sec. 1504.804  Closeout of contract files.



Sec. 1504.804-5  Detailed procedures for closing out contract files.

    In addition to those procedures set forth in FAR 4.804-5, the 
contracting office shall, before final payment is made under a cost 
reimbursement type contract, verify the allowability, allocability, and 
reasonableness of costs claimed. Verification of total costs incurred 
should be obtained from the Office of Audit through the Financial 
Analysis and Oversight Service Center in the form of a final audit 
report. Similar verification of actual costs shall be made for other 
contracts when cost incentives, price redeterminations, or cost-
reimbursement elements are involved. Termination settlement proposals 
shall be submitted to the Financial Analysis and Oversight Service 
Centerfor review by the Office of Audit as prescribed by FAR 49.107. All 
such audits will be coordinated through the cost advisory group in the 
contracting office. Exceptions to these procedures are the quick close-
out procedures as described in FAR 42.708 and Unit 42 of the EPA 
Acquisition Handbook.

[49 FR 28246, July 11, 1984, as amended at 63 FR 46899, Sept. 3, 1998; 
78 FR 46289, July 31, 2013]

[[Page 12]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                 PART 1505_PUBLICIZING CONTRACT ACTIONS

Sec.

Sec. 1505.000 Scope of part.

          Subpart 1505.2_Synopses of Proposed Contract Actions


Sec. 1505.202 Exceptions.

Sec. 1505.203 Publicizing and response time.

Sec. 1505.271 [Reserved]

Subpart 1505.5--Paid Advertisement [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8838, Mar. 8, 1984, unless otherwise noted.



Sec. 1505.000  Scope of part.

    This part provides instructions on publicizing contract 
opportunities and response time, instructions on information to include 
in the synopses of proposed contracts, instructions on publicizing 
orders under GSA schedule contracts, policy references relative to 
release of information, and procedures for obtaining information on 
previous Government contracts.

[50 FR 14357, Apr. 11, 1985]

          Subpart 1505.2_Synopses of Proposed Contract Actions



Sec. 1505.202  Exceptions.

    The Contracting Officer need not submit the notice required by FAR 
5.201 when the Contracting Officer determines in writing that the 
contract is for the services of experts for use in preparing or 
prosecuting a civil or criminal action under the Superfund Amendments 
and Reauthorization Act of 1986.

[60 FR 38505, July 27, 1995]



Sec. 1505.203  Publicizing and response time.

    (a) The Contracting Officer may, at his/her discretion under certain 
circumstances, elect to transmit a synopsis to the Commerce Business 
Daily (CBD) of a proposed contract action that falls within an exception 
to the synopsis requirement in FAR 5.202(a). For those contract actions, 
the Contracting Officer may provide for a lesser time period than the 15 
days required by FAR 5.203(a) and the 30 days required by FAR 5.203 (c) 
or (d), and the 45 days required by FAR 5.203(e). The Contracting 
Officer must identify the basis for the lesser time periods for response 
in the synopsis.
    (b) The authority for paragraph (a) does not extend to the synopsis 
of contract actions falling within the exception in FAR 5.202(a)(7), if 
to do so would disclose the originality of thought or innovativeness of 
the proposed research.

[50 FR 14357, Apr. 11, 1985, as amended at 62 FR 33572, June 20, 1997]



Sec. 1505.271  [Reserved]

Subpart 1505.5--Paid Advertisement [Reserved]

                   PART 1506_COMPETITION REQUIREMENTS

Sec.

Sec. 1506.000 Scope of part.

Subpart 1506.2--Full and Open Competition After Exclusion of Sources 
[Reserved]

           Subpart 1506.3_Other Than Full and Open Competition


Sec. 1506.302-5 Authorized or required by statute.

Sec. 1506.303-2 Content.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 50 FR 14357, Apr. 11, 1985, unless otherwise noted.



Sec. 1506.000  Scope of part.

    This part implements FAR part 6. It prescribes the Environmental 
Protection Agency policies and procedures in

[[Page 13]]

obtaining full and open competition in the acquisition process.

Subpart 1506.2--Full and Open Competition After Exclusion of Sources 
[Reserved]

           Subpart 1506.3_Other Than Full and Open Competition



Sec. 1506.302-5  Authorized or required by statute.

    (a) Authority. Section 109(e) of the Superfund Amendments and 
Reauthorization Act of 1986 (SARA) is cited as authority.
    (b) Application. (1) The contracting officer may use other than full 
and open competition to acquire the services of experts for use in 
preparing or prosecuting a civil or criminal action under SARA whether 
or not the expert is expected to testify at trial. The contracting 
officer need not prepare the written justification under FAR 6.303 when 
acquiring expert services under the authority of section 109(e) of SARA. 
The contracting officer shall document the official contract file when 
using this authority.
    (2) The contracting officer shall give notice to the Agency's 
Competition Advocate whenever a contract award is made using other than 
full and open competitition under this authority. The notice shall 
contain a copy of the contract and the summary of negotiations.

[53 FR 31872, Aug. 22, 1988]



Sec. 1506.303-2  Content.

    The documentation requirements in this section apply only to 
acquisitions processed using other than small purchase procedures. 
(Refer to 1513.170 for documentation for small purchase acquisitions).
    (a) The initiating office shall prepare a written justification for 
other than full and open competition (JOFOC) that documents the facts 
and circumstances substantiating the infeasibility of full and open 
competition for each recommended limited sources or sole source 
acquisition when required by FAR 6.302.
    (b) The recommendation shall be entitled ``Justification for Other 
Than Full and Open Competition'' and shall be signed at the programmatic 
Division Director or comparable office level prior to submission with 
the procurement request. The JOFOC shall contain the information 
prescribed in FAR 6.303-2 (a) and (b).
    (c) If unusual and compelling urgency (see FAR 6.303-2) is a basis 
for the JOFOC, then the following applies. Explain the circumstances 
that led to the need for an urgent contractual action. Explain why the 
requirement could not have been processed in sufficient time to permit 
full and open competition. It should be noted that the existence of 
legislation, court order, or Presidential mandate is not, of itself, a 
sufficient basis for a JOFOC. However, the circumstances necessitating 
legislation, court order, or Presidential mandate may justify 
contractual action on an other than full and open competition basis.
    (d) If the proposed acquisition has been synopsized in accordance 
with the applicable requirements in FAR subpart 5.2, the Contracting 
Officer must incorporate the evaluation of responses to the synopsis in 
the JOFOC. (See 1506.371(d) for contents of the evaluation document).

[50 FR 14357, Apr. 11, 1985; 50 FR 15425, Apr. 18, 1985]

                  PART 1508_REQUIRED SOURCES OF SUPPLY

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

       Subpart 1508.8_Acquisition of Printing and Related Supplies



Sec. 1508.870  Contract clause.

    Contracting Officers shall insert the contract clause at 1552.208-
70, Printing, in all contracts which require printing, duplication, 
binding, reproduction, and related services and are subject to the 
provisions of the Government Printing and Binding Regulations published 
by the Joint Committee on Printing, Congress of the United States.

[49 FR 8838, Mar. 8, 1984]

[[Page 14]]

                   PART 1509_CONTRACTOR QUALIFICATIONS

Sec.

Sec. 1509.000 Scope of part.

         Subpart 1509.4_Debarment, Suspension and Ineligibility


Sec. 1509.403 Definitions.

Sec. 1509.406 Debarment.

Sec. 1509.406-3 Procedures.

Sec. 1509.407 Suspension.

Sec. 1509.407-3 Procedures.

           Subpart 1509.5_Organizational Conflicts of Interest


Sec. 1509.500 Scope of subpart.

Sec. 1509.502 Applicability.

Sec. 1509.503 Waiver.

Sec. 1509.505-4 Obtaining access to proprietary information.

Sec. 1509.505-70 Information sources.

Sec. 1509.507-1 Solicitation provisions.

Sec. 1509.507-2 Contract clause.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8839, Mar. 8, 1984, unless otherwise noted.



Sec. 1509.000  Scope of part.

    This part implements FAR part 9 and provides policy and procedures 
pertaining to contractor's responsibility; debarment, suspension, and 
ineligibility; and organizational conflicts of interest.

         Subpart 1509.4_Debarment, Suspension and Ineligibility

    Source: 65 FR 37291, June 14, 2000, unless otherwise noted.



Sec. 1509.403  Definitions.

    The ``Debarring Official'' and the ``Suspending Official'' as 
defined in FAR 9.403 is a designated individual located in the Office of 
Grants and Debarment. This Agency official is authorized to make the 
determinations and provide the notifications required under FAR subpart 
9.4 or this subpart, except for the determinations required by FAR 
9.405-1(a) which are to be made by the Head of the Contracting Activity. 
All compelling reason determinations to be made by the Debarring or 
Suspending Official under FAR subpart 9.4 or this subpart will be made 
only after coordination and consultation with the Head of the 
Contracting Activity. See also 2 CFR part 1532.

[65 FR 37291, June 14, 2000, as amended at 72 FR 2427, Jan. 19, 2007]



Sec. 1509.406  Debarment.



Sec. 1509.406-3  Procedures.

    (a) Investigation and referral--(1) Contracting officer 
responsibility. (i) When contracting personnel discover information 
which indicates that a cause for debarment may exist, they shall 
promptly report such information to the cognizant Chief of the 
Contracting Office (CCO). Purchasing agents in simplified acquisition 
activities which do not come under the direct cognizance of a CCO shall 
report such information by memorandum, through their immediate 
supervisor, and addressed to the cognizant CCO responsible for their 
office's contract acquisitions.
    (ii) Contracting officers shall review ``The List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs'' to 
ensure that the Agency does not solicit offers from, award contracts to, 
or consent to subcontracts with listed contractors.
    (2) Chief of the Contracting Office responsibility. When the Chief 
of the Contracting Office determines that sufficient information is 
available to indicate that a cause for debarment may exist, such 
information shall be promptly reported by memorandum to the HCA. The 
memorandum provides the Chief of the Contracting Office's assessment of 
the information, any investigative report or audit, and any additional 
information he/she has discovered.
    (3) HCA responsibility. Upon receipt of a report of a suspected 
debarment situation, the HCA shall take the following actions:
    (i) Notify the Director, Suspension and Debarment Division, that 
investigation of a potential debarment has been initiated.
    (ii) Review the reported information.
    (iii) Investigate as necessary to verify or develop additional 
information.
    (iv) Refer the matter through the Suspension and Debarment Division 
to

[[Page 15]]

the Debarring Official for consideration of debarment; request that the 
Suspension and Debarment Division evaluate the information and, if 
appropriate, refer the matter to the Debarring Official for 
consideration of debarment; or recommend to the Suspension and Debarment 
Division that the matter be closed without further action because the 
facts do not warrant debarment.
    (v) Obtain legal counsel's opinion on referrals or recommendations 
made to the Debarring Official.
    (vi) Notify EPA Contracting Officers of those Contractors who are 
ineligible for solicitation, award, or subcontracting but who do not 
appear on the GSA Consolidated List; e.g., those who are ineligible 
based on a settlement reached by the Debarring Official under which the 
Contractor has agreed to voluntarily exclude itself from participation 
in Government contracting/subcontracting for a specified period or 
because of a Notice of Proposal to Debar.
    (4) Any official. When information is discovered which may indicate 
potential criminal or civil fraud activity, such information must be 
referred promptly to the EPA Office of Inspector General.
    (5) Debarring Official's responsibility. The Debarring Official 
shall:
    (i) Review referrals from the HCA together with the HCA's 
recommendations, if any, and determine whether further consideration by 
the Debarring Official is warranted and take such actions as are 
required by FAR subpart 9.4;
    (ii) Obtain the HCA's recommendation prior to reaching a voluntary 
exclusion settlement with a Contractor in lieu of debarment;
    (iii) Promptly notify the HCA of Contractors with whom a settlement 
in lieu of debarment has been reached under which the Contractor 
voluntarily excludes itself from or restricts its participation in 
Government contracting/subcontracting for a specified period; and of 
Contractors who have received a Notice of Proposal to Debar.
    (b) [Reserved]



Sec. 1509.407  Suspension.



Sec. 1509.407-3  Procedures.

    The procedures prescribed in 1509.406-3(a) shall be followed under 
conditions which appear to warrant suspension of a Contractor.

          Subpart 1509.5_Organizational Conflicts of Interests



Sec. 1509.500  Scope of subpart.

    This subpart establishes EPA policy and procedures for identifying, 
evaluating, and resolving organizational conflicts of interest. EPA's 
policy is to avoid, neutralize, or mitigate organizational conflicts of 
interest. If EPA is unable to neutralize or mitigate the effects of a 
potential conflict of interest, EPA will disqualify the prospective 
contractor or will terminate the contract when potential or actual 
conflicts are identified after award.

[49 FR 8839, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



Sec. 1509.502  Applicability.

    This subpart applies to all EPA contracts except agreements with 
other Federal agencies. However, this subpart applies to contracts with 
the Small Business Administration (SBA) under the 8(a) program.



Sec. 1509.503  Waiver.

    The Head of the Contracting Activity may waive any general rule or 
procedure of this subpart by determining that its application in a 
particular situation would not be in the Government's interest. Any 
request for waiver must be in accordance with FAR 9.503. The Assistant 
General Counsel for Contracts and Information Law shall be consulted on 
such waiver requests.

[49 FR 8839, Mar. 8, 1984, as amended at 61 FR 29316, June 10, 1996]



Sec. 1509.505-4  Obtaining access to proprietary information.

    Contractors gaining access to confidential business information of 
other companies in performing advisory services for EPA shall comply 
with the special requirements of 40 CFR part 2 and

[[Page 16]]

the provisions of their contracts relating to the treatment of 
confidential business information.



Sec. 1509.505-70  Information sources.

    (a) Disclosure. Prospective EPA Contractors responding to 
solicitations or submitting unsolicited proposals shall provide 
information to the Contracting Officer for use in identifying, 
evaluating, or resolving potential organizational conflicts of interest. 
The submittal may be a certification or a disclosure, pursuant to 
paragraph (a) (1) or (2) of this section.
    (1) If the prospective contractor is not aware of any information 
bearing on the existence of any organizational conflict of interest, it 
may so certify.
    (2) Prospective contractors not certifying in accordance with 
paragraph (a)(1) of this section must provide a disclosure statement 
which describes concisely all relevant facts concerning any past, 
present, or planned interests relating to the work to be performed and 
bearing on whether they, including their chief executives, directors, or 
any proposed consultant or subcontractor, may have a potential 
organizational conflict of interest.
    (b) Failure to disclose information. Any prospective contractor 
failing to provide full disclosure, certification, or other required 
information will not be eligible for award. Nondisclosure or 
misrepresentation of any relevant information may also result in 
disqualification from award, termination of the contract for default, or 
debarment from Government contracts, as well as other legal action or 
prosecution. In response to solicitations, EPA will consider any 
inadvertent failure to provide disclosure certification as a ``minor 
informality'' (as explained in FAR 14.405); however, the prospective 
contractor must correct the omission promptly.
    (c) Exception. Where the Contractor has previously submitted a 
conflict of interest certification or disclosure for a contract, only an 
update of such statement is required when the contract is modified.

[49 FR 8839, Mar. 8, 1994. Redesignated at 59 FR 18619, Apr. 19, 1994]



Sec. 1509.507-1  Solicitation provisions.

    (a) Advance notice of limitations. The Contracting Officer shall 
alert prospective contractors by placing a notice in the solicitation 
whenever a particular acquisition might create an organizational 
conflict of interest. The notice will:
    (1) Include the information prescribed in (FAR) 48 CFR 9.507-1;
    (2) Refer prospective contractors to this subpart; and
    (3) Require proposers to disclose relevant facts concerning any 
past, present, or currently planned interests relating to the work 
described in the solicitation.
    (b) Required solicitation provision. The Contracting Officer shall 
include the provisions at 1552.209-70 and 1552.209-72 in all 
solicitations, except where the following applies:
    (1) An Organizational Conflict of Interest provision is drafted for 
a particular acquisition (see Section 1509.507-1(a));
    (2) When the procurement is with another Federal agency (however, 
the provision is included in solicitations issued under the Small 
Business Administration's (SBA) 8(a) program); and
    (3) When the procurement is accomplished through simplified 
acquisition procedures, use of the provision is optional.

[49 FR 8839, Mar. 8, 1994. Redesignated and amended at 59 FR 18619, Apr. 
19, 1994; 61 FR 57337, Nov. 6, 1996; 62 FR 33572, June 20, 1997]



Sec. 1509.507-2  Contract clause.

    (a) The Contracting Officer shall include the clause at 1552.209-71 
in all contracts in excess of the simplified acquisition threshold and, 
as appropriate, in simplified acquisition procedures. Contracts for 
other than Superfund work shall include Alternate I in this clause in 
lieu of paragraph (e).
    (b) The Contracting Officer shall include the clause at 1552.209-73 
in all solicitations and contracts for Superfund work in excess of the 
simplified acquisition threshold and, as appropriate, in small purchases 
for Superfund work.
    (c) The Contracting Officer shall include the clause at 1552.209-74 
or its alternates in the following solicitations and contracts for 
Superfund work in

[[Page 17]]

excess of the simplified acquisition threshold and, as appropriate, in 
simplified acquisition procedures for Superfund work. The Contracting 
Officer shall include the clause at 1552.209-74 in all Response Action 
Contract (RAC) solicitations and contracts, except Site Specific 
solicitations and contracts. The term ``RAC'' in the Limitation of 
Future Contracting clauses includes not only RAC solicitations and 
contracts but other long term response action solicitations and 
contracts that provide professional architect/engineer, technical, and 
management services to EPA to support remedial response, enforcement 
oversight and non-time critical removal activities under the 
Comprehensive Environmental Response Compensation and Liability Act of 
1980, as amended by the Superfund Amendments Reauthorization Act of 
1986; and the Robert T. Stafford Natural Disaster Act pursuant to the 
Federal Response Plan and other laws to help address and/or mitigate 
endangerment to the public health, welfare or environment during 
emergencies and natural disasters, and to support States and communities 
in preparing for the responses to releases of hazardous substances.
    (1) Alternate I shall be used in all Emergency and Rapid Response 
Services (ERRS) solicitations and contracts, except site specific 
solicitations and contracts. The term ``ERRS'' in the Limitation of 
Future Contracting clauses includes not only ERRS solicitations and 
contracts but other emergency response type solicitations and contracts 
that provide fast responsive environmental cleanup services for 
hazardous substances/wastes/contaminants/material and petroleum 
products/oil. Environmental cleanup response to natural disasters and 
terrorist activities may also be required. ERRS pilot scale studies are 
included in the term ``treatability studies.''
    (2) Alternate II shall be used in all Superfund Technical Assistance 
and Removal Team (START) solicitations and contracts. The term ``START'' 
in the Limitation of Future Contracting clauses include not only START 
solicitations and contracts but other site removal and technical support 
solicitations and contracts that include activities related to technical 
analyses in determining the nature and extent of contamination at a site 
and making recommendations regarding response technologies.
    (3) Alternate III shall be used in all Environmental Services 
Assistance Team (ESAT) solicitations and contracts.
    (4) Alternate IV shall be used in all Enforcement Support Services 
(ESS) solicitations and contracts. The term ``ESS'' in the Limitation of 
Future Contracting clauses not only includes ESS solicitation and 
contracts but other enforcement support type solicitations and contracts 
that involve removal actions, mandatory notices to Potentially 
Responsible Parties (PRPs), penalty assessments, public comment periods, 
negotiations with PRPs, and statutes of limitations for pursuing cost 
recovery. The enforcement support services required under the contract 
may be conducted to support EPA enforcement actions under any 
environmental statute.
    (5) Alternate V shall be used in all Superfund Headquarters Support 
solicitations and contracts. The Contracting Officer is authorized to 
modify paragraph (c) of Alternate V to reflect any unique limitations 
applicable to the program requirements.
    (6) Alternate VI shall be used in all Site Specific solicitations 
and contracts.
    (d) The Contracting Officer shall insert the clause at 1552.209-75 
in Superfund solicitations and contracts in excess of the simplified 
acquisition threshold, where the solicitation or contract does not 
include (EPAAR) 48 CFR 1552.211-74, Work Assignments, Alternate I, or a 
similar clause requiring conflict of interest certifications during 
contract performance. This clause requires an annual conflict of 
interest certification from contractors when the contract does not 
require the submission of other conflict of interest certifications 
during contract performance. Contracts requiring annual certifications 
include: Site Specific contracts, the Contract Laboratory Program (CLP), 
and the Sample Management Office (SMO) contracts. The annual 
certification requires a contractor

[[Page 18]]

to certify that all organizational conflicts of interest have been 
reported, and that its personnel performing work under EPA contracts or 
relating to EPA contracts have been informed of their obligation to 
report personal and organizational conflicts of interest to the 
Contractor. The annual certification shall cover the one-year period 
from the date of contract award for the initial certification, and a 
one-year period starting from the previous certification for subsequent 
certifications. The certification must be received by the Contracting 
Officer no later than 45 days after the close of the certification 
period covered.

[59 FR 18619, Apr. 19, 1994, as amended at 61 FR 57337, Nov. 6, 1996; 70 
FR 61569, Oct. 25, 2005]

                    PART 1511_DESCRIBING AGENCY NEEDS

Sec.

Sec. 1511.000 Scope of part.

Sec. 1511.011 Solicitation Provisions and Contract Clauses.

Sec. 1511.011-70 Reports of work.

Sec. 1511.011-71 [Reserved]

Sec. 1511.011-72 Monthly progress report.

Sec. 1511.011-73 Level of effort.

Sec. 1511.011-74 Work assignments.

Sec. 1511.011-75 Working files.

Sec. 1511.011-76 Legal analysis.

Sec. 1511.011-77 Final reports.

Sec. 1511.011-78 Advisory and assistance services.

Sec. 1511.011-79 Information resources management.

    Authority: Sec. 205(c), 63 Sta. 390, as amended, 40 U.S.C. 486(c).

    Source: 61 FR 57337, Nov. 6, 1996, unless otherwise noted.



Sec. 1511.000  Scope of part.

    This part implements FAR part 11 and provides policy and procedures 
for describing Agency needs.



Sec. 1511.011  Solicitation Provisions and Contract Clauses.



Sec. 1511.011-70  Reports of work.

    Contracting officers shall insert one of the contract clauses at 
1552.211-70 when the contract requires the delivery of reports, 
including plans, evaluations, studies, analyses and manuals. The basic 
clause should be used when reports are specified in a contract 
attachment. Alternate I is used to specify reports in the contract 
schedule.

[78 FR 46290, July 31, 2013]



Sec. 1511.011-71  [Reserved]



Sec. 1511.011-72  Monthly progress report.

    Contracting Officers shall insert a contract clause substantially 
the same as the clause at 1552.211-72 when monthly progress reports are 
required.



Sec. 1511.011-73  Level of effort.

    The Contracting Officer shall insert the clause at 1552.211-73, 
Level of Effort-Cost Reimbursement Term Contract, in cost-reimbursement 
term contracts including cost contracts without fee, cost-sharing 
contracts, cost-plus-fixed-fee (CPFF) contracts, cost-plus-incentive-fee 
contracts (CPIF), and cost-plus-award-fee contracts (CPAF).

[78 FR 46290, July 31, 2013]



Sec. 1511.011-74  Work assignments.

    (a) Policy. When issuing work assignments, the independent 
government cost estimate shall not be released to the contractor. In 
most cases the Contracting Officer (CO) should authorize the contractor 
to expend only the estimated labor hours necessary to develop the work 
plan and to initiate preliminary tasks which must be performed before 
work plan approval can be made. However, in cases where the 
uncertainties involved in the effort are of such a magnitude that there 
is no reasonable expectation that the contractor can estimate the level 
of effort required by the tasks, objectives, or outcomes of the 
requirement, the CO may provide a ceiling level of effort for the entire 
work assignment at the time of its issuance. In such cases, the specific 
uncertainties precluding reasonable estimation of the required level of 
effort on the contractor's part must be documented in the contract file.
    (b) Contract clause. The CO shall insert the contract clause at 
1552.211.74, Work Assignments, in cost-reimbursement type term form 
contracts when work assignments are used. For Superfund contracts, 
except for contracts

[[Page 19]]

which require annual conflict of interest certificates (e.g. Site 
Specific contracts, the Contract Laboratory Program (CLP), and Sample 
Management Office (SMO) contracts), the CO shall use the clause with 
either Alternate I or Alternate II. Alternate I shall be used for 
contractors who have at least three (3) years of records that may be 
searched for certification purposes. Alternate II shall be used for 
contractors who do not have at least three (3) years of records that may 
be searched.

[77 FR 8175, Feb. 14, 2012, as amended at 78 FR 46290, July 31, 2013]



Sec. 1511.011-75  Working files.

    Contracting Officers shall insert the contract clause at 1552.211-75 
in all applicable EPA contracts where accurate working files on all work 
documentation is required in the performance of the contract.



Sec. 1511.011-76  Legal analysis.

    Contracting Officers shall insert the clause at 1552.211-76 when it 
is determined that the contract involves legal analysis.



Sec. 1511.011-77  Final reports.

    Contracting Officers shall insert the contract clause at 1552.211-77 
when a contract requires both a draft and a final report.



Sec. 1511.011-78  Advisory and assistance services.

    Contracting Officers shall insert the contract clause at 1552.211-78 
in all contracts for advisory and assistance services.



Sec. 1511.011-79  Information resources management.

    The Contracting Officer shall insert the clause at 1552.211-79, 
Compliance with EPA Policies for Information Resource Management, in all 
solicitations and contracts.

[[Page 20]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 1513_SIMPLIFIED ACQUISITION PROCEDURES

Sec.

Sec. 1513.000 Scope of part.

                         Subpart 1513.1_General


Sec. 1513.170 Competition exceptions and justification for sole source 
          simplified acquisition procedures.

Sec. 1513.170-1 Contents of sole source justifications.

Subpart 1513.4--Imprest Fund [Reserved]

                     Subpart 1513.5_Purchase Orders


Sec. 1513.505 Purchase order and related forms.

Sec. 1513.507 Clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 61 FR 57338, Nov. 6, 1996, unless otherwise noted.



Sec. 1513.000  Scope of part.

    This part prescribes EPA policies and procedures for the acquisition 
of supplies, nonpersonal services, and construction from commercial 
sources, the aggregate amount of which does not exceed the simplified 
acquisition threshold.

                         Subpart 1513.1_General



Sec. 1513.170  Competition exceptions and justification for sole source 
          simplified acquisition procedures.



Sec. 1513.170-1  Contents of sole source justifications.

    The program office submitting the procurement request must submit, 
as a separate attachment, a brief written statement in support of sole 
source acquisitions exceeding the micro-purchase threshold. The 
statement must cite one or more of the circumstances in FAR 6.302 and 
the necessary facts to support each circumstance. Although program 
offices may not cite the authority in FAR 6.302-7, the public interest 
may be used as a basis to support a sole source acquisition. If the 
acquisition has been synopsized as a notice of proposed sole source 
acquisition, the statement must include the results of the evaluation of 
responses to the synopsis.

Subpart 1513.4--Imprest Fund [Reserved]

                     Subpart 1513.5_Purchase Orders



Sec. 1513.505  Purchase order and related forms.

    Contracting Officers may use the EPA Form 1900-8, Procurement 
Request/Order, in lieu of Optional Forms 347 and 348 for individual 
purchases prepared in accordance with the instructions printed on the 
reverse thereof (see 1553.213-70).

[61 FR 57338, Nov. 6, 1996. Redesignated at 62 FR 33572, June 20, 1997]



Sec. 1513.507  Clauses.

    (a) It is the general policy of the Environmental Protection Agency 
that Contractor or vendor prescribed leases or maintenance agreements 
for equipment shall not be executed.
    (b) The Contracting Officer shall, where appropriate, insert the 
clause at 1552.213-70, Notice to Suppliers of Equipment, in orders for 
purchases or leases of automatic data processing equipment, word 
processing, and similar types of commercially available equipment for 
which vendors, as a matter of routine commercial practice, have 
developed their own leases and/or customer service maintenance 
agreements.

                        PART 1514_SEALED BIDDING

                   Subpart 1514.2_Solicitation of Bids

Sec.

Sec. 1514.201 Preparation of invitations for bids.

Sec. 1514.201-6 Solicitation provisions.

Sec. 1514.201-7 Contract clauses.

Sec. 1514.205 Solicitation mailing lists.

          Subpart 1514.4_Opening of Bids and Award of Contract


Sec. 1514.404 Rejection of bids.

[[Page 21]]


Sec. 1514.406 Mistakes in bids.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8843, Mar. 8, 1984, unless otherwise noted.

                   Subpart 1514.2_Solicitation of Bids



Sec. 1514.201  Preparation of invitations for bids.



Sec. 1514.201-6  Solicitation provisions.

    The Contracting Officer shall insert the solicitation provision at 
1552.214-71, Contract Award-Other Factors-Sealed Bidding, in invitations 
for bids when it is appropriate to describe other factors that will be 
used in evaluating bids for award.

[50 FR 14359, Apr. 11, 1985, as amended at 61 FR 55118, Oct. 24, 1996]



Sec. 1514.201-7  Contract clauses.

    The CCO is authorized to waive the inclusion of the clauses at FAR 
52.214-27 and 52.214-28, in accordance with FAR 14.201-7.

[55 FR 24579, June 18, 1990, as amended at 58 FR 18976, Apr. 21, 1994]



Sec. 1514.205  Solicitation mailing lists.

    When a solicitation and all amendments are posted on the Internet 
with a synopsis providing information as to how to access the 
solicitation and all amendments, the CO will need to maintain a mailing 
list of only those individuals requesting paper copies from the contract 
service center/branch. When possible, the CO should also build an 
electronic ``mailing list'' of companies downloading the solicitation 
from the Internet.

[49 FR 8843, Mar. 8, 1984, as amended at 62 FR 37148, July 11, 1997]

          Subpart 1514.4_Opening of Bids and Award of Contract



Sec. 1514.404  Rejection of bids.



Sec. 1514.406  Mistakes in bids.

                  PART 1515_CONTRACTING BY NEGOTIATION

Sec.

Sec. 1515.000 Scope of part.

  Subpart 1515.2_Solicitation and Receipt of Proposals and Information


Sec. 1515.209 Solicitation provisions and contract clauses.

                     Subpart 1515.3_Source Selection


Sec. 1515.302 Applicability.

Sec. 1515.303 Responsibilities.

Sec. 1515.305 Proposal evaluation.

Sec. 1515.305-70 Scoring plans.

Sec. 1515.305-71 Documentation of proposal evaluation.

Sec. 1515.305-72 Release of cost information.

                     Subpart 1515.4_Contract Pricing


Sec. 1515.404-4 Profit.

Sec. 1515.404-470 Policy.

Sec. 1515.404-471 EPA structured approach for developing profit or fee 
          objectives.

Sec. 1515.404-472 Other methods.

Sec. 1515.404-473 Limitations.

Sec. 1515.404-474 Waivers.

Sec. 1515.404-475 Cost realism.

Sec. 1515.408 Solicitation provisions and contract clauses.

                  Subpart 1515.6_Unsolicited Proposals


Sec. 1515.604 Agency points of contact.

Sec. 1515.606-70 Contracting methods.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 64 FR 47410, Aug. 31, 1999, unless otherwise noted.



Sec. 1515.000  Scope of part.

    This part implements and supplements FAR part 15. It prescribes the 
Environmental Protection Agency policies and procedures for contracting 
for supplies and services by negotiation.

[[Page 22]]

  Subpart 1515.2_Solicitation and Receipt of Proposals and Information



Sec. 1515.209  Solicitation provisions and contract clauses.

    In addition to those provisions prescribed at FAR 15.209 and in 
accordance with FAR 15.203(a)(4), the contracting officer shall identify 
and include the evaluation factors that will be considered in making the 
source selection and their relative importance in each solicitation.
    (a) The contracting officer shall insert the provisions at 1552.215-
70, ``EPA Source Evaluation and Selection Procedures--Negotiated 
Procurement'' and either: the provision at 1552.215-71, ``Evaluation 
Factors for Award,'' where all evaluation factors other than cost or 
price when combined are significantly more important than cost or price; 
or the provision in Alternate I to 1552.215-71, where all evaluation 
factors other than cost or price when combined are significantly less 
important than cost or price; or the provision in Alternate II to 
1552.215-71, where all evaluation factors other than cost or price when 
combined are approximately equal to cost or price; or Alternate III to 
1552.215-71 where award will be made to the offeror with the lowest-
evaluated cost or price whose proposal meets or exceeds the 
acceptability standards for non-cost factors.
    (b) Evaluation factors and significant subfactors should be prepared 
in accordance with FAR 15.305 and inserted into paragraph (b) of the 
provision at 1552.215-71, Alternate I, Alternate II, and if used, in 
Alternate III.
    (c) The contracting officer shall insert the clause at 1552.215-75, 
Past Performance Information, or a clause substantially the same as 
1552.215-75, in all competitively negotiated acquisitions with an 
estimated value in excess of $100,000.

[64 FR 47410, Aug. 31, 1999, as amended at 65 FR 58923, Oct. 3, 2000]

                     Subpart 1515.3_Source Selection



Sec. 1515.302  Applicability.

    FAR subpart 15.3 and this subpart apply to the selection of source 
or sources in competitive negotiation acquisitions in excess of the 
simplified acquisition threshold, except architect-engineering services 
which are covered in 1536.6.



Sec. 1515.303  Responsibilities.

    The Source Selection Authority (SSA) is established as follows:
    (a) Acquisitions having a potential value of $25,000,000 or more: 
Service Center Manager (SCM). This authority is not redelegable.
    (b) Acquisitions having a potential value of less than $25,000,000, 
but more than $10,000,000: SCM, who has the authority to redelegate SSA 
authority to a warranted 1102. If redelegated, review by another 
warranted 1102 designated by the SCM is also required. A Regional 
Contracting Officer Supervisor may act as the SSA, as determined on a 
case-by-case basis, by the Director, Superfund/RCRA Regional Procurement 
Operations Division (SRRPOD).
    (c) Acquisitions having a potential value of $10,000,000 or less: 
The contracting officer.

[67 FR 5072, Feb. 4, 2002]



Sec. 1515.305  Proposal evaluation.



Sec. 1515.305-70  Scoring plans.

    When trade-offs are performed (in accordance with FAR 15.101-1), the 
evaluation of technical and past performance shall be accomplished using 
the following scoring plan or one specifically developed for the 
solicitation, e.g., other numeric, adjectival, color rating systems, 
etc.

                              Scoring Plan
------------------------------------------------------------------------
            Value                        Descriptive statement
------------------------------------------------------------------------
0............................  The factor is not addressed, or is
                                totally deficient and without merit.

[[Page 23]]

 
1............................  The factor is addressed, but contains
                                deficiencies and/or weaknesses that can
                                be corrected only by major or
                                significant changes to relevant portions
                                of the proposal, or the factor is
                                addressed so minimally or vaguely that
                                there are widespread information gaps.
                                In addition, because of the
                                deficiencies, weaknesses, and/or
                                information gaps, serious concerns exist
                                on the part of the technical evaluation
                                team about the offeror's ability to
                                perform the required work.
2............................  Information related to the factor is
                                incomplete, unclear, or indicates an
                                inadequate approach to, or understanding
                                of the factor. The technical evaluation
                                team believes there is question as to
                                whether the offeror would be able to
                                perform satisfactorily.
3............................  The response to the factor is adequate.
                                Overall, it meets the specifications and
                                requirements, such that the technical
                                evaluation team believes that the
                                offeror could perform to meet the
                                Government's minimum requirements.
4............................  The response to the factor is good with
                                some superior features. Information
                                provided is generally clear, and the
                                demonstrated ability to accomplish the
                                technical requirements is acceptable
                                with the possibility of more than
                                adequate performance.
5............................  The response to the factor is superior in
                                most features.
------------------------------------------------------------------------



Sec. 1515.305-71  Documentation of proposal evaluation.

    In addition to the information required by FAR 15.305(a)(3), the 
technical evaluation documentation shall include:
    (a) Score sheets prepared by each individual team member must be 
made available upon the contracting officer's request. For contracts 
valued at $10,000,000 or less, the technical evaluation may be recorded 
on the short form technical evaluation format (EPA Form 1900-61) or 
another form specifically developed for the solicitation; and
    (b) A statement that the respective team members are free from 
actual or potential personal conflicts of interest, and are in 
compliance with the Office of Government Ethics ethics provisions at 5 
CFR part 2635.
    (c) Any information which might reveal that an offeror has an actual 
or potential organizational conflict of interest.
    (d) Any documentation related to exchanges with individual offerors.



Sec. 1515.305-72  Release of cost information.

    (a) In accordance with FAR 15.305(a)(4), the contracting officer may 
release the cost/price proposals to those members of the evaluation team 
who are evaluating proposals at his/her discretion.
    (b) These individuals would then use this information to perform a 
cost realism analysis as described in FAR 15.404-1(d). Any 
inconsistencies between the proposals and the solicitation requirements 
and/or any inconsistencies between the cost/price and other than cost/
price proposals should be identified.

                     Subpart 1515.4_Contract Pricing



Sec. 1515.404-4  Profit.

    This section implements FAR 15.404-4 and prescribes the EPA 
structured approach for establishing profit or fee prenegotiation 
objectives.



Sec. 1515.404-470  Policy.

    (a) The Agency's policy is to utilize profit to attract contractors 
who possess talents and skills necessary to the accomplishment of the 
objectives of the Agency, and to stimulate efficient contract 
performance. In negotiating profit/fee, it is necessary that all 
relevant factors be considered, and that fair and reasonable amounts be 
negotiated which give the contractor a profit objective commensurate 
with the nature of the work to be performed, the contractor's input to 
the total performance, and the risks assumed by the contractor.
    (b) The purpose of EPA's structured approach is:
    (1) To provide a standard method of evaluation;
    (2) To ensure consideration of all relevant factors;
    (3) To provide a basis for documentation and explanation of the 
profit or fee negotiation objective; and

[[Page 24]]

    (4) To allow contractors to earn profits commensurate with the 
assumption of risk.
    (c) The profit-analysis factors prescribed in the EPA structured 
approach for analyzing profit or fee include those prescribed by FAR 
15.404(d)(1), and additional factors authorized by FAR 15.404(d)(2) to 
foster achievement of program objectives. These profit or fee factors 
are prescribed in 1515.404-471.



Sec. 1515.404-471  EPA structured approach for developing profit or fee 
          objectives.

    (a) General. To properly reflect differences among contracts, and to 
select an appropriate relative profit/fee in consideration of these 
differences, weightings have been developed for application by the 
contracting officer to standard measurement bases representative of the 
prescribed profit factors cited in FAR 15.404(d) and EPAAR 1515.404-
471(b)(1). Each profit factor or subfactor, or its components, has been 
assigned weights relative to their value to the contract's overall 
effort, and the range of weights to be applied to each profit factor.
    (b)(1) Profit/fee factors. The factors set forth in this paragraph, 
and the weighted ranges listed after each factor, shall be used in all 
instances where the profit/fee is negotiated.

                 Contractor's Input to Total Performance
------------------------------------------------------------------------
                                                Weight Range (Percent)
------------------------------------------------------------------------
Direct material............................  1 to 4.
Professional/technical labor...............  8 to 15.
Professional/technical overhead............  6 to 9.
General labor..............................  5 to 9.
General overhead...........................  4 to 7.
Subcontractors.............................  1 to 4.
Other direct costs.........................  1 to 3.
General and administrative expenses........  5 to 8.
Contractor's assumption of contract cost     0 to 6.
 risk.
------------------------------------------------------------------------

    (2) The contracting officer shall first measure the ``Contractor's 
Input to Total Performance'' by the assignment of a profit percentage 
within the designated weight ranges to each element of contract cost. 
Such costs are multiplied by the specific percentages to arrive at a 
specific dollar profit or fee.
    (3) The amount calculated for facilities capital cost of money 
(FCCM) shall not be included as part of the cost base for computation of 
profit or fee. The profit or fee objective shall be reduced by an amount 
equal to the amount of facilities capital cost of money allowed. A 
complete discussion of the determination of facilities capital cost of 
money and its application and administration is set forth in FAR 31.205-
10, and the appendix to the FAR (see 48 CFR 9904.414).
    (4) After computing a total dollar profit or fee for the 
Contractor's Input to Total Performance, the contracting officer shall 
calculate the specific profit dollars assigned for cost risk and 
performance. This is accomplished by multiplying the total Government 
cost objective, exclusive of any FCCM, by the specific weight assigned 
to cost risk and performance. The contracting officer shall then 
determine the profit or fee objective by adding the total profit dollars 
for the Contractor's Input to Total Performance to the specific dollar 
profits assigned to cost risk and performance. The contracting officer 
shall use EPA Form 1900-2 in hardcopy or electronic copy equivalent to 
facilitate the calculation of the profit or fee objective.
    (5) The weight factors discussed in this section are designed for 
arriving at profit or fee objectives for other than nonprofit and not-
for-profit organizations. Nonprofit and not-for-profit organizations are 
addressed as follows:
    (i) Nonprofit and not-for-profit organizations are defined as those 
business entities organized and operated:
    (A) Exclusively for charitable, scientific, or educational purposes;
    (B) Where no part of the net earnings inure to the benefit of any 
private shareholder or individual;
    (C) Where no substantial part of the activities is for propaganda or 
otherwise attempting to influence legislation or participating in any 
political campaign on behalf of any candidate for public office; and
    (D) Which are exempt from Federal income taxation under Section 51 
of the Internal Revenue Code. (26 U.S.C.)
    (ii) For contracts with nonprofit and not-for-profit organizations 
where fees are involved, special factor of -3 percent shall be assigned 
in all cases.
    (c) Assignment of values to specific factors--(1) General. In making 
a judgment

[[Page 25]]

on the value of each factor, the contracting officer should be governed 
by the definition, description, and purpose of the factors, together 
with considerations for evaluation set forth in this paragraph.
    (2) Contractor's input to total performance. This factor is a 
measure of how much the contractor is expected to contribute to the 
overall effort necessary to meet the contract performance requirements 
in an efficient manner. This factor, which is separate from the 
contractor's responsibility for contract performance, takes into account 
what resources are necessary, and the creativity and ingenuity needed 
for the contractor to perform the statement of work successfully. This 
is a recognition that within a given performance output, or within a 
given sales dollar figure, necessary efforts on the part of individual 
contractors can vary widely in both value, quantity, and quality, and 
that the profit or fee objective should reflect the extent and nature of 
the contractor's contribution to total performance. Greater profit 
opportunity should be provided under contracts requiring a high degree 
of professional and managerial skill and to prospective contractors 
whose skills, facilities, and technical assets can be expected to lead 
to efficient and economical contract performance. The evaluation of this 
factor requires an analysis of the cost content of the proposed contract 
as follows:
    (i) Direct material (purchased parts and other material). (A) 
Analysis of these cost items shall include an evaluation of the 
managerial and technical effort necessary to obtain the required 
material. This evaluation shall include consideration of the number of 
orders and suppliers, and whether established sources are available or 
new sources must be developed. The contracting officer shall also 
determine whether the contractor will, for example, obtain the materials 
by routine orders or readily available supplies (particularly those of 
substantial value in relation to the total contract costs), or by 
detailed subcontracts for which the prime contractor will be required to 
develop complex specifications involving creative design.
    (B) Consideration should be given to the managerial and technical 
efforts necessary for the prime contractor to administer subcontracts, 
and to select subcontractors, including efforts to break out 
subcontracts from sole sources, through the introduction of competition.
    (C) Recognized costs proposed as direct material costs such as scrap 
charges shall be treated as material for profit evaluation.
    (D) If intracompany transfers are accepted at price, in accordance 
with FAR 31.205-26(e), they should be excluded from the profit or fee 
computation. Other intracompany transfers shall be evaluated by 
individual components of cost, i.e., material, labor, and overhead.
    (ii) Professional/technical and general labor. Analysis of labor 
should include evaluation of the comparative quality and level of the 
talents and experience to be employed. In evaluating labor for the 
purpose of assigning profit dollars, consideration should be given to 
the amount of notable scientific talent or unusual or scarce talent 
needed, in contrast to journeyman effort or supporting personnel. The 
diversity, or lack thereof, of scientific and engineering specialties 
required for contract performance, and the corresponding need for 
supervision and coordination, should also be evaluated.
    (iii) Overhead and general and administrative expenses. (A) Where 
practicable, analysis of these overhead items of cost should include the 
evaluation of the individual elements of these expenses, and how much 
they contribute to contract performance. This analysis should include a 
determination of the amount of labor within these overhead pools, and 
how this labor would be treated if it were considered as direct labor 
under the contract. The allocable labor elements should be given the 
same profit consideration as if they were direct labor. The other 
elements of indirect cost pools should be evaluated to determine whether 
they are routine expenses such as utilities, depreciation, and 
maintenance, and therefore given less profit consideration.
    (B) The contractor's accounting system need not break down its 
overhead

[[Page 26]]

expenses within the classification of professional/technical overhead, 
general overhead and general and administrative expenses.
    (iv) Subcontractors. (A) Subcontract costs should be analyzed from 
the standpoint of the talents and skills of the subcontractors. The 
analysis should consider if the prime contractor normally should be 
expected to have people with comparable expertise employed as full-time 
staff, or if the contract requires skills not normally available in an 
employer-employee relationship. Where the prime contractor is using 
subcontractors to perform labor which would normally be expected to be 
done in-house, the rating factor should generally be at or near 1 
percent. Where exceptional expertise is retained, or the prime 
contractor is participating in the mentor-prot[eacute]g[eacute] program, 
the assigned weight should be nearer to the high end of the range.
    (v) Other direct costs. The analysis of these costs should be 
similar to the analysis of direct material.
    (3) Contractor's assumption of contract cost risk. (i) The risk of 
contract costs should be shifted to the fullest extent practicable to 
contractors, and the Government should assign a rating that reflects the 
degree of risk assumption. Evaluation of this risk requires a 
determination of the degree of cost responsibility the contractor 
assumes, the reliability of the cost estimates in relation to the task 
assumed, and the chance of the contractor's success or failure. This 
factor is specifically limited to the risk of contract costs. Thus, such 
risks of losing potential profits in other fields are not within the 
scope of this factor.
    (ii) The first 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, depending on 
selection of contract type. The extremes are a cost-plus-fixed-fee 
contract requiring only that the contractor use its best efforts to 
perform a task, and a firm-fixed-price contract for a complex item. A 
cost-plus-fixed-fee contract would reflect a minimum assumption of cost 
responsibility by the contractor, whereas a firm-fixed-price contract 
would reflect a complete assumption of cost responsibility by the 
contractor. Therefore, in the first step of determining the value given 
for the contractor's assumption of contract cost risk, a lower rating 
would be assigned to a proposed cost-plus-fixed-fee best efforts 
contract, and a higher rating would be assigned to a firm-fixed-price 
contract.
    (iii) The second determination is that of the reliability of the 
cost estimates. Sound price negotiation requires well-defined contract 
objectives and reliable cost estimates. An excessive cost estimate 
reduces the possibility that the cost of performance will exceed the 
contract price, thereby reducing the contractor's assumption of contract 
cost risk.
    (iv) The third determination is that of the difficulty of the 
contractor's task. The contractor's task may be difficult or easy, 
regardless of the type of contract.
    (v) Contractors are likely to assume greater cost risks only if the 
contracting officer objectively analyzes the risk incident to the 
proposed contract, and is willing to compensate contractors for it. 
Generally, a cost-plus-fixed-fee contract would not justify a reward for 
risk in excess of 1 percent, nor would a firm-fixed-price contract 
normally justify a reward of less than 4 percent. Where proper contract 
type selection has been made, the reward for risk by contract type would 
usually fall into the following percentage ranges:

------------------------------------------------------------------------
              Type of contract                    Percentage ranges
------------------------------------------------------------------------
Cost-plus-fixed-fee........................  0 to 1.
Prospective price determination............  4 to 5.
Firm-fixed-price...........................  4 to 6.
------------------------------------------------------------------------

    (A) These ranges may not be appropriate for all acquisitions. The 
contracting officer might 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. The 
contractor's willingness to accept ceilings on their burden rates should 
be considered as a risk factor for cost-plus-fixed-fee contracts.

[[Page 27]]

    (B) In making a contract cost risk evaluation in an acquisition that 
involves definitization of a letter contract, consideration should be 
given to the effect on total contract cost risk as a result of partial 
performance under a letter contract. Under some circumstances, the total 
amount of cost risk may have been effectively reduced by the existence 
of a letter contract. Under other circumstances, it may be apparent that 
the contractor's cost risk remained substantially as great as though a 
letter contract had not been used. Where a contractor has begun work 
under an anticipatory cost letter, the risk assumed is greater than 
normal. To be equitable, the determination of a profit weight for 
application to the total of all recognized costs, both those incurred 
and those yet to be expended, must be made with consideration to all 
relevant circumstances, not just to the portion of costs incurred or 
percentage of work completed prior to definitization.



Sec. 1515.404-472  Other methods.

    (a) Contracting officers may use methods other than those prescribed 
in 1515.404-470 for establishing profit or fee objectives under the 
following types of contracts and circumstances:
    (1) Architect-engineering contracts;
    (2) Personal service contracts;
    (3) Management contracts, e.g., for maintenance or operation of 
Government facilities;
    (4) Termination settlements;
    (5) Services under labor-hour and time and material contracts which 
provide for payment on an hourly, daily, or monthly basis, and where the 
contractor's contribution constitutes the furnishing of personnel.
    (6) Construction contracts; and
    (7) Cost-plus-award-fee contracts.
    (b) Generally, it is expected that such methods will:
    (1) Provide the contracting officer with a technique that will 
ensure consideration of the relative value of the appropriate profit 
factors described under ``Profit Factors,'' in FAR 15.404-4(d) and
    (2) Serve as a basis for documentation of the profit or fee 
objective.



Sec. 1515.404-473  Limitations.

    (a) In addition to the limitations established by statute (see FAR 
15.404-4(b)(4)(i)), no administrative ceilings on profits or fees shall 
be established, except those identified in EPAAR (48 CFR) 1516.404-
273(b).
    (b) The contracting officer shall not consider any known 
subcontractor profit/fee as part of the basis for determining the 
contractor profit/fee.



Sec. 1515.404-474  Waivers.

    Under unusual circumstances, the SCM may specifically waive the 
requirement for the use of the guidelines. Such exceptions shall be 
justified in writing, and authorized only in situations where the 
guidelines method is unsuitable.

[64 FR 47410, Aug. 31, 1999, as amended at 67 FR 5072, Feb. 4, 2002]



Sec. 1515.404-475  Cost realism.

    The EPA structured approach is not required when the contracting 
officer is evaluating cost realism in a competitive acquisition.



Sec. 1515.408  Solicitation provisions and contract clauses.

    (a) In addition to those provisions and clauses prescribed in FAR 
15.408, when an exception to FAR 15.403-1 does not apply and no other 
means available can be used to ascertain whether a fair and reasonable 
price can be determined, the contracting officer may insert in 
negotiated solicitations the provisions at--
    (1) 1552.215-72 when requesting information other than cost or 
pricing data, for cost-reimbursable, level-of-effort-contracts. Use 
Alternate I for cost-reimbursable, level-of-effort contracts when the 
Government's requirement is for fully dedicated staff for a twelve month 
period(s) of performance and performance is on a Government facility; 
Alternate II for acquisitions for cost-reimbursable, level-of-effort 
contracts when the Government's requirement is for fully dedicated staff 
for a twelve month period(s) of performance and performance is not on a 
Government facility; and Alternate III if the Government's requirement 
is for the acquisition of supplies or equipment.

[[Page 28]]

The contracting officer may make revisions, deletions, or additions to 
1552.215-72 and its Alternates I-III as needed to fit an individual 
acquisition, and
    (2) 1552.215-73, General Financial and Organizational Information.
    (b) If uncompensated overtime is proposed, the resultant contract 
shall include the provisions at FAR 52.237-10 and include the provision 
at 1552.215-74. The contracting officer may use provisions substantially 
the same as 1552.215-74 without requesting a deviation to the EPAAR.

                  Subpart 1515.6_Unsolicited Proposals



Sec. 1515.604  Agency points of contact.

    The Director, Grants Administration Division (3903R), EPA, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, is the Agency contact 
point established to coordinate the receipt and handling of unsolicited 
proposals.

[64 FR 47410, Aug. 31, 1999, 65 FR 47325, Aug. 2, 2000]



Sec. 1515.606-70  Contracting methods.

    The Department of Housing and Urban Development-Independent Agencies 
Appropriation Act contains a requirement that none of the funds provided 
in the Act may be used for payment through grants or contracts to 
recipients that do not share in the cost of conducting research 
resulting from proposals that are not specifically solicited by the 
Government. Accordingly, contracts for research which result from 
unsolicited proposals shall provide for the contractor to bear a portion 
of the cost of performance for work subject to the Act. The extent of 
the cost sharing shall reflect the mutuality of interest of the 
contractor and the Government. Therefore, where there is no measurable 
gain to the performing organization, cost sharing is not required.

                      PART 1516_TYPES OF CONTRACTS

               Subpart 1516.3_Cost-Reimbursement Contracts

Sec.

Sec. 1516.301-70 Payment of fee.

Sec. 1516.303 Cost-sharing contracts.

Sec. 1516.303-71 Definition.

Sec. 1516.303-72 Policy.

Sec. 1516.303-73 Types of cost-sharing.

Sec. 1516.303-74 Determining the value of in-kind contributions.

Sec. 1516.303-75 Amount of cost-sharing.

Sec. 1516.303-76 Fee on cost-sharing contracts by subcontractors.

Sec. 1516.303-77 Administrative requirements.

Sec. 1516.307 Contract clauses.

Sec. 1516.370 Solicitation provision.

                   Subpart 1516.4_Incentive Contracts


Sec. 1516.401-1 General.

Sec. 1516.401-70 Award term incentives.

Sec. 1516.401-270 Definition.

Sec. 1516.405-2 Cost-plus-award-fee contracts.

Sec. 1516.405-270 Definitions.

Sec. 1516.405-271 Limitations.

Sec. 1516.405-272 Waiver.

Sec. 1516.406 Contract clauses.

              Subpart 1516.5_Indefinite-Delivery Contracts


Sec. 1516.505 Contract clauses.

   Subpart 1516.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 1516.603 Letter Contracts.

Sec. 1516.603-1 What is a Notice to Proceed?

Sec. 1516.603-2 What are the requirements for use of an NTP?

Sec. 1516.603-3 Limitations.

    Authority: The provisions of this regulation are issued under 5 
U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 
41 U.S.C. 418b.

    Source: 49 FR 8852, Mar. 8, 1984, unless otherwise noted.

               Subpart 1516.3_Cost-Reimbursement Contracts



Sec. 1516.301-70  Payment of fee.

    The policy of EPA for cost-reimbursement, term form contracts is to 
make provisional payment of fee (i.e. the fixed fee on cost-plus-fixed-
fee type contracts or the base fee on cost-plus-award-fee type 
contracts) on a percentage of work completed basis, when such a method 
will not prove detrimental to proper contract performance. Percentage of 
work completed is the ratio of the direct labor hours performed in 
relation to the direct labor hours set forth in the contract in clause 
1552.212-

[[Page 29]]

70, ``Level of Effort--Cost Reimbursement Term Contract.'' Provisional 
payment of fee will remain subject to withholding provisions, such as 48 
CFR 52.216-8, Fixed Fee.

[56 FR 43711, Sept. 4, 1991]



Sec. 1516.303  Cost-sharing contracts.



Sec. 1516.303-71  Definition.

    Cost-sharing is a generic term denoting any situation where the 
Government does not fully reimburse a contractor for all allowable costs 
necessary to accomplish the project under the contract. This term 
encompasses cost-matching and cost-limitations, in addition to cost-
sharing. Cost-sharing does not include usual contractual limitations 
such as indirect cost ceilings in accordance with FAR 42.707, or 
ceilings on travel or other direct costs. Cost-sharing contracts may be 
required as a result of Congressional mandate.

[61 FR 14504, Apr. 2, 1996]



Sec. 1516.303-72  Policy.

    (a) The Agency shall use cost-sharing contracts where the principal 
purpose is ultimate commercialization and utilization of technologies by 
the private sector. There should also be a reasonable expectation of 
future economic benefits for the contractor and the Government beyond 
the Government's contract.
    (b) Cost-sharing may be accomplished by a contribution to either 
direct or indirect costs, provided such costs are reasonable, allocable 
and allowable in accordance with the cost principles of the contract. 
Allowable costs which are absorbed by the contractor as its share of 
contract costs may not be charged directly or indirectly to the Agency 
or the Federal Government.
    (c) Unsolicited proposals will be considered on a case-by-case basis 
by the Contracting Officer as to the appropriateness of cost-sharing.

[61 FR 14504, Apr. 2, 1996]



Sec. 1516.303-73  Types of cost-sharing.

    (a) Cost-sharing may be accomplished in various forms or 
combinations. These include, but are not limited to: cash outlays, real 
property or interest therein, personal property or services, cost 
matching, or other in-kind contributions.
    (b) In-kind contributions represent non-cash contributions provided 
by the performing contractor which would normally be a charge against 
the contract. While in-kind contributions are an acceptable method of 
cost-sharing, should the booked costs of property appear unrealistic, 
the fair market value of the property shall be determined pursuant to 
1516.303-74 of this chapter.
    (c) In-kind contributions may be in the form of personal property 
(equipment or supplies) or services which are directly beneficial, 
specifically identifiable and necessary for the performance of the 
contract. In-kind contributions must meet all of the following criteria 
before acceptance.
    (1) Be verifiable from the contractor's books and records;
    (2) Not be included as contributions under any other Federal 
contract;
    (3) Be necessary to accomplish project objectives;
    (4) Provide for types of charges that would otherwise be allowable 
under applicable Federal cost principles appropriate to the contractor's 
organization; and
    (5) Not be paid for by the Federal Government under any contract, 
agreement or grant.

[61 FR 14504, Apr. 2, 1996]



Sec. 1516.303-74  Determining the value of in-kind contributions.

    In-kind contributions accepted from a contractor will be addressed 
on a case-by-case basis provided the established values do not exceed 
fair market values.
    (a) Where the Agency receives title to donated land, building, 
equipment or supplies and the property is not fully consumed during 
performance of the contract, the Contracting Officer should establish 
the property's value based on the contractor's booked costs (i.e., 
acquisition cost less depreciation, if any) at the time of donation. If 
the booked costs reflect unrealistic values when compared to current 
market conditions, the Contracting Officer may establish another 
appropriate value if supported by an independent appraisal of the fair 
market value of the donated

[[Page 30]]

property or property in similar condition and circumstances.
    (b) The Contracting Officer will monitor reports of in-kind costs as 
they are incurred or recognized during the contract period of 
performance to determine that the value of in-kind services does not 
exceed fair market values.
    (c) The value of any services or the use of personal or real 
property donated by a contractor should be established when necessary in 
accordance with generally accepted accounting policies and Federal cost 
principles.

[61 FR 14505, Apr. 2, 1996]



Sec. 1516.303-75  Amount of cost-sharing.

    (a) Contractors should contribute a reasonable amount of the total 
project cost covered under the contract. The ratio of cost participation 
should correlate to the apparent advantages available to performers and 
the proximity of implementing commercialization, i.e., the higher the 
potential for future profits, the higher the contractor's share should 
be.
    (b) Fee will not be paid to the contractor or any member of the 
contractor team (subcontractors and consultants) which has a substantial 
and direct interest in the contract, or is in a position to gain long 
term benefits from the contract. A vulnerability the Contracting Officer 
should consider in reviewing a prime contractor's request for consent to 
subcontract is whether subcontractors under prime cost-sharing contracts 
have a significant direct interest in the contract to gain long-term 
benefits from the contract.
    (c) The Contracting Officer, with the input of technical experts, 
may consider the following factors in determining reasonable levels of 
cost sharing:
    (1) The availability of the technology to competitors;
    (2) Improvements in the contractor's market share position;
    (3) The time and risk necessary to achieve success;
    (4) If the results of the project involve patent rights which could 
be sold or licensed;
    (5) If the contractor has non-Federal sources of funds to include as 
cost participation; and
    (6) If the contractor has the production and other capabilities to 
capitalize the results of the project.
    (d) A contractor's cost participation can be provided by other 
subcontractors with which it has contractual arrangements to perform the 
contract as long as the contractor's cost-sharing goal is met.

[61 FR 14505, Apr. 2, 1996]



Sec. 1516.303-76  Fee on cost-sharing contracts by subcontractors.

    (a) Subcontractors under prime cost-sharing contracts who do not 
have a significant direct interest in the contract or who are not in a 
position to gain long-term benefits from the contract may earn a fee.
    (b) Contracting Officers should be alert to a potential 
vulnerability for the Government under cost-sharing contracts when 
evaluating proposed subcontractors or consenting to a subcontract during 
contract administration, where the subcontractor is a wholly-owned 
subsidiary of the prime. The vulnerability consists of the subsidiary 
earning a large amount of fee, which could be returned to the prime 
through stock dividends or other intercompany transactions. This could 
circumvent the objective of a cost-sharing contract.

[61 FR 14505, Apr. 2, 1996]



Sec. 1516.303-77  Administrative requirements.

    (a) The initial Procurement Request shall reflect the total 
estimated cost of the cost-sharing contract. The face page of the 
contract award shall indicate the total estimated cost of the contract, 
the Contractor's share of the cost, and the Government's share of the 
cost.
    (b) The manner of cost-sharing and how it is to be accomplished 
shall be set forth in the contract. Additionally, contracts which 
provide for cost-sharing shall require the contractor to maintain 
records adequate to reflect the nature and extent of their cost-sharing 
as well as those costs charged the Agency. Such records may be subject 
to an Agency audit.

[61 FR 14505, Apr. 2, 1996]

[[Page 31]]



Sec. 1516.307  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-71, 
Date of Incurrence of Cost, in cost-reimbursement contracts when an 
anticipatory cost letter has been issued on the project.
    (b) The Contracting Officer shall insert the clause at 1552.216-74, 
Payment of Fee, in solicitations and contracts where a cost-
reimbursement term form contract is contemplated, unless the Contracting 
Officer determines that such a provision would be detrimental to 
ensuring proper contract performance.
    (c) The Contracting Officer shall insert a clause substantially the 
same as 48 CFR 1552.216-76, Estimated Cost and Cost-Sharing, in 
solicitations and contracts where the total incurred costs are shared by 
the contractor on a straight percentage basis. The Contracting Officer 
may develop other clauses, as appropriate, following the same approach, 
but reflecting different cost-sharing arrangements negotiated on 
specific contract actions.

[49 FR 8852, Mar. 8, 1984, as amended at 56 FR 43711, Sept. 4, 1991; 61 
FR 14505, Apr. 2, 1996; 61 FR 57338, Nov. 6, 1996]



Sec. 1516.370  Solicitation provision.

    The solicitation document shall state whether any cost-sharing is 
required, and may set forth a target level of cost-sharing. Although 
technical considerations are normally most important, the degree of 
cost-sharing may be considered in a selection decision when cost becomes 
a determinative factor in a selection decision.

[61 FR 14505, Apr. 2, 1996]

                   Subpart 1516.4_Incentive Contracts



Sec. 1516.401-1  General.



Sec. 1516.401-70  Award term incentives.

    (a) Award term incentives enable a contractor to become eligible for 
additional periods of performance under a current contract by achieving 
prescribed performance measures under that contract.
    (b) Award term incentives are designed to motivate contractors to 
superior performance. Accordingly, the prescribed performance measures, 
i.e., acceptable quality levels (AQL) which must be achieved by a 
contractor to become eligible for an award term typically will be in 
excess of the AQLs necessary for Government acceptance of contract 
deliverables.
    (c) The Award Term Incentive Plan sets forth the evaluation process, 
including the evaluation criteria and performance measures, and serves 
as the basis for award term decisions. The Award Term Incentive Plan may 
be unilaterally revised by the Government.
    (d) Award term incentives may be used in conjunction with options. 
The Federal Acquisition Regulation does not prescribe a level of 
performance for the exercise of options, as contrasted with award term 
incentives, which should require superior performance as discussed in 
paragraph (b) of this subsection. Award term incentive periods will 
follow any option periods.
    (e)(1) The Government has the unilateral right not to grant or to 
cancel award term incentive periods and the associated award term 
incentive plans if--
    (i) The Contracting Officer has failed to initiate an award term 
incentive period, regardless of whether the contractor's performance 
permitted the Contracting Officer to consider initiating the award term 
incentive period; or
    (ii) The contractor has failed to achieve the performance measures 
for the corresponding evaluation period; or
    (iii) The Government notifies the contractor in writing it does not 
have funds available for the award term; or
    (iv) The Government no longer has a need for the award term 
incentive period at or before the time an award term incentive period is 
to commence.
    (2) When an award term incentive period is not granted or cancelled, 
any--
    (i) Prior award term incentive periods for which the contractor 
remains otherwise eligible are unaffected.
    (ii) Subsequent award term incentive periods are thereby also 
cancelled.
    (f) Award term incentives may be appropriate for any type of service 
contract.

[73 FR 1980, Jan. 11, 2008]

[[Page 32]]



Sec. 1516.401-270  Definition.

    Acceptable quality level (AQL) as used in this subpart means the 
minimum percent of deliverables which are compliant with a given 
performance standard that would permit a contractor to become eligible 
for an award term incentive. Because the performance necessary for 
eligibility for the award term incentive may be in excess of that 
necessary for the Government acceptance of contract deliverables, the 
AQLs associated with the award term incentive may exceed the AQLs 
associated with the acceptance of contract deliverables. For example, 
under contract X, acceptable performance is 75 percent of reports 
submitted to the Government within five days. However, to be eligible 
for an award term incentive, 85 percent of reports must be submitted to 
the Government within five days.

[73 FR 1980, Jan. 11, 2008]



Sec. 1516.405-2  Cost-plus-award-fee contracts.



Sec. 1516.405-270  Definitions.

    (a) Performance Evaluation Board (PEB). Group of Government 
officials responsible for assessing the quality of contract performance 
and recommending the appropriate fee.
    (b) Fee Determination Official. Individual responsible for reviewing 
the recommendations of the PEB and making the final determination of the 
amount of award fee to be awarded to the contractor.

[60 FR 43404, Aug. 21, 1995. Redesignated at 73 FR 1981, Jan. 11, 2008]



Sec. 1516.405-271  Limitations.

    (a) No award fee may be earned if the Fee Determination Official 
determines that contractor performance has been satisfactory or less 
than satisfactory. A contractor may earn award fee only for performance 
rated above satisfactory or excellent. All award fee plans shall 
disclose to offerors the numerical rating necessary to be deemed ``above 
satisfactory'' or ``excellent'' for award fee purposes.
    (b) The base fee shall not exceed three percent of the estimated 
cost of the contract, exclusive of the fee.
    (c) Unearned award fee may not be carried forward from one 
performance period into a subsequent performance period unless approved 
by the FDO.
    (d) The payment of award fee on a provisional basis is not 
authorized.

[60 FR 43404, Aug. 21, 1995. Redesignated at 73 FR 1981, Jan. 11, 2008]



Sec. 1516.405-272  Waiver.

    The Chief of the Contracting Office may waive the limitations in 
paragraphs (a), (b), and (d) of 1516.404-273 on a case-by-case basis 
when unusual or compelling circumstances exist. The waiver shall be 
supported by a justification and coordinated with the Acquisition Policy 
and Training Service Center in the Office of Acquisition Management.

[60 FR 43404, Aug. 21, 1995. Redesignated at 73 FR 1981, Jan. 11, 2008, 
as amended at 78 FR 46290, July 31, 2013]



Sec. 1516.406  Contract clauses.

    (a) The Contracting Officer shall insert the clause at 1552.216-70, 
Award fee (MAY 2000), in solicitations and contracts where a cost-plus-
award-fee contract is contemplated.
    (b) The Contracting Officer shall insert the clause at 1552.216-75, 
Base Fee and Award Fee Proposal (SEP 1995), in all solicitations which 
contemplate the award of cost-plus-award-fee contracts. The Contracting 
Officer shall insert the appropriate percentages.
    (c) The Contracting Officer shall insert the clauses at 1552.216-77, 
Award Term Incentive, 1552.216-78, Award Term Incentive Plan, and 
1552.216-79 Award Term Availability of Funds in solicitations and 
contracts when award term incentives are contemplated. The clauses at 
1552.216-77 and 1552.216-78 may be used on substantially the same basis.
    (d) If the Contracting Officer wishes to use the ratings set forth 
in the Department of Defense Contractor Performance Assessment Reporting 
System on the contract at hand as the basis for contractor eligibility 
for an award term incentive, the Contracting

[[Page 33]]

Officer shall insert the clause at 1552.216-78 with its Alternate I.

[60 FR 43404, Aug. 21, 1995, as amended at 64 FR 3876, Jan. 26, 1999; 65 
FR 31500, May 18, 2000. Redesignated and amended at 73 FR 1981, Jan. 11, 
2008; 78 FR 46290, July 31, 2013]

              Subpart 1516.5_Indefinite-Delivery Contracts



Sec. 1516.505  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-72, 
Ordering--By Designated Ordering Officers, in indefinite delivery/
indefinite quantity type solicitations and contracts.
    (b) The Contracting Officer shall insert the clause in 1552.216-73, 
Fixed Rates for Services--Indefinite Delivery/Indefinite Quantity 
Contract, in solicitations and contracts to specify fixed rates for 
services.

   Subpart 1516.6_Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 1516.603  Letter Contracts.



Sec. 1516.603-1  What is a Notice to Proceed?

    (a) A Notice to Proceed (NTP) is a type of letter contract issued 
pursuant to FAR 16.603 under which an EPA Federal Classification Series 
1102 (FCS) contracting officer or a duly authorized EPA on-scene 
coordinator with delegated procurement authority may initiate, in 
certain defined situations and subject to certain limitations and 
conditions, contracting actions to respond to certain situations as 
described in CERCLA section 104(a)(1) (42 U.S.C. 9604(a)(1)) and the 
Clean Water Act sections 311(c)(2) and (e)(1)(B) (33 U.S.C. 1321(c)(2) 
and (e)(1)(B)). An NTP may be utilized as a contractual instrument for 
certain--
    (1) Actions that EPA is authorized to undertake under CERCLA section 
104(a)(1), 42 U.S.C. 9604(a)(1), and the National Oil and Hazardous 
Substances Pollution Contingency Plan (40 CFR part 300), to respond to 
situations where any hazardous substance has been released or there is a 
substantial threat of such a release into the environment, or there is a 
release or substantial threat of release into the environment of any 
pollutant or contaminant which may present an imminent and substantial 
danger to the public health or welfare, and
    (2) Actions that EPA is authorized to undertake under sections 
311(c)(2) and (e)(1)(B) of the Clean Water Act, 33 U.S.C. 1321(c)(2) and 
(e)(1)(B), and the National Oil and Hazardous Substances Pollution 
Contingency Plan (40 CFR part 300), to respond when there is a 
discharge, or a substantial threat of a discharge (to or upon navigable 
waters, adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, onshore 
facility, or offshore facility that is a substantial threat to the 
public health or welfare. Pursuant to a class Justification For Other 
Than Full and Open Competition executed under the authority of FAR 
6.302-2 and 6.303-1(c), an NTP may be issued on a non-competitive basis.
    (b) What do subsections 1516.603-1 and 1516.603-2 cover? EPAAR 
1516.603-1 and 1516.603-2 contain information and procedures relating to 
issuance and definitization of an NTP. An NTP is subject to, and must 
comply with, the applicable requirements for letter contracts in FAR 
16.603 and the requirements in this section, and be definitized by an 
EPA FCS 1102 contracting officer.

[66 FR 12900, Mar. 1, 2001]



Sec. 1516.603-2  What are the requirements for use of an NTP?

    (a) An EPA FCS 1102 contracting officer or a duly authorized EPA on-
scene coordinator with a delegation of procurement authority may issue 
an NTP so long as it does not exceed the limits of his or her 
procurement authority and only when all of the following conditions have 
been met:
    (1) A written determination has been made by the Federal on-scene 
coordinator that--
    (i) As authorized by and consistent with CERCLA section 104(a)(1), 
42 U.S.C. 9604(a)(1), and the National Oil and Hazardous Substances 
Pollution Contingency Plan (40 CFR part 300), the EPA must take action 
to respond

[[Page 34]]

to a hazardous substance release or substantial threat of such a release 
into the environment, or a release or substantial threat of a release 
into the environment of any pollutant or contaminant which may present 
an imminent and substantial danger to the public health or welfare, or
    (ii) As authorized by and consistent with the Clean Water Act 
sections 311(c)(2) and (e)(1)(B), 33 U.S.C. 1321(c)(2) and (e)(1)(B), 
and the National Oil and Hazardous Substances Pollution Contingency Plan 
(40 CFR part 300), the EPA must take action to respond to a discharge, 
or a substantial threat of a discharge (to or upon navigable waters, 
adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, offshore 
facility, or onshore facility that is of such a size and character as to 
pose a substantial threat to the public health or welfare of the United 
States; and
    (2) Before a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority may issue an NTP, he or she must 
confirm that an EPA FCS 1102 contracting officer is not available to 
provide the required contracting support by the time the Federal on-
scene coordinator requires the response action to be undertaken; and
    (3) A written determination is made by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority that there is no other existing contracting 
mechanism available to provide the required contracting support by the 
time required, including the inability of an existing emergency response 
contractor or other existing contract vehicle to respond in the required 
time frame. These conditions, as well as any other requirements 
applicable to NTPs or letter contracts contained in the FAR or EPAAR , 
must be met before an NTP can be issued by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority.
    (b) What should be included in an NTP? (1) Since an NTP is a type of 
letter contract, it is subject to the requirements of FAR 16.603. All of 
the relevant requirements of FAR 16.603 apply to NTP's including FAR 
16.603-2, 16.603-3, and 16.603-4, and an NTP will include all 
appropriate FAR and EPAAR contract clauses. An NTP should also include 
an overall price ceiling and be as complete and definite as possible 
under the circumstances. To the extent NTPs require modification of any 
FAR or EPAAR prescribed procedures or clauses, an appropriate FAR or 
EPAAR deviation will be prepared.
    (2) The EPA FCS 1102 contracting officer or duly authorized EPA on-
scene coordinator with a delegation of procurement authority shall 
include in each NTP the clauses required by the FAR or EPAAR for the 
type of definitive contract contemplated and any additional clauses 
known to be appropriate for it. In addition, the following clauses must 
be inserted in the solicitation (if one is issued) and the NTP when an 
NTP is used:
    (i) The clause at FAR 52.216-23, Execution and Commencement of Work, 
except that the term on-scene coordinator may be used in place of the 
term contracting officer;
    (ii) The clause at FAR 52.216-24, Limitation of Government 
Liability, with dollar amounts completed in a manner consistent with FAR 
16.603-2(d); and
    (iii) The clause at FAR 52.216-25, Contract Definitization, with its 
paragraph (b) completed in a manner consistent with FAR 16.603-2(c) or 
any applicable FAR deviation. The clause at FAR 52.216-26, Payment of 
Allowable Costs Before Definitization, shall also be included in a 
solicitation (if one is issued) and NTPs if a cost-reimbursement 
definitive contract is contemplated.
    (3) Each NTP shall, as required by the clause at FAR 52.216-25, 
Contract Definitization, contain a negotiated definitization schedule 
that includes:
    (i) Dates for submission of the contractor's price proposal, 
required cost and pricing data, and if required, make-or-buy and 
subcontracting plans;
    (ii) The date for the start of negotiations; and
    (iii) A target date for definitization which shall be the earliest 
practicable date for definitization (an NTP must be

[[Page 35]]

definitized by an EPA FCS 1102 contracting officer). The schedule will 
provide for definitization of the NTP within 90 calendar days after the 
date of the NTP award. However, the EPA FCS 1102 contracting officer 
may, in extreme cases and according to agency procedures, authorize an 
additional period. If, after exhausting all reasonable efforts, the EPA 
FCS 1102 contracting officer and the contractor cannot negotiate a 
definitive contract because of failure to reach agreement as to price or 
fee, the clause at 52.216-25 requires the contractor to proceed with the 
work and provides that the contracting officer may, with the approval of 
the head of the contracting activity, determine a reasonable price or 
fee in accordance with subpart 15.4 and part 31 of the FAR, subject to 
appeal as provided in the Disputes clause.
    (4) The maximum liability of the Government inserted in the clause 
at 52.216-24, Limitation of Government Liability, shall, as approved by 
the official who authorized the NTP, be the estimated amount necessary 
to cover the contractor's requirements for funds to complete the work to 
be performed under the NTP. However, it shall not exceed the estimated 
cost of the definitive contract.
    (c) Are there any financial or monetary limitations on the use of an 
NTP? In addition to the requirements for issuance of an NTP set forth 
elsewhere in this subpart--
    (1) The total definitized dollar value of an individual NTP shall 
not exceed $200,000.00, and
    (2) The applicable Program Office must commit and make available 
appropriate funding for the emergency response action taken under the 
NTP prior to NTP issuance.
    (d) Are there any other procedural requirements for issuance of an 
NTP? An NTP must be issued in writing by the EPA FCS 1102 contracting 
officer or the duly authorized EPA on-scene coordinator with a 
delegation of procurement authority using a Standard Form 33. In 
addition, the EPA FCS 1102 contracting officer or the EPA on-scene 
coordinator awarding the NTP must ensure that the NTP complies with all 
applicable requirements for letter contracts set forth in the FAR and 
the requirements of this section, includes all relevant provisions and 
clauses, and that all actual or potential conflict of interest or other 
contracting issues are identified and resolved prior to NTP issuance. To 
assist the EPA on-scene coordinator and EPA FCS 1102 contracting officer 
in their responsibilities regarding NTP award, an NTP checklist will be 
completed by the EPA FCS 1102 contracting officer or EPA on-scene 
coordinator prior to issuance of the NTP.
    (e) What happens after an NTP is awarded to a contractor? (1) If an 
NTP is issued by a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority, he or she must notify the cognizant 
EPA FCS 1102 contracting officer of the NTP award, and provide the NTP 
checklist to the contracting officer, as soon as possible but in no 
event later than the next working day after NTP issuance.
    (2) Within 5 working days of the EPA on-scene coordinator's award of 
an NTP, the on-scene coordinator shall provide to the cognizant EPA FCS 
1102 contracting officer all NTP documents, materials, and information 
necessary for the contracting officer to definitize the contract, and 
should retain a copy for his/her records. An EPA FCS 1102 contracting 
officer will be responsible for definitization of the NTP consistent 
with the definitization procedures set forth in this subpart. During the 
process of definitizing the NTP, the EPA FCS 1102 contracting officer 
will send the contractor the ``Representations, Certifications, and 
Other Statements of Offerors'' for completion. The contractor will 
complete this information, and any other required information, and 
submit it to the EPA FCS 1102 contracting officer prior to 
definitization of the NTP.
    (f) The CCO, who is authorized by EPAAR 1516.603-3 to make the 
determination to use a letter contract, shall make a class determination 
and findings authorizing EPA FCS 1102 contracting officers and duly 
authorized EPA on-scene coordinators with delegations of procurement 
authority to award NTPs pursuant to the conditions set forth in this 
subpart.

[66 FR 12900, Mar. 1, 2001]

[[Page 36]]



Sec. 1516.603-3  Limitations.

    The CCO is authorized to make the determination in FAR 16.603-3.

[55 FR 24580, June 18, 1990, as amended at 59 FR 18976, Apr. 21, 1994]

                  PART 1517_SPECIAL CONTRACTING METHODS

                         Subpart 1517.2_Options

Sec.

Sec. 1517.204 Contracts.

Sec. 1517.207 Exercise of options.

Sec. 1517.208 Solicitation provisions and contract clauses.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8854, Mar. 8, 1984, unless otherwise noted.

                         Subpart 1517.2_Options



Sec. 1517.204  Contracts.

    The SCM may approve a contract with a base contract period and 
option periods which total in excess of five (5) years, unless otherwise 
prohibited by statute.

[60 FR 12713, Mar. 8, 1995, as amended at 67 FR 5072, Feb. 4, 2002]



Sec. 1517.207  Exercise of options.

    (a) Unless otherwise approved by the Chief of the Contracting 
Office, contracts for services employing option periods shall require 
that a preliminary written notice of the Government's intention to 
exercise the option be furnished to the Contractor a minimum of sixty 
(60) calendar days prior to the date for the exercise of the option. 
Failure to provide such preliminary notice within the timeframe 
established in the contract waives the Government's right to 
unilaterally exercise the option and requires the negotiation of a 
bilateral contract modification in order to extend the period of 
performance, where such an extension is authorized.
    (b) When the term of the service contract coincides with the fiscal 
year and delays in receipt of authority to obligate funds for the new 
fiscal year are anticipated, the Contracting Officer, if the contract so 
provides (see FAR 17.204(d)), may, within 60 days after the end of the 
fiscal year, unilaterally exercise an option to extend the term of the 
contract. The option may be exercised only if funds become available 
within the 60-day period. In the event that sufficient funding is not 
available within the 60 day period, the Government waives the right to 
exercise the option, thereby rendering any additional requirements 
subject to full and open competition requirements.
    (c) The Contracting Officer, if the contract so provides, may, 
subject to the conditions in FAR 17.204(d), 32.703-2, and 32.705-1(a), 
exercise an option contingent upon the availability of funds. To 
exercise such an option, the contract must contain the clause in FAR 
52.232-18, Availability of Funds. Under no circumstances shall any 
action be taken which could be construed as creating a legal liability 
on the part of the Government until a formal notice of availability of 
funds in the form of a contract modification has been issued by the 
Contracting Officer.

[49 FR 8854, Mar. 8, 1984, as amended at 50 FR 14359, Apr. 11, 1985]



Sec. 1517.208  Solicitation provisions and contract clauses.

    (a) The Contracting Officer shall insert the clause at 1552.217-71, 
Option To Extend the Term of the Contract--Cost-Type Contract, when 
applicable.
    (b) The Contracting Officer shall insert the clause at 1552.217-72, 
Option To Extend the Term of the Contract--Cost-Plus-Award-Fee Contract, 
when applicable.
    (c) The Contracting Officer shall insert the clause at 1552.217-73, 
Option for Increased Quantity--Cost-Type Contract, when applicable.
    (d) The Contracting Officer shall insert the clause at 1552.217-74, 
Option for Increased Quantity--Cost-Plus-Award-Fee Contract, when 
applicable.
    (e) The Contracting Officer shall insert the clause at 1552.217-75, 
Option To Extend the Effective Period of the Contract--Time and 
Materials or Labor Hour Contract, when applicable.
    (f) The Contracting Officer shall insert the clause at 1552.217-76, 
Option To Extend the Effective Period of the Contract--Indefinite 
Delivery/Indefinite Quantity Contract, when applicable.

[[Page 37]]

    (g) The Contracting officer shall insert the clause at 1552.217-77, 
Option to Extend the Term of the Contract--Fixed Price, when applicable.

[49 FR 8854, Mar. 8, 1984, as amended at 65 FR 58923, Oct. 3, 2000]

[[Page 38]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 1519_SMALL BUSINESS PROGRAMS

                         Subpart 1519.2_Policies

Sec.

Sec. 1519.201 Policy.

Sec. 1519.201-71 Director of Small and Disadvantaged Business 
          Utilization.

Sec. 1519.201-72 Small and disadvantaged business utilization 
          specialists.

Sec. 1519.202-5 Data collection and reporting requirements.

Sec. 1519.203 Mentor-protege.

Sec. 1519.204 Small disadvantaged business participation.

              Subpart 1519.5_Set-Asides for Small Business


Sec. 1519.501 Review of acquisitions.

Sec. 1519.503 Class set-aside for construction.

Subpart 1519.6--Certificates of Competency and Determinations of 
Eligibility [Reserved]

      Subpart 1519.7_Subcontracting with Small Business and Small 
                     Disadvantaged Business Concerns


Sec. 1519.705-2 Determining the need for a subcontract plan.

Sec. 1519.705-4 Reviewing the subcontracting plan.

Sec. 1519.705-70 Synopsis of contracts containing Pub. L. 95-507 
          subcontracting plans and goals.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8855, Mar. 8, 1984, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1519 appear at 61 FR 
57338, Nov. 6, 1996.

                         Subpart 1519.2_Policies



Sec. 1519.201  Policy.

    Each program's Assistant or Associate Administrator shall be 
responsible for developing its socioeconomic goals on a fiscal year 
basis. The goals shall be developed in collaboration with the supporting 
Chiefs of Contracting Offices and the local Small Business Specialist 
(SBS), and the Office of Small and Disadvantaged Business Utilization 
(OSDBU). The goals will be based on advance procurement plans and past 
performance. The goals shall be submitted to the Director, OSDBU, at 
least thirty (30) days prior to the start of the fiscal year.

[49 FR 8855, Mar. 8, 1984, as amended at 61 FR 57338, 57339, Nov. 6, 
1996]



Sec. 1519.201-71  Director of Small and Disadvantaged Business 
          Utilization.

    The Director, OSDBU, provides guidance and advice, as appropriate, 
to Agency program and contracts officials on small and small 
disadvantaged business programs. The Director, OSDBU, is the central 
point of contact for inquiries concerning the small and disadvantaged 
business programs from industry, the Small Business Administration 
(SBA), and the Congress, and shall advise the Administrator and staff of 
such inquiries as required. The Director, OSDBU, shall represent the 
Agency in the negotiations with the other Government agencies on small 
and small disadvantaged business matters.

[49 FR 8855, Mar. 8, 1984. Redesignated at 62 FR 57338, 57339, Nov. 6, 
1997]



Sec. 1519.201-72  Small and disadvantaged business utilization 
          specialists.

    (a) Small Business Specialists (SBS) shall be appointed in writing 
for each contracting office. The SBS will normally be appointed from 
members of staffs of the appointing authority. The SBS is 
administratively responsible directly to the appointing authority and, 
on matters relating to small and small disadvantaged business program 
activities, receives technical guidance from the Director, OSDBU. The 
appointing authorities are the Chiefs of the Contracting Offices.
    (b) A copy of each appointment and termination of all SBS 
specialists shall be forwarded to the Director, OSDBU. In addition to 
performing the duties outlined in paragraph (c) of this section that are 
normally performed in the activity to which assigned, the SBS shall 
perform such additional functions as may be prescribed from time to time 
in furtherance of overall small and

[[Page 39]]

small disadvantaged business utilization program goals. The SBS may be 
appointed on either a full- or part-time basis; however, when appointed 
on a part-time basis, the small business duty shall take precedence over 
collateral responsibilities.
    (c) The SBS appointed pursuant to paragraph (a) of this section, 
shall perform the following duties as appropriate:
    (1) Maintain a program designed to locate capable small business 
sources for current and future acquisitions;
    (2) Coordinate inquiries and requests for advice from small and 
small disadvantaged business concerns on acquisition matters;
    (3) Review all proposed solicitations in excess of the simplified 
acquisition threshold, assure that small business concerns will be 
afforded an equitable opportunity to compete, and, as appropriate, 
initiate recommendations for small business set-asides, or offers of 
requirements to the SBA for the 8(a) program, and complete EPA Form 
1900-37, ``Record of Procurement Request Review,'' as appropriate:
    (4) Take action to assure the availability of adequate 
specifications and drawings, when necessary, to obtain small business 
participation in an acquisition. When small business concerns cannot be 
given an opportunity on a current acquisition, initiate action, in 
writing, with appropriate technical and contracting personnel to ensure 
that necessary specifications and/or drawings for future acquisitions 
are available.
    (5) Review proposed contracts for possible breakout of items or 
services suitable for acquisition from small business and small 
disadvantaged business concerns;
    (6) Advise small businesses with respect to the financial assistance 
available under existing laws and regulations and assist such concerns 
in applying for financial assistance;
    (7) Participate in the evaluation of a prime contractor's small 
business subcontracting programs;
    (8) Assure that adequate records are maintained, and accurate 
reports prepared, concerning small business participation in acquisition 
programs (see 1519.202-5);
    (9) Make available to SBA copies of solicitations when so requested;
    (10) Act as liaison with the appropriate SBA office or 
representative in connection with set-asides, certificates of 
competency, size classification, and any other matter concerning the 
small or small disadvantaged business programs.

[49 FR 8855, Mar. 8, 1984, as amended at 55 FR 24579, June 18, 1990. 
Redesignated and amended at 61 FR 57338, 57339, Nov. 6, 1996]



Sec. 1519.202-5  Data collection and reporting requirements.

    (a) As required, monthly reports of factual information, covering 
acquisition actions and dollars awarded to small businesses, small 
disadvantaged businesses, women-owned small businesses, the Small 
Business Administration under the authority of section 8(a) of the Small 
Business Act, and information on actions and dollars made under small 
business set-asides shall be submitted by the Procurement and Contracts 
Management Division, to the Director, OSDBU.
    (b) The Financial Management Division will submit to the Director, 
OSDBU, a copy of the Small Purchase Activity Report that shows by each 
EPA purchasing activity the following information (cumulative monthly) 
for small purchases:
    (1) Total actions and dollar value of awards;
    (2) Total actions and dollar value of awards to all businesses;
    (3) Total actions and dollar value of awards to small businesses;
    (4) Total actions and dollar value of construction awards to small 
businesses made by set-aside;
    (5) Total actions and dollar value of small business awards made by 
set-asides, excluding set-asides for construction;
    (6) Total actions and dollar value of awards made to the Small 
Business Administration pursuant to section 8(a) of the Small Business 
Act; and
    (7) Total actions and dollar value of awards made to small 
disadvantaged businesses.
    (c) The reports identified in paragraphs (a) and (b) of this section 
are to be submitted to the Director, OSDBU, no later than the 20th day 
following

[[Page 40]]

the end of the reporting period with the exception of the last report of 
the fiscal year which shall be submitted no later than the 30th day 
following the end of the fiscal year.



Sec. 1519.203  Mentor-protege.

    (a) The Contracting officer shall insert the clause at 1552.219-70, 
Mentor-Protege Program, in all contracts under which the Contractor has 
been approved to participate in the EPA Mentor-Protege Program.
    (b) The Contracting officer shall insert the provision at 1552.219-
71, Procedures for Participation in the EPA Mentor-Protege Program, in 
all solicitations valued at $500,000 or more which will be cost-plus-
award-fee or cost-plus fixed-fee contracts.

[65 FR 58923, Oct. 3, 2000]



Sec. 1519.204  Small disadvantaged business participation.

    (a) The Contracting officer shall insert the provision at 1552.219-
72, Small Disadvantaged Business Participation Program, or a provision 
substantially the same as 1552.219-72, in solicitations for acquisitions 
subject to FAR 19.12 that will evaluate the extent of the participation 
of Small Disadvantaged Business (SDB) concerns in the performance of a 
resulting contract.
    (b) The Contracting officer shall insert the clause at 1552.219-73, 
Small Disadvantaged Business Targets, or one substantially the same as 
1552.219-73, in solicitations and contracts for acquisitions subject to 
FAR 19.12 that evaluate the extent of participation of SDB concerns in 
the performance of the contract and which included solicitation 
provision 1552.219-72.
    (c) The Contracting officer shall insert the evaluation provision at 
1552.219-74, Small Disadvantaged Business Participation Evaluation 
Factor, (and assign a value to it), or one substantially the same as 
1552.219-74, in solicitations for acquisitions subject to FAR 19.12 that 
include the provision at 1552.219-72 and will evaluate the extent of 
participation of SDB concerns in the performance of the contract.

[65 FR 58923, Oct. 3, 2000]

              Subpart 1519.5_Set-Asides for Small Business



Sec. 1519.501  Review of acquisitions.

    (a) If no Small Business Administration (SBA) representative is 
available, the Small Business Specialist (SBS) shall initiate 
recommendations to the Contracting Officer for small business set-asides 
with respect to individual acquisitions or classes of acquisitions or 
portions thereof.
    (b) When the SBS has recommended that all, or a portion, of an 
individual acquisition or class of acquisitions be set aside for small 
business, the Contracting Officer shall promptly either: (1) Concur in 
the recommendation or (2) disapprove the recommendation, stating in 
writing the reasons for disapproval. If the Contracting Officer 
disapproves the recommendation of the SBS, the SBS may appeal to the 
appropriate appointing authority, whose decision shall be final.

[49 FR 8855, Mar. 8, 1984, as amended at 61 FR 57338, 57339, Nov. 6, 
1996]



Sec. 1519.503  Class set-aside for construction.

    (a) Each proposed acquisition for construction estimated to cost 
between $10,000 and $1,000,000 shall be set-aside for exclusive small 
business participation. Such set-asides shall be considered to be 
unilateral small business set-asides, and shall be withdrawn in 
accordance with the procedure of FAR 19.506 only if found not to serve 
the best interest of the Government.
    (b) Small business set-aside preferences for construction 
acquisitions in excess of $1,000,000 shall be considered on a case-by-
case basis.

Subpart 1519.6--Certificates of Competency and Determinations of 
Eligibility [Reserved]

[[Page 41]]

      Subpart 1519.7_Subcontracting With Small Business and Small 
                     Disadvantaged Business Concerns



Sec. 1519.705-2  Determining the need for a subcontract plan.

    One copy of the determination required by FAR 19.705-2(c) shall be 
placed in the contract file and one copy provided the Director, Office 
of Small and Disadvantaged Business Utilization (OSDBU).



Sec. 1519.705-4  Reviewing the subcontracting plan.

    In determining the acceptability of a proposed subcontracting plan, 
the Contracting Officer shall obtain advice and recommendations from the 
OSDBU, which shall in turn coordinate review by the Small Business 
Administration Procurement Center Representative (if any).



Sec. 1519.705-70  Synopsis of contracts containing Pub. L. 95-507 
          subcontracting plans and goals.

    The synopsis of contract award, where applicable, shall include a 
statement identifying the contract as one containing Pub. L. 95-507 
subcontracting plans and goals.

[49 FR 8855, Mar. 8, 1984; 49 FR 24734, June 15, 1984]

                  PART 1520_LABOR SURPLUS AREA CONCERNS

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

Subpart 1520.1--General [Reserved]

Subpart 1520.3--Labor Surplus Area Subcontracting Program [Reserved]

     PART 1522_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

               Subpart 1522.8_Equal Employment Opportunity


Sec. 1522.803 Responsibilities.

Sec. 1522.804 Affirmative action programs.

Sec. 1522.804-2 Construction.

Subpart 1522.10--Service Contract Act of 1965 [Reserved]

Subpart 1522.13--Special Disabled and Vietnam Era Veterans [Reserved]

Subpart 1522.14--Employment of the Handicapped [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8857, June 15, 1984, unless otherwise noted.

               Subpart 1522.8_Equal Employment Opportunity



Sec. 1522.803  Responsibilities.

    If the applicability of E.O. 11246 and implementing regulations are 
questioned, the Contracting Officer shall route the matter through the 
CCO to the EPA Office of Civil Rights.

[49 FR 8857, June 15, 1984, as amended at 55 FR 24579, June 18, 1990; 59 
FR 18976, Apr. 21, 1994]



Sec. 1522.804  Affirmative action programs.



Sec. 1522.804-2  Construction.

    Each contracting office having construction contract responsibility 
shall maintain a list of geographical areas subject to affirmative 
action requirements. The list can be obtained from the Office of Federal 
Contract Compliance Programs, U.S. Department of Labor.

[49 FR 8857, Mar. 8, 1984; 49 FR 24734, June 15, 1984, as amended at 78 
FR 46290, July 31, 2013]

Subpart 1522.10--Service Contract Act of 1965 [Reserved]

Subpart 1522.13--Special Disabled and Vietnam Era Veterans [Reserved]

Subpart 1522.14--Employment of the Handicapped [Reserved]

[[Page 42]]

  PART 1523_ENVIRONMENTAL, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
                             FREE WORKPLACE

       Subpart 1523.3_Hazardous Material and Material Safety Data

Sec.

Sec. 1523.303 Contract clause.

Sec. 1523.303-70 Protection of human subjects.

Sec. 1523.303-71 Decontamination of Government-furnished property.

Sec. 1523.303-72 Care of laboratory animals.

 Subpart 1523.7_Contracting for Environmentally Preferable Products and 
                                Services


Sec. 1523.703 Policies and procedures.

Sec. 1523.703-1 Acquisition of environmentally preferable meeting and 
          conference services.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8857, Mar. 8, 1984, unless otherwise noted.

       Subpart 1523.3_Hazardous Material and Material Safety Data



Sec. 1523.303  Contract clause.



Sec. 1523.303-70  Protection of human subjects.

    Contracting Officers shall insert the contract clause at 1552.223-70 
when the contract involves human test subjects.



Sec. 1523.303-71  Decontamination of Government-furnished property.

    Contracting Officers shall insert the contract clause at 1552.245-
70, Decontamination of Government-Furnished Property, when it is 
anticipated that a Contractor will use Government-furnished or 
Contractor-acquired property in the clean-up of hazardous or toxic 
substances in the environment.



Sec. 1523.303-72  Care of laboratory animals.

    Contracting officers shall insert the clause at 1552.223-72, Care of 
Laboratory Animals, in all contracts involving the use of experimental 
animals.

[65 FR 58923, Oct. 3, 2000]

 Subpart 1523.7_Contracting for Environmentally Preferable Products and 
                                Services

    Source: 72 FR 18403, May 1, 2007, unless otherwise noted.



Sec. 1523.703  Policies and procedures.



Sec. 1523.703-1  Acquisition of environmentally preferable meeting and 
          conference services.

    (a) Scope. This section establishes policy and procedures for 
acquiring environmentally preferable meeting and conference services. 
For purposes of this section, the term ``contracting officer'' refers to 
any EPA employee with purchasing authority. For the purposes of this 
section, the term ``meeting and conference services'' refers to any 
purchase by an EPA employee of the use of off-site commercial facilities 
for an EPA event, whether the event is a meeting, conference, training 
session, or other purpose.
    (b) Policy. Contracting officers must purchase environmentally 
preferable meeting and conference services to the greatest extent 
practicable. Environmental preferability is defined at FAR 2.101. 
Environmental preferability shall be considered in all purchases of 
meeting and conference services.
    (c) Procedures for micropurchases. The contracting officer shall 
request information on environmentally preferable features and practices 
from each meeting and conference services vendor solicited using the 
provision or language substantially the same as the provision at 
1552.223-71.
    (d) Procedures for purchases exceeding micropurchase threshold. The 
contracting officer shall request information on environmentally 
preferable features and practices from each meeting and conference 
services vendor using the provision or language substantially the same 
as the provision at 1552.223-71, and shall notify vendors that basis for 
award will be best value with price and other factors considered. 
Environmental preferability must be considered among the other factors. 
The contracting officer shall determine the relative importance of price 
and other factors as appropriate to the acquisition.

[[Page 43]]

    (e) Contractor support for meetings and conferences. A contract, 
order, work assignment or purchasing agreement that includes contractor 
support for meeting and conference planning and logistics must include a 
green meeting and conference requirement. The contracting officer shall 
ensure language is included in the tasking document work statement that 
requires the contractor to use the provision at 1552.223-71, or language 
approved by the contracting officer that is substantially the same as 
the provision, when soliciting quotes or offers for meeting and 
conference services on behalf of the EPA.
    (f) Solicitation Provision. The contracting officer shall insert the 
provision or language substantially the same as the provision at 
1552.223-71, EPA Green Meetings and Conferences, in solicitations for 
meeting and conference services. Contracting officers issuing an oral 
solicitation must also use the provision, though it may be provided to 
the vendor orally or electronically. Contractors soliciting quotes or 
offers for meeting and conference services on behalf of EPA shall use 
the provision, or language approved by the contracting officer that is 
substantially the same as the provision.

       PART 1524_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 1524.1_Protection of Individual Privacy

Sec.

Sec. 1524.104 Solicitation provisions.

Subpart 1524.2--Freedom of Information Act [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

             Subpart 1524.1_Protection of Individual Privacy



Sec. 1524.104  Solicitation provisions.

    The Contracting Officer shall insert the provision at 1552.224-70, 
Social Security Numbers of Consultants and Certain Sole Proprietors and 
Privacy Act Statement, in all solicitations.

[49 FR 8858, Mar. 8, 1984]

Subpart 1524.2--Freedom of Information Act [Reserved]

                      PART 1525_FOREIGN ACQUISITION

Subpart 1525.1--Buy American Act--Supplies [Reserved]

[[Page 44]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 1527_PATENTS, DATA, AND COPYRIGHTS

              Subpart 1527.4_Rights in Data and Copyrights

Sec.

Sec. 1527.404 Basic rights in data clause.

Sec. 1527.409 Solicitation provisions and contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

              Subpart 1527.4_Rights in Data and Copyrights



Sec. 1527.404  Basic rights in data clause.

    The Contracting Officer shall insert in the Limited Rights Notice 
when using Alternate II of FAR 52.227-14 the following purposes for 
disclosure of limited data outside the Government.
    (a) Use (except for manufacture) by support service contractors;
    (b) Evaluation by nongovernment evaluators;
    (c) Use (except for manufacture) by other contractors participating 
in the Government's program of which the specific contract is a part, 
for information and use in connection with the work performed under each 
contract;
    (d) Emergency repairs or overhaul work;
    (e) Release to a foreign government, or instrumentality thereof, as 
the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work by 
such government.

[55 FR 48623, Nov. 21, 1990]



Sec. 1527.409  Solicitation provisions and contract clauses.

    The Contracting Officer shall insert the clause in 1552.227-76 in 
all Superfund solicitations and contracts in excess of the simplified 
acquisition threshold and, as appropriate, in simplified acquisition 
procedures. The clause may be used in other contracts if considered 
necessary by the Contracting Officer.

[59 FR 18620, Apr. 19, 1994, as amended at 61 FR 57339, Nov. 6, 1996]

                      PART 1528_BONDS OF INSURANCE

                        Subpart 1528.3_Insurance



Sec. 1528.301  Insurance liability to third persons.

    Contracting officers shall insert the clause at 1552.228-70, 
Insurance Liability to Third Persons, in cost-reimbursement 
solicitations and contracts, except those for construction and 
architect-engineer services.

    Note: This clause may be used in contracts awarded utilizing 
architect-engineer services such as requirements for Superfund cleanups 
(e.g., response action contracts). The clause does not apply to 
Superfund indemnification for third party pollution liability or 
coverage for commercial pollution liability insurance as prescribed by 
section 119 of CERCLA as amended by SARA.

[65 FR 58923, Oct. 3, 2000. Redesignated and amended at 78 FR 46290, 
July 31, 2013]

                             PART 1529_TAXES

                  Subpart 1529.3_State and Local Taxes

Sec.

Sec. 1529.303 Application of State and local taxes to Government 
          contractors and subcontractors.

                     Subpart 1529.4_Contract Clauses


Sec. 1529.401 Domestic contracts.

Sec. 1529.401-70 [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 54 FR 49998, Dec. 4, 1989, unless otherwise noted.

                  Subpart 1529.3_State and Local Taxes



Sec. 1529.303  Application of State and local taxes to Government 
          contractors and subcontractors.

    Contractors are responsible for determining the availability of 
State and local tax exemptions and obtaining such exemptions, if 
available, unless the Contracting Officer determines

[[Page 45]]

under FAR 31.205-41(b)(3) that the administrative burden outweighs the 
corresponding benefit. Contractors are responsible for ensuring that 
subcontractors also seek and obtain such exemptions, if available.

                     Subpart 1529.4_Contract Clauses



Sec. 1529.401  Domestic contracts.



Sec. 1529.401-70  [Reserved]

                   PART 1530_COST ACCOUNTING STANDARDS

Subpart 1530.3--CAS Contract Requirements [Reserved]

            PART 1531_CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 1531.1--Applicability [Reserved]

                      PART 1532_CONTRACT FINANCING

Sec.

Sec. 1532.003 Simplified acquisition procedures financing.

Sec. 1532.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 1532.006-1 General.

Sec. 1532.006-2 Definitions.

Sec. 1532.006-3 Responsibilities.

                         Subpart 1532.1_General


Sec. 1532.102 Description of contract financing methods.

Sec. 1532.111 Contract clauses.

Sec. 1532.170 Forms.

            Subpart 1532.2_Commercial Item Purchase Financing


Sec. 1532.201 Statutory authority.

Subpart 1532.4--Advance Payments [Reserved]

                   Subpart 1532.8_Assignment of Claims


Sec. 1532.805 Procedure.

Sec. 1532.805-70 Forms.

                      Subpart 1532.9_Prompt Payment


Sec. 1532.908 Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8858, Mar. 8, 1984, unless otherwise noted.



Sec. 1532.003  Simplified acquisition procedures financing.

    (a) Scope. This subpart provides for authorization of advance and 
interim payments on commercial item orders not exceeding the simplified 
acquisition threshold. Advance payments are payments that are made prior 
to performance. Interim payments are payments that are made during the 
order period according to a payment schedule.
    (b) Procedures for micropurchases. Contracting officers may 
authorize advance and interim payments on orders for commercial items 
only at or below the micropurchase threshold.
    (c) Procedures for purchases exceeding micropurchase threshold. 
Contracting officers must secure approval at one level above the 
contracting officer, on a case-by-case basis, for advance and interim 
payments on orders for commercial items exceeding the micropurchase 
threshold and not exceeding the simplified acquisition threshold. The 
contracting officer shall submit a recommendation for approval of 
financing terms, along with the supporting rationale for the action, to 
one level above the contracting officer. Remote simplified acquisition 
contracting officers (SACO) without one level above contracting officers 
at their locations shall forward recommendations through their OAM 
Advisors to secure one level above approval.
    (d) Supporting rationale. Regardless of dollar value, the 
contracting officer shall document the file with supporting rationale 
demonstrating that the purchase meets the conditions of FAR 32.202-
1(b)(1), (3) and (4).
    (e) Administration. Regardless of dollar value, the contracting 
officer is responsible for ensuring that supplies or services have been 
delivered. The contracting officer shall document the file with evidence 
of receipt of supplies or services throughout the order period as 
appropriate to the acquisition.
    (f) Clause. The contracting officer shall insert the clause at 
1552.232-74, Payments--Simplified Acquisition Procedures Financing, in 
solicitations and

[[Page 46]]

orders that will provide simplified acquisition procedures financing.

[71 FR 32283, June 5, 2006]



Sec. 1532.006  Reduction or suspension of contract payments upon finding 
          of fraud.



Sec. 1532.006-1  General.

    (a)-(b) [Reserved]
    (c) Agency responsibilities and determinations under FAR 32.006 are, 
consistent with FAR 32.006-1(c), delegated to the Head of the 
Contracting Activity, if that individual is not below Level IV of the 
Executive Schedule. If the Head of the Contracting Activity is below 
Level IV of the Executive Schedule, then Agency responsibilities and 
determinations under FAR 32.006 are delegated to the Assistant 
Administrator for Administration and Resources Management.

[65 FR 37292, June 14, 2000]



Sec. 1532.006-2  Definitions.

    The Remedy Coordination Official for EPA is the Assistant Inspector 
General for Investigations.

[65 FR 37292, June 14, 2000]



Sec. 1532.006-3  Responsibilities.

    (a) EPA shall use the procedures in FAR 32.006-4 when determining 
whether to reduce or suspend further payments to a contractor when there 
is a report from the Remedy Coordination Official finding substantial 
evidence that the contractor's request for advance, partial or progress 
payments is based on fraud and recommending that the Agency reduce or 
suspend such payments to the contractor.
    (b) [Reserved]

[65 FR 37292, June 14, 2000]

                         Subpart 1532.1_General



Sec. 1532.102  Description of contract financing methods.

    Progress payments based on a percentage or stage of completion are 
authorized for use as a payment method under EPA contracts or 
subcontracts for construction and alteration or repair of buildings, 
structures, or other real property.

[60 FR 38505, July 27, 1995]



Sec. 1532.111  Contract clauses.

    The Contracting Officer shall insert the clause at 1552.232-73, 
Payments--Fixed Rate Services Contract, in solicitations and indefinite 
delivery/indefinite quantity contracts when services are being acquired 
on a fixed-rate basis.



Sec. 1532.170  Forms.

    (a) EPA Form 1900-10 Contractor's Cumulative Claim and 
Reconciliation, at 1553.232-74, shall be used for an accounting of the 
cumulative charges and costs for cost-reimbursement contracts from 
inception of the contract to completion. It shall be submitted by the 
Contractor upon submission of the completion voucher.
    (b) EPA Form 1900-68, Notice of Contract Costs Suspended and/or 
Disallowed, at 1553.232-75, shall be inserted in all cost-reimbursement 
type and fixed-rate type contracts.

[49 FR 8858, Mar. 8, 1984, as amended at 61 FR 29317, June 10, 1996]

            Subpart 1532.2_Commercial Item Purchase Financing



Sec. 1532.201  Statutory authority.

    Authority for making the determination under FAR 32.201 is delegated 
to a level above the Contracting Officer.

[61 FR 57339, Nov. 6, 1996]

Subpart 1532.4--Advance Payments [Reserved]

                   Subpart 1532.8_Assignment of Claims



Sec. 1532.805  Procedure.



Sec. 1532.805-70  Forms.

    (a) EPA Form 1900-3, Assignee's Release, at 1553.232-70 is required 
to be submitted by the assignee for cost-reimbursement contracts prior 
to final payment under the contract.
    (b) EPA Form 1900-4, Assignee's Assignment of Refunds, Rebates, 
Credits, and Other Amounts, at 1553.232-71 must

[[Page 47]]

accompany the assignee's release prior to final payment under cost-
reimbursement contracts.
    (c) EPA Form 1900-5, Contractor's Assignment of Refunds, Rebates and 
Credits, at 1553.232-72 must be prepared by the Contractor prior to 
final payment under cost-reimbursement contracts and must accompany the 
Contractor's Release.
    (d) EPA Form 1900-6, Contractor's Release, at 1553.232-73 must be 
submitted by the Contractor prior to final payment under cost-
reimbursement contracts.

                      Subpart 1532.9_Prompt Payment



Sec. 1532.908  Contract clauses.

    The Contracting Officer shall insert a clause substantially the same 
as that at 1552.232-70 in all solicitations and contracts for cost 
reimbursable acquisitions. If a fixed-rate type contract is 
contemplated, the Contracting Officer shall use the clause with its 
Alternate I.

[61 FR 29317, June 10, 1996]

                PART 1533_PROTESTS, DISPUTES AND APPEALS

                         Subpart 1533.1_Protests

Sec.

Sec. 1533.103 Protests to the Agency.

                   Subpart 1533.2_Disputes and Appeals


Sec. 1533.203 Applicability.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 50 FR 14359, Apr. 11, 1985, unless otherwise noted.

                         Subpart 1533.1_Protests



Sec. 1533.103  Protests to the Agency.

    Protests to the Agency are processed pursuant to the requirements of 
FAR 33.103. Contracting Officers must include in every solicitation the 
provision at 1552.233-70, Notice of Filing Requirements for Agency 
Protests.

[64 FR 17110, Apr. 8, 1999]

                   Subpart 1533.2_Disputes and Appeals



Sec. 1533.203  Applicability.

    The Civilian Board of Contract Appeals (CBCA) will hear appeals from 
final decisions of EPA Contracting Officers issued pursuant to the 
Contracts Disputes Act. The rules and regulations of the CBCA appear in 
48 CFR chapter 61.

[73 FR 1981, Jan. 11, 2008]

[[Page 48]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

             PART 1535_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 1535.007 Solicitations.

Sec. 1535.007-70 Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).



Sec. 1535.007  Solicitations.

    (a) Contracting officers shall insert 48 CFR 1552.235-73, Access to 
Federal Insecticide, Fungicide, and Rodenticide Act Confidential 
Business Information, in all solicitations when the contracting officer 
has determined that EPA may furnish the contractor with confidential 
business information which EPA had obtained from third parties under the 
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et 
seq.).
    (b) Contracting officers shall insert 48 CFR 1552.235-75, Access to 
Toxic Substances Control Act Confidential Business Information, in all 
solicitations when the contracting officer has determined that EPA may 
furnish the contractor with confidential business information which EPA 
had obtained from third parties under the Toxic Substances Control Act 
(15 U.S.C. 2601 et seq.).

[62 FR 38477, July 18, 1997]



Sec. 1535.007-70  Contract clauses.

    The following clauses are prescribed for research and development 
(R&D) contracts. They may also be used in other than R&D contracts when 
applicable (see 1537.110).
    (a) The Contracting Officer shall insert the contract clause at 
1552.235-70, Screening Business Information for Claims of 
Confidentiality, in contracts when the Contracting Officer has 
determined that during performance of this contract, the Contractor may 
be required to collect information to perform the work required under 
this contract. Some of the information may consist of trade secrets or 
commercial or financial information that would be considered as 
proprietary or confidential by the business that has the right to the 
information.
    (b) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-71, Treatment of Confidential Business Information, in 
solicitations and contracts when the Contracting Officer has determined 
that in the performance of the contract, EPA may furnish confidential 
business information to the contractor obtained from third parties under 
the Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking Water Act (42 
U.S.C. 300f et seq.), the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 301 et seq.), the Resource Conservation and Recovery Act (42 
U.S.C. 301 et seq.), the Federal Insecticide, Fungicide and Rodenticide 
Act (7 U.S.C. 136 et seq.), the Comprehensive Environmental Response, 
Compensation, and Liability Act (42 U.S.C. 9601 et seq.), and the 
provision at 48 CFR 1552.235-70, Release of Contractor Confidential 
Business Information. EPA regulations on confidentiality of business 
information in 40 CFR part 2, subpart B require that the contractor 
agree to the clause entitled ``Treatment of Confidential Business 
Information'' before any confidential business information may be 
furnished to the contractor.
    (c) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-76, Treatment of Confidential Business Information (TSCA), in 
solicitations and contracts when the Contracting Officer has determined 
that in the performance of the contract, EPA may furnish the contractor 
with confidential business information obtained from third parties under 
the Toxic Substances Control Act (15 U.S.C. 2601 et seq.). EPA 
regulations on confidentiality of business information in 40 CFR part 2, 
subpart B require that the contractor agree to the clause entitled 
``Treatment of Confidential Business Information'' before any 
confidential business information may be furnished to the contractor.
    (d) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-77, Data Security for Federal Insecticide,

[[Page 49]]

Fungicide, and Rodenticide Act, Confidential Business Information, when 
the contract involves access to confidential business information 
related to the Federal Insecticide, Fungicide, and Rodenticide Act, and 
the Treatment of Confidential Business Information clause (48 CFR 
1552.235-71) and the Screening Business Information for Claims of 
Confidentiality clause (48 CFR 1552.235-70) are included.
    (e) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-78, Data Security for Toxic Substances Control Act Confidential 
Business Information, when the contract involves access to confidential 
business information related to the Toxic Substances Control Act, and 
the Treatment of Confidential Business Information clause (48 CFR 
1552.235-76) and Screening Business Information for Claims of 
Confidentiality clause (48 CFR 1552.235-70) are included.
    (f) Contracting Officers shall insert the clause 48 CFR 1552.235-79, 
Release of Contractor Confidential Business Information, in all 
solicitations and contracts in order to authorize the Agency to release 
confidential business information under certain circumstances.
    (g) Contracting officers shall insert the clause at 1552.235-80, 
Access to Confidential Business Information (CBI), in all types of 
contracts when it is possible that it will be necessary for the 
contractor to have access to CBI during the performance of tasks 
required under the contract.

[49 FR 8862, Mar. 8, 1984; 49 FR 24734, June 15, 1984, as amended at 61 
FR 14265, Apr. 1, 1996; 61 FR 57339, Nov. 6, 1996; 65 FR 58923, Oct. 3, 
2000]

         PART 1536_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

     Subpart 1536.2_Special Aspects of Contracting for Construction

Sec.

Sec. 1536.201 Evaluation of contracting performance.

Sec. 1536.209 Construction contracts with architect-engineer firms.

                     Subpart 1536.5_Contract Clauses


Sec. 1536.521 Specifications and drawings for construction.

               Subpart 1536.6_Architect-Engineer Services


Sec. 1536.602 Selection of firms for architect-engineer contracts.

Sec. 1536.602-2 Establishment of evaluation boards.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8863, Mar. 8, 1984, unless otherwise noted.

     Subpart 1536.2_Special Aspects of Contracting for Construction



Sec. 1536.201  Evaluation of contracting performance.

    (a) The Contracting Officer will obtain input from the Project 
Officer on the contractor's performance. The Contracting Officer will 
prepare the contractor performance report as prescribed in FAR 36.201 
within two weeks after final acceptance of the work or contract 
termination.
    (b) Prior to submitting any report or unsatisfactory performance to 
the reviewing official, the Contracting Officer will advise the 
contractor of any proposed unsatisfactory rating (see FAR 36.201(a)(3)).
    (c) The official at one level above the Contracting Officer will 
review each performance report.
    (d) The Contracting Officer will forward the original of the 
performance report to the Quality Assurance Branch, Office of 
Acquisition Management. The Quality Assurance Section will file the form 
in the contractor performance evaluation files which it maintains.
    (e) The Quality Assurance Branch will review the report when it is 
received and compare it with recent evaluations of that contractor. If 
the Quality Assurance Section discerns a pattern of unsatisfactory 
performance, it will notify the Contracting Officer for possible action, 
which may include referral of the matter to the Compliance Staff or to 
the Inspector General for investigation.
    (f) Information from the performance report shall not be released 
outside of the Agency, except to other Government agencies at their 
written request, and on condition that the information

[[Page 50]]

will not be made available outside the Government. Requests from non-
Government sources for information from performance reports shall be 
processed in accordance with EPA's Freedom of Information Act procedures 
at 40 CFR part 2.

[49 FR 8863, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994]



Sec. 1536.209  Construction contracts with architect-engineer firms.

    (a) The provisions of FAR 36.209 do not apply to subcontractors 
performing treatability studies.
    (b) The provisions of FAR 36.209 also do not apply to subcontractors 
whose input during the design phase does not substantially affect the 
course of the design work.
    (c) Approval under FAR 36.209 is not required for subcontractors 
under paragraph (a) or (b) of this section. Approval for all other 
subcontractors and prime contractors may be granted by the CCO. In 
reviewing requests for approval, the RAD shall consider factors such as 
the availability of other firms to perform the necessary construction or 
Superfund remedial action work, the estimated cost to the Government, 
and the policy of the Agency to promote the use of innovative 
technology.

[55 FR 49283, Nov. 27, 1990, as amended at 59 FR 18977, Apr. 21, 1994]

                     Subpart 1536.5_Contract Clauses



Sec. 1536.521  Specifications and drawings for construction.

    The Contracting Officer shall insert the clause at 1552.236-70, 
Samples and Certificates, in soliciations and contracts when a fixed 
price construction contract is expected to exceed the small purchase 
limitation. The clause may be inserted in solicitations and contracts 
when the contract is expected to be within the small purchase 
limitation.

               Subpart 1536.6_Architect-Engineer Services



Sec. 1536.602  Selection of firms for architect-engineer contracts.



Sec. 1536.602-2  Establishment of evaluation boards.

    (a) The Environmental Protection Agency Architect-Engineer 
Evaluation Board is established as a central permanent Board located at 
Headquarters EPA under authority delegated to the Director, Office of 
Acquisition Management, which may be re-delegated.
    (b) The Service Center Manager (SCM) is delegated the authority to 
appoint either one or two additional voting members as may be 
appropriate for a particular project.
    (c) In the event of an emergency or extended absence, a member may 
designate, in writing, with the concurrence of the Chairperson, an 
alternate experienced in architecture, engineering, or construction to 
serve in his/her absence.
    (d) The duties of the advisory member shall include, but not be 
limited to, the following:
    (1) Assuring that the criteria set forth in the public notice are 
applied in the evaluation process; and
    (2) Assuring that actions taken during the evaluation process do not 
compromise subsequent procurement actions.

[59 FR 18977, Apr. 21, 1994, as amended at 67 FR 5052, Feb. 4, 2002; 70 
FR 61569, Oct. 25, 2005]

                      PART 1537_SERVICE CONTRACTING

                Subpart 1537.1_Service Contracts_General

Sec.

Sec. 1537.110 Solicitation provisions and contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8864, Mar. 8, 1984, unless otherwise noted.

[[Page 51]]

                Subpart 1537.1_Service Contracts_General



Sec. 1537.110  Solicitation provisions and contract clauses.

    The following clauses are prescribed for service contracts. They may 
also be used in research and development contracts when applicable (see 
1535.007-70).
    (a) The Contracting Officer shall insert the clause at 1552.237-70, 
Contract Publication Review Procedures, in solicitations and contracts 
when the products of the contract are subject to contract publication 
review.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause in 1552.237-71, Technical Direction, in solicitations 
and contracts where the contracting officer intends to delegate 
authority to issue technical direction to the contracting officer 
technical representative(s).
    (c) The Contracting Officer shall insert the clause at 1552.237-72, 
Key Personnel, in solicitations and contracts when it is necessary for 
contract performance to identify Contractor key personnel.
    (d) The Contracting Officer shall insert the clause at 1552.237-74, 
Publicity, in solicitations and contracts pertaining to the removal or 
remedial activities under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA).
    (e) The Contracting Officer shall insert the clause at 1552.237-75, 
Paperwork Reduction Act, in solicitations and contracts requiring the 
collection of identical information from (10) or more public 
respondents.
    (f) To ensure that Agency contracts are administered so as to avoid 
creating an improper employer-employee relationship, contracting 
officers shall insert the contract clause at 48 CFR 1552.237-76, 
``Government-Contractor Relations'', in all solicitations and contracts 
for non-personal services that exceed the simplified acquisition 
threshold.

[49 FR 8864, Mar. 8, 1984, as amended at 64 FR 30444, June 8, 1999; 70 
FR 61569, Oct. 25, 2005; 74 FR 37175, July 28, 2009]

[[Page 52]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 1542_CONTRACT ADMINISTRATION

                   Subpart 1542.7_Indirect Cost Rates

Sec.

Sec. 1542.703-2 Certificate of indirect costs.

Sec. 1542.705 Final indirect cost rates.

Sec. 1542.705-70 Solicitation and contract clause.

         Subpart 1542.12_Novation and Change of Name Agreements


Sec. 1542.1200 Scope of subpart.

Sec. 1542.1202 Responsibility for executing agreements.

Sec. 1542.1203 Processing agreements.

           Subpart 1542.15_Contractor Performance Information


Sec. 1542.1500 Scope of subpart.

Sec. 1542.1502 Policy.

Sec. 1542.1503 Procedures.

Sec. 1542.1504 Clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8865, Mar. 8, 1984, unless otherwise noted.

                   Subpart 1542.7_Indirect Cost Rates



Sec. 1542.703-2  Certificate of indirect costs.

    The Head of the Contracting Activity may waive the certification 
requirement set forth in FAR 42.703-2.

[61 FR 57339, Nov. 6, 1996]



Sec. 1542.705  Final indirect cost rates.

    (a) The EPA shall use the Contracting Officer determination 
procedure for all business units for which it shall be required to 
negotiate final indirect cost rates.
    (b) Contracting officers shall insert the clause at 1552.242-72, 
Financial Administrative Contracting officers (FACO), in cost-
reimbursement contracts when the Environmental Protection Agency (EPA) 
is the cognizant federal agency and a FACO will be assigned.

[49 FR 8865, Mar. 8, 1984, as amended at 65 FR 58924, Oct. 3, 2000]



Sec. 1542.705-70  Solicitation and contract clause.

    The Contracting Officer shall insert the clause in 1552.242-70, 
Indirect Costs, in solicitations and contracts where indirect costs 
apply, unless contracting with an educational institution where there 
are approved predetermined final indirect cost rates.

[62 FR 33573, June 20, 1997]

         Subpart 1542.12_Novation and Change of Name Agreements



Sec. 1542.1200  Scope of subpart.

    This subpart implements FAR subpart 42.12 and provides policies and 
procedures for executing and processing novation and change-of-name 
agreements.



Sec. 1542.1202  Responsibility for executing agreements.

    (a) Any EPA contracting office upon being notified of a successor in 
interest to, or change of name of, one of its Contractors shall promptly 
report such information by memorandum to the Director, Policy, Training 
and Oversight Division (POTD).
    (b) To avoid duplication of effort on the part of EPA contracting 
offices in preparing and executing agreements to recognize a change of 
name or successor in interest, only one supplemental agreement will be 
prepared to effect necessary changes for all contracts between EPA and 
the Contractor involved. The Chief of the Procurement Policy Branch, 
Policy, Training and Oversight Division (PTOD), will, in each case, 
designate the Contracting Office responsible for taking all necessary 
and appropriate action with respect to either recognizing or not 
recognizing a successor in interest, or recognizing a change of name 
agreement.

[49 FR 8865, Mar. 8, 1984, as amended at 55 FR 24580, June 18, 1990; 59 
FR 18977, Apr. 21, 1994]



Sec. 1542.1203  Processing agreements.

    (a) The responsible contracting office shall:

[[Page 53]]

    (1) Obtain from the Contractor a list of all affected contracts, the 
names and addresses of the contracting offices responsible for these 
contracts, and the required documentary evidence.
    (2) Verify the accuracy of the list of contracts through the 
Contract Information System.
    (3) Draft and execute a supplemental agreement to one of the 
contracts affected but covering all applicable outstanding and 
incomplete contracts affected by the transfer of assets or change of 
name. A supplemental agreement number need not be obtained for contracts 
other than for the one under which the supplemental agreement is 
written. The supplemental agreement will contain a list of the contracts 
affected and, for distribution purposes, the names and addresses of the 
contracting offices having contracts subject to the supplemental 
agreement.
    (b) Agreements and supporting documents covering successors in 
interest shall be reviewed for legal sufficiency by legal counsel.
    (c) After execution of the supplemental agreement, the designated 
office shall forward an authenticated copy of the supplemental agreement 
to the Director, Policy, Training and Oversight Division, and to each 
affected contract office.

[49 FR 8865, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994]

           Subpart 1542.15_Contractor Performance Information

    Source: 76 FR 39017, July 5, 2011, unless otherwise noted.



Sec. 1542.1500  Scope of subpart.

    This subpart provides EPA policies and establishes responsibilities 
for recording and maintaining contractor performance information.



Sec. 1542.1502  Policy.

    EPA contracting officers shall prepare an evaluation of contractor 
performance for all applicable contracts and orders with a total 
estimated value greater than the simplified acquisition threshold in 
accordance with FAR 42.1502. For acquisitions involving options, the 
total estimated value of the acquisition shall include the estimated 
base amount plus the option(s) amount(s). Evaluations shall be completed 
no later than 120 days after the end of the evaluation period.



Sec. 1542.1503  Procedures.

    (a) Past Performance Database. EPA contracting officers shall use 
the Contractor Performance Assessment Reporting System (CPARS) which has 
connectivity with the Past Performance Information Retrieval System 
(PPIRS).
    (b) Frequency and Types of Report. CPARS includes four types of 
reports: Initial, Intermediate, Final and Out-of-Cycle.
    (1) An initial report is required for new contracts/orders meeting 
the thresholds in FAR 42.15 with a period of performance greater than 
365 days. The initial CPAR must reflect evaluation of at least the first 
180 days of performance and may include up to the first 365 days of 
performance.
    (2) Intermediate reports are due every 12 months throughout the 
entire period of the contract after the initial report and up to the 
final report. While formal reports are only required every 12 months, 
contracting officers should discuss past performance with contractors on 
an ongoing basis.
    (3) A final report shall be prepared upon contract completion. 
Contracts/orders with less than 365 days performance only require a 
final report. For contracts longer than 365 days, the final report is 
not cumulative and covers only the period of performance following the 
last intermediate report. Final past performance reports must be 
completed prior to contract closeout.
    (4) An out-of-cycle report may be prepared when there is a 
significant change of performance that alters the assessment in one or 
more evaluation areas. The contractor may request an Out-of-cycle report 
be prepared; however, the decision of whether or not to do so is at the 
discretion of the contracting officer. An out-of-cycle report does not 
alter the annual intermediate reporting requirement.
    (c) Preparing the Evaluation. The contracting officer's 
representative shall initiate all reviews and forward to the contracting 
officer for approval. The

[[Page 54]]

content of the evaluations shall be based on objective data supportable 
by program and contract management records. Remarks should be tailored 
to the contract type, size, content, and complexity. Contracting 
officers should provide their own input on the evaluation as applicable 
and obtain input from the program office, administrative contracting 
office, end users of the product or service, and any other technical or 
business advisor, as appropriate.
    (d) Small Business Subcontracting Plan. Evaluations shall include an 
assessment of contractor performance against and efforts to achieve the 
goals identified in the small business subcontracting plan when the 
contract includes the clause at FAR 52.219-9, Small Business 
Subcontracting Plan.
    (e) Novation Agreements/Name Changes. In cases of novations 
involving successors-in-interest, a final evaluation of the predecessor 
contractor's performance must be accomplished. The predecessor 
contractor's final past performance report shall cover the last 12 
months (or less) of contract or order performance. In cases of change-
of-name agreements, the system shall be changed to reflect the new 
contractor's name.
    (f) File Documentation. Copies of the evaluation, contractor 
response, and review comments (if any) shall be retained as part of the 
evaluation, and hard copies shall be contained in contract files.



Sec. 1542.1504  Clauses.

    EPA contracting officers shall insert the contract clause at 
1552.242-71 in all solicitations, contracts, and orders requiring past 
performance reports in accordance with FAR Subpart 42.1502. For 
acquisitions involving options, the total estimated value of the 
acquisition shall include the estimated base amount plus the option(s) 
amount(s).

                      PART 1545_GOVERNMENT PROPERTY

                         Subpart 1545.1_General

Sec.

Sec. 1545.107 Government property clauses.

       Subpart 1545.3_Providing Government Property to Contractors


Sec. 1545.309 Providing Government production and research property 
          under special restrictions.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8866, Mar. 8, 1984, unless otherwise noted.

                         Subpart 1545.1_General



Sec. 1545.107  Government property clauses.

    (a) The Contracting Officer shall insert the contract clause at 
1552.245-70:
    (1) When it is anticipated that a Contractor will use Government-
furnished or Contractor-acquired property in the cleanup of hazardous 
material as defined in Federal Standard No. 313, or, the toxic chemicals 
listed 40 CFR 372.65, in the environment.
    (2) In all cost-type solicitations and contracts regardless of 
whether Government Property is initially provided, and in all fixed-
price solicitations and contracts whenever Government furnished property 
is provided.
    (b) The Contracting Officer shall insert the contract clause at 
1552.245-71, Government-Furnished Data, in any contract in which the 
Government is to furnish data to the Contractor. The data to be provided 
shall be identified in the clause.

[74 FR 47110, Sept. 15, 2009]

       Subpart 1545.3_Providing Government Property to Contractors



Sec. 1545.309  Providing Government production and research property 
          under special restrictions.

    Government production and research property, other than foundations 
and similar improvements necessary for installing special tooling, 
special test equipment, or plant equipment, shall not be installed or 
constructed on land not owned by the Government in such fashion as to be 
nonseverable unless the contract under which the property is provided 
contains--
    (a) One of the provisions in FAR 45.309(a);

[[Page 55]]

    (b) A requirement that the Government will have the right to abandon 
in place all nonseverable Government property provided; and
    (c) A requirement that the Government will not have any obligation 
to disassemble or remove the property or to restore or to rehabilitate 
the premises on which the property is located.

                       PART 1546_QUALITY ASSURANCE

                        Subpart 1546.7_Warranties

Sec.

Sec. 1546.704 Authority for use of warranties.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); 
and 41 U.S.C. 418b.

                        Subpart 1546.7_Warranties



Sec. 1546.704  Authority for use of warranties.

    The Contracting Officer shall ensure that the use of a warranty 
clause in a contract has the concurrence of the Project Officer.

[49 FR 8867, Mar. 8, 1984]

                 PART 1548_VALUE ENGINEERING [RESERVED]

[[Page 56]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 1552_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

             Subpart 1552.2_Texts of Provisions and Clauses

Sec.

Sec. 1552.203-70 Current/former agency employee involvement 
          certification.

Sec. 1552.203-71 Display of EPA Office of Inspector General Hotline 
          Poster.

Sec. 1552.204-70 [Reserved]

Sec. 1552.208-70 Printing.

Sec. 1552.209-70 Organizational conflict of interest notification.

Sec. 1552.209-71 Organizational conflicts of interest.

Sec. 1552.209-72 Organizational conflict of interest certification.

Sec. 1552.209-73 Notification of conflicts of interest regarding 
          personnel.

Sec. 1552.209-74 Limitation of future contracting.

Sec. 1552.209-75 Annual certification.

Sec. 1552.210-71 [Reserved]

Sec. 1552.210-73--1552.210-74 [Reserved]

Sec. 1552.211-70 Reports of work.

Sec. 1552.211-72 Monthly progress report.

Sec. 1552.211-73 Level of effort--cost-reimbursement term contract.

Sec. 1552.211-74 Work assignments.

Sec. 1552.211-75 Working files.

Sec. 1552.211-76 Legal analysis.

Sec. 1552.211-77 Final reports.

Sec. 1552.211-78 Management consulting services.

Sec. 1552.211-79 Compliance with EPA policies for information resources 
          management.

Sec. 1552.213-70 Notice to suppliers of equipment.

Sec. 1552.214-71 Contract award--other factors--formal advertising.

Sec. 1552.215-70 EPA source evaluation and selection procedures--
          negotiated procurements.

Sec. 1552.215-71 Evaluation factors for award.

Sec. 1552.215-72 Instructions for the preparation of proposals.

Sec. 1552.215-73 General financial and organizational information.

Sec. 1552.215-74 Advanced understanding--uncompensated time.

Sec. 1552.215-75 Past performance information.

Sec. 1552.215-76 [Reserved]

Sec. 1552.216-70 Award fee.

Sec. 1552.216-71 Date of incurrence of cost.

Sec. 1552.216-72 Ordering--by designated ordering officers.

Sec. 1552.216-73 Fixed rates for services--indefinite delivery/
          indefinite quantity contract.

Sec. 1552.216-74 Payment of fee.

Sec. 1552.216-75 Base fee and award fee proposal.

Sec. 1552.216-76 Estimated cost and cost-sharing.

Sec. 1552.216-77 Award term incentive.

Sec. 1552.216-78 Award term incentive plan.

Sec. 1552.216-79 Award term availability of funds.

Sec. 1552.217-70 Evaluation of contract options.

Sec. 1552.217-71 Option to extend the term of the contract--cost-type 
          contract.

Sec. 1552.217-72 Option to extend the term of the contract--cost-plus-
          award-fee contract.

Sec. 1552.217-73 Option for increased quantity--cost-type contract.

Sec. 1552.217-74 Option for increased quantity--cost-plus-award-fee 
          contract.

Sec. 1552.217-75 Option to extend the effective period of the contract--
          time and materials or labor hour contract.

Sec. 1552.217-76 Option to extend the effective period of the contract--
          indefinite delivery/indefinite quantity contract.

Sec. 1552.217-77 Option to extend the term of the contract fixed price.

Sec. 1552.219-70 Mentor-Protege Program.

Sec. 1552.219-71 Procedures for participation in the EPA Mentor-Protege 
          Program.

Sec. 1552.219-72 Small disadvantaged business participation program.

Sec. 1552.219-73 Small disadvantaged business targets.

Sec. 1552.219-74 Small disadvantaged business participation evaluation 
          factor.

Sec. 1552.223-70 Protection of human subjects.

Sec. 1552.223-71 EPA Green Meetings and Conferences.

Sec. 1552.223-72 Care of laboratory animals.

Sec. 1552.224-70 Social security numbers of consultants and certain sole 
          proprietors and Privacy Act statement.

Sec. 1552.227-76 Project employee confidentiality agreement.

Sec. 1552.228-70 Insurance liability to third persons.

Sec. 1552.229-70 [Reserved]

Sec. 1552.232-70 Submission of invoices.

Sec. 1552.232-71--1552.232-72 [Reserved]

Sec. 1552.232-73 Payments--fixed rate services contract.

Sec. 1552.232-74 Payments--simplified acquisition procedures financing.

Sec. 1552.233-70 Notice of filing requirements for agency protests.

Sec. 1552.235-70 Screening business information for claims of 
          confidentiality.

Sec. 1552.235-71 Treatment of confidential business information.

Sec. 1552.235-72 [Reserved]

Sec. 1552.235-73 Access to Federal Insecticide, Fungicide, and 
          Rodenticide Act Confidential business information (APR 1996).

Sec. 1552.235-74 [Reserved]

[[Page 57]]


Sec. 1552.235-75 Access to Toxic Substances Control Act confidential 
          business information (APR 1996).

Sec. 1552.235-76 Treatment of confidential business information (APR 
          1996).

Sec. 1552.235-77 Data Security for Federal Insecticide, Fungicide and 
          Rodenticide Act Confidential Business Information (DEC 1997).

Sec. 1552.235-78 Data Security for Toxic Substances Control Act 
          Confidential Business Information (DEC 1997).

Sec. 1552.235-79 Release of contractor confidential business information 
          (APR 1996).

Sec. 1552.235-80 Access to confidential business information.

Sec. 1552.236-70 Samples and certificates.

Sec. 1552.237-70 Contract publication review procedure.

Sec. 1552.237-71 Technical direction.

Sec. 1552.237-72 Key personnel.

Sec. 1552.237-73 [Reserved]

Sec. 1552.237-74 Publicity.

Sec. 1552.237-75 Paperwork Reduction Act.

Sec. 1552.237-76 Government-Contractor Relations.

Sec. 1552.239-70 Rehabilitation Act notice.

Sec. 1552.239-103 Acquisition of Energy Star compliant microcomputers, 
          including personal computers, monitors and printers.

Sec. 1552.242-70 Indirect costs.

Sec. 1552.242-71 Contractor performance evaluations.

Sec. 1552.242-72 Financial administrative contracting officer.

Sec. 1552.245-70 Government property.

Sec. 1552.245-73 Government property.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8867, Mar. 8, 1984, unless otherwise noted.

             Subpart 1552.2_Texts of Provisions and Clauses



Sec. 1552.203-70  Current/former agency employee involvement 
          certification.

    As prescribed in 1503.670, insert the following solicitation 
provision in all EPA solicitation documents for sole source 
acquisitions.

   Current/Former Agency Employee Involvement Certification (APR 1984)

    The offeror (quoter) hereby certifies that:
    (a) He is [ ] is not [ ] a former regular or special EPA employee 
whose EPA employment terminated within one year prior to submission of 
this offer (quote).
    (b) He does [ ] does not [ ] employ or propose to employ a current/
former regular or special EPA employee whose EPA employment terminated 
within one year prior to submission of this offer (quote) and who has 
been or will be involved, directly or indirectly, in developing or 
negotiating this offer (quote) for the offeror (quoter), or in the 
management, administration or performance of any contract resulting from 
this offer (quote).
    (c) He does [ ] does not [ ] employ or propose to employ as a 
consultant or subcontractor under any contract resulting from this offer 
(quote) a current/former regular or special EPA employee whose EPA 
employment terminated within one year prior to submission of this offer 
(quote).
    (d) A former regular or special EPA employee whose EPA employment 
terminated within one year prior to submission of this offer (quote) or 
such former employee's spouse or minor child does [ ] does not [ ] own 
or substantially own or control the offeror's (quoter's) firm.
    (e) See EPAAR part 1503 for definitions of the terms ``regular'' and 
``special employee.''

                           (End of provision)

[49 FR 8867, Mar. 8, 1984, as amended at 50 FR 14360, Apr. 11, 1985; 65 
FR 79784, Dec. 20, 2001]



Sec. 1552.203-71  Display of EPA Office of Inspector General Hotline 
          poster.

    As prescribed in 1503.500-72, insert the following clause in all 
contracts valued at $1,000,000 or more including all contract options.

  Display of EPA Office of Inspector General Hotline Poster (AUG 2000)

    (a) For EPA contracts valued at $1,000,000 or more including all 
contract options, the contractor shall prominently display EPA Office of 
Inspector General Hotline posters in contractor facilities where the 
work is performed under the contract.
    (b) Office of Inspector General hotline posters may be obtained from 
the EPA Office of Inspector General, ATTN: OIG Hotline (2443), 1200 
Pennsylvania Avenue, NW, Washington, DC 20460, or by calling (202) 260-
5113.
    (c) The Contractor need not comply with paragraph (a) of this clause 
if it has established a mechanism, such as a hotline, by which employees 
may report suspected instances of improper conduct, and provided 
instructions that encourage employees to make such reports.

[65 FR 57103, Sept. 21, 2000]



Sec. 1552.204-70  [Reserved]



Sec. 1552.208-70  Printing.

    As prescribed in 1508.870, insert the following clause:

[[Page 58]]

                           Printing (SEP 2012)

    (a) Definitions. ``Printing'' is the process of composition, plate 
making, presswork, binding and microform; or the end items produced by 
such processes and equipment. Printing services include newsletter 
production and periodicals which are prohibited under EPA contracts.
    ``Composition'' applies to the setting of type by hot-metal casting, 
photo typesetting, or electronic character generating devices for the 
purpose of producing camera copy, negatives, a plate or image to be used 
in the production of printing or microform.
    ``Camera copy'' (or ``camera-ready copy'') is a final document 
suitable for printing/duplication.
    ``Desktop Publishing'' is a method of composition using computers 
with the final output or generation of a camera copy done by a color 
inkjet or color laser printer. This is not considered ``printing.'' 
However, if the output from desktop publishing is being sent to a 
typesetting device (i.e., Linotronic) with camera copy being produced in 
either paper or negative format, these services are considered 
``printing.''
    ``Microform'' is any product produced in a miniaturized image 
format, for mass or general distribution and as a substitute for 
conventionally printed material. Microform services are classified as 
printing services and include microfiche and microfilm. The contractor 
may make up to two sets of microform files for archival purposes at the 
end of the contract period of performance.
    ``Duplication'' means the making of copies on photocopy machines 
employing electrostatic, thermal, or other processes without using an 
intermediary such as a negative or plate.
    ``Requirement'' means an individual photocopying task. (There may be 
multiple requirements under a Work Assignment or Delivery Order. Each 
requirement would be subject to the duplication limitation of 5,000 
copies of one page or 25,000 copies of multiple pages in the aggregate 
per requirement).
    ``Incidental'' means a draft and/or proofed document (not a final 
document) that is not prohibited from printing under EPA contracts.
    (b) Prohibition. (1) The contractor shall not engage in, nor 
subcontract for, any printing in connection with the performance of work 
under this contract. Duplication of more than 5,000 copies of one page 
or more than 25,000 copies of multiple pages in the aggregate per 
requirement constitutes printing. The intent of the printing limitation 
is to eliminate duplication of final documents.
    (2) In compliance with EPA Order 2200.4a, EPA Publication Review 
Procedure, the Office of Communications, Education, and Media Relations 
is responsible for the review of materials generated under a contract 
published or issued by the Agency under a contract intended for release 
to the public.
    (c) Affirmative Requirements. (1) Unless otherwise directed by the 
contracting officer, the contractor shall use double-sided copying to 
produce any progress report, draft report or final report.
    (2) Unless otherwise directed by the contracting officer, the 
contractor shall use recycled paper for reports delivered to the Agency 
which meet the minimum content standards for paper and paper products as 
set forth in EPA's Web site for the Comprehensive Procurement Guidelines 
at: http://www.epa.gov/cpg/.
    (d) Permitted Contractor Activities. (1) The prohibitions contained 
in paragraph (b) do not preclude writing, editing, or preparing 
manuscript copy, or preparing related illustrative material to a final 
document (camera-ready copy) using desktop publishing.
    (2) The contractor may perform a requirement involving the 
duplication of less than 5,000 copies of only one page, or less than 
25,000 copies of multiple pages in the aggregate, using one color 
(black), such pages shall not exceed the maximum image size of 10\3/4\ 
by 14\1/4\ inches, or 11 by 17 paper stock. Duplication services below 
these thresholds are not considered printing. If performance of the 
contract will require duplication in excess of these thresholds, 
contractors must immediately notify the contracting officer in writing 
and a waiver must be obtained. Only the Joint Committee on Printing has 
the authority to grant waivers to the printing requirements. All Agency 
waiver requests must be coordinated with EPA's Headquarters Printing 
Management Team, Facilities and Services Division, and with the Office 
of General Counsel. Duplication services of ``incidentals'' in excess of 
the thresholds are allowable.
    (3) The contractor may perform a requirement involving the multi-
color duplication of no more than 100 pages in the aggregate using color 
copier technology, such pages shall not exceed the maximum image size of 
10\3/4\ by 14\1/4\ inches, or 11 by 17 paper stock. Duplication services 
below these thresholds are not considered printing. If performance of 
the contract will require duplication in excess of these limits, 
contractors must immediately notify the contracting officer in writing 
and a waiver must be obtained. Only the Joint Committee on Printing has 
the authority to grant waivers to the printing requirements. All Agency 
waiver requests must be coordinated with EPA's Headquarters Printing 
Management Team, Facilities and Services Division, and with the Office 
of General Counsel.
    (4) The contractor may perform the duplication of no more than a 
total of 500 units of an electronic information storage device

[[Page 59]]

(e.g., CD-ROMs, DVDs, thumb drives \1\) (including labeling and 
packaging) per work assignment or task order/delivery order per contract 
year. Duplication services below these thresholds are not considered 
printing. If performance of the contract will require duplication in 
excess of these thresholds, contractors must immediately notify the 
contracting officer in writing and a waiver must be obtained. Only the 
Joint Committee on Printing has the authority to grant waivers to the 
printing requirements. All Agency waiver requests must be coordinated 
with EPA's Headquarters Printing Management Team, Facilities and 
Services Division, and with the Office of General Counsel.
---------------------------------------------------------------------------

    \1\ Pursuant to the July 2008 guidance Promotional Communications 
for EPA, a thumb drive can be used as a promotional item, but it also 
must be an information medium in itself. Namely, it must have 
substantive EPA information already loaded into the drive. Due to its 
intrinsic material value, it may not be used simply or primarily to 
display an EPA message on the exterior of the drive.
---------------------------------------------------------------------------

    (e) Violations. The contractor may not engage in, nor subcontract 
for, any printing in connection with the performance of work under the 
contract. The cost of any printing services in violation of this clause 
will be disallowed, or not accepted by the Government.
    (f) Flowdown Clause. The contractor shall include in each 
subcontract which may involve a requirement for any printing/
duplicating/copying a provision substantially the same as this clause.

                             (End of clause)

[78 FR 22797, Apr. 17, 2013]



Sec. 1552.209-70  Organizational conflict of interest notification.

    As prescribed in 1509.507-1(b) insert the following solicitation 
provision in all solicitations.

       Organizational Conflict of Interest Notification (APR 1984)

    (a) The prospective Contractor certifies, to the best of its 
knowledge and belief, that it is not aware of any information bearing on 
the existence of any potential organizational conflict of interest. If 
the prospective Contractor cannot so certify, it shall provide a 
disclosure statement in its proposal which describes all relevant 
information concerning any past, present, or planned interests bearing 
on whether it (including its chief executives and directors, or any 
proposed consultant or subcontractor) may have a potential 
organizational conflict of interest.
    (b) Prospective Contractors should refer to FAR subpart 9.5 and 
EPAAR part 1509 for policies and procedures for avoiding, neutralizing, 
or mitigating organizational conflicts of interest.
    (c) If the Contracting Officer determines that a potential conflict 
exists, the prospective Contractor shall not receive an award unless the 
conflict can be avoided or otherwise resolved through the inclusion of a 
special contract clause or other appropriate means. The terms of any 
special clause are subject to negotiation.

                           (End of provision)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994; 62 
FR 33573, June 20, 1997]



Sec. 1552.209-71  Organizational conflicts of interest.

    As prescribed in 1509.507-2, insert the following contract clause in 
all contracts except:
    (a) When specific clauses are required per EPAAR part 1509;
    (b) When the procurement is with another Federal agency (however, 
the provision is included in contracts with SBA and its subcontractor 
under the 8(a) program); and
    (c) When the procurement is accomplished through simplified 
acquisition procedures, use of the clause is optional.

             Organizational Conflicts of Interest (MAY 1994)

    (a) The Contractor warrants that, to the best of the Contractor's 
knowledge and belief, there are no relevant facts or circumstances which 
could give rise to an organizational conflict of interest, as defined in 
FAR subpart 9.5, or that the Contractor has disclosed all such relevant 
information.
    (b) Prior to commencement of any work, the Contractor agrees to 
notify the Contracting Officer immediately that, to the best of its 
knowledge and belief, no actual or potential conflict of interest exists 
or to identify to the Contracting Officer any actual or potential 
conflict of interest the firm may have. In emergency situations, 
however, work may begin but notification shall be made within five (5) 
working days.
    (c) The Contractor agrees that if an actual or potential 
organizational conflict of interest is identified during performance, 
the Contractor will immediately make a full disclosure in writing to the 
Contracting Officer. This disclosure shall include a description of 
actions which the Contractor has taken or

[[Page 60]]

proposes to take, after consultation with the Contracting Officer, to 
avoid, mitigate, or neutralize the actual or potential conflict of 
interest. The Contractor shall continue performance until notified by 
the Contracting Officer of any contrary action to be taken.
    (d) Remedies--The EPA may terminate this contract for convenience, 
in whole or in part, if it deems such termination necessary to avoid an 
organizational conflict of interest. If the Contractor was aware of a 
potential organizational conflict of interest prior to award or 
discovered an actual or potential conflict after award and did not 
disclose it or misprepresented relevant information to the Contracting 
officer, the Government may terminate the contract for default, debar 
the Contractor from Government contracting, or pursue such other 
remedies as may be permitted by law or this contract.
    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph (e), unless otherwise authorized by the 
Contracting Officer.

                             (End of clause)

    Alternate I. Contracts for other than Superfund work shall include 
Alternate I in this clause in lieu of paragraph (e).

    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder provisions which shall conform 
substantially to the language of this clause, including this paragraph, 
unless otherwise authorized by the contracting officer.

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994; 61 
FR 57339, Nov. 6, 1996; 63 FR 46899, Sept. 3, 1998]



Sec. 1552.209-72  Organizational conflict of interest certification.

    As prescribed in 1509.507-1(b), insert the following provision in 
all solicitation documents when applicable.

      Organizational Conflict of Interest Certification (APR 1984)

    The offeror [ ] is [ ] is not aware of any information bearing on 
the existence of any potential organizational conflict of interest. If 
the offeror is aware of information bearing on whether a potential 
conflict may exist, the offeror shall provide a disclosure statement 
describing this information. (See section L of the solicitation for 
further information.)

                           (End of provision)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994]



Sec. 1552.209-73  Notification of conflicts of interest regarding 
          personnel.

    As prescribed in 1509.507-2(b) insert the following clause:

  Notification of Conflicts of Interest Regarding Personnel (MAY 1994)

    (a) In addition to the requirements of the contract clause entitled 
``Organizational Conflicts of Interest,'' the following provisions with 
regard to employee personnel performing under this contract shall apply 
until the earlier of the following two dates: the termination date of 
the affected employee(s) or the expiration date of the contract.
    (b) The Contractor agrees to notify immediately the EPA Project 
Officer and the Contracting Officer of (1) any actual or potential 
personal conflict of interest with regard to any of its employees 
working on or having access to information regarding this contract, or 
(2) any such conflicts concerning subcontractor employees or consultants 
working on or having access to information regarding this contract, when 
such conflicts have been reported to the Contractor. A personal conflict 
of interest is defined as a relationship of an employee, subcontractor 
employee, or consultant with an entity that may impair the objectivity 
of the employee, subcontractor employee, or consultant in performing the 
contract work.
    (c) The Contractor agrees to notify each Project Officer and 
Contracting Officer prior to incurring costs for that employee's work 
when an employee may have a personal conflict of interest. In the event 
that the personal conflict of interest does not become known until after 
performance on the contract begins, the Contractor shall immediately 
notify the Contracting Officer of the personal conflict of interest. The 
Contractor shall continue performance of this contract until notified by 
the Contracting Officer of the appropriate action to be taken.
    (d) The Contractor agrees to insert in any subcontract or consultant 
agreement placed hereunder, except for subcontracts or consultant 
agreements for well drilling, fence erecting, plumbing, utility hookups, 
security guard services, or electrical services, provisions which shall 
conform substantially to the language of this clause, including this 
paragraph (d), unless otherwise authorized by the Contracting Officer.

                             (End of clause)

[59 FR 18620, Apr. 19, 1994]

[[Page 61]]



Sec. 1552.209-74  Limitation of future contracting.

    As prescribed in 1509.507-2(c), insert the following clause or 
alternate:

            Limitation of Future Contracting (RAC) (APR 2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) The Contractor will be ineligible to enter into a contract for 
remedial action projects for which the Contractor has developed the 
statement of work or the solicitation package.
    (c) The following applies when work is performed under this 
contract: Unless prior written approval is obtained from the cognizant 
EPA Contracting Officer, the Contractor, during the life of the work 
assignment, task order, or tasking document and for a period of five (5) 
years after the completion of the work assignment, task order, or 
tasking document, agrees not to enter into a contract with or to 
represent any party, other than EPA, with respect to: (1) Any work 
relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or (2) 
any work that may jeopardize CERCLA enforcement actions which pertain to 
a site where the Contractor previously performed work for the EPA under 
this contract.
    (d) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (e) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (f) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (g) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (g) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (h) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (i) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

     Limitation of Future Contracting Alternate I (ERRS) (APR 2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements

[[Page 62]]

of work are incorporated into an EPA solicitation, the Contractor shall 
be ineligible to perform the work described in that solicitation as a 
prime Contractor or subcontractor under an ensuing EPA contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the delivery 
order or tasking document and for a period of five (5) years after the 
completion of the delivery order or tasking document, agrees not to 
enter into a contract with or to represent any party, other than EPA, 
with respect to: (1) any work relating to CERCLA activities which 
pertain to a site where the Contractor previously performed work for EPA 
under this contract; or (2) any work that may jeopardize CERCLA 
enforcement actions which pertain to a site where the Contractor 
previously performed work for the EPA under this contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide any Superfund Technical Assistance and 
Removal Team (START); type activities (e.g., START contracts) to EPA 
within the Contractor's ERRS assigned geographical area(s), either as a 
prime contractor, subcontractor, or consultant.
    (2) It will not provide any START type activities (e.g., START 
contracts) to EPA as a prime contractor, subcontractor or consultant at 
a site where it has performed or plans to perform ERRS work.
    (3) It will be ineligible for award of START type activities 
contracts for sites within its respective ERRS assigned geographical 
area(s) which result from a CERCLA administrative order, a CERCLA or 
RCRA consent decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

    Limitation of Future Contracting Alternate II (Start) (APR 2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required

[[Page 63]]

to develop specifications or statements of work and such specifications 
or statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the technical 
direction document and for a period of five (5) years after the 
completion of the technical direction document, agrees not to enter into 
a contract with or to represent any party, other than EPA, with respect 
to: (1) Any work relating to CERCLA activities which pertain to a site 
where the Contractor previously performed work for EPA under this 
contract; or (2) any work that may jeopardize CERCLA enforcement actions 
which pertain to a site where the Contractor previously performed work 
for the EPA under this contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide to EPA cleanup services (e.g., Emergency and 
Rapid Response Services (ERRS) contracts) within the Contractor's START 
assigned geographical area(s), either as a prime Contractor, 
subcontractor, or consultant.
    (2) Unless an individual design for the site has been prepared by a 
third party, it will not provide to EPA as a prime contractor, 
subcontractor or consultant any remedial construction services at a site 
where it has performed or plans to perform START work. This clause will 
not preclude START contractors from performing construction management 
services under other EPA contracts.
    (3) It will be ineligible for award of ERRS type activities 
contracts for sites within its respective START assigned geographical 
area(s) which result from a CERCLA administrative order, a CERCLA or 
RCRA consent decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

    Limitation of Future Contracting Alternate III (ESAT) (APR 2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this

[[Page 64]]

clause, the Contractor shall be free to compete for contracts on an 
equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (d) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (e) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (f) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (g) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

     LIMITATION OF FUTURE CONTRACTING, ALTERNATE IV (ESS) (SEP 2013)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) During the performance period of this contract, the Contractor 
will be ineligible to enter into any contract for remedial planning and/
or implementation projects for sites within the assigned geographical 
area(s) covered by this contract without the prior written approval of 
the EPA Contracting Officer.
    (c) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (d) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the work 
assignment and for a period of seven (7) years after the completion of 
the work assignment, agrees not to enter into a contract with or to 
represent any party, other than EPA, with respect to: (1) Any work 
relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or (2) 
any work that may jeopardize CERCLA enforcement actions which pertain to 
a site where the Contractor previously performed work for the EPA under 
this contract.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to,

[[Page 65]]

Superfund Management and Analytical support contracts, and Superfund 
Technical and Analytical support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

  Limitation of Future Contracting, Alternate V (Headquarters Support) 
                               (APR 2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) The Contractor, during the life of this contract, will be 
ineligible to enter into a contract with EPA to perform response action 
work (e.g., Response Action Contract (RAC), Emergency and Rapid Response 
Services (ERRS), Superfund Technical Assistance and Removal Team 
(START), and Enforcement Support Services (ESS) contracts), unless 
otherwise authorized by the Contracting Officer.
    (d) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (e) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (f) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (f) unless otherwise authorized 
by the Contracting Officer. The Contractor may

[[Page 66]]

request in writing that the Contracting Officer exempt from this clause 
a particular subcontract or consultant agreement for nondiscretionary 
technical or engineering services not specifically listed above, 
including laboratory analysis. The Contracting Officer will review and 
evaluate each request on a case-by-case basis before approving or 
disapproving the request.
    (g) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (h) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

  Limitation of Future Contracting; Alternate VI (Site Specific) (APR 
                                  2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the contract and 
for a period of five (5) years after the expiration of the contract 
agrees not to enter into a contract with or to represent any party, 
other than EPA, with respect to: (1) any work relating to CERCLA 
activities which pertain to the site where the Contractor previously 
performed work for EPA under this contract; or (2) any work that may 
jeopardize CERCLA enforcement actions which pertain to the site where 
the Contractor previously performed work for the EPA under this 
contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide any Superfund Technical Assistance and 
Removal Team (START) type activities (e.g., START contracts) to EPA on 
the site either as a prime contractor, subcontractor, or consultant.
    (2) It will be ineligible for award of contracts pertaining to this 
site which result from a CERCLA administrative order, a CERCLA or RCRA 
consent decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) Contractors who are performing nondiscretionary technical or 
engineering services, including construction work, may request a waiver 
from or modification to this clause by submitting a written request to 
the Contracting Officer. The Contracting Officer shall make the 
determination regarding whether to waive or modify the clause on a case-
by-case basis.
    (i) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this

[[Page 67]]

paragraph (i) unless otherwise authorized by the Contracting Officer. 
The Contractor may request in writing that the Contracting Officer 
exempt from this clause a particular subcontract or consultant agreement 
for nondiscretionary technical or engineering services not specifically 
listed above, including laboratory analysis. The Contracting Officer 
will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (j) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (k) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

[59 FR 18620, Apr. 19, 1994, as amended at 62 FR 5348, Feb. 5, 1997; 63 
FR 692, Jan. 7, 1998; 65 FR 37292, June 14, 2000; 70 FR 61570, Oct. 25, 
2005; 78 FR 46290, July 31, 2013]



Sec. 1552.209-75  Annual certification.

    As prescribed in 1509.507-2(d), insert the following clause:

                     Annual Certification (MAY 1994)

    The Contractor shall submit an annual conflict of interest 
certification to the Contracting Officer. In this certification, the 
Contractor shall certify annually that, to the best of the Contractor's 
knowledge and belief, all actual or potential organizational conflicts 
of interest have been reported to EPA. In addition, in this annual 
certification, the Contractor shall certify that it has informed its 
personnel who perform work under EPA contracts or relating to EPA 
contracts of their obligation to report personal and organizational 
conflicts of interest to the Contractor. Such certification must be 
signed by a senior executive of the company and submitted in accordance 
with instructions provided by the Contracting Officer. The initial 
certification shall cover the one-year period from the date of contract 
award, and all subsequent certifications shall cover successive annual 
periods thereafter, until expiration or termination of the contract. The 
certification must be received by the Contracting Officer no later than 
45 days after the close of the certification period covered.

                             (End of clause)

[59 FR 18623, Apr. 19, 1994. Redesignated at 61 FR 57339, Nov. 6, 1996, 
as amended at 62 FR 33573, June 20, 1997]



Sec. 1552.210-71  [Reserved]



Sec. 1552.210-73--1552.210-74  [Reserved]



Sec. 1552.211-70  Reports of work.

    As prescribed in 1511.011-70, insert one of the contract clauses in 
this subsection when the contract requires the delivery of reports, 
including plans, evaluations, studies, analyses and manuals. The basic 
clause should be used when reports are specified in a contract 
attachment. Alternate I is to be used to specify reports in the contract 
schedule.

                       Reports of Work (OCT 2000)

    The Contractor shall prepare and deliver reports, including plans, 
evaluations, studies, analyses and manuals in accordance with Attachment 
----------------. Each report shall cite the contract number, identify 
the U.S. Environmental Protection Agency as the sponsoring agency, and 
identify the name of the Contractor preparing the report.
    The OMB clearance number for progress reports delivered under this 
contract is 2030-0005.

                             (End of clause)

    Alternate I (OCT 2000). The Contractor shall prepare and deliver the 
below listed reports, including plans, evaluations, studies, analyses 
and manuals to the designated addressees. Each report shall cite the 
contract number, identify the U.S. Environmental Protection Agency as 
the sponsoring agency, and identify the name of the Contractor preparing 
the report.

    The OMB clearance number for progress reports delivered under this 
contract is 2030-0005. Required reports are:

------------------------------------------------------------------------
           Reports description              No. copies     Addressees
------------------------------------------------------------------------
                                           ...........  ................
                                           ...........  ................
                                           ...........  ................
------------------------------------------------------------------------


[[Page 68]]

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 61 FR 57339, Nov. 6, 1996, as 
amended at 62 FR 33573, June 20, 1997; 63 FR 10549, Mar. 4, 1998; 63 FR 
46899, Sept. 3, 1998; 65 FR 58924, Oct. 3, 2000; 66 FR 28674, May 24, 
2001; 78 FR 46290, July 31, 2013]



Sec. 1552.211-72  Monthly progress report.

    As prescribed in 1511.011-72, insert the following clause:

                   Monthly Progress Report (JUN 1996)

    (a) The Contractor shall furnish ---- copies of the combined monthly 
technical and financial progress report stating the progress made, 
including the percentage of the project completed, and a description of 
the work accomplished to support the cost. If the work is ordered using 
work assignments or delivery orders, include the estimated percentage of 
task completed during the reporting period for each work assignment or 
delivery order.
    (b) Specific discussions shall include difficulties encountered and 
remedial action taken during the reporting period, and anticipated 
activity with a schedule of deliverables for the subsequent reporting 
period.
    (c) The Contractor shall provide a list of outstanding actions 
awaiting Contracting Officer authorization, noted with the corresponding 
work assignment, such as subcontractor/consultant consents, overtime 
approvals, and work plan approvals.
    (d) The report shall specify financial status at the contract level 
as follows:
    (1) For the current reporting period, display the amount claimed.
    (2) For the cumulative period and the cumulative contract life 
display: the amount obligated, amount originally invoiced, amount paid, 
amount suspended, amount disallowed, and remaining approved amount. The 
remaining approved amount is defined as the total obligated amount, less 
the total amount originally invoiced, plus total amount disallowed.
    (3) Labor hours.
    (i) A list of employees, their labor categories, and the numbers of 
hours worked for the reporting period.
    (ii) For the current reporting period, display the expended direct 
labor hours and costs broken out by EPA contract labor hour category for 
the prime contractor and each subcontractor and consultant.
    (iii) For the cumulative contract period and the cumulative contract 
life display: the negotiated, expended and remaining direct labor hours 
and costs broken out by EPA contract labor hour category for the prime 
contractor, and each subcontractor and consultant.
    (iv) Display the estimated direct labor hours and costs to be 
expended during the next reporting period.
    (4) Display the current dollar ceilings in the contract, net amount 
invoiced, and remaining amounts for the following categories: Direct 
labor hours, total estimated cost, award fee pool (if applicable), 
subcontracts by individual subcontractor, travel, program management, 
and Other Direct Costs (ODCs).
    (5) Unbilled allowable costs. Display the total costs incurred but 
unbilled for the current reporting period and cumulative for the 
contract.
    (6) Average cost of direct labor. Compare the actual average cost 
per hour to date with the average cost per hour of the approved work 
plans for the current contract period.
    (e) The report shall specify financial status at the work assignment 
or delivery order level as follows:
    (1) For the current period, display the amount claimed.
    (2) For the cumulative period display: amount shown on workplan, or 
latest work assignment/delivery order amendment amount (whichever is 
later); amount currently claimed; amount paid; amount suspended; amount 
disallowed; and remaining approved amount. The remaining approved amount 
is defined as: the workplan amount or latest work assignment or delivery 
order amount (whichever is later), less total amounts originally 
invoiced, plus total amount disallowed.
    (3) Labor hours.
    (i) A list of employees, their labor categories, and the number of 
hours worked for the reporting period.
    (ii) For the current reporting period, display the expended direct 
labor hours and costs broken out by EPA contract labor hour category for 
the prime contractor and each subcontractor and consultant.
    (iii) For the current reporting period, cumulative contract period, 
and the cumulative contract life display: the negotiated, expended and 
remaining direct labor hours and costs broken out by EPA contract labor 
hour category for the prime contractor and each subcontractor and 
consultant.
    (iv) Display the estimated direct labor hours and costs to be 
expended during the next reporting period.
    (v) Display the estimates of remaining direct labor hours and costs 
required to complete the work assignment or delivery order.
    (4) Unbilled allowable costs. Display the total costs incurred but 
unbilled for the current reporting period and cumulative for the work 
assignment.
    (5) Average cost of direct labor. Display the actual average cost 
per hour with the cost per hour estimated in the workplan.

[[Page 69]]

    (6) A list of deliverables for each work assignment or delivery 
order during the reporting period.
    (f) This submission does not change the notification requirements of 
the ``Limitation of Cost'' or ``Limitation of Funds'' clauses requiring 
separate written notice to the Contracting Officer.
    (g) The reports shall be submitted to the following addresses on or 
before the ---- of each month following the first complete reporting 
period of the contract. See EPAAR 1552.232-70, Submission of Invoices, 
paragraph (e), for details on the timing of submittals. Distribute 
reports as follows:

------------------------------------------------------------------------
                                                     Address (email and/
        No. of copies               Addressee           or shipping)
------------------------------------------------------------------------
                              Contracting
                               Officer's
                               Representative.
                              Contracting Officer.
------------------------------------------------------------------------

                             (End of clause)

[61 FR 29317, June 10, 1996. Redesignated at 61 FR 57339, Nov. 6, 1996, 
as amended at 62 FR 33573, June 20, 1997; 78 FR 46290, July 31, 2013]



Sec. 1552.211-73  Level of effort--cost-reimbursement term contract.

    As prescribed in 1511.011-73, insert the following contract clause 
in cost-reimbursement term contracts including cost contracts without 
fee, cost-sharing contracts, cost-plus-fixed-fee (CPFF) contracts, cost-
plus-incentive-fee contracts (CPIF), and cost-plus-award-fee contracts 
(CPAF).

      Level of Effort--Cost-Reimbursement Term Contract (APR 1984)

    (a) The Contractor shall perform all work and provide all required 
reports within the level of effort specified below. The Government 
hereby orders ---- direct labor hours for the base period, which 
represents the Government's best estimate of the level of effort to 
fulfill these requirements.
    (b) Direct labor includes personnel such as engineers, scientists, 
draftsmen, technicians, statisticians, and programmers and not support 
personnel such as company management, typists, and key punch operators 
even though such support personnel are normally treated as direct labor 
by the Contractor. The level of effort specified in paragraph (a) 
includes Contractor, subcontractor, and consultant labor hours.
    (c) If the Contractor provides less than 90 percent of the level of 
effort specified for the base period or any optional period ordered, an 
equitable downward adjustment of the fixed fee, if any, for that period 
will be made. The Government may require the Contractor to provide 
additional effort up to 110 percent of the level of effort for any 
period until the estimated cost for that period has been reached. 
However, this additional effort shall not result in any increase in the 
fixed fee, if any. If this is a cost-plus-incentive-fee (CPIF) contract, 
the term ``fee'' in this paragraph means ``base fee and incentive fee.'' 
If this is a cost-plus-award-fee (CPAF) contract, the term ``fee'' in 
this paragraph means ``base fee and award fee.''
    (d) If the level of effort specified to be ordered during a given 
base or option period is not ordered during that period, that level of 
effort may not be acumulated and ordered during a subsequent period.
    (e) These terms and conditions do not supersede the requirements of 
either the ``Limitation of Cost'' or ``Limitation of Funds'' clauses.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 61 FR 57339, Nov. 6, 1996, as 
amended at 62 FR 33573, June 20, 1997]



Sec. 1552.211-74  Work assignments.

    As prescribed in 1511.011-74, insert the following contract clause 
in cost-reimbursement type term form contracts when work assignments are 
to be used.

                       Work Assignments (APR 1984)

    (a) The contractor shall perform work under this contract as 
specified in written work assignments issued by the Contracting Officer.
    (b) Each work assignment will include (1) a numerical designation, 
(2) the estimate of required labor hours, (3) the period of performance 
and schedule of deliverables, and (4) the description of the work.
    (c) The Contractor shall acknowledge receipt of each work assignment 
by returning to the Contracting Officer a signed copy of the work 
assignment within ---- calendar days after its receipt. The Contractor 
shall begin work immediately upon receipt of a work assignment. Within 
---- calendar days after receipt of a work assignment, the Contractor 
shall submit ---- copies of a work plan to the Contracting Officer's 
Representative and ---- copies to the Contracting Officer. The work plan 
shall include a detailed technical and staffing plan and a detailed cost 
estimate. Within ---- calendar days

[[Page 70]]

after receipt of the work plan, the Contracting Officer will provide 
written approval or disapproval of it to the Contractor. If the 
Contractor has not received approval on a work plan within ---- calendar 
days after its submission, the Contractor shall stop work on that work 
assignment. Also, if the Contracting Officer disapproves a work plan, 
the Contractor shall stop work until the problem causing the disapproval 
is resolved. In either case, the Contractor shall resume work only when 
the Contracting Officer finally approves the work plan.
    (d) This clause does not change the requirements of the ``Level of 
Effort'' clause, nor the notification requirements of either the 
``Limitation of Cost'' or ``Limitation of Funds'' clauses.
    (e) Work assignments shall not allow for any change to the terms or 
conditions of the contract. Where any language in the work assignment 
may suggest a change to the terms or conditions, the Contractor shall 
immediately notify the Contracting Officer.

                             (End of clause)

    Alternate I. As prescribed in 1512.104(b), modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
certification. Where work assignments or similar tasking documents are 
issued under this contract for work on or directly related to a site, 
the Contractor is only required to provide a conflict of interest 
certification for the first work assignment issued for that site. For 
all subsequent work on that site under this contract, the Contractor has 
a continuing obligation to search and report any actual or potential 
conflicts of interest, but no additional conflict of interest 
certifications are required.
    Before submitting the conflict of interest certification, the 
contractor shall search its records accumulated, at a minimum, over the 
past three years immediately prior to the receipt of the work assignment 
or similar tasking document. In the COI certification, the Contractor 
must certify to the best of the Contractor's knowledge and belief, that 
all actual or potential organizational conflicts of interest have been 
reported to the Contracting Officer or that to the best of the 
Contractor's knowledge and belief, no actual or potential organizational 
conflicts of interest exist. In addition, the Contractor must certify 
that its personnel who perform work under this work assignment or 
relating to this work assignment have been informed of their obligation 
to report personal and organizational conflicts of interest to the 
Contractor. The certification shall also include a statement that the 
Contractor recognizes its continuing obligation to identify and report 
any actual or potential conflicts of interest arising during performance 
of this work assignment or other work related to this site.

                             (End of clause)

    Alternate II. As prescribed in 1512.104(b), modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
certification. Where work assignments or similar tasking documents are 
issued under this contract for work on or directly related to a site, 
the Contractor is only required to provide a conflict of interest 
certification for the first work assignment issued for that site. For 
all subsequent work on that site under this contract, the Contractor has 
a continuing obligation to search and report any actual or potential 
conflicts of interest, but no additional conflict of interest 
certifications are required.
    Before submitting the conflict of interest certification, the 
Contractor shall initially search through all of its available records 
to identify any actual or potential conflicts of interest. During the 
first three years of this contract, the Contractor shall search through 
all records created since the beginning of the contract plus the records 
of the Contractor prior to the award of the contract until a minimum of 
three years of records are accumulated. Once three years of records have 
accumulated, prior to certifying, the Contractor shall search its 
records accumulated, at a minimum, over the past three years immediately 
prior to the receipt of the work assignment or similar tasking document. 
In the certification, the Contractor must certify to the best of the 
Contractor's knowledge and belief, that all actual or potential 
organizational conflicts of interest have been reported to the 
Contracting Officer or that to the best of the Contractor's knowledge 
and belief, no actual or potential organizational conflicts of interest 
exist. In addition, the Contractor must certify that its personnel who 
perform work under this work assignment or relating to this work 
assignment have been informed of their obligation to report personal and 
organizational conflicts of interest to the Contractor. The 
certification shall also include a statement that the Contractor 
recognizes its continuing obligation to identify and report any actual 
or potential conflicts of interest arising during performance of this 
work assignment or other work related to this site.

[[Page 71]]

                             (End of clause)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18624, Apr. 19, 1994. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997; 78 FR 46291, July 31, 2013]



Sec. 1552.211-75  Working files.

    As prescribed in 1511.011-75, insert the following clause in all 
applicable EPA contracts.

                        Working Files (APR 1984)

    The Contractor shall maintain accurate working files (by task or 
work assignment) on all work documentation including calculations, 
assumptions, interpretations of regulations, sources of information, and 
other raw data required in the performance of this contract. The 
Contractor shall provide the information contained in its working files 
upon request of the Contracting Officer.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 21994, May 4, 1995. Redesignated at 61 FR 57339, Nov. 6, 
1996, as amended at 62 FR 33573, June 20, 1997]



Sec. 1552.211-76  Legal analysis.

    As prescribed in 1511.011-76, insert this contract clause when it is 
determined that the contract involves legal analysis.

                        Legal Analysis (APR 1984)

    The Contractor shall furnish to the Contracting Officer's 
Representative one (1) copy of any draft legal analysis. The Government 
will provide a response to the Contractor within thirty (30) calendar 
days after receipt. The Contractor shall not finalize the analysis until 
the Government has given approval.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 60 FR 21994, May 4, 1995. Redesignated at 61 FR 57339, 
Nov. 6, 1996, as amended at 62 FR 33573, June 20, 1997; 78 FR 46291, 
July 31, 2013]



Sec. 1552.211-77  Final reports.

    As prescribed in 1511.011-77, insert this contract clause when a 
contract requires both a draft and a final report.

                        FINAL REPORTS (SEP 2013)

    (a) ``Draft Report''----The Contractor shall submit to the 
Contracting Officer's Representative ---- copies of the draft final 
report on or before ------ (date) ---- The Contractor shall furnish to 
the Contracting Officer a copy of the letter transmitting the draft. The 
draft shall be double-spaced or space-and-a-half and shall include all 
pertinent material required in the final report. The Government will 
review for approval or disapproval the draft and provide a response to 
the Contractor within ---- calendar days after receipt. If the 
Government does not provide a response within the allotted review time, 
the Contractor immediately shall notify the Contracting Officer in 
writing.
    (b) ``Final Report''--The Contractor shall deliver a final report on 
or before the last day of the period of performance specified in the 
contract. Distribution is as follows:

------------------------------------------------------------------------
                                                     Address (email and/
        No. of copies               Addressee           or shipping)
------------------------------------------------------------------------
1...........................  EPA Library.........
1...........................  Contracting Officer.
1...........................  Contracting
                               Officer's
                               Representative.
------------------------------------------------------------------------


                             (End of clause)

[78 FR 46291, July 31, 2013]



Sec. 1552.211-78  Management consulting services.

    As prescribed in 1511.011-78, insert the following contract clause 
in all contracts for management consulting services.

                Management Consulting Services (APR 1985)

    All reports containing recommendations to the Environmental 
Protection Agency shall include the following information on the cover 
of each report: (a) Name and business address of the contractor; (b) 
contract number; (c) contract dollar amount; (d) whether the contract 
was subject to full and open competition or a sole source acquisition; 
(e) name of the EPA Project Officer and the EPA Project Officer's office 
identification and location; and (f) date of report.

[[Page 72]]

                             (End of clause)

[50 FR 14360, Apr. 11, 1985; 50 FR 15425, Apr. 18, 1985. Redesignated at 
55 FR 39622, Sept. 28, 1990, as amended at 60 FR 21994, May 4, 1995. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997]



Sec. 1552.211-79  Compliance with EPA policies for information resources 
          management.

    As prescribed in 1511.011-79, insert the following clause:

    Compliance With EPA Policies for Information Resources Management

    (a) Definition. Information Resources Management (IRM) is defined as 
any planning, budgeting, organizing, directing, training, promoting, 
controlling, and managing activities associated with the burden, 
collection, creation, use and dissemination of information. IRM includes 
both information itself and the management of information and related 
resources such as personnel, equipment, funds, and technology. Examples 
of these services include but are not limited to the following:
    (1) The acquisition, creation, or modification of a computer program 
or automated data base for delivery to EPA or use by EPA or contractors 
operating EPA programs.
    (2) The analysis of requirements for, study of the feasibility of, 
evaluation of alternatives for, or design and development of a computer 
program or automated data base for use by EPA or contractors operating 
EPA programs.
    (3) Services that provide EPA personnel access to or use of computer 
or word processing equipment, software, or related services.
    (4) Services that provide EPA personnel access to or use of: Data 
communications; electronic messaging services or capabilities; 
electronic bulletin boards, or other forms of electronic information 
dissemination; electronic record-keeping; or any other automated 
information services.
    (b) General. The Contractor shall perform any IRM-related work under 
this contract in accordance with the IRM policies, standards, and 
procedures set forth on the Office of Environmental Information policy 
Web site. Upon receipt of a work request (i.e. delivery order, task 
order, or work assignment), the Contractor shall check this listing of 
directives. The applicable directives for performance of the work 
request are those in effect on the date of issuance of the work request. 
The 2100 Series (2100-2199) of the Agency's Directive System contains 
the majority of the Agency's IRM policies, standards, and procedures.
    (c) Section 508 requirements (accessibility). Contract deliverables 
are required to be compliant with Section 508 requirements 
(accessibility for people with disabilities). The Environmental 
Protection Agency policy for 508 compliance can be found at www.epa.gov/
accessibility.
    (d) Electronic access. A complete listing, including full text, of 
documents included in the 2100 Series of the Agency's Directive System 
is maintained on the EPA Public Access Server on the Internet at http://
epa.gov/docs/irmpoli8/policies/index.html.

                             (End of clause)

[77 FR 429, Jan. 5, 2012, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.213-70  Notice to suppliers of equipment.

    As prescribed in 1513.507(b), the Contracting Officer shall insert 
the following contract clause in orders for or lease of commercially 
available equipment.

               Notice to Suppliers of Equipment (APR 1984)

    (a) It is the general policy of the Environmental Protection Agency 
that Contractor or vendor prescribed leases or maintenance agreements 
for equipment will NOT be executed.
    (b) Performance in accordance with the terms and conditions of the 
vendor's commercial lease, or customer service maintenance agreement, 
unless specified in the Schedule, may render the vendor's performance 
unacceptable, thereby permitting the Government to apply such 
contractual remedies as may be permitted by law, regulation, or the 
terms of this order.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



Sec. 1552.214-71  Contract award--other factors--formal advertising.

    As prescribed in 1514.201-6(b), insert the following solicitation 
provision in invitations for bids (IFB) when it is appropriate to 
describe other factors that will be used in evaluating bids for award. 
This provision is used to describe the other factors mentioned in the 
solicitation provisions ``Contract Award--Formal Advertising'' (FAR 
52.214-10), and ``Contract Award--Construction'' (FAR 52.214-19). All 
other evaluation provisions in the IFB (e.g., evaluation of options) 
should be cross-referenced in this provision. The other

[[Page 73]]

factors set forth in the provision should represent a consolidated 
statement of the exact basis upon which bids will be evaluated for 
award.

      Contract Award--Other Factors--Formal Advertising (APR 1984)

    The Government will award a contract resulting from this 
solicitation as stated in the ``Contract Award'' provision. The other 
factors that will be considered are:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                           (End of provision)



Sec. 1552.215-70  EPA source evaluation and selection procedures--
          negotiated procurements.

    As prescribed in 1515.209(a), insert the following provision:

EPA Source Evaluation and Selection Procedures--Negotiated Procurements 
                               (AUG 1999)

    (a) The Government will perform source selection in accordance with 
FAR part 15 and the EPA Source Evaluation and Selection Procedures in 
EPAAR part 1515 (48 CFR part 1515). The significant features of this 
procedure are:
    (1) The Government will perform either cost analysis or price 
analysis of the offeror's cost/business proposal in accordance with FAR 
parts 15 and 31, as appropriate. In addition, the Government will also 
evaluate proposals to determine contract cost or price realism.
    Cost or price realism relates to an offeror's demonstrating that the 
proposed cost or price provides an adequate reflection of the offeror's 
understanding of the requirements of this solicitation, i.e., that the 
cost or price is not unrealistically low or unreasonably high.
    (2) The Government will evaluate technical proposals as specified in 
1552.215-71, Evaluation Factors for Award.
    (b) In addition to evaluation of the previously discussed elements, 
the Government will consider in any award decision the responsibility 
factors set forth in FAR Part 9.

                           (End of provision)

[61 FR 47067, Sept. 6, 1996, as amended at 61 FR 57339, Nov. 6, 1996; 64 
FR 47415, Aug. 31, 1999]



Sec. 1552.215-71  Evaluation factors for award.

    As prescribed in 1515.209(a), insert one of the following 
provisions.

                 Evaluation Factors for Award (AUG 1999)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
significantly more important than cost or price.
    (b) Evaluation factors and significant subfactors to determine 
quality of product or service:

________________________________________________________________________

________________________________________________________________________

                           (End of provision)

     Evaluation Factors for Award (AUG 1999)--Alternate I (AUG 2000)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
significantly less important than cost or price.
    (b) Evaluation factors and significant subfactors to determine 
quality of product or service:

________________________________________________________________________

                           (End of provision)

________________________________________________________________________

    Evaluation Factors for Award (AUG 1999)--Alternate II (AUG 2000)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
approximately equal to cost or price.
    (b) Evaluation factors and significant subfactors to determine the 
quality of product or service:

________________________________________________________________________

________________________________________________________________________

                           (End of provision)

    Evaluation Factors for Award (AUG 1999)--Alternate III (AUG 2000)

    (a) The Government will make award to the offeror with the lowest-
evaluated cost or price, whose proposal meets or exceeds the 
acceptability standards for non-cost factors. In the event that there 
are two or more technically acceptable, equal price (cost) offers, the 
Government will consider socioeconomic, environmental and other similar

[[Page 74]]

factors, as listed below in descending order of importance:

________________________________________________________________________

________________________________________________________________________

    (b) Factors and significant subfactors for technical acceptability 
evaluation:

________________________________________________________________________

________________________________________________________________________

    (c) Factors for past performance evaluation (optional):

________________________________________________________________________

________________________________________________________________________

                           (End of provision)

[64 FR 47415, Aug. 31, 1999]



Sec. 1552.215-72  Instructions for the Preparation of Proposals.

    As prescribed in 1515.408(a)(1) insert the following provision:

        Instructions for the Preparation of Proposals (AUG 1999)

    (a) Other than cost proposal instructions. (1) Submit proposal for 
than cost factors as a separate part of the total proposal package. Omit 
all cost or pricing details from this proposal.
    (2) Special proposal instructions:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (b) Cost or pricing proposal instructions. The offeror shall prepare 
and submit cost or pricing information data and supporting attachments 
in accordance with Table 15-2 of FAR 15.408. In addition to a hard copy 
of the information, to expedite review of the proposal, submit an IBM-
compatible software or storage device (e.g., USB flash drive or card 
reader) containing the financial data required, if this information is 
available using a commercial spreadsheet program on a personal computer. 
Submit this information using Microsoft Exchange 365, if available. 
Identify which version of Microsoft Exchange used. If the offeror used 
another spreadsheet program, indicate the software program used to 
create this information. Offerors should include the formulas and 
factors used in calculating the financial data. Although submission of a 
compatible software or device will expedite review, failure to submit a 
disk will not affect consideration of the proposal.
    (1) General--Submit cost or pricing information prepared in 
accordance with FAR Table 15-2, Instructions for Submitting Cost/Price 
Proposals When Cost or Pricing Information Are Required and the 
following:
    (i) Clearly identify separate cost or pricing information associated 
with any:
    (A) Options to extend the term of the contract;
    (B) Options for the Government to order incremental quantities; and/
or
    (C) Major tasks, if required by the special instructions.
    (ii) If the contract schedule includes a ``Fixed Rate for Services'' 
clause, please provide in the cost proposal a schedule duplicating the 
format in the clause and include proposed fixed hourly rates per labor 
category for the base and any optional contract periods.
    (iii) If the contract includes the clause at EPAAR 1552.232-73 
``Payments--Fixed-Rate Services Contract,'' or the clause at FAR 52.232-
7, ``Payments Under Time and Materials and Labor-Hour Contracts,'' 
include in the cost proposal the estimated costs and burden rate to be 
applied to materials, other direct costs, or subcontracts. The 
Government will include these costs as part of its cost proposal 
evaluation.
    (iv) If other divisions, subsidiaries, a parent or affiliated 
companies will perform work, provide the name and location of such 
affiliate and offeror's intercompany pricing policy. Separately identify 
costs and supporting data for each entity proposed.
    (v) The realism of costs, including personnel compensation rates 
(including effective hourly rates due to uncompensated overtime) will be 
part of the proposal evaluation. Any reductions to proposed costs or 
differences between proposed and known EPA/DCAA recommended rates must 
be fully explained. If an offeror makes a reduction which makes its 
offer or portions of its offer below anticipated costs, the offeror 
shall identify where (i.e., which elements of costs) the proposed 
reductions will be made. Unsubstantiated rates may result in an upward 
or downward adjustment of the cost proposals to reflect more realistic 
costs. Based on this analysis, a projected cost for the offeror will be 
calculated to reflect the Government's estimate of the offeror's 
probable costs. Any inconsistency, whether real or apparent, between the 
promised performance and cost or price should be explained. The burden 
of proof for cost credibility rests with the offeror.
    (2) Direct labor. (i) The direct technical labor hours (level-of-
effort) appearing in the solicitation are for professional and technical 
labor only. These hours do not include management at a level higher than 
project management, e.g., corporate and day-to-day management, nor do 
they include clerical and support staff at a level lower than 
technician. If it is the offeror's normal practice to charge these types 
of costs as direct costs, include these costs along with an estimate of 
the directly chargeable labor-hours for these personnel. These direct 
charges are to be shown separately from the technical (level-

[[Page 75]]

of-effort) effort. If this type of effort is normally included in the 
offeror's indirect cost allocations, no estimate is required. However, 
direct charging of these on any resulting contract will not be allowed. 
Additionally the direct technical labor hours are the workable hours 
required by the Government and do not include release time (i.e., 
holidays, vacation, etc.) Submit the proposal utilizing the labor 
categories and distribution of the level-of-effort specified in the 
solicitation. These are approximate distribution levels and do not 
necessarily represent the actual levels which may be experienced during 
contract performance.
    (ii) Explain the basis of the proposed labor rates, including a 
complete justification for all judgmental factors used to develop 
weights applied to company's category or individual rates that comprise 
the rates for labor categories specified in the solicitation. This 
explanation should describe how technical approach coincides with the 
proposed costs. If the proposed direct labor rates are based on an 
average of the individuals proposed to work on the contract, provide a 
list of the individuals proposed and the hours associated with each 
individual in deriving the rates. If the proposed direct labor rates are 
based on an average of company category rates, identify and describe the 
labor categories and the percentages associated with each category in 
deriving the rates, explaining in detail the basis for the percentages 
assigned.
    (iii) Describe for each labor category proposed, the company's 
qualifications and experience requirements. If individual rates are 
used, provide the employee's name. If specific individuals are 
identified in the technical proposal, correlate these individuals with 
the labor categories specified in the solicitation.
    (iv) Provide a matrix summarizing the effort proposed, including the 
subcontracts, by professional and technical level specified in the 
solicitation.
    (v) Indicate whether current rates or escalated rates are used. If 
escalation is included, state the degree (percent) and methodology. The 
methodology shall include the effective date of the base rates and the 
policy on salary reviews (e.g. anniversary date of employee or salary 
reviews for all employees on a specific date).
    (vi) State whether any additional direct labor (new hire or 
temporary hires) will be required during the performance period of this 
acquisition. If so, state the number required, the professional or 
technical level and the methodology used to estimate proposed labor 
rates.
    (vii) With respect to educational institutions, include the 
following information for those professional staff members whose salary 
is expected to be covered by a stipulated salary support agreement 
pursuant to OMB Circular A-21.
    (A) Individual's name;
    (B) Annual salary and the period for which the salary is applicable;
    (C) List of other research Projects or proposals for which salaries 
are allocated, and the proportionate time charged to each; and
    (D) Other duties, such as teaching assignments, administrative 
assignments, and other institutional activities. Show the proportionate 
time charged to each. (Show proportionate time charges as a percentage 
of 100% of time for the entire academic year, exclusive of vacation or 
sabbatical leave.)
    (viii) Uncompensated overtime. The decision to propose uncompensated 
overtime is the offeror's decision. Should the offeror, however, elect 
to propose uncompensated overtime, the offeror must propose a 
methodology that is consistent with their cost accounting practices and 
company policy. If proposed, provide an estimate of any uncompensated 
overtime proposed for exempt personnel working at the offeror's 
facilities. This estimate should identify the number of uncompensated 
labor hours and the percentage of compensated labor. Uncompensated labor 
hours are defined as hours for exempt personnel in excess of regular 
hours for a pay period which are actually worked and recorded in 
accordance with company policy. Provide a copy of the company policy on 
uncompensated overtime. Provide historical percentages of uncompensated 
overtime for the past three years. If proposed for subcontractors, 
provide separately with subcontractor information.
    (ix) For labor rate contracts, for each fixed labor rate, offerors 
shall identify the basis for the loaded fixed hourly rate for each 
contract period for example, the rate might consist of the following 
cost elements: raw wage or salary rate, plus fringe benefits (if 
applicable), plus overhead rate (if applicable), plus G&A expense rate 
(if applicable), plus profit.
    When determining the composite raw wage for a labor category, the 
offeror shall:
    (A) provide in narrative form the basis for the raw wage for each 
labor category. If actual wages of current employees are used, the basis 
for the projections should be explained.
    (B) If employees are subject to the Service Contract Act or Davis 
Bacon Act, they must be compensated at least at the minimum wage rate 
required by the applicable Wage Determination.
    (3) Indirect costs (fringe, overhead, general, and administrative 
expenses). (i) If the rates have been recently approved, include a copy 
of the rate agreement. If the agreement does not cover the projected 
performance period of the proposed effort, provide the rationale and any 
estimated rate calculations for the proposed performance period.

[[Page 76]]

    (ii) Submit supporting documentation for rates which have not been 
approved or audited. Indicate whether computations are based upon 
historical or projected data.
    (iii) Provide actual pool expenses, base dollars, or hours (as 
applicable for the past five years). Include the actual indirect rates 
for the past five years including the indirect rates proposed, the 
actual indirect rates experienced and, if available, the final 
negotiated rate. Indicate the amount of unallowable costs included in 
the historical data.
    (iv) Offerors who propose indirect rates for new or substantially 
reorganized cost centers should consider offering to accept ceilings on 
the indirect rates at the proposed rates. Similarly, offerors whose 
subcontractors propose indirect rates for new or substantially 
reorganized cost centers should likewise consider offering to accept 
ceilings on the subcontractors' indirect rates at the proposed rates.

    Note to paragraph (b)(3)(iv): The Government reserves the right to 
adjust an offeror's or its subcontractor's estimated indirect costs for 
evaluation purposes based on the Agency's judgment of the most probable 
costs up to the amount of any stated ceiling.

    (v) If the employees are subject to the Service Contract Act or 
Davis Bacon Act, employees must receive the minimum level of benefits 
stated in the applicable Wage Determination.
    (4) Travel expense. (i) If the solicitation specifies the amount of 
travel costs, this amount is exclusive of any applicable indirect costs 
and fee.
    (ii) If the solicitation does not specify the amount of travel 
costs, attach a schedule illustrating how travel was computed. Include a 
breakdown indicating number of trips, number of travelers, destinations 
from and to, purpose and cost, e.g., mileage, transportation costs, 
subsistence rates.
    (5) Equipment, facilities and special equipment, including tooling. 
(i) If direct charges for use of existing contractor equipment are 
proposed, provide a description of these items, including estimated 
usage hours, rates, and total costs.
    (ii) If equipment purchases are proposed, provide a description of 
these items, and a justification as to why the Government should furnish 
the equipment or allow its purchase with contract funds. (Unless 
specified elsewhere in this solicitation, FAR 45.302-1 requires 
contractors to furnish all facilities in performance of contracts with 
certain limited exceptions.)
    (iii) Identify Government-owned property in the possession of the 
offeror or proposed to be used in the performance of the contract, and 
the Government agency which has cognizance over the property.
    (iv) Submit proposed rates or use charges for equipment, along with 
documentation to support those rates.
    (v) If special purposes facilities or equipment are being proposed, 
provide a description of these items, details for the proposed costs 
including competitive prices, and justification as to why the Government 
should furnish the equipment or allow its purchase with contract funds.
    (vi) If fabrication by the prime contractor is contemplated, include 
details of material, labor, and overhead.
    (6) Other Direct Costs (ODC). (i) If the solicitation specifies the 
amount of other direct costs, this amount is exclusive of any applicable 
indirect cost and fee.
    (ii) If the amount is not specified in the solicitation, attach a 
schedule detailing how other direct costs were computed. Identify the 
major ODC items that under the accounting system would be a direct 
charge on any resulting contract.
    (iii) If any of the cost elements identified as part of the 
specified other direct costs are recovered as an indirect cost, in 
accordance with the offeror's accounting system, those costs should not 
be included as a direct cost. Complete explanation of this adjustment 
and the contractor's practice should be provided.
    (iv) Provide historical other direct costs dollars per level of 
effort hour on similar contracts or work assignments.
    (7) Team subcontracts. When the cost of a subcontract is substantial 
(5 percent of the total estimated contract dollar value or $100,000, 
whichever is less), the offeror shall include the following 
subcontractor information:
    (i) Provide details of subcontract costs in the same format as the 
prime contractor's costs. This detailed information may be provided 
separately to the EPA if the subcontractor does not wish to provide this 
data to the prime contractor. Cost data provided separately by a 
contractor must be received by the time, date and at the location 
specified for the receipt of proposals. The subcontractor's package 
should be clearly marked with the RFP number, the name of the prime 
offeror, and a statement that the package is subcontractor data relevant 
to the proposal from the prime offeror. If submitted with the prime 
contractor's proposal, identify the subcontractors. State the amount of 
service estimated to be required and the quoted daily or hourly rate. 
Offerors are encouraged to provide letters of intent, signed by 
subcontractors, agreeing to a specified rate for life of the contract. 
Include a cost or price analysis of the subcontractor cost showing the 
reasons why the costs are considered reasonable;
    (ii) Describe how the prospective team subcontractors were chosen as 
part of the offeror's proposed team; and rationale for selection;

[[Page 77]]

    (iii) Describe the necessity for the subcontractor's effort as 
either a supplement or complement to the offeror's in-house expertise;
    (iv) Identify the areas of the scope of work and the level of effort 
the subcontractors are anticipated to perform. Provide a reconciliation 
summary of the proposed hours and ODCs for the prime contractor and 
proposed subcontractor(s).
    (v) Describe the prime contractor's management structure and 
internal controls to ensure efficient and quality performance of team 
subcontractors.
    (8) Facilities Capital Cost of Money (FCCM). When an offeror elects 
to claim FCCM as an allowable cost, the offeror must submit Form CASB-
CNF and show calculation of the proposed amount. FCCM will be an 
allowable cost under the contemplated contract, if the criteria for 
allowability at FAR 31.205-10(a)(2) are met.

                           (End of provision)

    Alternate I (AUG 1999). If the Government's requirement is a fully 
dedicated staff person for a twelve month period(s) for each specified 
position and performance is on a Government facility, add the following 
paragraph (b)(2)(x) to the basic provision:

    (x) The level of effort for each position is to be proposed in work 
years. A work year is considered to consist of 2080 hours inclusive of 
direct and indirect time (40 hours per week x 52 weeks per year = 2080 
hours). The proposal must identify proposed work years and clearly 
identify how many hours in each work year are direct (i.e., productive 
working hours) and how many are indirect (i.e., paid absences). If the 
company policy includes a different base work week, the total available 
hours would be different. For example, if the company's policy calls for 
a 37.5 hour work week, offeror would deduct paid absences from 1950 hour 
(37.5 hours/week x 52 weeks/year = 1950 hours). Offeror should clearly 
identify the paid absences as to how many hours are for holiday and how 
many hours are for vacation and sick leave. The amount of indirect time 
(paid absences) identified in the proposal must be consistent with 
company policy and must allow for the ten Federal government holidays.

    Alternate II (AUG 1999). If the Government's requirement is a fully 
dedicated staff person for a twelve month period(s) for each specified 
position and performance is not on a Government facility; add the 
following paragraph (b)(2)(x) to the basic provision:

    (x) The level of effort for each position is to be proposed in work 
years. A work year is considered to consist of 2080 hours inclusive of 
direct and indirect time (40 hours per week x 52 weeks per year = 2080 
hours). The proposal must identify proposed work years and clearly 
identify how many hours in each work year are direct (i.e., productive 
working hours) and how many are indirect (i.e., paid absences). If the 
company policy includes a different base work week, the total available 
hours would be different. For example, if the company's policy calls for 
a 37.5 hour work week, offeror would deduct paid absences from 1950 hour 
(37.5 hours/week x 52 weeks/year = 1950 hours). Offeror should clearly 
identify the paid absences as to how many hours are for holiday and how 
many hours are for vacation and sick leave.

    Alternate III (AUG 1999). If the requirement is for the acquisition 
of supplies or equipment, substitute the following paragraphs (a)(iv)-
(viii) and add (a)(ix) and (b).

    (iv) Provide information as to how the proposed supplies or 
equipment meet the salient characteristics required by the contract line 
item;
    (v) Provide published brochures, catalogs, or other technical 
literature by contract line item;
    (vi) Meet any interface or compatibility requirements by contract 
line item;
    (vii) Describe warranty services and how delivered by contract line 
item;
    (viii) Assumptions, deviations and exceptions (as necessary); and
    (ix) Additional information.
    (b) Supplies--Provide unit pricing by contract line items for:
    (i) each line item;
    (ii) delivery;
    (iii) installation;
    (iv) sets of operating manuals;
    (v) training;
    (vi) warranty;
    (vii) maintenance; and
    (viii) volume discounts.

[64 FR 47415, Aug. 31, 1999, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.215-73  General financial and organizational information.

    As prescribed in 1515.408(a)(2), insert the following provision:

      General Financial and Organizational Information: (AUG 1999)

    Offerors or quoters are requested to provide information regarding 
the following items in sufficient detail to allow a full and complete 
business evaluation. If the question indicated is not applicable or the 
answer is none, it should be annotated. If the offeror has previously 
submitted the information, it

[[Page 78]]

should certify the validity of that data currently on file at EPA and to 
whom and where it was submitted or update all outdated information on 
file.
 (a) Contractor's Name:_________________________________________________
    (b) Address (If financial records are maintained at some other 
location, show the address of the place where the records are kept):

________________________________________________________________________
________________________________________________________________________
 (c) Telephone Number:__________________________________________________
 (d) Individual(s) to contact re. this proposal:________________________
________________________________________________________________________
    (e) Cognizant Government:

Audit Agency:___________________________________________________________
Address:________________________________________________________________
Auditor:________________________________________________________________
    (f)(1) Work Distribution for the Last Completed Fiscal Accounting 
Period:

Sales:
  Government cost-reimbursement type prime contracts           $--------
   and subcontracts.................................
  Government fixed-price prime contracts and                   $--------
   subcontracts.....................................
  Commercial Sales..................................           $--------
    Total Sales.....................................           $--------
  (2) Total Sales for first and second fiscal years
  immediately preceding last completed fiscal year.
 


Total Sales for First Preceding Fiscal Year.........           $--------
Total Sales for Second Preceding Fiscal Year........           $--------
(g) Is company a separate rate entity or division?..
Yes --
No --
 

    If a division or subsidiary corporation, name parent company:
________________________________________________________________________

 (h) Date Company Organized:____________________________________________

    (i) Manpower:

Total Employees:________________________________________________________

Direct:_________________________________________________________________

Indirect:_______________________________________________________________

Standard Work Week (Hours):_____________________________________________

 (j) Commercial Products:_______________________________________________

    (k) Attach a current organizational chart of the company.
    (l) Description of Contractor's system of estimating and 
accumulating costs under Government contracts. (Check appropriate 
blocks.)

------------------------------------------------------------------------
                                                 Estimated/    Standard
                                                actual cost      cost
------------------------------------------------------------------------
Estimating System:
  Job Order...................................       ------       ------
  Process.....................................       ------       ------
 
Accumulating System:
  Job Order...................................       ------       ------
  Process.....................................       ------       ------
------------------------------------------------------------------------

    Has your cost estimating system been approved by any Government 
agency?
Yes -- No --

    If yes, give name, date or approval, and location of agency:

________________________________________________________________________
________________________________________________________________________

    Has your cost accumulation system been approved by any Government 
agency?
Yes -- No --
    If yes, give name, date of approval, and address of agency:
________________________________________________________________________
________________________________________________________________________

    (m) What is your fiscal year period? (Give month-to-month dates):

________________________________________________________________________
________________________________________________________________________
    What were the indirect cost rates for your last completed fiscal 
year?

------------------------------------------------------------------------
                                                   Indirect    Basis of
                   Fiscal year                     cost rate  allocation
------------------------------------------------------------------------
Fringe Benefits.................................      ------      ------
Overhead........................................      ------      ------
G&A Expense.....................................      ------      ------
Other...........................................      ------      ------
------------------------------------------------------------------------

    (n) Have the proposed indirect cost rate(s) been evaluated and 
accepted by any Government agency?
Yes -- No --
    If yes, give name, date of approval, and location of the Government 
agency:
________________________________________________________________________

    Date of last preaward audit review by a Government agency:
________________________________________________________________________

    If the answer is no, data supporting the proposed rates must 
accompany the cost or price proposal. A breakdown of the items 
comprising overhead and G&A must be furnished.
    (o) Cost estimating is performed by:

Accounting Department___________________________________________________
Contracting Department__________________________________________________
Other (describe)________________________________________________________
    (p) Has system of control of Government property been approved by a 
Government agency?
Yes -- No --
    If yes, give name, date of approval, and location of the Government 
agency:

________________________________________________________________________
________________________________________________________________________


[[Page 79]]

________________________________________________________________________
    (q) Purchasing System: FAR 44.302 requires EPA, where it is the 
cognizant Government agency, to conduct a Contractor Purchasing System 
Review for each contractor whose sales to the Government, using other 
than sealed bid procedures, are expected to exceed $25 million (annual 
billings) during the next twelve months. The $25 million sales threshold 
is comprised of prime contracts, subcontractors under Government prime 
contracts, and modifications (except when the negotiated price is based 
on established catalog or market prices or is set by law or regulation).
    Has your purchasing system been approved by a Government agency?
Yes -- No --

    If yes, name and location of the Government agency:
________________________________________________________________________
Period of Approval:_____________________________________________________

    If no, do you estimate that your negotiated sales to the Government 
during the next twelve months will meet the $25 million threshold? Yes 
-- No --
    If you responded yes to the $25 million threshold question, is EPA 
the cognizant agency for your organization based on the preponderance of 
Government contract dollars?
Yes -- No --
    If EPA is not your cognizant Government agency, provide the name and 
location of the cognizant agency ----------------------------------
________________________________________________________________________
    Are your purchasing policies and procedures written?
Yes -- No --
    (r) Does your firm have an established written incentive 
compensation or bonus plan?
Yes -- No --
    (s) Additionally, offerors shall submit current financial 
statements, including a Balance Sheet, Statement of Income (Loss), and 
Cash Flow for the last two completed fiscal years. Specify resources 
available to perform the contract without assistance from any outside 
source. If sufficient resources are not available, indicate in proposal 
the amount required and the anticipated source (i.e., bank loans, letter 
or lines of credit, etc.).

                           (End of provision)

[64 FR 47417, Aug. 31, 1999]



Sec. 1552.215-74  Advanced understanding--uncompensated time.

    As prescribed in 1515.408(b), insert the following provision or one 
substantially the same as the following provision:

          Advanced Understanding--Uncompensated Time (AUG 1999)

    (a) The estimated cost of this contract is based upon the 
Contractor's proposal which specified that exempt personnel identified 
to work at the Contractor's facilities will provide uncompensated labor 
hours to the contract totaling ---- percent of compensated labor. (Note: 
the commitment for uncompensated time, and the formula elements in 
paragraph (b) below, apply only to exempt personnel working at the 
Contractor's facilities and does not include non-exempt personnel or 
exempt personnel working at other facilities.) Uncompensated labor hours 
are defined as hours of exempt personnel in excess of regular hours for 
a ---- pay period which are actually worked and recorded in accordance 
with the company policy, entitled, --------------------.
    (b) Recognizing that the probable cost to the Government for the 
labor provided under this contract is calculated assuming a proposed 
level of uncompensated labor hours, it is hereby agreed that in the 
event the proposed level of uncompensated labor hours are not provided, 
an adjustment, calculated in accordance with the following formula will 
be made to the contract amount.
    Formula:
    Adjustment equals estimated value of uncompensated time hours not 
provided.
    Target uncompensated time percent minus ---- percent.
    Shortage of uncompensated time percent minus actual cost percent.
    Estimated value of uncompensated time hours not provided equals 
shortage of uncompensated time percent times total exempt applicable 
direct labor costs (including applicable indirect costs).
    (c) Within three weeks after the end of the contract, the Contractor 
shall submit a statement concerning the amount of uncompensated time 
hours delivered during the contract. In the event there is a shortage of 
uncompensated time hours provided, a calculation, utilizing the above 
formula will be made and this calculation will be the basis for an 
adjustment in the contract amount.
    (d) In the event adjustments are made to the contract, the adjusted 
amounts shall not be allowable as a direct or indirect cost to this or 
any other Government contract.

                             (End of clause)

[64 FR 47418, Aug. 31, 1999]



Sec. 1552.215-75  Past performance information.

    As prescribed in 1515.209(c), insert the following clause:

[[Page 80]]

                 Past Performance Information (OCT 2000)

    (a) Offerors shall submit the information requested below as part of 
their proposal for both the offeror and any proposed subcontractors for 
subcontracts expected to exceed $ * . The information may be submitted 
prior to other parts of the proposal in order to assist the Government 
in reducing the evaluation period.
    (b) Offerors shall submit a list of all or at least * contracts and 
subcontracts completed in the last * years, and all contracts and 
subcontracts currently in process, which are similar in nature to this 
requirement.
    (1) The contracts and subcontracts listed may include those entered 
into with Federal, State and local governments, and commercial 
businesses, which are of similar scope, magnitude, relevance, and 
complexity to the requirement which is described in the RFP. Include the 
following information for each contract and subcontract listed:
    (a) Name of contracting activity.
    (b) Contract number.
    (c) Contract title.
    (d) Contract type.
    (e) Brief description of contract or subcontract and relevance to 
this requirement.
    (f) Total contract value.
    (g) Period of performance.
    (h) Contracting officer, telephone number, and E-mail address (if 
available).
    (i) Program manager/project officer, telephone number, and E-mail 
address (if available).
    (j) Administrative Contracting officer, if different from (h) above, 
telephone number, and E-mail address (if available).
    (k) List of subcontractors (if applicable).
    (l) Compliance with subcontracting plan goals for small 
disadvantaged business concerns, monetary targets for small 
disadvantaged business participation, and the notifications submitted 
under FAR 19.1202-4 (b), if applicable.
    (c) Offerors should not provide general information on their 
performance on the identified contracts and subcontracts. General 
performance information will be obtained from the references.
    (1) Offerors may provide information on problems encountered and 
corrective actions taken on the identified contracts and subcontracts.
    (2) References that may be contacted by the Government include the 
contracting officer, program manager/project officer, or the 
administrative contracting officer identified above.
    (3) If no response is received from a reference, the Government will 
make an attempt to contact another reference identified by the offeror, 
to contact a reference not identified by the offeror, or to complete the 
evaluation with those references who responded. The Government shall 
consider the information provided by the references, and may also 
consider information obtained from other sources, when evaluating an 
offeror's past performance.
    (4) Attempts to obtain responses from references will generally not 
go beyond two telephonic messages and/or written requests from the 
Government, unless otherwise stated in the solicitation. The Government 
is not obligated to contact all of the references identified by the 
offeror.
    (d) If negative feedback is received from an offeror's reference, 
the Government will compare the negative response to the responses from 
the offeror's other references to note differences. A score will be 
assigned appropriately to the offeror based on the information. The 
offeror will be given the opportunity to address adverse past 
performance information obtained from references on which the offeror 
has not had a previous opportunity to comment, if that information makes 
a difference in the Government's decision to include the offeror in or 
exclude the offeror from the competitive range. Any past performance 
deficiency or significant weakness will be discussed with offerors in 
the competitive range during discussions.
    (e) Offerors must send Client Authorization Letters (see Section J 
of the solicitation) to each reference listed in their proposal to 
assist in the timely processing of the past performance evaluation. 
Offerors are encouraged to consolidate requests whenever possible (i.e., 
if the same reference has several contracts, send that reference a 
single notice citing all applicable contracts). Offerors may send Client 
Authorization Letters electronically to references with copies forwarded 
to the contracting officer.
    (1) If an offeror has no relevant past performance history, an 
offeror must affirmatively state that it possesses no relevant past 
performance history.
    (2) Client Authorization Letters should be mailed or E-mailed to 
individual references no later than five (5) working days after proposal 
submission. The offeror should forward a copy of the Client 
Authorization Letter to the contracting officer simultaneously with 
mailing to references.
    (f) Each offeror may describe any quality awards or certifications 
that indicate the offeror possesses a high-quality process for 
developing and producing the product or service required. Such awards or 
certifications include, for example, the Malcolm Baldrige Quality Award, 
other Government quality awards, and private sector awards or 
certifications.
    (1) Identify the segment of the company (one division or the entire 
company) which received the award or certification.

[[Page 81]]

    (2) Describe when the award or certification was bestowed. If the 
award or certification is over three years old, present evidence that 
the qualifications still apply.
    (g) Past performance information will be used for both 
responsibility determinations and as an evaluation factor for award. The 
Past Performance Questionnaire identified in section J will be used to 
collect information on an offeror's performance under existing and prior 
contracts/subcontracts for products or services similar in scope, 
magnitude, relevance, and complexity to this requirement in order to 
evaluate offerors consistent with the past performance evaluation factor 
set forth in section M. References other than those identified by the 
offeror may be contacted by the Government and used in the evaluation of 
the offeror's past performance.
    (h) Any information collected concerning an offeror's past 
performance will be maintained in the official contract file.
    (i) In accordance with FAR 15.305 (a) (2) (iv), offerors with no 
relevant past performance history, or for whom information on past 
performance is not available, will be evaluated neither favorably nor 
unfavorably on past performance.

* Indicates that the contracting officer inserts applicable dollar 
figure and number.

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]



Sec. 1552.215-76  [Reserved]



Sec. 1552.216-70  Award Fee.

    As prescribed in 1516.405(a), insert the following clause:

                          Award Fee (MAY 2000)

    (a) The Government shall pay the contractor a base fee, if any, and 
such additional fee as may be earned, as provided in the award fee plan 
incorporated into the Schedule.
    (b) Award fee determinations made by the Government under this 
contract are unilaterally determined by the Fee Determination Official 
(FDO). The amount of the award fee to be paid is determined by the 
Government's judgmental evaluation of the contractor's performance in 
terms of the criteria stated in the contract. This determination and the 
methodology for determining the award fee are unilateral decisions made 
solely at the discretion of the Government.
    (c) The Government may unilaterally change the award fee plan at any 
time, via contract modification, at least thirty (30) calendar days 
prior to the beginning of the applicable evaluation period. Changes 
issued in a unilateral modification are not subject to equitable 
adjustments, consideration, or any other renegotiation of the contract.

                             (End of clause)

[60 FR 43404, Aug. 21, 1995, as amended at 65 FR 31500, May 18, 2000]



Sec. 1552.216-71  Date of incurrence of cost.

    At prescribed in 1516.307, insert the following contract clause in 
cost-reimbursement contracts when an anticipatory cost letter has been 
issued on the project. The beginning dates and the not-to-exceed amount 
to be inserted in the clause should be those in the anticipatory cost 
letter.

                  Date of Incurrence of Cost (APR 1984)

    The Contractor is entitled to reimbursement for allowable, allocable 
costs incurred during the period of ------------------ to the award date 
of this contract in an amount not to exceed
$_______________________________________________________________________
All terms and conditions of this contract are in effect from

________________________________________________________________________

                             (End of clause)



Sec. 1552.216-72  Ordering--by designated ordering officers.

    As prescribed in 1516.505(a), insert the following in indefinite 
delivery/indefinite quantity contracts.

          Ordering--By Designated Ordering Officers (APR 1984)

    (a) The Government will order any supplies and services to be 
furnished under this contract by issuing delivery orders on Optional 
Form 347, or any agency prescribed form, from ------------------ through 
------------------. In addition to the Contracting Officer, the 
following individuals are authorized ordering officers.
________________________________________________________________________
________________________________________________________________________
    (b) A Standard Form 30 will be the method of amending delivery 
orders.
    (c) The Contractor shall acknowledge receipt of each order and shall 
prepare and forward to the Ordering Officer within ten (10) calendar 
days the proposed staffing plan for accomplishing the assigned task 
within the period specified.
    (d) If the Contractor considers the estimated labor hours or 
specified work completion date to be unreasonable, he/she shall promptly 
notify the Ordering Officer and Contracting Officer in writing within 10 
calendar days, stating why the estimated labor

[[Page 82]]

hours or specified completion date is considered unreasonable.
    (e) Each delivery order will have a ceiling price, which the 
Contractor may not exceed. When the Contractor has reason to believe 
that the labor payment and support costs for the order, which will 
accrue in the next thirty (30) days, will bring total cost to over 85 
percent of the ceiling price specified in the order, the Contractor 
shall notify the Ordering Officer.
    (f) Paragraphs (c), (d), and (e) of this clause apply only when 
services are being ordered.

                             (End of clause)



Sec. 1552.216-73  Fixed rates for services--indefinite delivery/
          indefinite quantity contract.

    As prescribed in 1516.505(b), insert the following clause to specify 
fixed rates for services in indefinite delivery/indefinite quantity 
contracts. When the contract contains options, the clause should be 
modified to reflect the information and data for the base period and any 
option periods.

   Fixed Rates for Services--Indefinite Delivery/Indefinite Quantity 
                           Contract (APR 1984)

    The following fixed rates shall apply for payment purposes for the 
duration of the contact.

------------------------------------------------------------------------
                                             Estimated
                                    Skill     direct     Fixed
     Personnel classification       level      labor     hourly   Total
                                               hours      rate
------------------------------------------------------------------------
                                   .......  ..........  .......  .......
                                   .......  ..........  .......  .......
                                   .......  ..........  .......  .......
                                   .......  ..........  .......  .......
------------------------------------------------------------------------

    The rate, or rates, set forth above cover all expenses, including 
report preparation, salaries, overhead, general and administrative 
expenses, and profit.
    The Contractor shall voucher for only the time of the personnel 
whose services are applied directly to the work called for in individual 
Delivery Orders and accepted by the EPA Project Officer. The Government 
shall pay the Contractor for the life of a delivery order at rates in 
effect when the delivery order was issued, even if performance under the 
delivery order crosses into another period. The Contractor shall 
maintain time and labor distribution records for all employees who work 
under the contract. These records must document time worked and work 
performed by each individual on all Delivery Orders.

                             (End of clause)



Sec. 1552.216-74  Payment of fee.

    As prescribed in 1516.307(b), insert the following clause:

                        Payment of Fee (MAY 1991)

    (a) The term fee in this clause refers to either the fixed fee under 
a cost-plus-fixed-fee type contract, or the base fee under a cost-plus-
award-fee type contract.
    (b) The Government will make provisional fee payments on the basis 
of percentage of work completed. Percentage of work completed is the 
ratio of direct labor hours performed to the direct labor hours set 
forth in clause 1552.211-73, Level of Effort--Cost-Reimbursement Term 
Contract.

                             (End of clause)

[56 FR 43711, Sept. 4, 1991, as amended at 63 FR 46899, Sept. 3, 1998]



Sec. 1552.216-75  Base fee and award fee proposal.

    As prescribed in 1516.405(b), insert the following clause:

               Base Fee and Award Fee Proposal (FEB 1999)

    For the purpose of this solicitation, offerors shall propose a 
combination of base fee and award fee. Base fee shall not exceed 3% of 
the estimated cost, excluding fee, and the award fee shall not be less 
than ----% of the total estimated cost, excluding fee. The combined 
percentages of base and award fee shall not exceed ----% of the total 
estimated cost, excluding fee.

                             (End of clause)

[64 FR 3876, Jan. 26, 1999]



Sec. 1552.216-76  Estimated cost and cost-sharing.

    As prescribed in 1516.307(c), insert the following clause:

               Estimated Cost and Cost-Sharing (APR 1996)

    (a) The total estimated cost of performing the work under this 
contract is $--------. The Contractor's share of this cost shall not 
exceed $--------. The Government's share of this cost shall not exceed 
$--------.
    (b) For performance of the work under the contract, the Contractor 
shall be reimbursed for not more than ---- percent of the cost of 
performance determined to be allowable under the Allowable Cost and 
Payment clause. The remaining balance of allowable cost shall constitute 
the Contractor's share.

[[Page 83]]

    (c) Fee shall not be paid to the prime contractor under this cost-
sharing contract.
    (d) The Contractor shall maintain records of all costs incurred and 
claimed for reimbursement as well as any other costs claimed as part of 
its cost share. Those records shall be subject to audit by the 
Government.
    (e) Costs contributed by the Contractor shall not be charged to the 
Government under any other contract, grant or agreement (including 
allocation to other contracts as part of an independent research and 
development program) nor be included as contributions under any other 
Federal contract.

                             (End of clause)

[61 FR 14505, Apr. 2, 1996]



Sec. 1552.216-77  Award term incentive.

    As prescribed in 1515.406(c), insert a clause substantially the same 
as follows:

                     Award Term Incentive (FEB 2008)

    (a) General. This contract may be extended as set forth in paragraph 
(b) based on overall contractor performance as evaluated in accordance 
with the Clause entitled ``Award Term Incentive Plan,'' provided the 
Agency has a need for the effort at or before the time an award term is 
to commence, and if the contractor receives notice of the availability 
of funding for an award term period pursuant to the ``Award Term 
Availability of Funds'' clause. The Contracting Officer is responsible 
for the overall award term evaluation and award term decision. The 
Contracting Officer will unilaterally decide whether or not the 
contractor is eligible for an award term extension, and in conjunction 
with the Contracting Officer's Representative, will determine the need 
for continued performance and funding availability.
    (b) Period of performance. Provided the contractor has achieved the 
performance measures, e.g., acceptable quality levels, set forth in the 
clause ``Award Term Incentive Plan,'' the Contracting Officer may extend 
the contract by exercising -------- [insert the total award term 
incentive periods] additional award term incentive period(s) of -------- 
[insert the award term incentive period] months each. The total maximum 
period of performance under this contract, if the Government exercises 
any option periods and all award term incentive periods is -------- 
[insert the total of the base period, option periods (if any), and award 
term incentive periods] years.
    (c) Right not to grant or cancel the award term incentive. (1) The 
Government has the unilateral right not to grant or to cancel award term 
incentive periods and the associated award term incentive plans if--
    (i) The Contracting Officer has failed to initiate an award term 
incentive period, regardless of whether the contractor's performance 
permitted the Contracting Officer to consider initiating the award term 
incentive period; or
    (ii) The contractor has failed to achieve the performance measures 
for the corresponding evaluation period; or
    (iii) The Government notifies the contractor in writing it does not 
have funds available for the award term incentive periods; or
    (iv) The Government no longer has a need for the award term 
incentive period at or before the time an award term incentive period is 
to commence.
    (2) When an award term incentive period is not granted or cancelled, 
any--
    (i) Prior award term incentive periods for which the contractor 
remains otherwise eligible are unaffected.
    (ii) Subsequent award term incentive periods are thereby also 
cancelled.
    (d) Cancellation of an award term incentive period that has not yet 
commenced for any of the reasons set forth in paragraph (c) of this 
clause shall not be considered either a termination for convenience or 
termination for default, and shall not entitle the contractor to any 
termination settlement or any other compensation. If the award term 
incentive is cancelled, a unilateral modification will cite this clause 
as the authority.
    (e) Award term incentive administration. The award term incentive 
evaluation(s) will be completed in accordance with the schedule in the 
Award Term Incentive Plan. The contractor will be notified of the 
results and their eligibility to be considered for the respective award 
term incentive no later than 120 days after an evaluation period.
    (f) Review process. The contractor may request a review of an award 
term incentive evaluation which has resulted in the contractor being 
ineligible for the award term incentive. The request shall be submitted 
in writing to the Contracting Officer within 15 days after notification 
of the results of the evaluation.

                             (End of clause)

[73 FR 1981, Jan. 11, 2008]



Sec. 1552.216-78  Award term incentive plan.

    As prescribed in 1515.406(c), insert a clause substantially the same 
as follows:

                  Award Term Incentive Plan (FEB 2008)

    (a) The Award Term Incentive Plan provides for the evaluation of 
performance, and, together with Agency need and availability of funding, 
serves as the basis for award term

[[Page 84]]

decisions. The Award Term Incentive Plan may be unilaterally revised by 
the Government. Any changes to the Award Term Incentive Plan will be 
made in writing and incorporated into the contract through a unilateral 
modification citing this clause. The Government will consult with the 
contractor prior to the issuance of a revised Award Term Incentive Plan, 
but is not required to obtain the contractor's consent to the revisions.
    (b) [describe the evaluation periods and associated award term 
incentive periods, e.g., months 1-18 for award term incentive period I, 
and months 19-36 for award term incentive period II]
    (c) [describe the evaluation schedule, e.g., 90 days after the end 
of the evaluation period]
    (d) In order to be eligible for an award term incentive period the 
contractor must achieve all of the acceptable quality levels (AQL) for 
the evaluated tasks, both individual and aggregate, for that evaluation 
period. Failure to achieve any AQL renders the contractor ineligible for 
the associated award term incentive period. [identify the most 
significant tasks. Describe the AQL for each task as well as an overall 
AQL for the associated evaluation periods, e.g., an AQL of 90% each for 
tasks 1 and 3, and an AQL of 85% for task 7, and an overall AQL of 90% 
for the months 1-18 evaluation period]
    (e) [If the contract will contain a quality assurance surveillance 
plan (QASP), reference the QASP, e.g., attachment 2. Typically, the 
performance standards and AQLs will be defined in the QASP]

                             (End of clause)

    Alternate 1 (FEB 2008) As prescribed in 1516.406(d), substitute 
paragraphs substantially the same as following paragraphs (b) through 
(e) for paragraphs (b) through (e) in the basic clause:
    (b) At the conclusion of each contract year, an average contract 
rating shall be determined by using the numerical ratings entered into 
the Department of Defense Contractor Performance Assessment Reporting 
System (CPARS) for this contract. The CPARS is an interactive database 
located on the Internet which EPA uses to record contractor performance 
evaluations.
    (c) The contract year average rating shall be obtained by dividing 
the combined ratings by the number of ratings, for example:

------------------------------------------------------------------------
                 Criteria                              Rating
------------------------------------------------------------------------
Quality of Product or Service.............  5.
Cost Control..............................  4.
Timeliness of Performance.................  4.
Business Relations........................  5.
                                            18 (combined rating).
                                            / 4 (number of ratings).
                                            = 4.5 contract year average
                                             rating.
------------------------------------------------------------------------

    (d) The contractor shall be evaluated for performance from the start 
of the contract through Year ---- [identify the evaluation period, e.g., 
year three]. The average rating for each contract year (as derived in 
paragraph (c) above) will be combined and divided by [insert the number 
of evaluation periods] to obtain an overall average rating, for example:

------------------------------------------------------------------------
             Evaluation period                     Average rating
------------------------------------------------------------------------
Year One..................................  4.5.
Year Two..................................  4.75.
Year Three................................  4.75.
                                            14 (combined average
                                             rating).
                                            / 3 (number of evaluation
                                             periods).
                                            = 4.66 overall average
                                             rating.
------------------------------------------------------------------------

    (e) Based on the overall average rating as determined under 
paragraph (d), provided that no individual rating, i.e., Quality of 
Product or Service, Cost Control, Timeliness of Performance, or Business 
Relations is below a 3, the contractor shall be eligible for the 
following award term periods:
    (1) Overall average rating of 4.6 to 5.0--Two award term incentive 
periods of ---- [insert the number of months] months.
    (2) Overall average rating of 4.0 to 4.6--One award term incentive 
period of ---- [insert the number of months] months.

[73 FR 1981, Jan. 11, 2008, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.216-79  Award term availability of funds.

    As prescribed in 1515.406(c), insert the following clause:

               Award Term Availability of Funds (FEB 2008)

    Funds are not presently available for any award term. The 
Government's obligation under any award term is contingent upon the 
availability of appropriated funds from which payment can be made. No 
legal liability on the part of the Government for any award term payment 
may arise until funds are made available to the Contracting Officer for 
an award term and until the Contractor receives notice of such 
availability, to be confirmed in writing by the Contracting Officer.

                             (End of clause)

[73 FR 1981, Jan. 11, 2008]

[[Page 85]]



Sec. 1552.217-70  Evaluation of contract options.

    As prescribed in 1517.208(a), insert the following solicitation 
provision in Requests for Proposals when the solicitation contains 
options.

                Evaluation of Contract Options (APR 1984)

    For award purposes, in addition to an offeror's response to the 
basic requirement, the Government will evaluate its response to all 
options, both technical and cost. Evaluation of options will not 
obligate the Government to exercise the options. For this solicitation 
the options are as specified in section H.

                           (End of provision)



Sec. 1552.217-71  Option to extend the term of the contract--cost-type 
          contract.

    As prescribed in 1517.208(b), insert this contract clause in cost-
reimbursement type term form contracts when applicable. If only one 
option period is used, enter ``NA'' in the proper places of the clause. 
If more than two option periods apply, the clause may be modified 
accordingly.

Option To Extend the Term of the Contract--Cost-Type Contract (APR 1984)

    The Government has the option to extend the term of this contract 
for ------ additional period(s). If more than 60 days remain in the 
contract period of performance, the Government, without prior written 
notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last 60 days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to that last 60-day period. This preliminary 
notification does not commit the Government to exercising the option. 
The Government's estimated level of effort is ------ direct labor hours 
for the first option period and ------ for the second. Use of an option 
will result in the following contract modifications:
    (a) The ``Period of Performance'' clause will be amended to cover a 
base period from -------------------------- to ------------------------
---- and option periods from ---------------------------- to ----------
---------------- and ---------------------------- to ------------------
----------.
    (b) Paragraph (a) of the ``Level of Effort'' clause will be amended 
to reflect a new and separate level of effort of ----------------------
------------ for the first option period and a new and separate level of 
effort of ---------------------------- for the second option period.
    (c) The ``Estimated Cost and Fixed Fee'' clause will be amended to 
reflect increased estimated costs and fixed fee for each option period 
as follows:

------------------------------------------------------------------------
                                                     Option 1   Option 2
------------------------------------------------------------------------
Estimated cost....................................  .........  .........
Fixed fee.........................................  .........  .........
                                                   ---------------------
    Total.........................................  .........  .........
------------------------------------------------------------------------

    (d) If the contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODC), those amounts will be increased as follows:

------------------------------------------------------------------------
              Other direct cost item                 Option 1   Option 2
------------------------------------------------------------------------
                                                    .........  .........
                                                    .........  .........
                                                   ---------------------
                                                    .........  .........
------------------------------------------------------------------------

                             (End of clause)



Sec. 1552.217-72  Option to extend the term of the contract--cost-plus-
          award-fee contract.

    As prescribed in 1517.208(c), insert this contract clause in cost-
plus-award-fee term contracts when applicable. If only one option period 
is used, enter ``NA'' in the proper places of the clause. If more than 
two option periods apply, modify the clause accordingly.

Option To Extend the Term of the Contract--Cost-Plus-Award-Fee Contract 
                               (APR 1984)

    (a) The Government has the option to extend the term of this 
contract for ---- additional periods. If more than 60 days remain in the 
contract period of performance, the Government, without prior written 
notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last 60 days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to that last 60-day period. This preliminary 
notification does not commit the Government to exercising the option. 
The Government's estimated level of effort is ---- direct labor hours 
for the first option period and ---- for the second. Use of an option 
will result in the following contract modifications:
    (b) The ``Period of Performance'' clause will be amended to cover a 
base period from ---------------------- to -------------------- and 
option periods from ---------------------- to -------------------- and 
---------------------- to ----------------------.

[[Page 86]]

    (c) Paragraph (a) of the ``Level of Effort'' clause will be amended 
to reflect a new and separate level of effort of ---------------- for 
the first option period and a new and separate level of effort of ------
-------------- for the second option period.
    (d) The ``Estimated Cost Base Fee and Award Fee'' clause will be 
amended to reflect increased estimated costs and base fee and award fee 
pool for each option period as follows:

------------------------------------------------------------------------
                                                     Option 1   Option 2
------------------------------------------------------------------------
Estimated cost....................................  .........  .........
Base fee..........................................  .........  .........
Award fee pool....................................  .........  .........
                                                   ---------------------
    Total.........................................  .........  .........
------------------------------------------------------------------------

    (e) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODC), those amounts will be increased as follows:

------------------------------------------------------------------------
              Other direct cost item                 Option 1   Option 2
------------------------------------------------------------------------
                                                    .........  .........
                                                    .........  .........
                                                    .........  .........
                                                   ---------------------
                                                    .........  .........
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



Sec. 1552.217-73  Option for increased quantity--cost-type contract.

    As prescribed in 1517.208(d), insert this contract clause in cost-
reimbursement type term form contracts when applicable. If only one 
option period is used, enter ``NA'' in the proper places of the clause. 
If more than two option periods apply, modify the clause accordingly.

      Option for Increased Quantity--Cost-Type Contract (JUN 1997)

    (a) By issuing a contract modification, the Government may increase 
the estimated level of effort by ---- direct labor hours during the base 
period, ---- during the first option period, and ---- during the second 
option period. The Government may issue a maximum of ---- orders to 
increase the level of effort in blocks of ---- hours during any given 
period. The estimated cost and fixed fee of each block of hours is as 
follows:

------------------------------------------------------------------------
                                                 Base    Option   Option
                                                period     1        2
------------------------------------------------------------------------
Estimated cost...............................  .......  .......  .......
Fixed fee....................................  .......  .......  .......
                                              --------------------------
    Total....................................  .......  .......  .......
------------------------------------------------------------------------

    (b) When these options are exercised, paragraph (a) of the ``Level 
of Effort'' clause and the ``Estimated Cost and Fixed Fee'' clause will 
be modified accordingly.
    (c) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODCs), those amounts will be increased as 
follows:

------------------------------------------------------------------------
     Other direct cost item            Option 1            Option 2
------------------------------------------------------------------------
 
 
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 62 FR 37149, July 11, 1997; 62 
FR 60667, Nov. 12, 1997]



Sec. 1552.217-74  Option for increased quantity--cost-plus-award-fee 
          contract.

    As prescribed in 1517.208(e), insert this contract clause in cost-
plus-award-fee term contracts when applicable. If only one option period 
is used, enter ``NA'' in the proper places of the clause. If more than 
two option periods apply, the clause may be modified accordingly.

 Option for Increased Quantity--Cost-Plus-Award-Fee Contract (JUN 1997)

    (a) By issuing a contract modification, the Government may increase 
the estimated level of effort by ---- direct labor hours during the base 
period, ---- during the first option period, and ---- during the second 
option period. The Government may issue a maximum of ---- orders to 
increase the level of effort in blocks of ---- hours during any given 
period. The estimated cost, base fee, and award fee pool of each block 
of hours is as follows:

------------------------------------------------------------------------
                                                 Base    Option   Option
                                                period     1        2
------------------------------------------------------------------------
Estimated cost...............................  .......  .......  .......
Base fee.....................................  .......  .......  .......
Award fee pool...............................  .......  .......  .......
                                              ----------
    Total....................................  .......  .......  .......
------------------------------------------------------------------------

    (b) When these options are exercised, paragraph (a) of the ``Level 
of Effort'' clause and the ``Estimated Cost, Base Fee, and Award Fee'' 
clause will be modified accordingly.
    (c) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs

[[Page 87]]

(ODCs), those amounts will be increased as follows:

------------------------------------------------------------------------
     Other direct cost item            Option 1            Option 2
------------------------------------------------------------------------
 
 
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 62 FR 37149, July 11, 1997; 62 
FR 60667, Nov. 12, 1997]



Sec. 1552.217-75  Option to extend the effective period of the 
          contract--time and materials or labor hour contract.

    As prescribed in 1517.208(f), insert this clause in time and 
materials or labor hour type contracts when applicable. This clause will 
be modified to reflect the actual number of option periods for the 
acquisition. If only one option period is used, modify (c) accordingly.

    Option To Extend the Effective Period of the Contract--Time and 
               Materials or Labor Hour Contract (APR 1984)

    (a) The Government has the option to extend the effective period of 
this contract for ---- additional period(s). If more than sixty (60) 
days remain in the contract effective period, the Government, without 
prior written notification, may exercise this option by issuing a 
contract modification. To unilaterally exercise this option within the 
last 60 days of the effective period, the Government must issue written 
notification of its intent to exercise the option prior to that last 60-
day period. This preliminary notification does not commit the Government 
to exercising the option.
    (b) If the option(s) are exercised, the ``Ceiling Price'' clause 
will be modified to reflect a new and separate ceiling price of $------
-- for the first option period and a new and separate ceiling price of 
$-------- for the second option period.
    (c) The ``Effective Period of the Contract'' clause will be modified 
to cover a base period from -------------------- to ------------------ 
and option periods from -------------------- to ------------------ and 
-------------------- to ----------------------.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



Sec. 1552.217-76  Option to extend the effective period of the 
          contract--indefinite delivery/indefinite quantity contract.

    As prescribed in 1517.208(g), the following is used in indefinite 
delivery/indefinite quantity type contracts with options to extend the 
effective period of the contract. The clause may be adjusted depending 
upon the number of options. If only one option period is used, modify 
(b) and (c) accordingly.

   Option To Extend the Effective Period of the Contract--Indefinite 
                  Delivery/Indefinite Quantity Contract

    (a) The Government has the option to extend the effective period of 
this contract for ---- additional period(s). If more than sixty (60) 
days remain in the contract effective period, the Government, without 
prior written notification, may exercise this option by issuing a 
contract modification. To unilaterally exercise this option within the 
last 60 days of the effective period, the Government must issue written 
notification of its intent to exercise the option prior to that last 60-
day period. This preliminary notification does not commit the Government 
to exercising the option.
    (b) If the options are exercised, the ``Minimum and Maximum Contract 
Amount'' clause will be modified to reflect new and separate minimums of 
---- for the first option period and ---- for the second option period, 
and new and separate maximums of ---- for the first option period and --
-- for the second option period.
    (c) The ``Effective Period of the Contract'' clause will be modified 
to cover a base period from -------------------- to ------------------ 
and option periods from -------------------- to ------------------ and 
-------------------- to ----------------------.

                             (End of clause)



Sec. 1552.217-77  Option to extend the term of the contract fixed
price.

    As prescribed in 1517.208(g), insert the following clause:

    Option To Extend the Term of the Contract Fixed Price (OCT 2000)

    The Government has the option to extend the term of this contract 
for ---- additional period(s). If more than ---- days remain in the 
contract period of performance, the Government, without prior written 
notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last ---- days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to

[[Page 88]]

that last ---- -day period. This preliminary notification does not 
commit the Government to exercising the option. Use of an option will 
result in the following contract modifications:
    (a) The ``Period of Performance'' clause will be amended as follows 
to cover the Base and Option Periods:

------------------------------------------------------------------------
         Period                 Start date               End date
------------------------------------------------------------------------
                         .......................  ......................
------------------------------------------------------------------------
                         .......................  ......................
------------------------------------------------------------------------
                         .......................  ......................
------------------------------------------------------------------------
                         .......................  ......................
------------------------------------------------------------------------

    (b) During the option period(s) the Contractor shall provide the 
services described below:

------------------------------------------------------------------------
               Period                             Attachment
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------

    (c) The ``Consideration and Payment'' clause will be amended to 
reflect increased fixed prices for each option period as follows:

------------------------------------------------------------------------
            Fixed price                         Option period
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]



Sec. 1552.219-70  Mentor-Protege Program.

    As prescribed in 1519.203(a), insert the following clause:

                     Mentor-Protege Program OCT 2000

    (a) The Contractor has been approved to participate in the EPA 
Mentor-Protege program. The purpose of the Program is to increase the 
participation of small disadvantaged businesses (SDBs) as 
subcontractors, suppliers, and ultimately as prime contractors; to 
establish a mutually beneficial relationship with SDB's and EPA's large 
business prime contractors (although small businesses may participate as 
Mentors); to develop the technical and corporate administrative 
expertise of SDBs which will ultimately lead to greater success in 
competition for contract opportunities; to promote the economic 
stability of SDBs; and to aid in the achievement of goals for the use of 
SDBs in subcontracting activities under EPA contracts.
    (b) The Contractor shall submit an executed Mentor-Protege agreement 
to the contracting officer, with a copy to the Office of Small and 
Disadvantaged Business Utilization or the Small Business Specialist, 
within thirty (30) calendar days after the effective date of the 
contract. The contracting officer will notify the Contractor within 
thirty (30) calendar days from its submission if the agreement is not 
accepted.
    (c) The Contractor as a Mentor under the Program agrees to fulfill 
the terms of its agreement(s) with the Protege firm(s).
    (d) If the Contractor or Protege firm is suspended or debarred while 
performing under an approved Mentor-Protege agreement, the Contractor 
shall promptly give notice of the suspension or debarment to the Office 
of Small and Disadvantaged Business Utilization and the contracting 
officer.
    (e) Costs incurred by the Contractor in fulfilling their 
agreement(s) with the Protege firm(s) are not reimbursable on a direct 
basis under this contract.
    (f) In an attachment to Standard Form 294, Subcontracts Report for 
Individual Contracts, the Contractor shall report on the progress made 
under their Mentor-Protege agreement(s), providing:
    (1) The number of agreements in effect; and
    (2) The progress in achieving the developmental assistance 
objectives under each agreement, including whether the objectives of the 
agreement have been met, problem areas encountered, and any other 
appropriate information.

                             (End of clause)

[66 FR 28674, May 24, 2001]



Sec. 1552.219-71  Procedures for Participation in the EPA Mentor
-Protege 
          Program.

    As prescribed in 1519.203(b), insert the following provision:

  Procedures for Participation in the EPA Mentor-Protege Program (OCT 
                                  2000)

    (a) This provision sets forth the procedures for participation in 
the EPA Mentor-Protege Program (hereafter referred to as the Program). 
The purpose of the Program is to increase the participation of concerns 
owned and/or controlled by socially and economically disadvantaged 
individuals as subcontractors, suppliers, and ultimately as prime 
contractors; to establish a mutually

[[Page 89]]

beneficial relationship between these concerns and EPA's large business 
prime contractors (although small businesses may participate as 
Mentors); to develop the technical and corporate administrative 
expertise of these concerns, which will ultimately lead to greater 
success in competition for contract opportunities; to promote the 
economic stability of these concerns; and to aid in the achievement of 
goals for the use of these concerns in subcontracting activities under 
EPA contracts. If the successful offeror is accepted into the Program 
they shall serve as a Mentor to a Protege firm(s), providing 
developmental assistance in accordance with an agreement with the 
Protege firm(s).
    (b) To participate as a Mentor, the offeror must receive approval in 
accordance with paragraph (h) of this section.
    (c) A Protege must be a concern owned and/or controlled by socially 
and economically disadvantaged individuals within the meaning of section 
8(a)(5) and (6) of the Small Business Act (15 U.S.C. 673(a)(5) and (6)), 
including historically black colleges and universities. Further, in 
accordance with Public Law 102-389 (the 1993 Appropriation Act), for 
EPA's contracting purposes, economically and socially disadvantaged 
individuals shall be deemed to include women.
    (d) Where there may be a concern regarding the Protege firm's 
eligibility to participate in the program, the protege's eligibility 
will be determined by the contracting officer after the SBA has 
completed any formal determinations.
    (e) The offeror shall submit an application in accordance with 
paragraph (k) of this section as part of its proposal which shall 
include as a minimum the following information.
    (1) A statement and supporting documentation that the offeror is 
currently performing under at least one active Federal contract with an 
approved subcontracting plan and is eligible for the award of Federal 
contracts;
    (2) A summary of the offeror's historical and recent activities and 
accomplishments under any disadvantaged subcontracting programs. The 
offeror is encouraged to include any initiatives or outreach information 
believed pertinent to approval as a Mentor firm;
    (3) The total dollar amount (including the value of all option 
periods or quantities) of EPA contracts and subcontracts received by the 
offeror during its two preceding fiscal years. (Show prime contracts and 
subcontracts separately per year);
    (4) The total dollar amount and percentage of subcontract awards 
made to all concerns owned and/or controlled by disadvantaged 
individuals under EPA contracts during its two preceding fiscal years. 
If recently required to submit a SF 295, provide copies of the two 
preceding year's reports;
    (5) The number and total dollar amount of subcontract awards made to 
the identified Protege firm(s) during the two preceding fiscal years (if 
any).
    (f) In addition to the information required by paragraph (e) of this 
section, the offeror shall submit as a part of the application the 
following information for each proposed Mentor-Protege relationship:
    (1) Information on the offeror's ability to provide developmental 
assistance to the identified Protege firm and how the assistance will 
potentially increase contracting and subcontracting opportunities for 
the Protege firm.
    (2) A letter of intent indicating that both the Mentor firm and the 
Protege firm intend to enter into a contractual relationship under which 
the Protege will perform as a subcontractor under the contract resulting 
from this solicitation and that the firms will negotiate a Mentor-
Protege agreement. The letter of intent must be signed by both parties 
and contain the following information:
    (i) The name, address and phone number of both parties;
    (ii) The Protege firm's business classification, based upon the 
NAICS code(s) which represents the contemplated supplies or services to 
be provided by the Protege firm to the Mentor firm;
    (iii) A statement that the Protege firm meets the eligibility 
criteria;
    (iv) A preliminary assessment of the developmental needs of the 
Protege firm and the proposed developmental assistance the Mentor firm 
envisions providing the Protege. The offeror shall address those needs 
and how their assistance will enhance the Protege. The offeror shall 
develop a schedule to assess the needs of the Protege and establish 
criteria to evaluate the success in the Program;
    (v) A statement that if the offeror or Protege firm is suspended or 
debarred while performing under an approved Mentor-Protege agreement the 
offeror shall promptly give notice of the suspension or debarment to the 
EPA Office of Small Disadvantaged Business Utilization (OSDBU) and the 
contracting officer. The statement shall require the Protege firm to 
notify the Contractor if it is suspended or debarred.
    (g) The application will be evaluated on the extent to which the 
offeror's proposal addresses the items listed in paragraphs (e) and (f) 
of this section. To the maximum extent possible, the application should 
be limited to not more than 10 single pages, double spaced. The offeror 
may identify more than one Protege in its application.
    (h) If the offeror is determined to be in the competitive range, or 
is awarded a contract without discussions, the offeror will be advised 
by the contracting officer whether their application is approved or 
rejected. The

[[Page 90]]

contracting officer, if necessary, may request additional information in 
connection with the offeror's submission of its revised or best and 
final offer. If the successful offeror has submitted an approved 
application, they shall comply with the clause titled ``Mentor-Protege 
Program.''
    (i) Subcontracts of $1,000,000 or less awarded to firms approved as 
Proteges under the Program are exempt from the requirements for 
competition set forth in FAR 44.202-2(a)(5), and 52.244-5(b). However, 
price reasonableness must still be determined and the requirements in 
FAR 44.202-2(a)(8) for cost and price analysis continue to apply.
    (j) Costs incurred by the offeror in fulfilling their agreement(s) 
with a Protege firm(s) are not reimbursable as a direct cost under the 
contract. Unless EPA is the responsible audit agency under FAR 42.703-1, 
offerors are encouraged to enter into an advance agreement with their 
responsible audit agency on the treatment of such costs when determining 
indirect cost rates. Where EPA is the responsible audit agency, these 
costs will be considered in determining indirect cost rates.
    (k) Submission of Application and Questions Concerning the Program.
    The application for the Program for Headquarters and Regional 
procurements shall be submitted to the contracting officer, and to the 
EPA OSDBU at the following address: Socioeconomic Business Program 
Officer, Office of Small and Disadvantaged Business Utilization, U.S. 
Environmental Protection Agency, Ariel Rios Building (1230A), 1200 
Pennsylvania Avenue, NW, Washington, DC 20460, Telephone: (202) 564-
4322, Fax: (202) 565-2473.
    The application for the Program for RTP procurements shall be 
submitted to the contracting officer, and to the Small Business 
Specialist at the following address: Small Business Program Officer, RTP 
Procurement Operations Division (E105-02), U.S. Environmental Protection 
Agency, Research Triangle Park, NC 27711, Telephone: (919) 541-2249, 
Fax: (919) 541-5539.
    The application for the Program for Cincinnati procurements shall be 
submitted to the contracting officer, and to the Small Business 
Specialist at the following address: Small and Disadvantaged Business 
Utilization Officer, Cincinnati Procurement Operations Division (CPOD-
Norwood), U.S. Environmental Protection Agency, 26 West Martin Luther 
King Drive, Cincinnati, OH 45268, Telephone: (513) 487-2024 Fax: (513) 
487-2004.

                           (End of provision)

[67 FR 11441, Mar. 14, 2002]



Sec. 1552.219-72  Small Disadvantaged Business Participation Program.

    As prescribed in 1519.204(a), insert the following clause:

      Small Disadvantaged Business Participation Program (OCT 2000)

    (a) Section M of this solicitation contains a source selection 
factor or subfactor related to the participation of small disadvantaged 
business (SDB) concerns in the performance of the contract. The nature 
of the evaluation of an SDB offeror under this evaluation factor or 
subfactor is dependent upon whether the SDB concern qualifies for the 
price evaluation adjustment under the clause at FAR 52.219-23, Notice of 
Price Evaluation Adjustment for Small Disadvantaged Business Concerns, 
and whether the SDB concern specifically waives this price evaluation 
adjustment.
    (b) In order to be evaluated under the source selection factor or 
subfactor, an offeror must provide, with its offer, the following 
information:
    (1) The extent of participation of SDB concerns in the performance 
of the contract in terms of the value of the total acquisition. 
Specifically, offerors must provide targets, expressed as dollars and 
percentages of the total contract value, for SDB participation in the 
applicable and authorized North American Industry Classification System 
(NAICS) Industry Subsectors as determined by the Department of Commerce. 
Total dollar and percentage targets must be provided for SDB 
participation by the prime contractor, including team members and joint 
venture partners. In addition, total dollar and percentage targets for 
SDB participation by subcontractors must be provided and listed 
separately;
    (2) The specific identification of SDB concerns to be involved in 
the performance of the contract;
    (3) The extent of commitment to use SDB concerns in the performance 
of the contract:
    (4) The complexity and variety of the work the SDB concerns are to 
perform; and
    (5) The realism of the proposal to use SDB concerns in the 
performance of the contract.
    (c) An SDB offeror who waives the price evaluation adjustment 
provided in FAR 52.219-23 shall provide, with their offer, targets, 
expressed as dollars and percentages of the total contract value, for 
the work that it intends to perform as the prime contractor in the 
applicable and authorized NAICS Industry Subsectors as determined by the 
Department of Commerce. All of the offeror's identified targets 
described in paragraphs (b) and (c) of this clause will be incorporated 
into and made part of any resulting contract.

[[Page 91]]

                           (End of provision)

[66 FR 28676, May 24, 2001]



Sec. 1552.219-73  Small Disadvantaged Business Targets.

    As prescribed in 1519.204(b), insert the following clause:

             Small Disadvantaged Business Targets (OCT 2000)

    (a) In accordance with FAR 19.1202-4(a) and EPAAR 1552.219-72, the 
following small disadvantaged business (SDB) participation targets 
proposed by the contractor are hereby incorporated into and made part of 
the contract:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
              Contractor targets                   NAICS industry subsector(s)        Dollars     total contract
                                                                                                       value
----------------------------------------------------------------------------------------------------------------
Total Prime Contractor Targets (including
 joint venture partners and team members)
Total Subcontractor Targets
----------------------------------------------------------------------------------------------------------------

    (b) The following specifically identified SDB(s) was (were) 
considered under the Section--SDB participation evaluation factor or 
subfactor (continue on separate sheet if more space is needed):

(1)_____________________________________________________________________
(2)_____________________________________________________________________
(3)_____________________________________________________________________
(4)_____________________________________________________________________
(5)_____________________________________________________________________

    The contractor shall promptly notify the contracting officer of any 
substitution of firms if the new firms are not SDB concerns.
    (c) In accordance with FAR 52.219-25, Small Disadvantaged Business 
Participation Program--Disadvantaged Status and Reporting, the 
contractor shall report on the participation of SDB concerns in the 
performance of the contract no less than thirty (30) calendar days prior 
to each annual contractor performance evaluation [contracting officer 
may insert the dates for each performance evaluation (i.e., every 12 
months after the effective date of contract)] or as otherwise directed 
by the contracting officer.

                           (End of provision)

[66 FR 28676, May 24, 2001, as amended at 67 FR 5072, Feb. 4, 2002]



Sec. 1552.219-74  Small disadvantaged business participation evaluation 
          factor.

    As prescribed in 1519.204(c), insert the following clause:

 Small Disadvantaged Business Participation Evaluation Factor (OCT 2000)

    Under this factor [or subfactor, if appropriate], offerors will be 
evaluated based on the demonstrated extent of participation of small 
disadvantaged business (SDB) concerns in the performance of the contract 
in each of the authorized and applicable North American Industry 
Classification System (NAICS) Industry Subsectors as determined by the 
Department of Commerce. As part of this evaluation, offerors will be 
evaluated based on:
    (1) The extent to which SDB concerns are specifically identified to 
participate in the performance of the contract;
    (2) The extent of the commitment to use SDB concerns in the 
performance of the contract (enforceable commitments will be weighed 
more heavily than nonenforceable commitments);
    (3) The complexity and variety of the work the SDB concerns are to 
perform under the contract;
    (4) The realism of the proposal to use SDB concerns in the 
performance of the contract; and
    (5) The extent of participation of SDB concerns, at the prime 
contractor and subcontractor level, in the performance of the contract 
(in the authorized and applicable NAICS Industry Subsectors in terms of 
dollars and percentages of the total contract value.

                           (End of provision)

[65 FR 58928, Oct. 3, 2000]



Sec. 1552.223-70  Protection of human subjects.

    As prescribed in 1523.303-70, insert the following contract clause 
when the contract involves human test subjects.

                 Protection of Human Subjects (APR 1984)

    (a) The Contractor shall protect the rights and welfare of human 
subjects in accordance with the procedures specified in its current 
Institutional Assurance on file with the Agency. The Contractor shall 
certify at least annually that an appropriate institutional committee 
has reviewed and approved the procedures which involve human subjects in 
accordance with the applicable Institutional Assurance accepted by the 
Agency.

[[Page 92]]

    (b) The Contractor shall bear full responsibility for the proper and 
safe performance of all work and services involving the use of human 
subjects under this contract.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.223-71  EPA Green Meetings and Conferences.

    As prescribed in 1523.703-1, insert the following provision or 
language substantially the same as the provision in solicitations for 
meetings and conference services.

              EPA Green Meetings and Conferences (MAY 2007)

    (a) The mission of the EPA is to protect human health and the 
environment. We expect that all Agency meetings and conferences will be 
staged using as many environmentally preferable measures as possible. 
Environmentally preferable means products or services that have a lesser 
or reduced effect on the environment when compared with competing 
products or services that serve the same purpose.
    (b) As a potential meeting or conference provider for EPA, we 
require information about environmentally preferable features and 
practices your facility will have in place for the EPA event described 
in the solicitation.
    (c) The following list is provided to assist you in identifying 
environmentally preferable measures and practices used by your facility. 
More information about EPA's Green Meetings initiative may be found on 
the Internet at http://www.epa.gov/oppt/greenmeetings/. Information 
about EPA voluntary partnerships may be found at http://www.epa.gov/
partners/index.htm.
    (1) Do you have a recycling program? If so, please describe.
    (2) Do you have a linen/towel reuse option that is communicated to 
guests?
    (3) Do guests have easy access to public transportation or shuttle 
services at your facility?
    (4) Are lights and air conditioning turned off when rooms are not in 
use? If so, how do you ensure this?
    (5) Do you provide bulk dispensers or reusable containers for 
beverages, food and condiments?
    (6) Do you provide reusable serving utensils, napkins and 
tablecloths when food and beverages are served?
    (7) Do you have an energy efficiency program? Please describe.
    (8) Do you have a water conservation program? Please describe.
    (9) Does your facility provide guests with paperless check-in & 
check-out?
    (10) Does your facility use recycled or recyclable products? Please 
describe.
    (11) Do you source food from local growers or take into account the 
growing practices of farmers that provide the food? Please describe.
    (12) Do you use biobased or biodegradable products, including 
biobased cafeteriaware? Please describe.
    (13) Do you provide training to your employees on these green 
initiatives? Please describe.
    (14) What other environmental initiatives have you undertaken, 
including any environment-related certifications you possess, EPA 
voluntary partnerships in which you participate, support of a green 
suppliers network, or other initiatives? Include ``Green Meeting'' 
information in your quotation so that we may consider environmental 
preferability in selection of our meeting venue.

[72 FR 18404, Apr. 12, 2007]



Sec. 1552.223-72  Care of laboratory animals.

    As prescribed in 1523.303-72, insert the following clause:

                  Care of Laboratory Animals (OCT 2000)

    (a) Before undertaking performance of any contract involving the use 
of laboratory animals, the Contractor shall register with the Secretary 
of Agriculture of the United States in accordance with section 6, Public 
Law 89-544, Laboratory Animal Welfare Act, August 24, 1966, as amended 
by Public Law 91-579, Animal Welfare Act of 1970, December 24, 1970. The 
Contractor shall furnish evidence of such registration to the 
contracting officer.
    (b) The Contractor shall acquire animals used in research and 
development programs from a dealer licensed by the Secretary of 
Agriculture, or from exempted sources in accordance with the Public Laws 
enumerated in (a), above, of this provision.
    (c) In the care of any live animals used or intended for use in the 
performance of this contract, the Contractor shall adhere to the 
principles enunciated in the Guide for Care and Use of Laboratory 
Animals prepared by the Institute of Laboratory Animal Resources, 
National Academy of Sciences (NAS)--National Research Council (NRC), and 
the United States Department of Agriculture's (USDA) regulations and 
standards issued under Public Laws enumerated in (a) above. In case of 
conflict between standards, the higher standard shall be used. The 
Contractor's reports on portions of the contract in which animals were 
used shall contain a certificate stating that the animals were cared for 
in accordance with the principles

[[Page 93]]

enunciated in the Guide for Care and Use of Laboratory Animals prepared 
by the Institute of Laboratory Animals Resources (NAS-NRC), and/or in 
the regulations and standards as promulgated by the Agricultural 
Research Service, USDA, pursuant to the Laboratory Animal Welfare Act of 
August 24, 1966 as amended (Public Law 89-544 and Public Law 91-579). 
NOTE: The Contractor may request registration of his 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 his research facility is located. The location of the 
appropriate APHIS Regional Office as well as information concerning this 
program may be obtained at http://www.aphis.usda.gov/contact--us/.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.224-70  Social security numbers of consultants and certain 
          sole proprietors and Privacy Act statement.

    As prescribed in 1524.104, insert the following provision in all 
solicitations.

Social Security Numbers of Consultants and Certain Sole Proprietors and 
                    Privacy Act Statement (APR 1984)

    (a) Section 6041 of title 26 of the U.S. Code requires EPA to file 
Internal Revenue Service (IRS) Form 1099 with respect to individuals who 
receive payments from EPA under purchase orders or contracts. Section 
6109 of title 26 of the U.S. Code authorizes collection by EPA of the 
social security numbers of such individuals for the purpose of filing 
IRS Form 1099. Social security numbers obtained for this purpose will be 
used by EPA for the sole purpose of filing IRS Form 1099 in compliance 
with section 6041 of title 26 of the U.S. Code.
    (b) If the offeror or quoter is an individual, consultant, or sole 
proprietor and has no Employer Identification Number, insert the 
offeror's or quoter's social security number on the following line.

                           (End of provision)



Sec. 1552.227-76  Project employee confidentiality agreement.

    As prescribed in 1527.409, insert the following clause:

          Project Employee Confidentiality Agreement (MAY 1994)

    (a) The Contractor recognizes that Contractor employees in 
performing this contract may have access to data, either provided by the 
Government or first generated during contract performance, of a 
sensitive nature which should not be released to the public without 
Environmental Protection Agency (EPA) approval. Therefore, the 
Contractor agrees to obtain confidentiality agreements from all of its 
employees working on requirements under this contract.
    (b) Such agreements shall contain provisions which stipulate that 
each employee agrees that the employee will not disclose, either in 
whole or in part, to any entity external to EPA, the Department of 
Justice, or the Contractor, any information or data (as defined in FAR 
Section 27.401) provided by the Government or first generated by the 
Contractor under this contract, any site-specific cost information, or 
any enforcement strategy without first obtaining the written permission 
of the EPA Contracting Officer. If a contractor, through an employee or 
otherwise, is subpoenaed to testify or produce documents, which could 
result in such disclosure, the Contractor must provide immediate advance 
notification to the EPA so that the EPA can authorize such disclosure or 
have the opportunity to take action to prevent such disclosure. Such 
agreements shall be effective for the life of the contract and for a 
period of five (5) years after completion of the contract.
    (c) The EPA may terminate this contract for convenience, in whole or 
in part, if it deems such termination necessary to prevent the 
unauthorized disclosure of information to outside entities. If such a 
disclosure occurs without the written permission of the EPA Contracting 
Officer, the Government may terminate the contract, for default or 
convenience, or pursue other remedies as may be permitted by law or this 
contract.
    (d) The Contractor further agrees to insert in any subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph, unless otherwise authorized by the 
Contracting Officer.

                             (End of clause)

[59 FR 18624, Apr. 19, 1994]



Sec. 1552.228-70  Insurance liability to third persons.

    As prescribed in 1528.301, insert the following clause:

            Insurance--Liability to Third Persons (OCT 2000)

    (a)(1) Except as provided in subparagraph (2) below, the Contractor 
shall provide and maintain workers' compensation, employer's

[[Page 94]]

liability, comprehensive general liability (bodily injury), and 
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 a form and 
amount and for those periods as the Contracting officer may require or 
approve and with insurers approved by the Contracting officer.
    (b) The Contractor agrees to submit for the Contracting officer's 
approval, to the extent and in the manner required by the Contracting 
officer, any other insurance that is maintained by the Contractor in 
connection with the performance of this contract and for which the 
Contractor seeks reimbursement.
    (c) The Contractor shall be reimbursed for that portion of the 
reasonable cost of insurance allocable to this contract, and required or 
approved under this clause, in accordance with its established cost 
accounting practices.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.229-70  [Reserved]



Sec. 1552.232-70  Submission of invoices.

    As prescribed in 1532.908, insert the following clause:

                    Submission of Invoices (JUN 1996)

    In order to be considered properly submitted, an invoice or request 
for contract financing payment must meet the following contract 
requirements in addition to the requirements of FAR 32.905:
    (a) Unless otherwise specified in the contract, an invoice or 
request for contract financing payment shall be submitted as an original 
and five copies. The Contractor shall submit the invoice or request for 
contract financing payment to the following offices/individuals 
designated in the contract: the original and two copies to the 
Accounting Operations Office shown in Block ---- on the cover of the 
contract; two copies to the Contracting Officer's Representative (the 
Contracting Officer's Representative may direct one of these copies to a 
separate address); and one copy to the Contracting Officer.
    (b) The Contractor shall prepare its invoice or request for contract 
financing payment on the prescribed Government forms. Standard Forms 
Number 1034, Public Voucher for Purchases and Services other than 
Personal, shall be used by contractors to show the amount claimed for 
reimbursement. Standard Form 1035, Public Voucher for Purchases and 
Services other than Personal--Continuation Sheet, shall be used to 
furnish the necessary supporting detail or additional information 
required by the Contracting Officer. The Contractor may submit self-
designed forms which contain the required information.
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the invoice 
preparation instructions identified as a separate attachment in Section 
J of the contract. If contract work is authorized by individual work 
assignments, the invoice or request for contract financing payment shall 
also include a summary of the current and cumulative amounts claimed by 
cost element for each work assignment and for the contract total, as 
well as any supporting data for each work assignment as identified in 
the instructions.
    (2) The invoice or request for contract financing payment shall 
include current and cumulative charges by major cost element such as 
direct labor, overhead, travel, equipment, and other direct costs. For 
current costs, each major cost element shall include the appropriate 
supporting schedule identified in the invoice preparation instructions. 
Cumulative charges represent the net sum of current charges by cost 
element for the contract period.
    (3) The charges for subcontracts shall be further detailed in a 
supporting schedule showing the major cost elements for each 
subcontract. The degree of detail for any subcontract exceeding $5,000 
is to be the same as that set forth under (c)(2).
    (4) The charges for consultants shall be further detailed in the 
supporting schedule showing the major cost elements of each consultant. 
For current costs, each major cost element of the consulting agreement 
shall also include the supporting schedule identified in the invoice 
preparation instructions.
    (d) Invoices or requests for contract financing payment must clearly 
indicate the period of performance for which payment is requested. 
Separate invoices or requests for contract financing payment are 
required for charges applicable to the basic contract and each option 
period.
    (e)(1) Notwithstanding the provisions of the clause of this contract 
at FAR 52.216-7, Allowable Cost and Payment, invoices or requests for 
contract financing payment shall be submitted once per month unless 
there has been a demonstrated need and Contracting Officer approval for 
more frequent billings. When submitted on a monthly basis, the period 
covered by invoices or requests for

[[Page 95]]

contractor financing payments shall be the same as the period for 
monthly progress reports required under this contract.
    (2) If the Contracting Officer allows submissions more frequently 
than monthly, one submittal each month shall have the same ending period 
of performance as the monthly progress report.
    (3) Where cumulative amounts on the monthly progress report differ 
from the aggregate amounts claimed in the invoice(s) or request(s) for 
contract financing payments covering the same period, the contractor 
shall provide a reconciliation of the difference as part of the payment 
request.

                             (End of clause)

                         Alternate I (JUN 1996).

    If used in a fixed-rate type contract, substitute the following 
paragraphs (c)(1) and (2) for paragraphs (c)(1) and (2) of the basic 
clause:
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the invoice 
preparation instructions identified as a separate attachment in Section 
J of the contract. If contract work is authorized by individual delivery 
orders, the invoice or request for contract financing payment shall also 
include a summary of the current and cumulative amounts claimed by cost 
element for each delivery order and for the contract total, as well as 
any supporting data for each delivery order as identified in the 
instructions.
    (2) The invoice or request for contract financing payment that 
employs a fixed rate feature shall include current and cumulative 
charges by contract labor category and by other major cost elements such 
as travel, equipment, and other direct costs. For current costs, each 
cost element shall include the appropriate supporting schedules 
identified in the invoice preparation instructions.

[61 FR 29317, June 10, 1996, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.232-71--1552.232-72  [Reserved]



Sec. 1552.232-73  Payments--fixed-rate services contract.

    As prescribed in 1532.111, insert the following in indefinite 
delivery/indefinite quantity contracts with fixed services rates.

            Payments--Fixed-Rate Services Contract (OCT 2000)

    The Government shall pay the Contractor as follows upon the 
submission of invoices or vouchers approved by the Contracting Officer:
    (a) Hourly rate. (1) The amounts shall be computed by multiplying 
the appropriate hourly rates prescribed in the Schedule by the number of 
direct labor hours performed. The rates shall include wages, indirect 
costs, general and administrative expenses, and profit. Fractional parts 
of an hour shall be payable on a prorated basis. Vouchers may be 
submitted once each month (or at more frequent intervals, if approved by 
the Contracting Officer) to the paying office. The Contractor shall 
substantiate vouchers by evidence of actual payment and by individual 
daily job, timecards, or other substantiation approved by the 
Contracting Officer. Promptly after receipt of each substantiated 
voucher, the Government shall, except as otherwise provided in this 
contract and subject to the terms of paragraph (e) of this contract, pay 
the voucher as approved by the Contracting Officer.
    (2) Unless otherwise prescribed in the Schedule, the Contracting 
Officer shall withhold 5 percent of the amounts due under this paragraph 
(a), but the total amount withheld shall not exceed $50,000. The amounts 
withheld shall be retained until the execution and delivery of a release 
by the Contractor as provided in paragraph (f) of this contract.
    (3) Unless the Schedule prescribes otherwise, the hourly rates in 
the Schedule shall not be varied by virtue of the Contractor having 
performed work on an overtime basis. If no overtime rates are provided 
in the Schedule and overtime work is approved in advance by the 
Contracting Officer, overtime rates shall be negotiated. Failure to 
agree upon these overtime rates shall be treated as a dispute under the 
``Disputes'' clause of this contract. If the Schedule provides rates for 
overtime the premium portion of those rates will be reimbursable only to 
the extent the overtime is approved by the Contracting Officer.
    (b) Materials, other direct costs, and subcontracts. (1) The 
allowability of direct materials and other direct costs shall be 
determined by the Contracting Officer in accordance with subpart 31.2 of 
the Federal Acquisition Regulation (FAR) in effect on the date of this 
contract. Reasonable and allocable material handling costs or indirect 
costs may be included in the charge for material or other direct costs 
to the extent they are clearly excluded from the hourly rate. Material 
handling and/or indirect cost rates are specified in the ``Indirect 
Costs'' clause. Material handling costs are comprised of indirect costs, 
including, when appropriate, general and administrative expense 
allocated to direct materials in accordance with the Contractor's usual 
accounting practices consistent with subpart 31.2 of the FAR. The 
Contractor shall be reimbursed for items and services purchased directly 
for the contract

[[Page 96]]

only when cash, checks, or other forms of actual payment have been made 
for such purchased items or services. Direct materials or other direct 
costs, as used in this clause, are those items which enter directly into 
the end product, or which are used or consumed directly in connection 
with the furnishing of the end product.
    (2) Subcontracted effort may be included in the fixed hourly rates 
discussed in paragraph (a)(l) of this clause and will be reimbursed as 
discussed in that paragraph. Otherwise, the cost of subcontracts that 
are authorized under the subcontracts clause of this contract shall be 
reimbursable costs under this clause provided that the costs are 
consistent with paragraph (b)(3) of this clause. Reimbursable costs in 
connection with subcontracts shall be payable to subcontractors 
consistent with FAR 32.504 in the same manner as for services purchased 
directly for the contract under paragraph (a)(1) of this clause. 
Reimbursable costs shall not include any costs arising from the letting, 
administration, or supervision of performance of the subcontract, if the 
costs are included in the hourly rates payable under paragraph (a)(l) of 
this clause.
    (3) To the extent able, the Contractor shall (i) obtain materials at 
the most advantageous prices available with due regard to securing 
prompt delivery of satisfactory materials; and (ii) take all cash and 
trade discounts, rebates, allowances, credits, salvage, commissions, and 
other benefits. When unable to take advantage of the benefits, the 
Contractor shall promptly notify the Contracting Officer and give the 
reasons. Credit shall be given to the Government for cash and trade 
discounts, rebates, allowances, credits, salvage, the value of any 
appreciable scrap, commissions, and other amounts that have accrued to 
the benefit of the Contractor, or would have accrued except for the 
fault or neglect of the Contractor. The benefits lost without fault or 
neglect on the part of the Contractor, or lost through fault of the 
Government, shall not be deducted from gross costs.
    (4) If the nature of the work to be performed requires the 
Contractor to furnish material which is regularly sold to the general 
public in the normal course of business by the Contractor, the price to 
be paid for such material, notwithstanding paragraph (b)(1) of this 
contract, shall be on the basis of an established catalog or list price, 
in effect when the material is furnished, less all applicable discounts 
to the Government; provided, that in no event shall such price be in 
excess of the Contractor's sales price to its most favored customer for 
the same item in like quantity, or the current market price, whichever 
is lower.
    (c) Contracting Officer notification. For contract administration 
purposes, the Contractor shall notify the Contracting Officer in writing 
when the total value of all delivery orders issued exceeds 85 percent of 
the maximum price specified in the schedule.
    (d) Maximum amount. The Government shall not be obligated to pay the 
Contractor any amount in excess of the maximum amount in the Schedule, 
and the Contractor shall not be obligated to continue performance if to 
do so would exceed the maximum amount set forth in the Schedule, unless 
or until the Contracting Officer shall have notified the Contractor in 
writing that the maximum amount has been increased and shall have 
specified in the notice a revised maximum that shall constitute the 
maximum amount for performance under this contract. When and to the 
extent that the maximum amount set forth in the Schedule has been 
increased, any hours expended, and material or other direct costs 
incurred by the Contractor in excess of the maximum amount before the 
increase, shall be allowable to the same extent as if the hours expended 
and material costs had been incurred after the increase in the maximum 
amount.
    (e) Audit. At any time before final payment under this contract, the 
Contracting Officer may request audit of the invoices or vouchers and 
substantiating material. Each payment previously made shall be subject 
to reduction to the extent of amounts, on preceding invoices or 
vouchers, that are found by the Contracting Officer not to have been 
properly payable and shall also be subject to reduction for overpayments 
or to increase for underpayments. Upon receipt and approval of the 
voucher or invoice designated by the Contractor as the ``completion 
voucher'' or ``completion invoice'' and substantiating material, and 
upon compliance by the Contractor with all terms of this contract 
(including, without limitation, terms relating to patents and the terms 
of paragraphs (f) and (g) of this clause), the Government shall promptly 
pay any balance due the Contractor. The completion invoice or voucher, 
and substantiating material, shall be submitted by the Contractor as 
promptly as practicable following completion of the work under this 
contract, but in no event, later than one year (or such longer period as 
the Contracting Officer may approve in writing) from the date of 
completion.
    (f) Assignment. The Contractor, and each assignee under an 
assignment entered into under this contract and in effect at the time of 
final payment under this contract, shall execute and deliver, at the 
time of and as a condition precedent to final payment under this 
contract, a release discharging the Government, its officers, agents, 
and employees of and from all liabilities, obligations, and claims 
arising out of or under this contract, subject only to the following 
exceptions:
    (1) Specified claims in stated amounts, or in estimated amounts if 
the amounts are not

[[Page 97]]

susceptible of exact statement by the Contractor.
    (2) Claims, together with reasonable incidental expenses, based upon 
the liabilities of the Contractor to third parties arising out of 
performing this contract, that are not known to the Contractor on the 
date of the execution of the release, and of which the Contractor gives 
notice in writing to the Contracting Officer not more than 6 years after 
the date of the release or the date of any notice to the Contractor that 
the Government is prepared to make final payment, whichever is earlier.
    (3) Claims for reimbursement of costs (other than expenses of the 
Contractor by reason of its indemnification of the Government against 
patent liability), including reasonable incidental expenses, incurred by 
the Contractor under the terms of this contract relating to patents.
    (g) Refunds. The Contractor agrees that any refunds, rebates, or 
credits (including any related interest) accruing to or received by the 
Contractor or any assignee, that arise under the materials portion of 
this contract and for which the Contractor has received reimbursement, 
shall be paid by the Contractor to the Government. The Contractor and 
each assignee, under an assignment entered into under this contract and 
in effect at the time of final payment under this contract, shall 
execute and deliver, at the time of and as a condition precedent to 
final payment under this contract, an assignment to the Government of 
such refunds, rebates, or credits (including any interest) in form and 
substance satisfactory to the Contracting Officer.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 65 FR 58928, Oct. 3, 2000; 66 
FR 28676, May 24, 2001; 67 FR 5073, Feb. 4, 2002]



Sec. 1552.232-74  Payments--simplified acquisition procedures
financing.

    As prescribed in 1532.003, insert the following clause in 
solicitations and orders that will provide simplified acquisition 
procedures financing.

    Payments--Simplified Acquisition Procedures Financing (JUN 2006)

    Simplified acquisition procedures financing in the form of --------
---- [contracting officer insert advance (prior to performance) and/or 
interim (according to payment schedule] payment(s)) will be provided 
under this commercial item order in accordance with the payment schedule 
below. If both advance and interim payments are to be made, the payment 
schedule shown below will specify the type of payment provided for each 
line item.
    The Government shall pay the contractor as follows upon the 
submission of invoices or vouchers approved by the Contracting Officer's 
Representative: ------------------------ [insert payment schedule].

[71 FR 32284, June 5, 2006, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.233-70  Notice of filing requirements for agency protests.

    As prescribed in 1533.103, insert the following provision in all 
types of solicitations:

      Notice of Filing Requirements for Agency Protests (JUL 1999)

    Agency protests must be filed with the Contracting Officer in 
accordance with the requirements of FAR 33.103 (d) and (e). Within 10 
calendar days after receipt of an adverse Contracting Officer decision, 
the protester may submit a written request for an independent review by 
the Head of the Contracting Activity. This independent review is 
available only as an appeal of a Contracting Officer decision on a 
protest. Accordingly, as provided in 4 CFR 21.2(a)(3), any protest to 
the GAO must be filed within 10 days of knowledge of the initial adverse 
Agency action.

[64 FR 17110, Apr. 8, 1999, as amended at 78 FR 46291, July 31, 2013]



Sec. 1552.235-70  Screening business information for claims of 
          confidentiality.

    As prescribed in 1535.007-70(a), insert the following contract 
clause in all types of contracts when the Contracting Officer has 
determined that during performance of this contract, the Contractor may 
be required to collect information to perform the work required under 
this contract. Some of the information may consist of trade secrets or 
commercial or financial information that would be considered as 
proprietary or confidential by the business that has the right to the 
information. The following clause enables EPA to resolve any claims of 
confidentiality concerning the information that the Contractor will 
furnish under a contract. The clause entitled ``Treatment of 
Confidential Business Information'' shall also be included in the 
contract:

[[Page 98]]

 Screening Business Information for Claims of Confidentiality (APR 1984)

    (a) Whenever collecting information under this contract, the 
Contractor agrees to comply with the following requirements:
    (1) If the Contractor collects information from public sources, such 
as books, reports, journals, periodicals, public records, or other 
sources that are available to the public without restriction, the 
Contractor shall submit a list of these sources to the appropriate 
program office at the time the information is initially submitted to 
EPA. The Contractor shall identify the information according to source.
    (2) If the Contractor collects information from a State or local 
Government or from a Federal agency, the Contractor shall submit a list 
of these sources to the appropriate program office at the time the 
information is initially submitted to EPA. The Contractor shall identify 
the information according to source.
    (3) If the Contractor collects information directly from a business 
or from a source that represents a business or businesses, such as a 
trade association:
    (i) Before asking for the information, the Contractor shall identify 
itself, explain that it is performing contractual work for the U.S. 
Environmental Protection Agency, identify the information that it is 
seeking to collect, explain what will be done with the information, and 
give the following notice:
    (A) You may, if you desire, assert a business confidentiality claim 
covering part or all of the information. If you do assert a claim, the 
information will be disclosed by EPA only to the extent, and by means of 
the procedures, set forth in 40 CFR part 2, subpart B.
    (B) If no such claim is made at the time this information is 
received by the Contractor, it may be made available to the public by 
the Environmental Protection Agency without further notice to you.
    (C) The contractor shall, in accordance with FAR part 9, execute a 
written agreement regarding the limitations of the use of this 
information and forward a copy of the agreement to the Contracting 
Officer.
    (ii) Upon receiving the information, the Contractor shall make a 
written notation that the notice set out above was given to the source, 
by whom, in what form, and on what date.
    (iii) At the time the Contractor initially submits the information 
to the appropriate program office, the Contractor shall submit a list of 
these sources, identify the information according to source, and 
indicate whether the source made any confidentiality claim and the 
nature and extent of the claim.
    (b) The Contractor shall keep all information collected from 
nonpublic sources confidential in accordance with the clause in this 
contract entitled ``Treatment of Confidential Business Information'' as 
if it had been furnished to the Contractor by EPA.
    (c) The Contractor agrees to obtain the written consent of the 
Contracting Officer, after a written determination by the appropriate 
program office, prior to entering into any subcontract that will require 
the subcontractor to collect information. The Contractor agrees to 
include this clause, including this paragraph (c), and the clause 
entitled ``Treatment of Confidential Business Information'' in all 
subcontracts awarded pursuant to this contract that require the 
subcontractor collect information.

                             (End of clause)



Sec. 1552.235-71  Treatment of confidential business information.

    As prescribed in 1535.007-70(b), insert the following contract 
clause in all types of contracts when the Contracting Officer has 
determined that in the performance of a contract, EPA may furnish 
confidential business information to the Contractor that EPA obtained 
under the Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water 
Pollution Control Act (33 U.S.C. 1251, et seq.), the Safe Drinking Water 
Act (42 U.S.C. 300f et seq.), the Federal Insecticide, Fungicide, and 
Rodenticide Act (7 U.S.C. 136 et seq.), the Federal Food, Drug, and 
Cosmetic Act (21 U.S.C. 301 et seq.), the Resource Conservation and 
Recovery Act (42 U.S.C. 6901 et seq.), or the Toxic Substances Control 
Act (15 U.S.C. 2601 et seq.). EPA regulations on confidentiality of 
business information in 40 CFR part 2 subpart B require that the 
Contractor agree to the clause entitled ``Treatment of Confidential 
Business Information'' before any confidential business information may 
be furnished to the Contractor:

        Treatment of Confidential Business Information (APR 1984)

    (a) The Contracting Officer, after a written determination by the 
appropriate program office, may disclose confidential business 
information to the Contractor necessary to carry out the work required 
under this contract. The Contractor agrees to use the confidential 
information only under the following conditions:
    (1) The Contractor and Contractor's Employees shall: (i) use the 
confidential information only for the purposes of carrying out the work 
required by the contract; (ii) not disclose the information to anyone 
other

[[Page 99]]

than EPA employees without the prior written approval of the Assistant 
General Counsel for Contracts and Information Law; and (iii) return to 
the Contracting Officer all copies of the information, and any abstracts 
or excerpts therefrom, upon request by the Contracting Officer, whenever 
the information is no longer required by the Contractor for the 
performance of the work required by the contract, or upon completion of 
the contract.
    (2) The Contractor shall obtain a written agreement to honor the 
above limitations from each of the Contractor's employees who will have 
access to the information before the employee is allowed access.
    (3) The Contractor agrees that these contract conditions concerning 
the use and disclosure of confidential information are included for the 
benefit of, and shall be enforceable by, both EPA and any affected 
business having a proprietary interest in the information.
    (4) The Contractor shall not use any confidential information 
supplied by EPA or obtained during performance hereunder to compete with 
any business to which the confidential information relates.
    (b) The Contractor agrees to obtain the written consent of the 
Contracting Officer, after a written determination by the appropriate 
program office, prior to entering into any subcontract that will involve 
the disclosure of confidential business information by the Contractor to 
the subcontractor. The Contractor agrees to include this clause, 
including this paragraph (b), in all subcontracts awarded, pursuant to 
this contract, that require the furnishing of confidential business 
information to the subcontractor.

                             (End of clause)



Sec. 1552.235-72  [Reserved]



Sec. 1552.235-73  Access to Federal Insecticide, Fungicide, and 
          Rodenticide Act Confidential Business Information (APR 1996).

    As prescribed in 1535.007(a), insert the following provision:

     Access to Federal Insecticide, Fungicide, and Rodenticide Act 
              Confidential Business Information (APR 1996)

    In order to perform duties under the contract, the Contractor will 
need to be authorized for access to Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) confidential business information (CBI). The 
Contractor and all of its employees handling CBI while working under the 
contract will be required to follow the procedures contained in the 
security manual entitled ``FIFRA Information Security Manual.'' These 
procedures include applying for FIFRA CBI access authorization for each 
individual working under the contract who will have access to FIFRA CBI, 
execution of confidentiality agreements, and designation by the 
Contractor of an individual to serve as a Document Control Officer. The 
Contractor will be required to abide by those clauses contained in EPAAR 
1552.235-70, 1552.235- 71, and 1552.235-77 that are appropriate to the 
activities set forth in the contract.
    Until EPA has approved the Contractor's security plan, the 
Contractor may not be authorized for FIFRA CBI access away from EPA 
facilities.

                           (End of provision)

[61 FR 14265, Apr. 1, 1996]



Sec. 1552.235-74  [Reserved]



Sec. 1552.235-75  Access to Toxic Substances Control Act Confidential 
          Business Information (APR 1996).

    As prescribed in 1535.007(b), insert the following provision:

Access to Toxic Substances Control Act Confidential Business Information 
                               (APR 1996)

    In order to perform duties under the contract, the Contractor will 
need to be authorized for access to Toxic Substances Control Act (TSCA) 
confidential business information (CBI). The Contractor and all of its 
employees handling CBI while working under the contract will be required 
to follow the procedures contained in the security manual entitled 
``TSCA Confidential Business Information Security Manual.'' These 
procedures include applying for TSCA CBI access authorization for each 
individual working under the contract who will have access to TSCA CBI, 
execution of confidentiality agreements, and designation by the 
Contractor of an individual to serve as a Document Control Officer. The 
Contractor will be required to abide by those clauses contained in EPAAR 
1552.235-70, 1552.235-71, and 1552.235-78 that are appropriate to the 
activities set forth in the contract.
    Until EPA has inspected and approved the Contractor's facilities, 
the Contractor may not be authorized for TSCA CBI access away from EPA 
facilities.

                           (End of provision)

[61 FR 14265, Apr. 1, 1996]



Sec. 1552.235-76  Treatment of Confidential Business Information (APR 
          1996).

    As prescribed in 1535.007-70(c), insert the following clause:

[[Page 100]]

     Treatment of Confidential Business Information (TSCA)(APR 1996)

    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose 
confidential business information (CBI) to the Contractor necessary to 
carry out the work required under this contract. The Contractor agrees 
to use the CBI only under the following conditions:
    (1) The Contractor and Contractor's employees shall (i) use the CBI 
only for the purposes of carrying out the work required by the contract; 
(ii) not disclose the information to anyone other than properly cleared 
EPA employees without the prior written approval of the Assistant 
General Counsel for Information Law or his/her designee; and (iii) 
return the CBI to the PO or his/her designee, whenever the information 
is no longer required by the Contractor for performance of the work 
required by the contract, or upon completion of the contract.
    (2) The Contractor shall obtain a written agreement to honor the 
above limitations from each of the Contractor's employees who will have 
access to the information before the employee is allowed access.
    (3) The Contractor agrees that these contract conditions concerning 
the use and disclosure of CBI are included for the benefit of, and shall 
be enforceable by, both EPA and any affected businesses having a 
proprietary interest in the information.
    (4) The Contractor shall not use any CBI supplied by EPA or obtained 
during performance hereunder to compete with any business to which the 
CBI relates.
    (b) The Contractor agrees to obtain the written consent of the CO, 
after a written determination by the appropriate program office, prior 
to entering into any subcontract that will involve the disclosure of CBI 
by the Contractor to the subcontractor. The Contractor agrees to include 
this clause, including this paragraph (b), in all subcontracts awarded 
pursuant to this contract that require the furnishing of CBI to the 
subcontractor.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 61 FR 57339, Nov. 6, 1996]



Sec. 1552.235-77  Data Security for Federal Insecticide, Fungicide and 
          Rodenticide Act Confidential Business Information (DEC 1997).

    As prescribed in 1535.007-70(d), insert the following clause:

 Data Security for Federal Insecticide, Fungicide, and Rodenticide Act 
              Confidential Business Information (DEC 1997)

    The Contractor shall handle Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) confidential business information (CBI) in 
accordance with the contract clause entitled ``Treatment of Confidential 
Business Information'' and ``Screening Business Information for Claims 
of Confidentiality,'' the provisions set forth below, and the 
Contractor's approved detailed security plan.
    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose FIFRA CBI 
to the contractor necessary to carry out the work required under this 
contract. The Contractor shall protect all FIFRA CBI to which it has 
access (including CBI used in its computer operations) in accordance 
with the following requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the FIFRA Information Security Manual. 
The manual may be obtained from the Project Officer (PO) or the Chief, 
Information Services Branch (ISB), Program Management and Support 
Division, Office of Pesticide Programs (OPP) (H7502C), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
    (2) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the Contractor's security plan(s) 
approved by EPA.
    (3) Prior to receipt of FIFRA CBI by the Contractor, the Contractor 
shall ensure that all employees who will be cleared for access to FIFRA 
CBI have been briefed on the handling, control, and security 
requirements set forth in the FIFRA Information Security Manual.
    (4) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of the FIFRA ``Contractor Employee Confidentiality 
Agreement'' from each of the Contractor's employees who will have access 
to the information before the employee is allowed access.
    (b) The Contractor agrees that these requirements concerning 
protection of FIFRA CBI are included for the benefit of, and shall be 
enforceable by, both EPA and any affected business having a proprietary 
interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under FIFRA 
may not be disclosed except as authorized by the Act, and that any 
unauthorized disclosure by the Contractor or the Contractor's employees 
may subject the Contractor and the Contractor's employees to the 
criminal penalties specified in FIFRA (7 U.S.C. 136h(f)). For purposes 
of this contract, the only disclosures that EPA authorizes the 
Contractor to make

[[Page 101]]

are those set forth in the clause entitled ``Treatment of Confidential 
Business Information.''
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in all subcontracts awarded pursuant to 
this contract that require the furnishing of CBI to the subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee all documents, 
logs, and magnetic media which contain FIFRA CBI. In addition, each 
Contractor employee who has received FIFRA CBI clearance will sign a 
``Confidentiality Agreement for Contractor Employees Upon Relinquishing 
FIFRA CBI Access Authority.'' The Contractor DCO will also forward those 
agreements to the EPA PO or his/her designee, with a copy to the CO, at 
the end of the contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the ``Changes'' 
clause when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and
    (2) The facts warrant an equitable adjustment.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 62 FR 38478, July 18, 1997; 63 
FR 418, Jan. 6, 1998; 65 FR 47325, Aug. 2, 2000]



Sec. 1552.235-78  Data Security for Toxic Substances Control Act 
          Confidential Business Information (DEC 1997).

    As prescribed in 1535.007-70(e), insert the following clause:

  Data Security for Toxic Substances Control Act Confidential Business 
                         Information (DEC 1997)

    The Contractor shall handle Toxic Substances Control Act (TSCA) 
confidential business information (CBI) in accordance with the contract 
clause entitled ``Treatment of Confidential Business Information'' and 
``Screening Business Information for Claims of Confidentiality.''
    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose TSCA CBI 
to the contractor necessary to carry out the work required under this 
contract. The Contractor shall protect all TSCA CBI to which it has 
access (including CBI used in its computer operations) in accordance 
with the following requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the TSCA CBI Security Manual. The 
manual may be obtained from the Director, Information Management 
Division (IMD), Office of Pollution Prevention and Toxics (OPPT), U.S. 
Environmental Protection Agency (EPA), 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. Prior to receipt of TSCA CBI by the Contractor, 
the Contractor shall ensure that all employees who will be cleared for 
access to TSCA CBI have been briefed on the handling, control, and 
security requirements set forth in the TSCA CBI Security Manual.
    (2) The Contractor shall permit access to and inspection of the 
Contractor's facilities in use under this contract by representatives of 
EPA's Assistant Administrator for Administration and Resources 
Management, and the TSCA Security Staff in the OPPT, or by the EPA 
Project Officer.
    (3) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of EPA Form 7740-6, ``TSCA CBI Access Request, Agreement, 
and Approval,'' from each of the Contractor's employees who will have 
access to the information before the employee is allowed access. In 
addition, the Contractor shall obtain from each employee who will be 
cleared for TSCA CBI access all information required by EPA or the U.S. 
Office of Personnel Management for EPA to conduct a Minimum Background 
Investigation.
    (b) The Contractor agrees that these requirements concerning 
protection of TSCA CBI are included for the benefit of, and shall be 
enforceable by, both EPA and any affected business having a proprietary 
interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under TSCA 
may not be disclosed except as authorized by the Act, and that any 
unauthorized disclosure by the Contractor or the Contractor's employees 
may subject the Contractor and the Contractor's employees to the 
criminal penalties specified in TSCA (15 U.S.C. 2613(d)). For purposes 
of this contract, the only disclosures that EPA authorizes the 
Contractor to make are those set forth in the clause entitled 
``Treatment of Confidential Business Information.''
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in all subcontracts awarded pursuant to 
this contract that require the furnishing of CBI to the subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee, all 
documents, logs, and magnetic media which contain TSCA CBI. In addition, 
each Contractor employee who has received TSCA CBI clearance will sign 
EPA Form 7740-18, ``Confidentiality Agreement for Contractor Employees 
Upon Relinquishing TSCA CBI Access Authority.'' The Contractor DCO will 
also forward those agreements to the EPA OPPT/

[[Page 102]]

IMD, with a copy to the CO, at the end of the contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the ``Changes'' 
clause, when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and,
    (2) The facts warrant an equitable adjustment.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 62 FR 38478, July 18, 1997; 63 
FR 418, Jan. 6, 1998; 65 FR 47325, Aug. 2, 2000]



Sec. 1552.235-79  Release of contractor confidential business 
          information (APR 1996).

    As prescribed in 1535.007-70(f), insert the following clause:

   Release of Contractor Confidential Business Information (APR 1996)

    (a) The Environmental Protection Agency (EPA) may find it necessary 
to release information submitted by the Contractor either in response to 
this solicitation or pursuant to the provisions of this contract, to 
individuals not employed by EPA. Business information that is ordinarily 
entitled to confidential treatment under existing Agency regulations (40 
CFR part 2) may be included in the information released to these 
individuals. Accordingly, by submission of this proposal or signature on 
this contract or other contracts, the Contractor hereby consents to a 
limited release of its confidential business information (CBI).
    (b) Possible circumstances where the Agency may release the 
Contractor's CBI include, but are not limited to the following:
    (1) To other Agency contractors tasked with assisting the Agency in 
the recovery of Federal funds expended pursuant to the Comprehensive 
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 
9607, as amended, (CERCLA or Superfund);
    (2) To the U.S. Department of Justice (DOJ) and contractors employed 
by DOJ for use in advising the Agency and representing the Agency in 
procedures for the recovery of Superfund expenditures;
    (3) To parties liable, or potentially liable, for costs under CERCLA 
Sec. 107 (42 U.S.C. Sec. 9607), et al, and their insurers (Potentially 
Responsible Parties) for purposes of facilitating settlement or 
litigation of claims against such parties;
    (4) To other Agency contractors who, for purposes of performing the 
work required under the respective contracts, require access to 
information the Agency obtained under the Clean Air Act (42 U.S.C. 7401 
et seq.); the Federal Water Pollution Control Act (33 U.S.C.1251 et 
seq.); the Safe Drinking Water Act (42 U.S.C. 300f et seq.); the Federal 
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.); the 
Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); the 
Toxic Substances Control Act (15 U.S.C. 2601 et seq.); or the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(42 U.S.C. 9601 et seq.);
    (5) To other Agency contractors tasked with assisting the Agency in 
handling and processing information and documents in the administration 
of Agency contracts, such as providing both preaward and post award 
audit support and specialized technical support to the Agency's 
technical evaluation panels;
    (6) To employees of grantees working at EPA under the Senior 
Environmental Employment (SEE) Program;
    (7) To Speaker of the House, President of the Senate, or Chairman of 
a Committee or Subcommittee;
    (8) To entities such as the General Accounting Office, boards of 
contract appeals, and the Courts in the resolution of solicitation or 
contract protests and disputes;
    (9) To Agency contractor employees engaged in information systems 
analysis, development, operation, and maintenance, including performing 
data processing and management functions for the Agency; and
    (10) Pursuant to a court order or court-supervised agreement.
    (c) The Agency recognizes an obligation to protect the contractor 
from competitive harm that may result from the release of such 
information to a competitor. (See also the clauses in this document 
entitled ``Screening Business Information for Claims of 
Confidentiality'' and ``Treatment of Confidential Business 
Information.'') Except where otherwise provided by law, the Agency will 
permit the release of CBI under subparagraphs (1), (3), (4), (5), (6), 
or (9) only pursuant to a confidentiality agreement.
    (d) With respect to contractors, 1552.235-71 will be used as the 
confidentiality agreement. With respect to Potentially Responsible 
Parties, such confidentiality agreements may permit further disclosure 
to other entities where necessary to further settlement or litigation of 
claims under CERCLA. Such entities include, but are not limited to 
accounting firms and technical experts able to analyze the information, 
provided that they also agree to be bound by an appropriate 
confidentiality agreement.
    (e) This clause does not authorize the Agency to release the 
Contractor's CBI to the public pursuant to a request filed under the 
Freedom of Information Act.
    (f) The Contractor agrees to include this clause, including this 
paragraph (f), in all subcontracts at all levels awarded pursuant to 
this contract that require the furnishing

[[Page 103]]

of confidential business information by the subcontractor.

                             (End of clause)

[61 FR 14267, Apr. 1, 1996]



Sec. 1552.235-80  Access to confidential business information.

    As prescribed in 1535.007-70(g), insert the following clause.

         Access to Confidential Business Information (OCT 2000)

    It is not anticipated that it will be necessary for the contractor 
to have access to confidential business information (CBI) during the 
performance of tasks required under this contract. However, the 
following applies to any and all tasks under which the contractor will 
or may have access to CBI:
    The contractor shall not have access to CBI submitted to EPA under 
any authority until the contractor obtains from the Project Officer a 
certification that the EPA has followed all necessary procedures under 
40 CFR part 2, subpart B (and any other applicable procedures), 
including providing, where necessary, prior notice to the submitters of 
disclosure to the contractor.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000]



Sec. 1552.236-70  Samples and certificates.

    As prescribed in 1536.521, insert the following contract clause in 
construction contracts.

                   Samples and Certificates (APR 1984)

    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 of 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. 1552.237-70  Contract publication review procedures.

    As prescribed in 1537.110, insert the following contract clause when 
the products of the contract are subject to contract publication review.

            Contract Publication Review Procedures (APR 1984)

    (a) Material generated under this contract intended for release to 
the public is subject to the Agency's publication review process in 
accordance with the EPA Order on this subject and the following.
    (b) Except as indicated in paragraph (c) of this contract, the 
Contractor shall not independently publish or print material generated 
under this contract until after completion of the EPA review process. 
The Contracting Officer's Representative will notify the Contractor of 
review completion within ---- calendar days after the Contractor's 
transmittal to the Contracting Officer's Representative of material 
generated under this contract. If the Contractor does not receive 
Contracting Officer's Representative notification within this period, 
the Contractor shall immediately notify the Contracting Officer in 
writing.
    (c) The Contractor may publish, in a scientific journal, material 
resulting directly or indirectly from work performed under this 
contract, subject to the following:
    (1) The Contractor shall submit to the Contracting Officer and the 
Contracting Officer's Representative, at least 30 days prior to 
publication, a copy of any paper, article, or other dissemination of 
information intended for publication.
    (2) The Contractor shall include the following statement in a 
journal article which has not been subjected to EPA review: ``Although 
the research described in this article has been funded wholly or in part 
by the United States Environmental Protection Agency contract (number) 
to (Name of Contractor), it has not been subject to the Agency's review 
and therefore does not necessarily reflect the views of the Agency, and 
no official endorsement should be inferred.''
    (3) Following publication of the journal article, the Contractor 
shall submit five copies of the journal article to the Contracting 
Officer's Representative, and one copy to the Contracting Officer.
    (d) If the Government has completed the review process and agreed 
that the contract material may be attributed to EPA, the Contractor 
shall include the following statement in the document:
    This material has been funded wholly or in part by the United States 
Environmental Protection Agency under contract (number)

[[Page 104]]

to (name). It has been subject to the Agency's review, and it has been 
approved for publication as an EPA document. Mention of trade names or 
commercial products does not constitute endorsement or recommendation 
for use.
    (e) If the Government has completed the review process, but decides 
not to publish the material, the Contractor may independently publish 
and distribute the material for its own use and its own expense, and 
shall include the following statement in any independent publication:
    Although the information described in this article has been funded 
wholly or in part by the United States Environmental Protection Agency 
under contract (number) to (name), it does not necessarily reflect the 
views of the Agency and no official endorsement should be inferred.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 78 FR 46292, July 31, 2013]



Sec. 1552.237-71  Technical direction.

    As prescribed in 1537.110, insert a clause substantially the same as 
the following:

                     Technical Direction (AUG 2009)

    (a) Definitions.
    Contracting officer technical representative (COTR), means an 
individual appointed by the contracting officer in accordance with 
Agency procedures to perform specific technical and administrative 
functions.
    Task order, as used in this clause, means work assignment, delivery 
order, or any other document issued by the contracting officer to order 
work under a service contract.
    (b) The Contracting Officer's Representative(s) may provide 
technical direction on contract or work request performance. Technical 
direction includes:
    (1) Instruction to the contractor that approves approaches, 
solutions, designs, or refinements; fills in details; completes the 
general descriptions of work shifts emphasis among work areas or tasks; 
and
    (2) Evaluation and acceptance of reports or other deliverables.
    (c) Technical direction must be within the scope of work of the 
contract and any task order there under. The Contracting Officer's 
Representative(s) does not have the authority to issue technical 
direction which:
    (1) Requires additional work outside the scope of the contract or 
task order;
    (2) Constitutes a change as defined in the ``Changes'' clause;
    (3) Causes an increase or decrease in the estimated cost of the 
contract or task order;
    (4) Alters the period of performance of the contract or task order; 
or
    (5) Changes any of the other terms or conditions of the contract or 
task order.
    (d) Technical direction will be issued in writing or confirmed in 
writing within five (5) days after oral issuance. The contracting 
officer will be copied on any technical direction issued by the 
Contracting Officer's Representative.
    (e) If, in the contractor's opinion, any instruction or direction by 
the Contracting Officer's Representative(s) falls within any of the 
categories defined in paragraph (c) of the clause, the contractor shall 
not proceed but shall notify the contracting officer in writing within 3 
days after receiving it and shall request that the contracting officer 
take appropriate action as described in this paragraph. Upon receiving 
this notification, the contracting officer shall:
    (1) Advise the contractor in writing as soon as practicable, but no 
later than 30 days after receipt of the contractor's notification, that 
the technical direction is within the scope of the contract effort and 
does not constitute a change under the ``Changes'' clause of the 
contract;
    (2) Advise the contractor within a reasonable time that the 
government will issue a written modification to the contract; or
    (3) Advise the contractor that the technical direction is outside 
the scope of the contract and is thereby rescinded.
    (f) A failure of the contractor and contracting officer to agree as 
to whether the technical direction is within the scope of the contract, 
or a failure to agree upon the contract action to be taken with respect 
thereto, shall be subject to the provisions of the clause entitled 
``Disputes'' in this contract.
    (g) Any action(s) taken by the contractor, in response to any 
direction given by any person acting on behalf of the government or any 
government official other than the contracting officer or the 
Contracting Officer's Representative, shall be at the contractor's risk.

                             (End of clause)

[74 FR 37175, July 28, 2009, as amended at 78 FR 46292, July 31, 2013]



Sec. 1552.237-72  Key personnel.

    As prescribed in 1537.110, insert the following contract clause when 
it is necessary for contract performance to identify Contractor key 
personnel.

                        Key Personnel (APR 1984)

    (a) The Contractor shall assign to this contract the following key 
personnel:
________________________________________________________________________
________________________________________________________________________

[[Page 105]]

    (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) of this clause. 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. This 
clause will be modified to reflect any approved changes of key 
personnel.

                             (End of clause)



Sec. 1552.237-73  [Reserved]



Sec. 1552.237-74  Publicity.

    As prescribed in 1537.110, insert the following contract clause in 
contracts pertaining to the removal or remedial activities under the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) (``Super Fund'') program. The term ``on-scene coordinator'' may 
be substituted with ``Contracting Officer's Representative.''

                          Publicity (APR 1984)

    (a) The Contractor agrees to notify and obtain the verbal approval 
of the on-scene coordinator (or Contracting Officer's Representative) 
prior to releasing any information to the news media regarding the 
removal or remedial activities being conducted under this contract.
    (b) It is also agreed that the Contractor shall acknowledge EPA 
support whenever the work funded in whole or in part by this contract is 
publicized in any news media.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 78 FR 46292, July 31, 2013]



Sec. 1552.237-75  Paperwork Reduction Act.

    As prescribed in 1537.110, insert this contract clause in any 
contract requiring the collection of identical information from ten (10) 
or more public respondents.

                   Paperwork Reduction Act (APR 1984)

    If it is established at award or subsequently becomes a contractual 
requirement to collect identical information from ten (10) or more 
public respondents, the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 
et seq. applies. In that event, the Contractor shall not take any action 
to solicit information from any of the public respondents until notified 
in writing by the Contracting officer that the required Office of 
Management and Budget (OMB) final clearance was received.

                             (End of clause)



Sec. 1552.237-76  Government-Contractor Relations.

    As prescribed in 1537.110(g), insert the following clause:

               Government-Contractor Relations (JUN 1999)

    (a) The Government and the Contractor understand and agree that the 
services to be delivered under this contract by the contractor to the 
Government are non-personal services and the parties recognize and agree 
that no employer-employee relationship exists or will exist under the 
contract between the Government and the Contractor's personnel. It is, 
therefore, in the best interest of the Government to afford both parties 
a full understanding of their respective obligations.
    (b) Contractor personnel under this contract shall not:
    (1) Be placed in a position where they are under the supervision, 
direction, or evaluation of a Government employee.
    (2) Be placed in a position of command, supervision, administration 
or control over Government personnel, or over personnel of other 
Contractors under other EPA contracts, or become a part of the 
Government organization.
    (3) Be used in administration or supervision of Government 
procurement activities.
    (c) Employee relationship. (1) The services to be performed under 
this contract do not require the Contractor or his/her personnel to 
exercise personal judgment and discretion on behalf of the Government. 
Rather the Contractor's personnel will act and exercise personal 
judgment and discretion on behalf of the Contractor.

[[Page 106]]

    (2) Rules, regulations, directives, and requirements that are issued 
by the U.S. Environmental Protection Agency under its responsibility for 
good order, administration, and security are applicable to all personnel 
who enter the Government installation or who travel on Government 
transportation. This is not to be construed or interpreted to establish 
any degree of Government control that is inconsistent with a non-
personal services contract.
    (d) Inapplicability of employee benefits. This contract does not 
create an employer-employee relationship. Accordingly, entitlements and 
benefits applicable to such relationships do not apply.
    (1) Payments by the Government under this contract are not subject 
to Federal income tax withholdings.
    (2) Payments by the Government under this contract are not subject 
to the Federal Insurance Contributions Act.
    (3) The Contractor is not entitled to unemployment compensation 
benefits under the Social Security Act, as amended, by virtue of 
performance of this contract.
    (4) The Contractor is not entitled to workman's compensation 
benefits by virtue of this contract.
    (5) The entire consideration and benefits to the Contractor for 
performance of this contract is contained in the provisions for payment 
under this contract.
    (e) Notice. It is the Contractor's, as well as, the Government's 
responsibility to monitor contract activities and notify the Contracting 
Officer if the Contractor believes that the intent of this clause has 
been or may be violated.
    (1) The Contractor should notify the Contracting Officer in writing 
promptly, within -------- (to be negotiated and inserted into the basic 
contract at contract award) calendar days from the date of any incident 
that the Contractor considers to constitute a violation of this clause. 
The notice should include the date, nature and circumstance of the 
conduct, the name, function and activity of each Government employee or 
Contractor official or employee involved or knowledgeable about such 
conduct, identify any documents or substance of any oral communication 
involved in the conduct, and the estimate in time by which the 
Government must respond to this notice to minimize cost, delay or 
disruption of performance.
    (2) The Contracting Officer will promptly, within -------- (to be 
negotiated and inserted into the basic contract at contract award) 
calendar days after receipt of notice, respond to the notice in writing. 
In responding, the Contracting Officer will either:
    (i) Confirm that the conduct is in violation and when necessary 
direct the mode of further performance,
    (ii) Countermand any communication regarded as a violation,
    (iii) Deny that the conduct constitutes a violation and when 
necessary direct the mode of further performance; or
    (iv) In the event the notice is inadequate to make a decision, 
advise the Contractor what additional information is required, and 
establish the date by which it should be furnished by the Contractor and 
the date thereafter by which the Government will respond.

                             (End of clause)

[64 FR 30444, June 8, 1999]



Sec. 1552.242-70  Indirect costs.

    As prescribed in 1542.705-70, insert the following clause in all 
cost-reimbursement type contracts. If ceilings are not being 
established, enter ``not applicable'' in (c).

                        Indirect Costs (APR 1984)

    (a) In accordance with paragraph (d) of the ``Allowable Cost and 
Payment'' clause, the final indirect cost rates applicable to this 
contract shall be established between the Contractor and the appropriate 
Government representative (EPA, other Government agency, or auditor), as 
provided by FAR 42.703-1(a). EPA's procedures require a Contracting 
Officer determination of indirect cost rates for its contracts. In those 
cases where EPA is the cognizant agency (see FAR 42.705-1), the final 
rate proposal shall be submitted to the cognizant audit activity and to 
the following designated Contracting Officer: Environmental Protection 
Agency, Chief, Cost Policy and Rate Negotiation Branch (3804F), Cost 
Advisory and Financial Analysis Division, Washington, DC 20460.

Where EPA is not the cognizant agency, the final rate proposal shall be 
submitted to the above-cited address, to the cognizant audit agency, and 
to the designated Contracting Officer of the cognizant agency. Upon 
establishment of the final indirect cost rates, the Contractor shall 
submit an executed Certificate of Current Cost or Pricing Data (see FAR 
15.406-2) applicable to the data furnished in connection with the final 
rates to the cognizant audit agency. The final rates shall be contained 
in a written understanding between the Contractor and the appropriate 
Government representative. Pursuant to the ``Allowable Cost and 
Payment'' clause, the allowable indirect costs under this contract shall 
be obtained by applying the final agreed upon rate(s) to the appropriate 
bases.
    (b) Until final annual indirect cost rates are established for any 
period, the Government shall reimburse the contractor at billing rates 
established by the appropriate Government representative in accordance 
with FAR 42.704, subject to adjustment when the

[[Page 107]]

final rates are established. The established billing rates are currently 
as follows:

------------------------------------------------------------------------
           Cost center                Period        Rate         Base
------------------------------------------------------------------------
                                   ...........  ...........  ...........
                                   ...........  ...........  ...........
------------------------------------------------------------------------

    These billing rates may be prospectively or retroactively revised by 
mutual agreement, at the request of either the Government or the 
Contractor, to prevent substantial overpayment or underpayment.
    (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 
clause, ceilings are hereby established on indirect costs reimbursable 
under this contract. The Government shall not be obligated to pay the 
Contractor any additional amount on account of indirect costs in excess 
of the ceiling rates listed below:

------------------------------------------------------------------------
           Cost center                Period        Rate         Base
------------------------------------------------------------------------
                                   ...........  ...........  ...........
                                   ...........  ...........  ...........
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994; 64 
FR 3876, Jan. 26, 1999]



Sec. 1552.242-71  Contractor performance evaluations.

    As prescribed in section 1542.1504, insert the following clause in 
all applicable solicitations and contracts.

                   Contractor Performance Evaluations

    In accordance with Federal Acquisition Regulation (FAR) Subpart 
42.15 and EPAAR 1542.15, the EPA will prepare and submit past 
performance evaluations to the Past Performance Information Retrieval 
System (PPIRS). Evaluation reports will be documented not later than 120 
days after the end of an evaluation period by using the Contractor 
Performance Assessment Reporting System (CPARS) which has connectivity 
with PPIRS. Contractors must register in CPARS in order to view/comment 
on their past performance reports.

[76 FR 39018, July 5, 2011]



Sec. 1552.242-72  Financial administrative contracting officer.

    As prescribed in 1542.705 (b), insert the following clause:

         Financial Administrative Contracting Officer (OCT 2000)

    (a) A Financial Administrative Contracting Officer (FACO) is 
responsible for performing certain post-award functions related to the 
financial aspects of this contract when the EPA is the cognizant federal 
agency. These functions include the following duties:
    (1) Review the contractor's compensation structure and insurance 
plan.
    (2) Negotiate advance agreements applicable to treatment of costs 
and to Independent Research & Development/Bid and Proposal costs.
    (3) Negotiate changes to interim billing rates and establish final 
indirect cost rates and billing rates.
    (4) Prepare findings of fact and issue decisions related to 
financial matters under the Disputes clause, if appropriate.
    (5) In connection with Cost Accounting Standards:
    (A) Determine the adequacy of the contractor's disclosure 
statements;
    (B) Determine whether the disclosure statements are in compliance 
with Cost Accounting Standards and FAR part 31;
    (C) Determine the contractor's compliance with Cost Accounting 
Standards and disclosure statements, if applicable; and
    (D) Negotiate price adjustments and execute supplemental agreements 
under the Cost Accounting Standards clauses at FAR 52.230-3, 52.230-4, 
and 52.230-5.
    (6) Review, approve or disapprove, and maintain surveillance of the 
contractor's purchasing system.
    (7) Perform surveillance, resolve issues, and establish any 
necessary agreements related to the contractor's cost/schedule control 
system, including travel policies/procedures, allocation and cost 
charging methodology, timekeeping and labor distribution policies and 
procedures, subcontract payment practices, matters concerning 
relationships between the contractor and its affiliates and 
subsidiaries, and consistency between bid and accounting 
classifications.
    (8) Review, resolve issues, and establish any necessary agreements 
related to the contractor's estimating system.
    (b) The FACO shall consult with the contracting officer whenever 
necessary or appropriate and shall forward a copy of all agreements/
decisions to the contracting officer upon execution.
    (c) The FACO for this contract is:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                             (End of clause)

[65 FR 58929, Oct. 3, 2000]



Sec. 1552.245-70  Government property.

    As prescribed in 1545.107(a), insert a clause substantially the same 
as follows:

[[Page 108]]

                     Government Property (SEP 2009)

    (a) The contractor shall not fabricate or acquire, on behalf of the 
Government, either directly or indirectly through a subcontract, any 
item of property without prior written approval from the Contracting 
Officer. If the Contracting Officer authorizes the contractor to acquire 
and/or fabricate equipment for use in the performance of this contract, 
the equipment shall be subject to the provisions of the ``Government 
Property'' clause and listed on the contract via contract modification.
    (b) If the Government provides item(s) of Government property to the 
contractor for use in the performance of this contract, this property 
shall be used and maintained by the contractor in accordance with the 
provisions of the ``Government Property'' clause.
    The ``EPA Contract Property Administration Requirements'' provided 
below apply to this contract.

                  U.S. Environmental Protection Agency

              Contract Property Administration Requirements

    1. Purpose. This document sets forth the requirements for the U.S. 
Environmental Protection Agency (EPA) contractors performing Government 
property management responsibilities under EPA contracts. These 
requirements supplement those contained in the Government Property 
clause(s) and Part 45 Government Property of the Federal Acquisition 
Regulation (FAR).
    2. Contract Property Administration (CPAR)
    a. EPA Delegation. EPA delegates all contract property 
administration to the EPA Contract Property Coordinator (CPC). The 
delegations apply to all EPA contracts issued with or that have the 
potential to receive, purchase or acquire Government Property or include 
the Government Property clauses. In addition to administering all 
contract property, the CPC provides technical expertise and assistance 
to the Contracting Officer (CO) and Contracting Officer Technical 
Representative (COTR) relative to Government Property.
    b. DCMA Re-delegation. The CPC may request support for contract 
property management oversight, including property administration and 
plant clearance, from the Defense Contract Management Agency (DCMA). If 
DCMA agrees to provide support, DCMA will notify the contractor of the 
assigned property administrator (PA) and plant clearance officer (PLCO). 
The DCMA PA is available to the contractor for assistance in all matters 
of property administration. Notwithstanding the delegation, as 
necessary, the contractor may contact the EPA CO. In the event of a 
disagreement between the contractor and the DCMA PA, the contractor 
should seek resolution from the CO. Unless, otherwise directed in the 
contract, or this document, all originals of written information or 
reports, except direct correspondence between the contractor and the 
DCMA PA, relative to Government property, should be forwarded to the 
administrative CO assigned to this contract and the CPC.
    c. Disagreements. Notwithstanding the delegation(s), as necessary, 
the contractor may contact the CO. In the event of a disagreement 
between the contractor and the PA or the CPC the contractor should seek 
resolution from the CO.
    3. Requests for Government Property.
    In accordance with FAR 45.102, the contractor shall furnish all 
property required for performing Government contracts. If a contractor 
believes that Government property is required for performance of the 
contract, the contractor shall submit a written request to the CO. At a 
minimum, the request shall contain the following elements:
    a. Contract number for which the property is required.
    b. An item(s) description, quantity and estimated cost.
    c. Certification that no like contractor property exists which could 
be utilized.
    d. A detailed description of the task-related purpose of the 
property.
    e. Explanation of negative impact if property is not provided by the 
Government.
    f. Lease versus purchase analysis shall be furnished with the 
request to acquire property on behalf of the Government, with the 
exception of requests for material purchases. The contractor may not 
proceed with acquisition of property on behalf of the Government until 
receipt of written authorization from the Contracting Officer.
    4. Transfer of Government Property. The Contracting Officer 
initiates the transfer of the government property via a contract 
modification. The transferor (EPA or another contractor) shall provide 
to the transferee, the receiving contractor, the information needed to 
establish and maintain the property records required of FAR 52.245-1, as 
well as all of the applicable data elements required by Attachment 1 of 
this clause. The transferee, the receiving contractor, should perform a 
complete inventory of the property before signing the acceptance 
document for the property. Accountability will transfer to the receiving 
contractor upon receipt and acceptance of the property, in accordance 
with FAR 45.106.
    5. Records of Government Property.
    a. In accordance with FAR 52.245-1, the contractor shall create and 
maintain records of all Government property, regardless of value, 
including property provided to and in the possession of a subcontractor. 
Material provided by the Government or acquired by the contractor and 
billed as a direct charge to the contract is Government property and 
records must be established as such.

[[Page 109]]

    b. The Contractor shall identify all Superfund property and 
designate it as such both on the item and on the Government property 
record. If it is not practicable to tag the item, the contractor shall 
write the ID number on a tag, card or other entity that may be kept with 
the item or in a file.
    c. Support documentation used for posting entries to the property 
record shall provide complete, current and auditable data. Entries shall 
be posted to the record in a timely manner following an action.
    d. For Government vehicles, in addition to the data elements 
required by EPA, the contractor shall also comply with the General 
Services Administration (GSA) and Department of Energy (DOE) record and 
report requirements supplied with all EPA provided motor vehicles. If 
the above requirements were not provided with the vehicle, the 
contractor shall notify the designated CPC and the Fleet Manager.
    e. When Government property is disclosed to be in the management 
and/or control of the contractor but not provided under any contract, 
the contractor shall record and report the property in accordance with 
FAR 52.245-1.
    6. Inventories of Government Property. The contractor shall conduct 
a complete physical inventory of EPA property at least once per year. 
The contractor shall report the results of the inventory, including any 
discrepancies, to the CO. Reconciliation of discrepancies shall be 
completed in accordance with the schedule negotiated with the CO. See 
section 10 herein, Contract Closeout, for information on final 
inventories.
    7. Reports of Government Property. EPA requires an annual summary 
report, for each contract, by contract number, of Government property in 
the contractor's possession. The annual summary is due as of September 
30th of each year, and upon contract termination or expiration.
    a. For each classification listed on the EPA Property Report form, 
with the exception of material, the contractor shall provide the total 
acquisition cost and total quantity. If there are zero items in a 
classification, or if there is an ending balance of zero, the 
classification must be listed with zeros in the quantity and acquisition 
cost columns.
    b. For material, the contractor shall provide the total acquisition 
cost only.
    c. Property classified as Plant Equipment, Superfund and Special 
Test Equipment must be reported on two separate lines. The first line 
shall include the total acquisition cost and quantity of all items or 
systems with a unit acquisition cost of $25,000 or more. The second line 
shall include the total acquisition cost and quantity of all items with 
a unit acquisition cost of less than $25,000.
    d. For items comprising a system, which is defined as ``a group of 
interacting items functioning as a complex whole,'' the contractor may 
maintain the record as a system noting all components of the system 
under the main component or maintain individual records for each item. 
However, for the annual report of Government property the components 
must be reported as a system with one total dollar amount for the 
system, if that system total is $25,000 or more.
    e. The reports are to be received at EPA by the CPC by October 5th 
of each year.
    f. Distribution shall be as follows:

Original to: CPC
One copy: CO

    g. Contractors are required to comply with GSA and DOE special 
reporting requirements for motor vehicles. A statement of these 
requirements will be provided by the EPA Facility Management and 
Services Division (FMSD) concurrent with receipt of each vehicle.
    h. The contractor shall provide detailed reports on an as-needed 
basis, as may be requested by the CO or the CPC.
    8. Disposition of Government Property. The disposition process is 
composed of three distinct phases: identification, reporting, and final 
disposition.
    a. Identification. The disposition process begins with the 
contractor identifying Government property that is no longer required 
for contract performance. Effective contract property management systems 
provide for identification of excess as it occurs. Once Government 
property has been determined to be excess to the accountable contract, 
it must be screened against the contractor's other EPA contracts for 
further use. If the property may be reutilized, the contractor shall 
notify the CO in writing. Government property will be transferred via 
contract modifications to other contracts only when the COs on both the 
current contract and the receiving contract authorize the transfer.
    b. Reporting.
    (i) EPA. Government property shall be reported in accordance with 
FAR 52.245-1. The Standard Form, SF 1428, Inventory Disposal Schedule, 
provides the format for reporting excess Government property. 
Instructions for completing and when to use the form may be found at FAR 
52.245-1(j). Forward the completed SF 1428 to the CPC. The SF 1428 is 
available at http://www.arnet.gov/far/current/html/FormsStandard54.html. 
Superfund property must contain a Superfund notification and the 
following language must be displayed on the form: ``Note to CO: 
Reimbursement to the EPA Superfund is required.''
    (ii) DCMA. If the EPA contract has been re-delegated to DCMA, the 
excess items will be entered into the Plant Clearance Automated 
Reutilization Screening System (PCARSS). Access and information 
pertaining to this system may be addressed to the DCMA Plant Clearance 
Officer (PLCO).
    c. Disposition Instructions.

[[Page 110]]

    (i) Retention. When Government property is identified as excess, the 
CO may direct the contractor in writing to retain all or part of the 
excess Government Property under the current contract for possible 
future requirements.
    (ii) Return to EPA. When Government property is identified as 
excess, the CO may direct the contractor in writing to return those 
items to EPA inventory. The contractor shall ship/deliver the property 
in accordance with the instructions provided by the CO.
    (iii) Transfer. When Government property is identified as excess, 
the CO may direct the contractor in writing to transfer the property to 
another EPA contractor. The contractor shall transfer the property by 
shipping it in accordance with the instructions provided by the CO. To 
effect transfer of accountability, the contractor shall provide the 
recipient of the property with the applicable data elements set forth in 
Attachment 1 of this clause.
    (iv) Sale. If GSA or the DCMA PLCO conducts a sale of the excess 
Government property, the contractor shall allow prospective bidders 
access to property offered for sale.
    (v) Abandonment. Abandoned property must be disposed of in a manner 
that does not endanger the health and safety of the public. If the 
contract is delegated to DCMA and the contractor has input EPA property 
into the PCARSS system, the EPA Property Utilization Officer (PUO) shall 
notify the CO. The CO shall notify the contractor in writing of those 
items EPA would like to retain, have returned or transferred to another 
EPA contractor. The contractor shall notify the DCMA PLCO and request 
withdrawal of those items from the inventory schedule. The contractor 
shall update the Government property record to indicate the disposition 
of the item and to close the record. The contractor shall also obtain 
either a signed receipt or proof of shipment from the recipient. The 
contractor shall notify the CO when all actions pertaining to 
disposition have been completed. The contractor shall complete an EPA 
Property report with changes, to include supporting documentation of 
completed disposition actions and submit it to the CPC.
    9. Decontamination. In addition to the requirements of the 
``Government Property'' clause and prior to performing disposition of 
any EPA Government Property, the contractor shall certify in writing 
that the property is free from contamination by any hazardous or toxic 
substances.
    10. Contract Closeout. The contractor shall complete a physical 
inventory of all Government property at contract completion and the 
results, including any discrepancies, shall be reported to the CO. If 
the contract is delegated to DCMA, the physical inventory report will be 
submitted to the EPA CO and a copy submitted to the DCMA PA. In the case 
of a terminated contract, the contractor shall comply with the inventory 
requirements set forth in the applicable termination clause. The results 
of the inventory, as well as a detailed inventory listing, must be 
forwarded to the CO and if delegated, a copy to the DCMA PA. In order to 
expedite the disposal process, contractors may be required to, or may 
elect to submit to the CPC, an inventory schedule for disposal purposes 
up to six (6) months prior to contract completion. If such an inventory 
schedule is prepared, the contractor must indicate the earliest date 
that each item may be disposed. The contractor shall update all property 
records to show disposal action. The contractor shall notify the CO, 
and, if delegated, the DCMA PA, in writing, when all work has been 
completed under the contract and all Government property accountable to 
the contract has been disposed. The contractor shall complete a FINAL 
EPA Property report with all supporting documentation to the CPC.

                              Attachment 1

    Required Data Element--In addition to the requirements of FAR 
52.245-1(f)(vi), Reports of Government Property, the contractor is 
required to maintain, and report the following data elements for EPA 
Government property (all elements are not applicable to material): Name 
and address of the administrative Contracting Officer; Name of the 
contractor representative; Business type; Name and address of the 
contract property coordinator; Superfund (Yes/No); No. of Subcontractor/
Alternate Locations.
    Note: For items comprising a system which is defined as, ``a group 
of interacting items functioning as a complex whole,'' the contractor 
may maintain the record as a system noting all components of the system 
under the main component or maintain individual records for each item. 
However, for the Annual Report of Government Property, the components 
must be reported as a system with one total dollar amount for the 
system, if that system total is $25,000 or more.

                             (End of clause)

[74 FR 47110, Sept. 15, 2009, as amended at 78 FR 46292, July 31, 2013]



Sec. 1552.245-71  Government-furnished data.

    As prescribed in 1545.107(b), insert the following contract clause 
in any contract that the Government is to furnish the Contractor data. 
Identify in the clause the data to be provided.

[[Page 111]]

                  Government-Furnished Data (SEP 2009)

    (a) The Government shall deliver to the Contractor the Government-
furnished data described in the contract. If the data, suitable for its 
intended use, is not delivered to the Contractor, the Contracting 
Officer shall equitably adjust affected provisions of this contract in 
accordance with the ``Changes'' clause when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and
    (2) The facts warrant an equitable adjustment.
    (b) Title to Government-furnished data shall remain in the 
Government.
    (c) The Contractor shall use the Government-furnished data only in 
connection with this contract.
    (d) The following data will be furnished to the Contractor on or 
about the time indicated:

                             (End of clause)

[74 FR 47112, Sept. 15, 2009, as amended at 78 FR 46291, July 31, 2013]

                             PART 1553_FORMS

Sec.

Sec. 1553.000 Scope of part.

                  Subpart 1553.2_Prescription of Forms


Sec. 1553.209 Contractor qualifications.

Sec. 1553.209-70 EPA Form 1900-26, Contracting Officer's Evaluation of 
          Contractor Performance.

Sec. 1553.209-71 EPA Form 1900-27, Project Officer's Evaluation of 
          Contractor Performance.

Sec. 1553.213 Small purchases and other simplified purchase procedures.

Sec. 1553.213-70 EPA Form 1900-8, Procurement Request/Order.

Sec. 1553.216 Types of contracts.

Sec. 1553.216-70 EPA Form 1900-41A, CPAF Contract Summary of Significant 
          Performance Observation.

Sec. 1553.216-71 EPA Form 1900-41B, CPAF Contract Individual Performance 
          Event.

Sec. 1553.232 Contract financing.

Sec. 1553.232-70 EPA Form 1900-3, Assignee's Release.

Sec. 1553.232-71 EPA Form 1900-4, Assignee's Assignment of Refunds, 
          Rebates, Credits and Other Amounts.

Sec. 1553.232-72 EPA Form 1900-5, Contractor's Assignment of Refunds, 
          Rebates, and Credits.

Sec. 1553.232-73 EPA Form 1900-6, Contractor's Release.

Sec. 1553.232-74 EPA Form 1900-10, Contractor's Cumulative Claim and 
          Reconciliation.

Sec. 1553.232-75 EPA Form 1900-68, notice of contract costs suspended 
          and/or disallowed.

Sec. 1553.232-76 [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8886, Mar. 8, 1984, unless otherwise noted.

    Editorial Note: Forms referenced in part 1553 do not appear in the 
Code of Federal Regulations.



Sec. 1553.000  Scope of part.

    This part prescribes Agency forms for use in acquisitions and 
contains requirements and information generally applicable to the forms.

                  Subpart 1553.2_Prescription of Forms



Sec. 1553.209  Contractor qualifications.



Sec. 1553.209-70  EPA Form 1900-26, Contracting Officer's Evaluation of 
          Contractor Performance.

    As prescribed in 1509.170-4(a), EPA Form 1900-26 shall be used by 
the Contracting Officer to record his/her evaluation of Contractor 
performance.



Sec. 1553.209-71  EPA Form 1900-27, Project Officer's Evaluation of 
          Contractor Performance.

    As prescribed in 1509.170-4(a), EPA Form 1900-27 shall be used by 
the Project Officer to record his/her evaluation of Contractor 
performance.



Sec. 1553.213  Small purchases and other simplified purchase procedures.



Sec. 1553.213-70  EPA Form 1900-8, Procurement Request/Order.

    As prescribed in 1513.505-2, EPA Form 1900-8 may be used in lieu of 
Optional Forms 347 and 348 for individual purchases.



Sec. 1553.216  Types of contracts.



Sec. 1553.216-70  EPA Form 1900-41A, CPAF Contract Summary of 
          Significant Performance Observation.

    As prescribed in 1516.404-278, EPA Form 1900-41A shall be used to 
document significant performance observations under CPAF contracts.

[[Page 112]]



Sec. 1553.216-71  EPA Form 1900-41B, CPAF Contract Individual 
          Performance Event.

    As prescribed in 1516.404-278, EPA Form 1900-41B shall be used to 
document individual performance events under CPAF contracts.



Sec. 1553.232  Contract financing.



Sec. 1553.232-70  EPA Form 1900-3, Assignee's Release.

    As prescribed in 1532.805-70(a), the EPA Form 1900-3 is required to 
be submitted by the assignee for cost-reimbursement contracts prior to 
final payment under the contract.



Sec. 1553.232-71  EPA Form 1900-4, Assignee's Assignment of Refunds, 
          Rebates, Credits and Other Amounts.

    As prescribed in 1532.805-70(b), the EPA Form 1900-4 must accompany 
the assignee's release prior to final payment under cost-reimbursement 
contracts.



Sec. 1553.232-72  EPA Form 1900-5, Contractor's Assignment of Refunds, 
          Rebates, and Credits.

    As prescribed in 1532.805-70(c), the EPA Form 1900-5 must be 
prepared by the Contractor prior to final payment under cost-
reimbursement contracts and must accompany the Contractor's release.



Sec. 1553.232-73  EPA Form 1900-6, Contractor's Release.

    As prescribed in 1532.805-70(d), the EPA Form 1900-6 must be 
submitted by the Contractor under cost-reimbursement contracts prior to 
final payment thereunder.



Sec. 1553.232-74  EPA Form 1900-10, Contractor's Cumulative Claim and 
          Reconciliation.

    As prescribed in 1532.170(a), the EPA Form 1900-10 shall be used for 
an accounting of the cumulative charges and costs for cost-reimbursement 
contracts from the inception of the contract to completion. It shall be 
submitted by the Contractor along with the completion voucher.



Sec. 1553.232-75  EPA Form 1900-68, notice of contract costs suspended 
          and/or disallowed.

    As prescribed in 1532.170(b), the Contracting Officer shall insert 
EPA Form 1900-68 in all cost-reimbursement type and fixed-rate type 
contracts.

[61 FR 29318, June 10, 1996]



Sec. 1553.232-76  [Reserved]

[[Page 113]]



  CHAPTER 16--OFFICE OF PERSONNEL MANAGEMENT FEDERAL EMPLOYEES HEALTH 
                     BENEFITS ACQUISITION REGULATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1601            Federal Acquisition Regulations System......         115
1602            Definitions of words and terms..............         116
1603            Improper business practices and personal 
                    conflicts of interest...................         119
1604            Administrative matters......................         120
                   SUBCHAPTER B--ACQUISITION PLANNING
1605            Publicizing contract actions................         123
1606            Competition requirements....................         123
1609            Contractor qualifications...................         123
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1614            Sealed bidding..............................         128
1615            Contracting by negotiation..................         128
1616            Types of contracts..........................         133
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1622            Application of labor laws to Government 
                    acquisitions............................         134
1624            Protection of privacy and freedom of 
                    information.............................         134
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1629            Taxes.......................................         135
1631            Contract cost principles and procedures.....         135
1632            Contract financing..........................         140
1633            [Reserved]

                  SUBCHAPTER G--CONTRACT ADMINISTRATION
1642            Contract administration.....................         143
1643            Contract modifications......................         146

[[Page 114]]

1644            Subcontracting policies and procedures......         146
1645            Government property.........................         147
1646            Quality assurance...........................         147
1649            Termination of contracts....................         147
                     SUBCHAPTER H--CLAUSES AND FORMS
1652            Contract clauses............................         149
1653            Forms.......................................         173
1699            Cost accounting standards...................         173

[[Page 115]]

                          SUBCHAPTER A_GENERAL

            PART 1601_FEDERAL ACQUISITION REGULATIONS SYSTEM

               Subpart 1601.1_Purpose, Authority, Issuance

Sec.

Sec. 1601.101 Purpose.

Sec. 1601.102 Authority.

Sec. 1601.103 Applicability.

Sec. 1601.104 Issuance.

Sec. 1601.104-1 Publication and code arrangement.

Sec. 1601.104-2 Arrangement of regulation.

Sec. 1601.106 OMB approval under the Paperwork Reduction Act.

          Subpart 1601.3_Agency Acquisition Regulation (FEHBAR)


Sec. 1601.301 Policy.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16037, May 1, 1987, unless otherwise noted.

               Subpart 1601.1_Purpose, Authority, Issuance



Sec. 1601.101  Purpose.

    (a) This subpart establishes chapter 16, Office of Personnel 
Management Federal Employees Health Benefits Acquisition Regulation, 
within title 48, the Federal Acquisition Regulation System, of the Code 
of Federal Regulations. The short title of this regulation shall be 
FEHBAR.
    (b) The purpose of the FEHBAR is to implement and supplement the 
Federal Acquisition Regulation (FAR) specifically for acquiring and 
administering contracts with health insurance carriers in the Federal 
Employees Health Benefits Program (FEHBP).



Sec. 1601.102  Authority.

    (a) The FEHBAR is issued by the Director of the Office of Personnel 
Management in accordance with the authority of 5 U.S.C. chapter 89 and 
other applicable law and regulation.
    (b) The FEHBAR does not replace or incorporate regulations found at 
5 CFR part 890, which provides the substantive policy guidance for 
administration of the FEHBP under 5 U.S.C. Chapter 89. The following is 
the order of precedence in interpreting a contract provision under the 
FEHBP:
    (1) 5 U.S.C. Chapter 89;
    (2) 5 CFR part 890;
    (3) 48 CFR Chapters 1 and 16;
    (4) The FEHBP contract.

[52 FR 16037, May 1, 1987, as amended at 59 FR 14764, Mar. 30, 1994]



Sec. 1601.103  Applicability.

    The FAR is generally applicable to contracts negotiated in the FEHBP 
pursuant to 5 U.S.C. chapter 89. The FEHBAR implements and supplements 
the FAR where necessary to identify basic and significant acquisition 
policies unique to the FEHBP.



Sec. 1601.104  Issuance.



Sec. 1601.104-1  Publication and code arrangement.

    (a) The FEHBAR and its subsequent changes are published in
    (1) Daily issues of the Federal Register; and
    (2) Cumulative form of the Code of Federal Regulations.
    (b) The FEHBAR is issued as chapter 16 of title 48 of the Code of 
Federal Regulations.



Sec. 1601.104-2  Arrangement of regulation.

    (a) General. The FEHBAR conforms with the arrangement and numbering 
system prescribed by FAR 1.104. However, when a FAR part or subpart is 
adequate for use without further OPM implementation or supplementation, 
there will be no corresponding FEHBAR part, subpart, etc. The FEHBAR is 
to be used in conjunction with the FAR and the order for use is:
    (1) FAR;
    (2) FEHBAR.
    (b) Citation. (1) In formal documents, such as legal briefs, 
citation of chapter 16 material that has been published in the Federal 
Register will be to title 48 of the Code of Federal Regulations.
    (2) In informal documents, any section of chapter 16 may be 
identified as ``FEHBAR'' followed by the section number.

[[Page 116]]



Sec. 1601.106  OMB approval under the Paperwork Reduction Act.

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

------------------------------------------------------------------------
                         Provision                           Control No.
------------------------------------------------------------------------
FEHBAR 1604.705............................................    3206-0145
FAR 9.1....................................................    3206-0145
------------------------------------------------------------------------


[52 FR 16037, May 1, 1987. Redesignated at 70 FR 31378, June 1, 2005]

          Subpart 1601.3_Agency Acquisition Regulation (FEHBAR)



Sec. 1601.301  Policy.

    (a) Procedures, contract clauses, and other aspects of the 
acquisition process for contracts in the FEHBP shall be consistent with 
the principles of the FAR. Changes to the FAR that are otherwise 
authorized by statute or applicable regulation, dictated by the 
practical realities associated with the unique nature of health care 
procurements, or necessary to satisfy specific needs of the Office of 
Personnel Management shall be implemented as amendments to the FEHBAR 
and published in the Federal Register, or as deviations to the FAR in 
accordance with FAR subpart 1.4.
    (b) Internal procedures, instructions, and guides that are necessary 
to clarify or implement the FEHBAR within OPM may be issued by agency 
officials specifically designated by the Director, OPM. Normally, such 
designations will be specified in the OPM Administrative Manual, which 
is routinely available to agency employees and will be made available to 
interested outside parties upon request. Clarifying or implementing 
procedures, instructions, and guides issued pursuant to this section of 
the FEHBAR must--
    (1) Be consistent with the policies and procedures contained in this 
regulation as implemented and supplemented from time to time; and
    (2) Follow the format, arrangement, and numbering system of this 
regulation to the extent practicable.

                PART 1602_DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 1602.000-70 Scope of part.

                Subpart 1602.1_Definitions of FEHBP Terms


Sec. 1602.170 Definition of terms.

Sec. 1602.170-1 Carrier.

Sec. 1602.170-2 Community rate.

Sec. 1602.170-3 Comprehensive medical plan.

Sec. 1602.170-4 Contractor.

Sec. 1602.170-5 Cost or pricing data.

Sec. 1602.170-6 Director.

Sec. 1602.170-7 Experience rate.

Sec. 1602.170-8 FEHBP.

Sec. 1602.170-9 Health benefits plan.

Sec. 1602.170-10 Letter of credit.

Sec. 1602.170-11 Negotiated benefits contracts.

Sec. 1602.170-12 OPM.

Sec. 1602.170-13 Similarly sized subscriber groups.

Sec. 1602.170-14 FEHB-specific medical loss ratio threshold calculation.

Sec. 1602.170-15 Subcontractor.

Sec. 1602.170-16 Large Provider Agreement.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16038, May 1, 1987, unless otherwise noted.



Sec. 1602.000-70  Scope of part.

    This part defines words and terms commonly used in this regulation.

                Subpart 1602.1_Definitions of FEHBP Terms



Sec. 1602.170  Definition of terms.

    In this chapter, unless otherwise indicated, the following terms 
have the meaning set forth in this subpart.



Sec. 1602.170-1  Carrier.

    Carrier means a voluntary association, corporation, partnership, or 
other nongovernmental organization which is lawfully engaged in 
providing, delivering, paying for, or reimbursing the cost of health 
care services under group insurance policies or contracts, medical or 
hospital service agreements, membership or subscription

[[Page 117]]

contracts, including a health maintenance organization, a nonprofit 
hospital and health service corporation, or any other entity providing a 
plan of health insurance, health benefits or health services, in 
consideration of premiums or other periodic charges payable to the 
carrier.

[62 FR 47573, Sept. 10, 1997]



Sec. 1602.170-2  Community rate.

    (a) Community rate means a rate of payment based on a per member per 
month capitation rate or its equivalent that applies to a combination of 
the subscriber groups for a comprehensive medical plan carrier. 
References in this subchapter to ``a combination of cost and price 
analysis'' relating to the applicability of policy and contract clauses 
refer to comprehensive medical plan carriers using community rates.
    (b) Adjusted community rate means a community rate which has been 
adjusted for expected use of medical resources of the FEHBP group. An 
adjusted community rate is a prospective rate and cannot be 
retroactively revised to reflect actual experience, utilization, or 
costs of the FEHBP group, except as described inSec. 1615.402(c)(4).

[55 FR 27414, July 2, 1990, as amended at 62 FR 47573, Sept. 10, 1997; 
76 FR 38284, June 29, 2011]



Sec. 1602.170-3  Comprehensive medical plan.

    Comprehensive Medical Plan means a plan as defined under 5 U.S.C. 
8903(4).



Sec. 1602.170-4  Contractor.

    Contractor means carrier.



Sec. 1602.170-5  Cost or pricing data.

    (a) Experience-rated carriers. Cost or pricing data for experience-
rated carriers includes:
    (1) Information such as claims data;
    (2) Actual or negotiated benefits payments made to providers of 
medical services for the provision of healthcare, such as capitation not 
adjusted for specific groups, including mental health benefits 
capitation rates, per diems, and Diagnostic Related Group (DRG) 
payments;
    (3) Cost data;
    (4) Utilization data; and
    (5) Administrative expenses and retentions, including capitated 
administrative expenses and retentions.
    (b) Community rated carriers. Cost or pricing data for community 
rated carriers is the specialized rating data used by carriers in 
computing a rate that is appropriate for the Federal group and similarly 
sized subscriber groups (SSSGs). Such data include, but are not limited 
to, capitation rates; prescription drug, hospital, and office visit 
benefits utilization data; trend data; actuarial data; rating 
methodologies for other groups; standardized presentation of the 
carrier's rating method (age, sex, etc.) showing that the factor 
predicts utilization; tiered rates information; ``step-up'' factors 
information; demographics such as family size; special benefit loading 
capitations; and adjustment factors for capitation. After the 2012 plan 
year, reconciled rates for community rated carriers, other than those 
required by state law to use Traditional Community Rating (TCR), will be 
required to meet an FEHB-specific medical loss ratio threshold published 
annually in OPM's rate instructions to FEHB carriers.

[62 FR 47574, Sept. 10, 1997, as amended at 70 FR 31378, June 1, 2005; 
76 FR 38285, June 29, 2011]



Sec. 1602.170-6  Director.

    Director means the Director of the Office of Personnel Management.

[52 FR 16038, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-7  Experience-rate.

    Experience-rate means a rate for a given group that is the result of 
that group's actual paid claims, administrative expenses (including 
capitated administrative expenses), retentions, and estimated claims 
incurred but not reported, adjusted for benefit modifications, 
utilization trends, and economic trends. Actual paid claims include any 
actual or negotiated benefits payments made to providers of services for 
the provision of healthcare such as capitation not adjusted for specific 
groups, including mental health benefits capitation rates, per diems, 
and DRG payments.

[70 FR 31378, June 1, 2005]

[[Page 118]]



Sec. 1602.170-8  FEHBP.

    FEHBP means the Federal Employees Health Benefits Program.

[52 FR 16038, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-9  Health benefits plan.

    Health benefits plan means a group insurance policy, contract, 
medical or hospital service agreement, membership or subscription 
contract, or similar group arrangements provided by a carrier for the 
purpose of providing, arranging for, delivering, paying for, or 
reimbursing any of the costs of health care services.

[62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-10  Letter of credit.

    Letter of credit means the method by which certain carriers, and 
their underwriters if authorized, receive recurring premium payments and 
contingency reserve payments by drawing against a commitment (certified 
by a responsible OPM official) which specifies a dollar amount 
available. For each carrier participating in the letter of credit 
arrangement for payment under this part, the terms ``carrier reserves,'' 
and ``special reserves'' include any balance in the carrier's letter of 
credit account.

[53 FR 51783, Dec. 23, 1988, as amended at 57 FR 14359, Apr. 20, 1992. 
Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-11  Negotiated benefits contracts.

    Negotiated benefits contracts are FEHBP contracts in which benefits 
provided and subscription income are based on either community rating or 
experience rating.

[62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-12  OPM.

    OPM means the Office of Personnel Management.

[52 FR 16038, May 1, 1987. Redesignated at 53 FR 51783, Dec. 23, 1988 
and further redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-13  Similarly sized subscriber groups.

    (a) Similarly sized subscriber groups (SSSGs) are a comprehensive 
medical plan carrier's two employer groups that:
    (1) As of the date specified by OPM in the rate instructions, have a 
subscriber enrollment closest to the FEHBP subscriber enrollment; and,
    (2) Use any rating method other than retrospective experience 
rating; and,
    (3) Meet the criteria specified in the rate instructions issued by 
OPM.
    (b) Any group with which an FEHB carrier enters into an agreement to 
provide health care services is a potential SSSG (including separate 
lines of business, government entities, groups that have multi-year 
contracts, and groups having point-of-service products).
    (c) Exceptions to the general rule stated in paragraph (b) of this 
section are (and the following groups must be excluded from SSSG 
consideration):
    (1) Groups the carrier rates by the method of retrospective 
experience rating;
    (2) Groups consisting of the carrier's own employees;
    (3) Medicaid groups, Medicare groups, and groups that have only a 
stand alone benefit (such as dental only);
    (4) A purchasing alliance whose rate-setting is mandated by the 
State or local government.
    (d) OPM shall determine the FEHBP rate by selecting the lower of the 
two rates derived by using rating methods consistent with those used to 
derive the SSSG rates.

[62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-14  FEHB-specific medical loss ratio threshold 
          calculation.

    (a) Medical Loss Ratio (MLR) means the ratio of plan incurred 
claims, including the issuer's expenditures for activities that improve 
health care quality, to total premium revenue determined by OPM, as 
defined by the Department of Health and Human Services in 45 CFR part 
158.
    (b) The FEHB-specific MLR will be calculated on an annual basis. 
This FEHB-specific MLR will be measured against an FEHB-specific MLR 
threshold to be put forth by OPM no later than 12 calendar months before 
the beginning of plan years 2014 and beyond. OPM will publish the FEHB-
specific

[[Page 119]]

MLR threshold no later than 8 months before the beginning of plan year 
2013.
    (c) In place of the credibility adjustment at 45 CFR 158.230-
158.232, OPM will set a separate credibility adjustment to account for 
the special circumstances of small FEHB plans in annual rate 
instructions to carriers.

[77 FR 19524, Apr. 2, 2012]



Sec. 1602.170-15  Subcontractor.

    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime contractor or another 
subcontractor, except for providers of direct medical services or 
supplies pursuant to the Carrier's health benefits plan.

[52 FR 16038, May 1, 1987. Redesignated at 53 FR 51783, Dec. 23, 1988, 
and further redesignated at 55 FR 27414, July 2, 1990; 62 FR 47574, 
Sept. 10, 1997 and 76 FR 38285, June 29, 2011]



Sec. 1602.170-16  Large Provider Agreement.

    (a) Large Provider Agreement means an agreement between--
    (1) An FEHB carrier, at least 25 percent of which total contracts 
are FEHB enrollee contracts, and
    (2) A vendor of services or supplies such as mail order pharmacy 
services, pharmacy benefit management services, mental health and/or 
substance abuse management services, preferred provider organization 
services, utilization review services, and/or large case or disease 
management services. This representative list includes organizations 
that own or contract with direct providers of healthcare or supplies, or 
organizations that process claims or manage patient care. A hospital is 
not considered to be a vendor for purposes of this chapter.
    (i) Where the total costs charged to the FEHB carrier for a contract 
term for FEHB members, including benefits and services, are reasonably 
expected to exceed 5 percent of the carrier's total FEHB benefits costs, 
or
    (ii) Where the total administrative costs charged to the FEHB 
carrier for the contract term for FEHB members are reasonably expected 
to exceed 5 percent of the carrier's total FEHB administrative costs 
(applicable to agreements where the provider is not responsible for FEHB 
benefits costs).
    (3) As used in this section, the term ``carrier'' does not include 
local health plans that serve under an umbrella arrangement with an FEHB 
carrier.
    (b) The FEHB Program Annual Accounting Statement for the FEHB Plan 
for the prior contract year will be used to determine the 5 percent 
threshold under Large Provider Agreements.
    (c) Large Provider Agreements based on cost analysis are subject to 
the provisions of FAR 52.215-2, ``Audit and Records-Negotiation.''
    (d) Large Provider Agreements based on price analysis are subject to 
the provisions of 48 CFR 1646.301 and 1652.246-70.

[70 FR 31379, June 1, 2005. Redesignated at 76 FR 38285, June 29, 2011]

PART 1603_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

      Subpart 1603.70_Misleading, Deceptive, or Unfair Advertising

Sec.

Sec. 1603.7001 Policy.

Sec. 1603.7002 Additional guidelines.

Sec. 1603.7003 Contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16039, May 1, 1987, unless otherwise noted.

      Subpart 1603.70_Misleading, Deceptive, or Unfair Advertising



Sec. 1603.7001  Policy.

    (a) OPM prepares and distributes or makes available to Federal 
employees and annuitants a comparison booklet which presents summary 
information and a benefits brochure which details benefits, limitations, 
and premium rates for all participating plans. OPM does not encourage, 
support, or reimburse participating carriers for the costs of 
advertisements. However, while OPM believes that advertising is 
unnecessary, it recognizes that the decision to use advertising rests 
with each carrier.
    (b) OPM discourages advertising that is misleading or deceptive. 
This includes advertising that is directed at other carriers' plans 
participating in

[[Page 120]]

the Program and which uses incomplete or inappropriate comparisons or 
disparaging or minimizing techniques. Such unfair practices are 
prejudicial to the interests of the vast majority of carriers whose 
advertising is fair and accurate.
    (c) Failure to conform to the requirements of this subpart shall be 
a material breach of the contract and may result in withdrawal of 
approval to continue participation in the FEHB Program.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1603.7002  Additional guidelines.

    Any advertisements which identify a carrier's participation in the 
FEHBP shall--
    (a) Be limited to the merits of the carrier's FEHBP plan and shall 
be limited to factual statements of the benefits and rates offered by 
that plan. The official document for benefit and rate comparisons among 
FEHBP plans is the comparison chart issued by OPM.
    (b) Not use the FEHBP logo.
    (c) Recognize that the officially approved plan brochure is the sole 
contractual statement of benefits, limitations, and exclusions. All 
advertisements that in any way discuss plan benefits shall contain the 
following statement:

    This is a summary (or brief description) of the features of the 
(plan's name). Before making a final decision, please read the plan's 
officially approved brochure, (brochure number). All benefits are 
subject to the definitions, limitations, and exclusions set forth in the 
official brochure.
    (d) Set forth the rates for the plan, if the advertisements discuss 
benefits.
    (e) Not give instructions on enrollment. Statements on enrollment 
procedures, requirements, or eligibility shall be limited to those such 
as:
    To sign up, fill out a Health Benefits Registration Form (Standard 
Form 2809) from your personnel office indicating the enrollment you 
want:
    The enrollment codes for (plan's name) are:

     Self Only -- Enrollment Code ----------------

     Self and Family -- Enrollment Code --------------

    The form must then be returned to your personnel office before the 
(date) deadline. Your (plan's name) coverage will begin the first pay 
period in January, (year). If you are a retired Federal employee and 
need forms, contact the Office of Personnel Management at P.O. Box 809, 
Washington, DC 20044.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1603.7003  Contract clause.

    The clause at 1652.203-70 shall be inserted in all FEHBP contracts.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]

                    PART 1604_ADMINISTRATIVE MATTERS

               Subpart 1604.7_Contractor Records Retention

Sec.

Sec. 1604.703 Policy.

Sec. 1604.705 Specific retention periods.

              Subpart 1604.9_Taxpayer Identification Number


Sec. 1604.970 Taxpayer Identification Number.

                Subpart 1604.70_Coordination of Benefits


Sec. 1604.7001 Coordination of benefits clause.

             Subpart 1604.71_Disputed Health Benefit Claims


Sec. 1604.7101 Filing health benefit claims/court review of disputed 
          claims.

                Subpart 1604.72_Large Provider Agreements


Sec. 1604.7201 FEHB Program Large Provider Agreements.

Sec. 1604.7202 Large Provider Agreement clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16039, May 1, 1987, unless otherwise noted.

               Subpart 1604.7_Contractor Records Retention



Sec. 1604.703  Policy.

    In view of the unique payment schedules of FEHBP contracts and the 
compelling need for records retention periods sufficient to protect the 
Government's interest, contractors shall be required to maintain records 
for periods determined in accordance with the provisions of FAR 
4.703(b)(1).

[[Page 121]]



Sec. 1604.705  Specific retention periods.

    Unless the contracting officer determines that there exists a 
compelling reason to include only the contract clause specified by FAR 
52.215-2 ``Audit & Records--Negotiation,'' the contracting officer shall 
insert the clause at 1652.204-70 in all FEHBP contracts.

[52 FR 16039, May 1, 1987, as amended at 62 FR 47574, Sept. 10, 1997]

              Subpart 1604.9_Taxpayer Identification Number

    Source: 65 FR 36386, June 8, 2000, unless otherwise noted.



Sec. 1604.970  Taxpayer Identification Number.

    Insert the clause at section 1652.204-73 in all FEHBP contracts.

                Subpart 1604.70_Coordination of Benefits



Sec. 1604.7001  Coordination of benefits clause.

    OPM expects all FEHBP plans to coordinate benefits. Accordingly, the 
clause set forth at 1652.204-71 shall be inserted in all FEHBP 
contracts.

             Subpart 1604.71_Disputed Health Benefit Claims



Sec. 1604.7101  Filing health benefit claims/court review of disputed 
          claims.

    Guidelines for a Federal Employees Health Benefit (FEHB) Program 
covered individual to file a claim for payment or service and for legal 
actions on disputed health benefit claims are found at 5 CFR 890.105 and 
890.107, respectively. The contract clause at 1652.204-72 of this 
chapter, reflecting this guidance, must be inserted in all FEHB Program 
contracts.

[61 FR 15198, Apr. 5, 1996]

                Subpart 1604.72_Large Provider Agreements

    Source: 70 FR 31379, June 1, 2005, unless otherwise noted.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1604.7201  FEHB Program Large Provider Agreements.

    The following provisions apply to all experience-rated carriers 
participating in the FEHB Program:
    (a) Notification and information requirements. (1) All experience-
rated carriers must provide notice to the contracting officer of their 
intent to enter into or to make a significant modification to a Large 
Provider Agreement. Significant modification means a 20% increase or 
more in the amount of the Large Provider Agreement:
    (i) Not less than 60 days before entering into any Large Provider 
Agreement; and
    (ii) Not less than 60 days before exercising renewals or other 
options, or making a significant modification.
    (2) The carrier's notification to the contracting officer must be in 
writing and must, at a minimum:
    (i) Describe the supplies and/or services the proposed provider 
agreement will require;
    (ii) Identify the proposed basis for reimbursement;
    (iii) Identify the proposed provider agreement, explain why the 
carrier selected the proposed provider, and, where applicable, what 
contracting method it used, including the kind of competition obtained;
    (iv) Describe the methodology the carrier used to compute the 
provider's profit; and, (v) Describe the provider risk provisions.
    (3) The contracting officer may request from the carrier any 
additional information on a proposed provider agreement and its terms 
and conditions prior to a Large Provider award and during the 
performance of the agreement.
    (4) Within 30 days of receiving the carrier's notification, the 
contracting officer will either give the carrier written comments or 
written notice that there will be no comments. If the contracting 
officer comments, the carrier must respond in writing within 10 calendar 
days and explain how it intends to address any concerns.
    (5) When computing the carrier's annual service charge, the 
contracting officer will consider how well the carrier complies with the 
provisions of this

[[Page 122]]

section, including the advance notification requirements, as an aspect 
of the carrier's performance factor.
    (6) The contracting officer's review of any Large Provider 
agreement, option, renewal, or modification will not constitute a 
determination of the acceptability of terms or conditions of any 
provider agreement or the allowability of any costs under the carrier's 
contract, nor will it relieve the carrier of any responsibility for 
performing the contract.
    (b) Records and inspection. The carrier must insert in all Large 
Provider Agreements the requirement that the provider will retain and 
make available to the Government all records relating to the agreement 
as follows:
    (1) Records that support the annual statement of operations--Retain 
for 6 years after the agreement term ends.
    (2) Enrollee records, if applicable--Retain for 6 years after the 
agreement term ends.
    (c) Large Provider Agreements based on cost analysis are subject to 
the provisions of FAR 52.215-2, ``Audit and Records-Negotiation.''
    (d) Large Provider Agreements based on price analysis are subject to 
the provisions of 48 CFR 1646.301 and 1652.246-70.



Sec. 1604.7202  Large Provider Agreement clause.

    The contracting officer will insert the clause set forth at section 
1652.204-74 in all experience-rated FEHB Program contracts.

[[Page 123]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                 PART 1605_PUBLICIZING CONTRACT ACTIONS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1605.000  Applicability.

    FAR part 5 has no practical application to the FEHBP because OPM 
does not issue solicitations. Eligible contractors (i.e., qualified 
health benefits carriers) are identified in accordance with 5 U.S.C. 
8903. Offerors voluntarily come forth in accordance with procedures 
provided in 5 CFR part 890.

[52 FR 16039, May 1, 1987]

                   PART 1606_COMPETITION REQUIREMENTS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1606.001  Applicability.

    FAR part 6 has no practical application to FEHBP contracts in view 
of the statutory exception provided by 5 U.S.C. 8902.

[52 FR 16039, May 1, 1987]

                   PART 1609_CONTRACTOR QUALIFICATIONS

         Subpart 1609.4_Debarment, Suspension, and Ineligibility

Sec.

Sec. 1609.470 Notification of Debarment, Suspension, and Ineligibility.

Sec. 1609.471 Contractor certification.

     Subpart 1609.70_Minimum Standards for Health Benefits Carriers


Sec. 1609.7001 Minimum standards for health benefits carriers.

                 Subpart 1609.71_Performance Evaluation


Sec. 1609.7101 Policy.

Sec. 1609.7101-1 Community-rated carrier incentive performance elements.

Sec. 1609.7101-2 Community-rated carrier performance factors.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

         Subpart 1609.4_Debarment, Suspension, and Ineligibility

    Source: 59 FR 14764, Mar. 30, 1994, unless otherwise noted.



Sec. 1609.470  Notification of Debarment, Suspension, and Ineligibility.

    (FAR) 48 CFR, part 9, subpart 9.4 is supplemented as set out in the 
certification required in 1609.471 by converting the FAR ``offeror's'' 
certification at (FAR) 48 CFR 52.209-5 into a carrier's certification. 
This change reflects the FEHBP's statutory exemption from competitive 
bidding (5 U.S.C. 8902), which obviates the issuance of solicitations.



Sec. 1609.471  Contractor certification.

    All FEHBP carriers and applicant carriers are required to submit the 
following certification. Applicant carriers must submit the 
certification prior to OPM's determination on the application for 
approval to participate in the FEHBP. Current carriers must submit the 
certification once, along with their benefit and rate proposals for the 
1995 contract year.

  Debarment, Suspension, Proposed Debarment, and Other Responsibility 
                                 Matters

    The Carrier certifies, to the best of its knowledge and belief, 
that--
    (a) The Carrier and/or any of its Principals--
    (1) Are ( ) are not ( ) presently debarred, suspended, proposed for 
debarment, or declared ineligible for the award of contracts by any 
Federal agency;
    (2) Have ( ) have not ( ), within a 3-year period preceding this 
certification, been convicted of or had a civil judgment rendered 
against them for: Commission of fraud or a criminal offense in 
connection with obtaining, attempting to obtain, or performing a public 
(Federal, state, or local) contract or subcontract; violation of Federal 
or state antitrust statutes relating to the submission of offers; or 
commission of embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements, or receiving stolen 
property; and
    (3) Are ( ) are not ( ) presently indicted for, or otherwise 
criminally or civilly charged by a governmental entity with, commission 
of

[[Page 124]]

any of the offenses enumerated in subdivision (a)(2) of this clause.
    (4) The Carrier has ( ) has not ( ), within a 3-year period 
preceding this certification, had one or more contracts terminated for 
default by any Federal agency.
    (b) Principals, for the purposes of this certification, means 
officers; directors; owners; partners; and persons having primary 
management or supervisory responsibilities within a business entity 
(e.g., general manager; plant manager; head of a subsidiary, division, 
or business segment, and similar positions).
    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the Carrier subject to prosecution 
under section 1001, title 18, United States Code.
    (c) The Carrier shall provide immediate written notice to the 
Contracting Officer if, at any time, the Carrier learns that its 
certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    (d) A Carrier's certification that any of the actions mentioned in 
the certification exists will not necessarily result in termination of 
the contract. However, the certification, or the Carrier's failure to 
provide such additional information as requested by the Contracting 
Officer, will be considered in connection with a determination of the 
Carrier's responsibility under subpart 1609.70, Minimum Standards for 
Health Benefits Carriers.
    (e) Nothing contained in the certification shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by this section. The knowledge and 
information of the Carrier is not required to exceed that which is 
normally possessed by a prudent person in the ordinary course of 
business dealings.
    (f) The certification in this section is a material representation 
of fact upon which reliance is placed by the Contracting Officer. If it 
is later determined that the Carrier knowingly rendered an erroneous 
certification, in addition to other remedies available to the 
Government, the Contracting Officer may terminate the contract for 
default.

Carrier Name:___________________________________________________________
________________________________________________________________________

Name of Chief Executive Officer

Date signed:____________________________________________________________

                          (End of certificate)

     Subpart 1609.70_Minimum Standards for Health Benefits Carriers



Sec. 1609.7001  Minimum standards for health benefits carriers.

    (a) The carrier of an approved health benefits plan shall meet the 
requirements of chapter 89 of title 5, United States Code; part 890 of 
title 5, Code of Federal Regulations; chapter 1 of title 48, Code of 
Federal Regulations, and the following standards. The carrier shall 
continue to meet the requirements of chapter 89 of title 5, United 
States Code, and the standards cited in this paragraph while under 
contract with OPM. Failure to meet these requirements and standards is 
cause for OPM's withdrawal of approval of the health benefits carrier 
and termination of the contract in accordance with 5 CFR 890.204.
    (1) It must be lawfully engaged in the business of supplying health 
benefits.
    (2) It must have, in the judgement of OPM, the financial resources 
and experience in the field of health benefits to carry out its 
obligations under the plan.
    (3) It must keep such reasonable financial and statistical records, 
and furnish such reasonable financial and statistical reports with 
respect to the plan, as may be requested by OPM.
    (4) It must permit representatives of OPM and of the General 
Accounting Office to audit and examine its records and accounts which 
pertain, directly or indirectly, to the plan at such reasonable times 
and places as may be designated by OPM or the General Accounting Office.
    (5) It must accept, subject to adjustment for error or fraud, in 
payment of its charges for health benefits for all enrollees in its 
plan, the enrollment charges received by the Employees Health Benefits 
(EHB) Fund less amounts set aside for the administrative and contingency 
reserves prescribed in 5 CFR 890.503. OPM makes available or pays the 
amounts within 30 days of receipt by the EHB Fund.
    (6) A carrier that is an employee organization must continue 
coverage, without requirement of membership, of

[[Page 125]]

any eligible survivor annuitants, former spouses continuing coverage 
with the carrier under 5 CFR 890.803, children temporarily continuing 
coverage with the carrier under 5 CFR 890.1103(a)(2), or former spouses 
temporarily continuing coverage with the carrier under 5 CFR 
890.1103(a)(3).
    (7) It must timely submit to OPM a properly completed and signed 
novation or change-of-name agreement in accordance with subpart 1642.12 
of this chapter.
    (b) In addition to the standards in paragraph (a) of this section, 
the carrier must perform the contract in accordance with prudent 
business practices. A carrier's sustained poor business practice in the 
management or administration of a health benefits plan is cause for 
OPM's withdrawal of approval of the health benefits carrier and 
termination of the carrier's contract. Prudent business practices 
include, but are not limited to, the following:
    (1) Timely compliance with OPM instructions and directives.
    (2) Legal and ethical business and health care practices.
    (3) Compliance with the terms of the FEHB contract, regulations and 
statutes.
    (4) Timely and accurate adjudication of claims or rendering of 
medical services.
    (5) A system for accounting for costs incurred under the contract, 
when required, which includes segregating and pricing FEHB medical 
utilization and allocating indirect and administrative costs in a 
reasonable and equitable manner.
    (6) Accurate accounting reports of actual, allowable, allocable, and 
reasonable costs incurred in the administration of the contract.
    (7) Application of performance standards for assuring contract 
quality as required by 1646.270(d).
    (8) Establishment and maintenance of a system of internal control 
that provides reasonable assurance that:
    (i) The provision and payments of benefits and other expenses are in 
compliance with legal, regulatory, and contractual guidelines;
    (ii) FEHB funds, property, and other assets are safeguarded against 
waste, loss, unauthorized use, or misappropriation; and,
    (iii) Data are accurately and fairly disclosed in all reports 
required by OPM.
    (c) The following types of activities are examples of poor business 
practices which adversely affect the health benefits carrier's 
responsibility under its contract. A pattern of poor conduct or evidence 
of misconduct in these areas is cause for OPM to withdraw approval of 
the carrier:
    (1) Presenting false claims by charging expenses to the contract 
which according to the contract terms are not chargeable to the 
contract;
    (2) Using fraudulent or unethical business or health care practices 
or otherwise displaying a lack of business integrity or honesty;
    (3) Repeatedly and knowingly providing false or misleading 
information in the rate setting process;
    (4) Repeated failure to comply with OPM instructions and directives;
    (5) Having an accounting system that is incapable of separately 
accounting for costs incurred under the contract and/or that lacks the 
internal controls necessary to fulfill the terms of the contract; and
    (6) Failure to assure that the plan provides properly paid or denied 
claims, or providing medical services which are inconsistent with 
standards of good medical practice.
    (7) Entering into contracts or employment agreements with providers, 
provider groups, or health care workers that include provisions or 
financial incentives that directly or indirectly create an inducement to 
limit or restrict communication about medically necessary services to 
any individual covered under the FEHB Program. Financial incentives are 
defined as bonuses, withholds, commissions, profit sharing or other 
similar adjustments to basic compensation (e.g., service fee, 
capitation, salary) which have the effect of limiting or reducing 
communication about appropriate medically necessary services. Providers, 
health care workers, or health plan sponsoring organizations are not 
required to discuss treatment options that they would not ordinarily 
discuss in their customary course of practice because such options

[[Page 126]]

are inconsistent with their professional judgment or ethical, moral or 
religious beliefs.
    (d) The Director or his or her designee will determine whether to 
propose withdrawal of approval and hold a hearing based on the 
seriousness of the carrier's actions and its proposed method to effect 
corrective action.

[57 FR 14359, Apr. 20, 1992. Redesignated and amended at 59 FR 14764, 
14765, Mar. 30, 1994; 63 FR 42586, Aug. 10, 1998]

                 Subpart 1609.71_Performance Evaluation

    Source: 63 FR 55337, Oct. 15, 1998, unless otherwise noted.



Sec. 1609.7101  Policy.

    At the end of each contract period, the contracting officer will 
determine each community-rated carrier's responsiveness to the Program 
requirements in 1609.7101-1.



Sec. 1609.7101-1  Community-rated carrier incentive performance 
          elements.

    (a) Customer Service. This element is intended to assist OPM in 
achieving the goal of providing customer service that meets or exceeds 
the expectations of Federal enrollees. The Customer Service category 
will represent 70 percent of the total calculation and will be based on 
the carrier's compliance with the following items:
    (1) Timely Closure on Rates and Benefits Consistent with Policy 
Guidelines. In order for information to be available to our customers in 
time for the annual Open Season, carriers must work with OPM to conclude 
benefits and rate negotiations by the established time frames. The 
contracting officer will evaluate this item based on the carrier's 
demonstrated record in providing its rate reconciliation and benefits 
information within the time frames prescribed by and in the format 
required by OPM.
    (2) Customer Information. Enrollees must have accurate information 
and adequate time to make informed Open Season choices in selecting a 
health plan. In evaluating this item, the contracting officer will 
consider the carrier's timeliness and accuracy of information.
    (3) Meeting Customer Service Performance Standards. Compliance with 
this item is essential so that OPM can ensure that the carrier is 
providing quality health care and other services to enrollees. The 
contracting officer will evaluate this item based on the carrier's 
submission of the Consumer Assessment of Health Plans Study (CAHPS) 
survey results and other measures as required contractually between OPM 
and the carrier. (This element will be implemented beginning with 
contract year 2000).
    (4) Cooperation in Surveys. FEHB enrollees rely on feedback from the 
consumer assessment survey in selecting a health plan. The contracting 
officer will evaluate this item based on the carrier's record in 
cooperating with OPM and/or its designated representative in 
administering a consumer assessment survey or providing comparable 
survey results as specified in the FEHB contract and OPM guidance.
    (5) Paperless Enrollment/Enrollment Reconciliation--(i) Paperless 
Enrollment. The requirement to cooperate in the OPM designated system 
for paperless enrollment is under the section entitled ``Enrollment 
Instructions'' in the FEHB Supplemental Literature Guidelines in the 
FEHB contract. The contracting officer will evaluate this item based on 
the carrier's ability to accept electronic data transmission from the 
OPM designated electronic enrollment system and issue ID cards timely.
    (ii) Enrollment Reconciliation. The requirement for carriers to 
reconcile their enrollment records on a quarterly basis with those 
provided by Federal Government agencies is in the Records and 
Information to be Furnished by OPM clause of the contract, as well as 5 
CFR 890.110 and 5 CFR 890.308. The contracting officer will evaluate 
this item based on the carrier's demonstrated record of initiating 
reconciliation procedures with applicable agency payroll offices on a 
quarterly basis in accordance with OPM guidance on reconciling 
enrollments and resolving enrollment discrepancies, as well as on the 
carrier's demonstrated record of following disenrollment procedures in 
accordance with 5 CFR 890.110 and 890.308.

[[Page 127]]

    (6) Reconsideration/Disputed Claims. The requirement for carriers to 
reconsider disputed health benefits claims is in 5 CFR 890.105. An 
incomplete explanation of denied benefits by the carrier places a burden 
on enrollees, causing them to seek reconsideration because the carrier 
did not fully explain its denial. Late carrier responses to OPM's 
requests for the carrier's reconsideration file delays OPM's response to 
enrollees. The contracting officer will evaluate this item based on 
whether the carrier provided OPM a complete reconciliation file within 
the time frame specified.
    (b) Critical Contract Compliance Requirements. This performance 
category will represent 30 percent of the total computation and will be 
based on the carrier's compliance with the following items:
    (1) Timely Submissions. The reports specified in the Statistics and 
Special Studies and FEHB Quality Assurance clauses of the contract and 
are essential for tracking enrollment, finances, rates, etc. In 
evaluating this item, the contracting officer will consider the 
carrier's timely submission of the contract, signed by the contracting 
official, to OPM, and on its demonstrated record in providing timely and 
accurate reports as required.
    (2) Notification of Changes in Contract Administrators. OPM must be 
able to reach the person responsible for managing the carrier's FEHB 
contract without delay when an enrollee calls OPM in need of urgent 
medical treatment, an ID card, or other service. Each carrier's 
designated contact must maintain telephone and electronic communications 
with OPM so that issues can be resolved quickly. The contracting officer 
will evaluate this item based on the carrier's compliance with the 
Notice clause and Contract Administration Data sheet in the contract, 
and will consider the carrier's record in notifying OPM promptly of 
changes in its carrier representative or contracting official, mailing 
or electronic address, telephone or FAX number.
    (3) Notification of Changes in Name or Ownership; or Transfer of 
Assets, and Notification of Other Significant Events. OPM must be able 
to assess the viability of the carrier and its ability to provide health 
care to enrollees so that they do not experience difficulty obtaining 
treatment and other services. Additionally, with regard to notification 
to OPM of other significant events, the carrier must notify OPM of such 
events as lawsuits, strikes, and natural disasters so that OPM can 
assess the carrier's ability to pay claims and provide services to 
enrollees. The contracting officer will evaluate this item based on the 
carrier's compliance with FEHBAR subparts 1642.12, Novation and Change-
of-Name Agreements, 1642.70, Management Agreement (in Lieu of Novation 
Agreement), and 1652.222-70, including timely notification and 
explanation of all significant events that may have a material effect on 
the carrier's ability to perform the contract.



Sec. 1609.7101-2  Community-rated carrier performance factors.

    OPM will apply the Customer Service and Critical Contract Compliance 
Requirements percentage factors specified by the contracting officer 
when a community-rated carrier does not provide the information, 
payment, or service, perform the function, or otherwise meet its 
obligations as stated in 1609.7101-1. The total premium will be 
multiplied by the sum of all the factors and the resulting amount will 
be withheld from the carrier's periodic premium payments payable during 
the first quarter of the following contract period, unless an 
alternative payment arrangement is made with the carrier's contracting 
officer.
    The factors for each basic element are set forth as follows:

               Community-Rated Carrier Performance Factors
------------------------------------------------------------------------
                                                             Performance
                                                             factor (to
                                                                 be
                                                             multiplied
                          Element                            by premium
                                                            and withheld
                                                                from
                                                              carrier's
                                                              payments)
------------------------------------------------------------------------
I. Customer Service (70% of Total)........................          .007
II. Critical Contract Compliance Requirements (30% of               .003
 Total)...................................................
Maximum Aggregate Performance Factor......................          .01
------------------------------------------------------------------------


[[Page 128]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

                        PART 1614_SEALED BIDDING

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1614.000  Applicability.

    FAR part 14 has no practical application to FEHBP contracts in view 
of the statutory exemption provided by 5 U.S.C. 8902.

[52 FR 16039, May 1, 1987]

                  PART 1615_CONTRACTING BY NEGOTIATION

Sec.

Sec. 1615.070 Negotiation authority.

        Subpart 1615.1_Source Selection Processes and Techniques


Sec. 1615.170 Applicability.

  Subpart 1615.2_Solicitations and Receipt of Proposals and Information


Sec. 1615.270 Applicability.

                     Subpart 1615.3_Source Selection


Sec. 1615.370 Applicability.

                     Subpart 1615.4_Contract Pricing


Sec. 1615.402 Pricing policy.

Sec. 1615.404-4 Profit.

Sec. 1615.404-70 Profit analysis factors.

Sec. 1615.406-2 Certificate of accurate cost or pricing data for 
          community-rated carriers.

Sec. 1615.407-1 Rate reduction for defective pricing or defective cost 
          or pricing data.

Sec. 1615.470 Carrier investment of FEHB funds.

Sec. 1615.470-1 Investment income clause.

Subparts 1615.8-1615.9 [Reserved]

              Subpart 1615.70_Audit and Records_Negotiation


Sec. 1615.7001 Audit and records.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16040, May 1, 1987, unless otherwise noted.



Sec. 1615.070  Negotiation authority.

    The authority to negotiate FEHB contracts is conferred by 5 U.S.C. 
8902.

[70 FR 31379, June 1, 2005]

        Subpart 1615.1_Source Selection Processes and Techniques



Sec. 1615.170  Applicability.

    FAR subpart 15.1 has no practical application to the FEHB Program 
because prospective contractors (carriers) are considered for inclusion 
in the FEHB Program according to criteria in 5 U.S.C. chapter 89 and 5 
CFR part 890 rather than by competition between prospective carriers.

[70 FR 31379, June 1, 2005]

  Subpart 1615.2_Solicitations and Receipt of Proposals and Information



Sec. 1615.270  Applicability.

    FAR subpart 15.2 has no practical application to the FEHB Program 
because OPM does not issue formal procurement solicitations to health 
benefits carriers. Eligible contractors (i.e., qualified health benefits 
carriers) are identified in accordance with 5 U.S.C. 8903. Offerors 
voluntarily come forth in accordance with procedures provided in 5 CFR 
part 890.

[70 FR 31379, June 1, 2005]

                     Subpart 1615.3_Source Selection



Sec. 1615.370  Applicability.

    FAR subpart 15.3 has no practical application to the FEHBP because 
prospective contractors (carriers) are considered for inclusion in the 
FEHBP in accordance with criteria provided in 5 U.S.C. chapter 89 and 5 
CFR part 890 rather than on the basis of competition between prospective 
carriers.

[52 FR 16040, May 1, 1987. Redesignated and amended at 70 FR 31380, June 
1, 2005]

[[Page 129]]

                     Subpart 1615.4_Contract Pricing

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 70 FR 31380, June 1, 2005, unless otherwise noted.



Sec. 1615.402  Pricing policy.

    Pricing of FEHB contracts is governed by 5 U.S.C. 8902(i), 5 U.S.C. 
8906, and other applicable law. FAR subpart 15.4 will be implemented by 
applying its policies and procedures--to the extent practicable--as 
follows:
    (a) For both experience-rated and community-rated contracts for 
which the FEHB Program premiums for the contract term will be less than 
the threshold at FAR 15.403-4(a)(1), OPM will not require the carrier to 
provide cost or pricing data in the rate proposal for the following 
contract term.
    (b) Cost analysis will be used for contracts where premiums and 
subscription income are determined on the basis of experience rating.
    (c)(1) A combination of cost and price analysis will be used for 
contracts where premiums and subscription income are based on community-
rates. For contracts for which the FEHB Program premiums for the 
contract term will be less than the threshold at FAR 15.403-4(a)(1), OPM 
will not require the carrier to provide cost or pricing data. The 
carrier is required to submit only a rate proposal and abbreviated 
utilization data for the applicable contract year. OPM will evaluate the 
proposed rates by performing a basic reasonableness test on the 
information submitted. Rates failing this test will be subject to 
further review.
    (2) For contracts with fewer than 1,500 enrollee contracts for which 
the FEHB Program premiums for the contract term will be at or above the 
threshold at FAR 15.403-4(a)(1), OPM will require the carrier to submit 
its rate proposal, utilization data, and the certificate of accurate 
cost or pricing data required in 1615.406-2. In addition, OPM will 
require the carrier to complete the proposed rates form containing cost 
and pricing data, and the Community-Rate Questionnaire, but will not 
require the carrier to send these documents to OPM. The carrier will 
keep the documents on file for periodic auditor and actuarial review in 
accordance with 1652.204-70. OPM will perform a basic reasonableness 
test on the data submitted. Rates that do not pass this test will be 
subject to further OPM review.
    (3) For plan year 2012, plans will have the option of continuing to 
use the similarly sized subscriber group (SSSG) rating methodology 
described in paragraph (c)(3)(i) of this section or using the MLR rating 
methodology described in paragraph (c)(3)(ii) of this section. All non-
traditional community rated (TCR) plans will be required to submit FEHB-
specific MLR information for every year beginning with plan year 2011.
    (i) Similarly sized subscriber group (SSSG) methodology. (A) For 
contracts with 1,500 or more enrollee contracts for which the FEHB 
Program premiums for the contract term will be at or above the threshold 
at FAR 15.403-4(a)(1), OPM will require the carrier to provide the data 
and methodology used to determine the FEHB Program rates. OPM will also 
require the data and methodology used to determine the rates for the 
carrier's SSSGs. The carrier will provide cost or pricing data required 
by OPM in its rate instructions for the applicable contract period. OPM 
will evaluate the data to ensure that the rate is reasonable and 
consistent with the requirements in this chapter. If necessary, OPM may 
require the carrier to provide additional documentation.
    (B) Contracts will be subject to a downward price adjustment if OPM 
determines that the Federal group was charged more than it would have 
been charged using a methodology consistent with that used for the 
SSSGs. Such adjustments will be based on the lower of the two rates 
determined by using the methodology (including discounts) the carrier 
used for the two SSSGs.
    (C) FEHB Program community-rated carriers will comply with SSSG 
criteria provided by OPM in the rate instructions for the applicable 
contract period.
    (ii) FEHB-specific medical loss ratio (MLR) threshold methodology. 
(A) For contracts with 1,500 or more enrollee contracts for which the 
FEHB Program

[[Page 130]]

premiums for the contract term will be at or above the threshold at FAR 
15.403-4(a)(1), OPM will require the carrier to provide the data and 
methodology used to determine the FEHB Program rates. OPM will also 
require the data and methodology used to determine the medical loss 
ratio (MLR) as defined in the ACA (Pub. L. 111-148) and as defined by 
HHS in 45 CFR part 158 for all FEHB community rated plans other than 
those required by state law to use Traditional Community Rating. The 
carrier will provide cost or pricing data, as well as the FEHB-specific 
MLR threshold data required by OPM in its rate instructions for the 
applicable contract period. OPM will evaluate the data to ensure that 
the rate is reasonable and consistent with the requirements in this 
chapter. If necessary, OPM may require the carrier to provide additional 
documentation.
    (B) Contracts will be subject to a subsidization penalty if OPM 
determines that the FEHB group did not meet the FEHB-specific MLR 
threshold specified in the annual rate instruction to carriers. Such a 
subsidization penalty will be deposited into a Subsidization Penalty 
Account held at the U.S. Treasury. This Subsidization Penalty Account 
will be held in common with all community rated carriers and will be 
annually distributed to the contingency reserve accounts of all non-TCR 
community rated plans on a pro-rata basis.
    (C) FEHB Program community-rated carriers will comply with the MLR 
criteria, including the FEHB-specific MLR threshold provided by OPM in 
the rate instructions for the applicable contract period. FEHB plans 
that are required by state law to use TCR are exempt from this 
requirement and will use the SSSG methodology outlined in paragraph 
(c)(3)(i) of this section.
    (4) Contracts will be subject to a downward price adjustment if OPM 
determines that the Federal group was charged more than it would have 
been charged using a methodology consistent with that used for the 
similarly-sized subscriber groups (SSSGs). Such adjustments will be 
based on the lower of the two rates determined by using the methodology 
(including discounts) the carrier used for the two SSSGs.
    (5) FEHB Program community-rated carriers will comply with SSSG 
criteria provided by OPM in the rate instructions for the applicable 
contract period.
    (d) The application of FAR 15.402(b)(2) should not be construed to 
prohibit the consideration of preceding year surpluses or deficits in 
carrier-held reserves in the rate adjustments for subsequent year 
renewals of contracts based, in whole or in part, on cost analysis.

[70 FR 31380, June 1, 2005, as amended at 76 FR 38285, June 29, 2011; 77 
FR 19524, Apr. 2, 2012]



Sec. 1615.404-4  Profit.

    (a) When the pricing of FEHB Program contracts is determined by cost 
analysis, OPM will determine the profit or fee prenegotiation objective 
(service charge) portion of the contracts by use of a weighted 
guidelines structured approach. The service charge so determined will be 
the total service charge that may be negotiated for the contract and 
will encompass any service charge (whether entitled service charge, 
profit, fee, contribution to reserves or surpluses, or any other title) 
that may have been negotiated by the prime contractor with any 
subcontractor or underwriter.
    (b) OPM will not guarantee a minimum service charge.



Sec. 1615.404-70  Profit analysis factors.

    (a) OPM contracting officers will apply a weighted guidelines method 
in developing the service charge prenegotiation objective for FEHB 
Program contracts. The following factors, as defined in FAR 15.404-4(d), 
will be applied to projected incurred claims and allowable 
administrative expenses:
    (1) Contractor performance. OPM will consider such elements as the 
accurate and timely processing of benefit claims and the volume and 
validity of disputed claims as measures of economical and efficient 
contract performance. This factor will be judged apart from the 
contractor's basic responsibility for contract performance and will be a 
measure of the extent and nature of the contractor's contribution to the

[[Page 131]]

FEHB Program through the application of managerial expertise and effort. 
Evidence of effective contract performance will receive a plus weight, 
and poor performance or failure to comply with contract terms and 
conditions a negative weight. Innovations of benefit to the FEHB Program 
will generally result in a positive weight; documented inattention or 
indifference to cost control will generally result in a negative weight.
    (2) Contract cost risk. In assessing the degree of cost 
responsibility and associated risk assumed by the contractor as a factor 
to be considered in negotiating profit, OPM will consider such 
underwriting elements as the availability of margins, group size, 
enrollment demographics and fluctuation, and the probability of 
conversion and adverse selection, as well as the extent of financial 
assistance the carrier renders to the contract. However, the ``loss 
carry forward basis'' of experience-rated group insurance practices, 
which mitigates contract risk, will likely serve to diminish this profit 
analysis factor in an overall determination of profit. This factor is 
intended to provide profit opportunities commensurate with the 
contractor's share of cost risks only, taking into account elements such 
as the adequacy and reliability of data for estimating costs.
    (3) Federal socioeconomic programs. OPM will consider documented 
evidence of successful, contractor-initiated efforts to support Federal 
socioeconomic programs such as drug and substance abuse deterrents and 
concerns of the type enumerated in FAR 15.404-4(d)(iii), as a factor in 
negotiating profit. This factor will be assessed by considering the 
quality of the contractor's policies and procedures and the extent of 
unusual effort or achievement demonstrated. Evidence of effective 
support of Federal socioeconomic programs will receive a positive 
weight; poor support will receive a negative weight.
    (4) Capital investments. This factor is generally not applicable to 
FEHB Program contracts because facilities capital cost of money may be 
an allowable administrative expense. Generally, this factor will be 
given a weight of zero. However, special purpose facilities or 
investment costs of direct benefit to the FEHB Program that are not 
recoverable as allowable or allocable administrative expenses may be 
taken into account in assigning a positive weight.
    (5) Cost control. OPM will consider contractor-initiated efforts 
such as improved benefit design, cost-sharing features, innovative peer 
review, or other professional cost containment efforts as a factor in 
negotiating profit. OPM will use this factor to reward contractors with 
additional profit opportunities for self-initiated efforts to control 
contract costs.
    (6) Independent development. OPM will consider any profit 
opportunities that may be directly related to relevant independent 
efforts such as the development of a unique and enhanced customer 
support system that is of demonstrated value to the FEHB Program and for 
which developmental costs have not been recovered directly or indirectly 
through allowable administrative expenses. OPM will use this factor to 
provide additional profit opportunities based upon an assessment of the 
contractor's investment and risk in developing techniques, methods, and 
practices having viability to the program at large. OPM will not 
consider improvements and innovations recognized and rewarded under any 
of the other profit factors.
    (b) The following weight ranges for each factor are used in the 
weighted guidelines approach:

------------------------------------------------------------------------
                Profit factor                   Weight ranges (percent)
------------------------------------------------------------------------
1. Contractor performance...................  -.2 to + .45
2. Contract cost risk *.....................  +.02 to + .2
3. Federal socioeconomic programs...........  -.05 to + .05
4. Capital investments......................  0 to + .02
5. Cost control.............................  0 to + .35
6. Independent development..................  0 to + .03
------------------------------------------------------------------------

    *The contract cost risk factor is subdivided into two parts: group 
size (.02 to .10) and other risk elements (0 to .10). With respect to 
the group size element, subweights should be assigned as follows:

------------------------------------------------------------------------
                 Enrollment                        Weight (percent)
------------------------------------------------------------------------
10,000 or less..............................  .06 to .10
10,001-50,000...............................  .05 to .09

[[Page 132]]

 
50,001-200,000..............................  .04 to .07
200,001-500,000.............................  .03 to .06
500,001 and over............................  .02 to .04
------------------------------------------------------------------------



Sec. 1615.406-2  Certificates of accurate cost or pricing data for 
          community rated carriers.

    (a) The contracting officer will require a carrier with a contract 
meeting the requirements in 1615.402(c)(2) or (3) to execute one or more 
of the Certificates contained in this section. A carrier with a contract 
meeting the requirements in 1615.402(c)(2) will complete the appropriate 
Certificate(s) and keep such on file at the carrier's place of business 
in accordance with 1652.204-70. A carrier with a contract meeting the 
requirements in 1615.402(c)(3) will complete and submit the appropriate 
certificate(s) to OPM.
    (b) A carrier using the SSSG methodology described in 
1615.402(c)(3)(i) will submit the ``Certificate of Accurate Cost or 
Pricing Data for Community-Rated Carriers (SSSG methodology)'' along 
with its rate reconciliation during the first quarter of the applicable 
contract year. A carrier using the MLR methodology described in 
1615.402(c)(3)(ii) will submit two forms. The ``Certificate of Accurate 
Cost or Pricing Data for Community-Rated Carriers (MLR methodology)'' 
will be submitted along with the rate reconciliation during the first 
quarter of the applicable contract year. The ``Certificate of Accurate 
MLR Calculation'' will be submitted when the carrier submits its FEHB-
specific MLR calculation to OPM.

                    (Beginning of first certificate)

    Certificate of Accurate Cost or Pricing Data for Community-Rated 
                       Carriers (SSSG methodology)

    This is to certify that, to the best of my knowledge and belief: (1) 
The cost or pricing data submitted (or, if not submitted, maintained and 
identified by the carrier as supporting documentation) to the 
Contracting officer or the Contracting officer's representative or 
designee, in support of the ------*FEHB Program rates were developed in 
accordance with the requirements of 48 CFR Chapter 16 and the FEHB 
Program contract and are accurate, complete, and current as of the date 
this certificate is executed; and (2) the methodology used to determine 
the FEHB Program rates is consistent with the methodology used to 
determine the rates for the carrier's Similarly Sized Subscriber Groups.

    *Insert the year for which the rates apply.
 Firm:

 Name:

 Signature:

 Date of Execution:

                       (End of first certificate)

                    (Beginning of second certificate)

    Certificate of Accurate Cost or Pricing Data for Community-Rated 
                       Carriers (MLR methodology)

    This is to certify that, to the best of my knowledge and belief: (1) 
The cost or pricing data submitted (or, if not submitted, maintained and 
identified by the carrier as supporting documentation) to the 
Contracting officer or the Contracting officer's representative or 
designee, in support of the ------*FEHB Program rates were developed in 
accordance with the requirements of 48 CFR Chapter 16 and the FEHB 
Program contract and are accurate, complete, and current as of the date 
this certificate is executed;
    *Insert the year for which the rates apply.

 Firm:

 Name:

 Signature:

 Date of Execution:

                       (End of second certificate)

                    (Beginning of third certificate)

                 Certificate of Accurate MLR Calculation

    This is to certify that, to the best of my knowledge and belief: the 
determination of the carrier's FEHB-specific medical loss ratio for * is 
accurate, complete, and consistent with the methodology as stated in 
Sec.  1615.402(c)(3)(ii).

    *Insert the year for which the MLR calculation applies.

 Firm:

 Name:

 Signature:

 Date of Execution:

                          (End of certificate)

[77 FR 19524, Apr. 2, 2012]

[[Page 133]]



Sec. 1615.407-1  Rate reduction for defective pricing or defective cost 
          or pricing data.

    The clause set forth in section 1652.215-70 will be inserted in FEHB 
Program contracts, at or above the threshold in FAR 15.403-4(a)(1), that 
are based on a combination of cost and price analysis (community-rated).



Sec. 1615.470  Carrier investment of FEHB funds.

    (a) Except for contracts based on a combination of cost and price 
analysis (community-rated), the carrier is required to invest and 
reinvest all funds on hand, including any attributable to the special 
reserve or the reserve for incurred but unpaid claims, exceeding the 
funds needed to discharge promptly the obligations incurred under the 
contract.
    (b) The carrier is required to credit income earned from its 
investment of FEHB funds to the special reserve on behalf of the FEHB 
Program. If a carrier, for any reason, fails to invest excess FEHB funds 
or to credit any income due to the contract, it will return or credit 
any investment income lost to OPM or the special reserve.
    (c) Investment income. Investment income is the net amount earned by 
the carrier after deducting investment expenses.



Sec. 1615.470-1  Investment income clause.

    The clause set forth in 1652.215-71 will be inserted in all FEHB 
contracts based on cost analysis.

Subparts 1615.8-1615.9 [Reserved]

              Subpart 1615.70_Audit and Records_Negotiation



Sec. 1615.7001  Audit and records.

    The Contracting officer will modify 52.215-2 in all FEHB Program 
experience-rated contracts by amending paragraph (g) of that section to 
replace the words ``exceed the simplified acquisition threshold'' with 
``equals or exceeds $550,000.'' This amount shall be adjusted by the 
same amount and at the same time as any change to the threshold for 
application of the Truth in Negotiations Act pursuant to 41 U.S.C. 
254b(a)(7).

[70 FR 31381, June 1, 2005]

                      PART 1616_TYPES OF CONTRACTS

                 Subpart 1616.1_Selecting Contract Types

Sec.

Sec. 1616.102 Policies.

Sec. 1616.105 Solicitation provision.

              Subpart 1616.70_Negotiated Benefits Contracts


Sec. 1616.7001 Clause--contracts based on a combination of cost and 
          price analysis (community rated).

Sec. 1616.7002 Clause--contracts based on cost analysis (experience 
          rated).

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16041, May 1, 1987, unless otherwise noted.

                 Subpart 1616.1_Selecting Contract Types



Sec. 1616.102  Policies.

    All FEHBP contracts shall be negotiated benefits contracts.

[62 FR 47575, Sept. 10, 1997]



Sec. 1616.105  Solicitation provision.

    FAR 16.105 has no practical application because the statutory 
provisions of 5 U.S.C. chapter 89 obviate the issuance of solicitations.

              Subpart 1616.70_Negotiated Benefits Contracts

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.



Sec. 1616.7001  Clause--contracts based on a combination of cost and 
          price analysis (community rated).

    The clause at section 1652.216-70 shall be inserted in all FEHBP 
contracts based on a combination of cost and price analysis (community 
rated).



Sec. 1616.7002  Clause--contracts based on cost analysis (experience 
          rated).

    The clause at section 1652.216-71 shall be inserted in all FEHBP 
contracts based on cost analysis (experience rated).

[[Page 134]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

     PART 1622_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                   Subpart 1622.1_Basic Labor Policies

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1622.103-70  Contract clause.

    The clause at 1652.222-70 shall be inserted in all FEHBP contracts.

[55 FR 27415, July 2, 1990]

       PART 1624_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 1624.1_Protection of Individual Privacy

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1624.104  Contract clause.

    Records retained by FEHBP carriers on Federal subscribers and 
members of their families serve the carriers' own commercial function of 
paying health benefits claims and are not maintained to accomplish an 
agency function of OPM. Consequently, the records do not fall within the 
provisions of the Privacy Act. Nevertheless, OPM recognizes the need for 
carriers to keep certain records confidential. The clause at 1652.224-70 
shall be inserted in all FEHBP contracts.

[52 FR 16041, May 1, 1987]

[[Page 135]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                             PART 1629_TAXES

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.

                     Subpart 1629.4_Contract Clauses



Sec. 1629.402  Foreign contracts.

    The clause set forth in section 1652.229-70 shall be inserted in all 
FEHBP contracts performed outside the United States, its possessions, 
and Puerto Rico.

            PART 1631_CONTRACT COST PRINCIPLES AND PROCEDURES

                       Subpart 1631.1_Definitions

Sec.

Sec. 1631.1 Definitions.

         Subpart 1631.2_Contracts With Commercial Organizations


Sec. 1631.200 Scope of subpart.

Sec. 1631.201-70 Credits.

Sec. 1631.203 Indirect costs.

Sec. 1631.203-70 Allocation techniques.

Sec. 1631.203-71 Business unit General and Administrative (G&A) 
          expenses.

Sec. 1631.203-72 Home office expense.

Sec. 1631.205 Selected costs.

Sec. 1631.205-10 Cost of money.

Sec. 1631.205-41 Taxes.

Sec. 1631.205-70 FEHBP public relations and advertising costs.

Sec. 1631.205-71 FEHBP bad debts.

Sec. 1631.205-72 FEHBP compensation for personal services.

Sec. 1631.205-73 FEHBP interest expense.

Sec. 1631.205-74 FEHBP losses on other contracts.

Sec. 1631.205-75 Selling costs.

Sec. 1631.205-76 Trade, business, technical and professional activity 
          costs.

Sec. 1631.205-77 FEHBP start-up and other nonrecurring costs.

Sec. 1631.205-78 FEHBP printed material costs.

Sec. 1631.205-79 Mandatory statutory reserves.

Sec. 1631.205-80 Major subcontractor service charges.

Sec. 1631.205-81 Inferred reasonableness.

Sec. 1631.205-82 Audits.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16041, May 1, 1987, unless otherwise noted.

                       Subpart 1631.1_Definitions



Sec. 1631.1  Definitions.

    The definitions in FAR 31.001 are applicable to this section unless 
otherwise noted.

[70 FR 31390, June 1, 2005]

         Subpart 1631.2_Contracts With Commercial Organizations



Sec. 1631.200  Scope of subpart.

    The cost principles under this subpart apply only to contracts in 
which premiums and subscription income are determined on the basis of 
experience rating, in which cost analysis is performed, or in which 
price is determined on the basis of actual costs incurred.



Sec. 1631.201-70  Credits.

    The provisions of FAR 31.201-5 shall apply to income, rebates, 
allowances, and other credits resulting from benefit payments. Examples 
of such credits include:
    (a) Coordination of benefit refunds, including subrogation 
settlements;
    (b) Hospital year-end settlements and other applicable provider 
discounts;
    (c) Uncashed and returned checks;
    (d) Utilization review refunds;
    (e) Contract prescription drug rebates;
    (f) Volume discounts;
    (g) Refunds and other payments or recoveries attributable to 
litigation with subscribers or providers of health services; and,
    (h) Erroneous benefit payment, overpayment, and duplicate payment 
recoveries.

[70 FR 31390, June 1, 2005]



Sec. 1631.203  Indirect costs.

    For the purposes of applying FAR 31.203(g)(2) to FEHB Program 
contracts, OPM considers the monthly rates used by some carriers to be a 
general practice in the insurance industry.

[70 FR 31391, June 1, 2005]

[[Page 136]]



Sec. 1631.203-70  Allocation techniques.

    (a) Carriers shall use the following methods for allocating 
groupings of business unit indirect costs. Carriers shall consistently 
apply the methods and techniques established to classify direct and 
indirect costs, to group indirect costs and to allocate indirect costs 
to cost objectives.
    (1) Input method. The preferred allocation technique is one that 
shows the consumption of resources in performance of the activities 
(input) for the function(s) represented by the cost grouping. This 
allocation technique should be used in circumstances where there is a 
direct and definitive relationship between the function(s) and the 
benefiting cost objectives. Measures of input ordinarily may be 
expressed in terms such as labor hours or square footage. This means 
costs may be allocated by use of a rate, such as a rate per labor hour 
or cost per square foot.
    (2) Output method. Where input measures are unavailable or 
impractical to determine, the basis for allocation may be a measure of 
the output of the function(s) represented by the cost grouping. The 
output becomes a substitute measure for the use of resources and is a 
reasonable alternative when a direct measure of input is impractical. 
Output may be measured in terms of units of end product produced by the 
function(s). Examples of output measures include number of claims 
processed by a claims processing center, number of pages printed in a 
print shop, number of purchase orders processed by a purchasing 
department, or number of hires by a personnel office.
    (3) Surrogate method. Where neither activity (input) nor output of 
the function(s) can be measured practically, a surrogate must be used to 
measure the resources utilized. Surrogates used to represent the 
relationship generally measure the benefit to the cost objectives 
receiving the service and should vary in proportion to the services 
received. For example, if a personnel department provides various 
services that cannot be measured practically on an activity (input) or 
output basis, number of personnel served might reasonably represent the 
use of resources of the personnel function for the cost objectives 
receiving the service, where this base varies in proportion to the 
services performed.
    (4) Other method. Some cost groupings cannot readily be allocated on 
measures of specific beneficial or causal relationships under paragraph 
(a)(1), (a)(2), or (a)(3) of this section. Such costs do not have a 
direct and definitive relationship to the benefiting cost objectives. 
Generally, the cost of overall management activities falls in this 
category. Overall management costs should be grouped in relation to the 
activities managed. The base selected to measure the allocation of these 
indirect costs to cost objectives should be a base representative of the 
entire activity being managed. For example, the total operating expenses 
of activities managed might be a reasonable base for allocating the 
general indirect costs of a business unit. Another reasonable method for 
allocating general indirect costs might be to base them on a percentage 
of contracts. These examples are not meant to be exhaustive, but rather 
are examples of allocation methods that may be acceptable under 
individual circumstances. See also General and Administrative (G&A) 
expenses, FEHBAR 1631.203-71.
    (b) Carriers that use multiple cost centers to accumulate and 
allocate costs shall apply the techniques in paragraph (a) of this 
section at each step of the allocation process. Accordingly, the 
allocation of costs among cost centers at the initial entry into the 
cost accounting system shall be made in compliance with paragraph (a) of 
this section. Likewise, the allocation of the cost of interim cost 
centers to final cost centers is subject to paragraph (a) of this 
section. If costs of final cost centers are allocated among final cost 
objectives, the allocation shall also be made in accordance with 
paragraph (a) of this section. It is possible that carriers using 
multiple cost centers to accumulate and allocate costs may not have any 
direct costs, i.e., costs identified specifically with a final cost 
objective.
    (c) The allocation of business unit general and administrative 
expenses and the allocation of home office expenses to segments are also 
subject to

[[Page 137]]

FEHBAR 1631.203-71 and FEHBAR 1631.203-72, respectively.

[70 FR 31391, June 1, 2005]



Sec. 1631.203-71  Business unit General and Administrative (G&A) 
          expenses.

    G&A expenses shall be allocated to final cost objectives by a base 
or method that represents the total activity of the business unit.

[70 FR 31391, June 1, 2005]



Sec. 1631.203-72  Home office expense.

    A carrier's practices for allocating home office expenses to the 
segments of the carrier will be acceptable for purposes of FAR 31.203 if 
they are allocated on the basis of the beneficial or causal relationship 
between the home office activities and the segments to which the 
expenses are allocated. Expenses that cannot be allocated on the basis 
of a more specific beneficial or causal relationship should be allocated 
on a basis representative of the entire activity being managed. The 
compliance of such allocations with FAR 31.203 shall be determined on 
the basis of the facts and circumstances of each situation.

[70 FR 31391, June 1, 2005]



Sec. 1631.205  Selected costs.



Sec. 1631.205-10  Cost of money.

    For the purposes of FAR 31.205-10(b)(3), the estimated facilities 
capital cost of money is specifically identified if it is identified in 
the prior year's Annual Accounting Statement or, for new experience-
rated carriers, the supplemental information supporting submitted costs 
(such as the Supplemental Schedule of Administrative Expenses).

[70 FR 31391, June 1, 2005]



Sec. 1631.205-41  Taxes.

    5 U.S.C. 8909(f)(1) prohibits the imposition of taxes, fees, or 
other monetary payment, directly or indirectly, on FEHB premiums by any 
State, the District of Columbia, or the Commonwealth of Puerto Rico, or 
by any political subdivision or other governmental authority of those 
entities. Therefore, FAR 31.205-41 is modified to include those taxes as 
unallowable costs. The prohibited payments, referred to elsewhere in 
these regulations as ``premium taxes,'' applies to all payments directed 
by States or municipalities, regardless of how they may be titled, to 
whom they must be paid, or the purpose for which they are collected, and 
it applies to all forms of direct and indirect measurements on FEHBP 
premiums, however modified, to include cost per contract or enrollee, 
with the sole exception of a tax on net income or profit, if that tax, 
fee, or payment is applicable to a broad range of business activity.

[56 FR 57496, Nov. 12, 1991]



Sec. 1631.205-70  FEHBP public relations and advertising costs.

    (a) The cost of media messages that are directed at advising current 
FEHBP subscribers on how to obtain benefits shall be an allowable 
expense within the meaning of FAR 31.205-1 because this service is 
directly related to performance of the FEHBP contract. If there is any 
question about the allowability of such a cost, the carrier may request 
advance approval regarding the content and cost of the message.
    (b) Costs of media messages not provided for in paragraph (a) of 
this section are allowable if the content is specifically approved by 
the contracting officer and all of the following criteria are met:
    (1) The primary effect of the message is to disseminate information 
on health care cost containment or preventive health care;
    (2) The costs of the carrier's messages are allocated to all 
underwritten and non-underwritten lines of business; and
    (3) The contracting officer approves the total dollar amount of the 
carrier's messages to be charged to the FEHBP in advance of the contract 
year.
    (c) Costs of messages that are intended to, or which have the 
primary effect of, calling favorable attention to the carrier (or 
subcontractor) for the purpose of enhancing its overall image or selling 
its health plan are not allowable.

[[Page 138]]



Sec. 1631.205-71  FEHBP bad debts.

    Erroneous benefit payments are not automatically disallowed by FAR 
31.205-3.



Sec. 1631.205-72  FEHBP compensation for personal services.

    (a) Overtime on an FEHBP contract would normally meet the condition 
specified in FAR 22.103. Premiums for overtime, extra-pay shifts, and 
multi-shifts meeting the specified conditions shall be allowed without 
prior approval.
    (b)(1) The costs of compensated personal absence shall be assigned 
to the cost accounting period or periods in which entitlement was 
earned. Entitlement means an employee's right, whether conditional or 
unconditional, to receive a determinable amount of compensated personal 
absence, or pay in lieu thereof.
    (2) If at the beginning of the 1st year a carrier subject to 
paragraph (b)(1) of this section has a liability for accrued but unpaid 
expenses for compensated personal absences that would otherwise be 
allocable to FEHB contracts, the carrier may include such costs in a 
suspense account. The suspense account may be amortized and included in 
government contract costs at a rate not exceeding 20 percent per year.

[52 FR 16041, May 1, 1987, as amended at 70 FR 31391, June 1, 2005]



Sec. 1631.205-73  FEHBP interest expense.

    (a) Interest charges incurred in the administration of FEHBP 
contracts are not allowable in accordance with FAR 31.205-20. However, 
interest charges that are associated with the carrier's investment of 
FEHBP account funds are not considered administrative costs and may be 
allowable under very limited circumstances if all of the following 
criteria are met:
    (1) Borrowing is limited to the positive balance of the carrier's 
entire FEHBP investment portfolio;
    (2) FEHBP funds are tied up in long-term securities;
    (3) Liquidation of long-term securities would cost more than the 
cost of the interest;
    (4) The interest rates charged are at or below current market rates; 
and
    (5) Advance written approval of the contracting officer is obtained 
before such costs are incurred.
    (b) The carrier must demonstrate on a case-by-case basis that 
borrowing rather than cashing in long-term investments shall actually 
result in cost savings to the FEHB Program. Satisfactory demonstration 
of cost savings is a prerequisite to contracting officer approval of the 
interest cost as a charge to the contract.
    (c) If the interest charge is allowed, the risk factor in the 
service charge will be adjusted downward so that the carrier does not 
recover interest costs through both the service charge and an allowance 
under this paragraph.



Sec. 1631.205-74  FEHBP losses on other contracts.

    FAR 31.205-23 shall not be construed to prohibit the application of 
the normal ``loss carry forward'' principle that is fundamental to 
continuing insurance contracts that are based on experience rating.



Sec. 1631.205-75  Selling costs.

    (a) FAR 31.205-38 is modified to eliminate from allowable costs 
those costs related to sales promotion and the payment of sales 
commissions fees or salaries to employees or outside commercial or 
selling agencies for enrolling Federal subscribers in a particular FEHB 
plan.
    (b) Selling costs are allowable costs to FEHBP contracts to the 
extent that they are necessary for conducting annual contract 
negotiations with the Government and for liaison activities necessary 
for ongoing contract administration. Personnel and related travel costs 
are allowable for attendance at Open Season Health fairs and other 
similar activities at which carriers give enrollees information about 
their choices among health plans (but see FAR 31.205-1 `Public relations 
and advertising costs', and The Federal Employees Health Benefits 
Handbook for Personnel and Payroll Offices, Subchapter S2-3(f) 
`Controlling contacts between employees and carriers').

[52 FR 16041, May 1, 1987, as amended at 62 FR 47575, Sept. 10, 1997]

[[Page 139]]



Sec. 1631.205-76  Trade, business, technical, and professional activity 
          costs.

    (a) FEHBP participating plans, carriers, and underwriters shall seek 
the advance written approval of the contracting officer for allowability 
of all or part of the costs associated with trade, business, technical, 
and professional activities (FAR 31.205-43) when the allocable costs of 
such participation to the FEHBP will exceed $1,000 annually and when the 
carrier or underwriter allocates more than 50% of the membership cost of 
a trade, business, technical, or professional organization to the FEHBP.
    (b) When approval of costs for membership in an organization is 
required, the carrier or underwriter must demonstrate conclusively that 
membership in such an organization and participation in its activities 
extend beyond the contractual relationship with OPM, have a reasonable 
relationship to providing care and services to FEHBP enrollees, and that 
the organization is not engaged in activities such as those cited in FAR 
31.205-22 (lobbying costs) for which costs are not allowable.



Sec. 1631.205-77  FEHBP start-up and other nonrecurring costs.

    Precontract costs (FAR 31.205-32) shall be allowed only to the 
extent provided for by advance agreement in accordance with FAR 31.109.



Sec. 1631.205-78  FEHBP printed material costs.

    Unless OPM determines that it is in the best interest of the FEHBP 
to do otherwise, if a carrier orders printed material that is available 
from the Government Printing Office (GPO) under the ``rider system'' 
from another source, the allowable contract charges shall be the lesser 
of the amount actually paid or the cost that would have been incurred 
had the carrier ridden OPM's GPO order.



Sec. 1631.205-79  Mandatory statutory reserves.

    Charges for mandatory statutory reserves are not allowed unless 
provided for in the contract. When the term ``mandatory statutory 
reserve'' is specifically identified as an allowable contract charge 
without further definition or explanation, it means a requirement 
imposed by State law upon the carrier to set aside a specific amount or 
rate of funds into a restricted reserve that is accounted for separately 
from all other reserves and surpluses of the carrier and which may be 
used only with the specific approval of the State official designated by 
law to make such approvals. The amount chargeable to the contract may 
not exceed an allocable portion of the amount actually set aside. If the 
statutory reserve is no longer required for the purpose for which it was 
created, and these funds become available for the general use of the 
carrier, a pro rata share based upon FEHBP's contribution to the total 
carrier's set aside shall be returned to the FEHBP in accordance with 
FAR 31.201-5.



Sec. 1631.205-80  Major subcontractor service charges.

    In a subcontract for enrollment and eligibility determinations, 
administration of claims and payment of benefits, and payment or 
provision of actual health services, and/or assumption of insurance risk 
or underwriting, when costs are determined on the basis of actual costs 
incurred or experience rating, any amount that exceeds the allowable 
cost of the subcontract (whether entitled service charge, profit, fee, 
contribution to reserve, surplus, or any other title) is not allowable 
under the contract. Amounts which exceed allowable costs may be paid to 
a major subcontractor only from the service charge negotiated between 
OPM and the Carrier.



Sec. 1631.205-81  Inferred reasonableness.

    If the carrier follows the notification and consent requirements of 
paragraphs (a), (b) and (c) of 1652.244-70, and subsequently obtains the 
Contracting officer's consent or ratification, then the reasonableness 
of the subcontract's costs shall be inferred.

[70 FR 31382, June 1, 2005]



Sec. 1631.205-82  Audits.

    Carriers should ensure that the public accounting firms with which 
they contract for audits of FEHB accounts

[[Page 140]]

are registered with the Public Company Accounting Oversight Board 
(PCAOB).

[71 FR 3015, Jan. 19, 2006]

                      PART 1632_CONTRACT FINANCING

                         Subpart 1632.1_General

Sec.

Sec. 1632.170 Recurring premium payments to carriers.

Sec. 1632.171 Clause--community-rated contracts.

Sec. 1632.172 Clause--experience-rated contracts.

                      Subpart 1632.6_Contract Debts


Sec. 1632.607 Tax credit.

Sec. 1632.617 Contract clause.

                     Subpart 1632.7_Contract Funding


Sec. 1632.770 Contingency reserve payments.

Sec. 1632.771 Non-commingling of FEHBP funds.

Sec. 1632.772 Contract clause.

                   Subpart 1632.8_Assignment of Claims


Sec. 1632.806-70 Contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16043, May 1, 1987, unless otherwise noted.

                         Subpart 1632.1_General



Sec. 1632.170  Recurring premium payments to carriers.

    (a)(1) Recurring payments to carriers of community-rated plans. OPM 
will pay to carriers of community-rated plans the premium payments 
received for the plan less the amounts credited to the contingency and 
administrative reserves, amounts assessed under paragraph (a)(2) of this 
section, and amounts due for other contractual obligations. Premium 
payments will be due and payable not later than 30 days after receipt by 
the Federal Employees Health Benefits (FEHB) Fund.
    (2) The sum of the two performance factors applicable under 
1609.7101-2 will be multiplied by the carrier's total net-to-carrier 
premium dollars paid for the preceding contract period. The amount 
obtained after the total premium is multiplied by the sum of the factors 
will be withheld from the carrier's periodic premium payment payable 
during the first quarter of the following contract period unless an 
alternative payment arrangement is made with the carrier's contracting 
officer. OPM will deposit the withheld funds in the carrier's 
contingency reserve for the plan. The aggregate amount withheld annually 
for performance for any carrier will not exceed one percent of premium 
for any contract period.
    (3) Any subsidization penalty levied against a community rated plan 
as outlined in 48 CFR 1615.402(c)(3)(ii)(B) must be paid within 60 days 
from notification. If payment is not received within the 60 day period, 
OPM will withhold from the community rated carriers the periodic premium 
payment payable until fully recovered. OPM will deposit the withheld 
funds in the subsidization penalty reserve described in 5 CFR 
890.503(c)(6).
    (b)(1) Recurring payments to carriers of experience-rated plans. OPM 
will make payments on a letter of credit (LOC) basis. Premium payments 
received for the plan, less the amounts credited to the contingency and 
administrative reserves and amounts for other obligations due under the 
contract, will be made available for carrier drawdown not later than 30 
days after receipt by the FEHB Fund.
    (2) Withdrawals from the LOC account will be made on a checks-
presented basis. Under a checks-presented basis, drawdown on the LOC is 
delayed until the checks issued for FEHB Program disbursements are 
presented to the carrier's bank for payment.
    (3) OPM may grant a waiver of the restriction of LOC disbursements 
to a checks-presented basis if the carrier requests the waiver in 
writing and demonstrates to OPM's satisfaction that the checks-presented 
basis of LOC disbursements will result in significantly increased 
liability under the contract, or that the checks-presented basis of LOC 
disbursements is otherwise clearly and significantly detrimental to the 
operation of the plan. Payments to carriers that have been granted a 
waiver

[[Page 141]]

may be made by an alternative payment methodology, subject to OPM 
approval.

[57 FR 14360, Apr. 20, 1992, as amended at 63 FR 55338, Oct. 15, 1998; 
64 FR 36272, July 6, 1999; 65 FR 36386, June 8, 2000; 70 FR 31382, June 
1, 2005; 76 FR 38286, June 29, 2011]



Sec. 1632.171  Clause--community-rated contracts.

    The clause at 1652.232-70 shall be inserted in all community-rated 
FEHBP contracts.

[57 FR 14360, Apr. 20, 1992]



Sec. 1632.172  Clause--experience-rated contracts.

    The clause at 1652.232-71 shall be inserted in all experience-rated 
FEHBP contracts.

[57 FR 14360, Apr. 20, 1992]

                      Subpart 1632.6_Contract Debts



Sec. 1632.607  Tax credit.

    FAR 32.607 has no practical application to FEHBP contracts. The 
statutory provisions at 5 U.S.C. 8906(c) and (d) authorize joint 
enrollee and Government contributions to the FEHBP Fund. Because the 
Fund is comprised of contributions by enrollees as well as the 
Government, carriers may not offset debts to the Fund by a tax credit 
which is solely a Government obligation.



Sec. 1632.617  Contract clause.

    The clause at (FAR) 48 CFR 52.232-17 will be modified in all FEHBP 
contracts to exclude the words ``net of any applicable tax credit under 
the Internal Revenue Code (26 U.S.C. 1481).''

[59 FR 14765, Mar. 30, 1994]

                     Subpart 1632.7_Contract Funding



Sec. 1632.770  Contingency reserve payments.

    (a) Payments from the contingency reserve shall be made in 
accordance with 5 CFR 890.503.
    (b) A carrier for an FEHB plan may apply to OPM at any time for a 
payment from the contingency reserve that is in addition to those 
amounts, if any, paid under 5 CFR 890.503(c)(1) through (c)(4), if the 
carrier can show good cause, such as, unexpected adverse claims 
experience. OPM will decide whether to allow the request in whole or in 
part and will advise the carrier of its decision. However, OPM shall not 
unreasonably withhold approval for amounts requested that exceed the 
plan's preferred minimum balance for the contingency reserve.



Sec. 1632.771  Non-commingling of FEHBP funds.

    (a) This section applies to contracts based on cost analysis.
    (b) Carrier or underwriter commingling of FEHBP funds with those 
from other sources makes it difficult to precisely determine FEHBP cash 
balances at any given time or to precisely determine investment income 
attributable to FEHBP invested assets.
    (c) FEHBP funds shall be maintained separately from other cash and 
investments of the carrier or underwriter. Cash and investment balances 
reported on FEHBP Annual Accounting Statements must agree with the 
carrier's books and records.
    (d) This requirement may be waived by the contracting officer in 
accordance with the clause at 1652.232-72 when adequate accounting and 
other controls are in effect. If the requirement is waived, the waiver 
will remain in effect until it is withdrawn by OPM. The waiver shall be 
withdrawn if OPM determines that the accounting controls are no longer 
adequate to properly account for FEHBP funds.

[52 FR 16043, May 1, 1987, as amended at 70 FR 31382, June 1, 2005]



Sec. 1632.772  Contract clause.

    The clause at 1652.232-72 shall be included in all contracts that 
are based on cost analysis.

[52 FR 16043, May 1, 1987, as amended at 70 FR 31382, June 1, 2005]

                   Subpart 1632.8_Assignment of Claims



Sec. 1632.806-70  Contract clause.

    The clause set forth in 1652.232-73 shall be inserted in all FEHBP 
contracts.

[55 FR 27415, July 2, 1990]

[[Page 142]]

                          PART 1633 [RESERVED]

[[Page 143]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 1642_CONTRACT ADMINISTRATION

         Subpart 1642.12_Novation and Change-of-Name Agreements

Sec.

Sec. 1642.1201 Definitions.

Sec. 1642.1204 Agreement to recognize a successor in interest (novation 
          agreement).

Sec. 1642.1205 Agreement to recognize carrier's change of name.

  Subpart 1642.70_Management Agreement (in Lieu of Novation Agreement)


Sec. 1642.7001 Management agreement.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 59 FR 14765, Mar. 30, 1994, unless otherwise noted.

         Subpart 1642.12_Novation and Change-of-Name Agreements



Sec. 1642.1201  Definitions.

    The definitions at (FAR) 48 CFR 42.1201 shall have the same meaning 
for this subpart.



Sec. 1642.1204  Agreement to recognize a successor in interest (novation 
          agreement).

    (a) (FAR) 48 CFR 42.1204 shall be implemented as provided in this 
section. The contracting officer shall insert the following agreement in 
all FEHBP contracts for use when the contractor's assets or the entire 
portion of the assets pertinent to the performance of the contract, as 
determined by the Government, are transferred.

                           Novation Agreement

    The (insert corporate name) (Transferor), a corporation duly 
organized and existing under the laws of (insert State) with its 
principal office in (insert city, state); the (insert corporate name) 
(Transferee), (if appropriate add ``formerly known as the --------------
-------------- Corporation'') a corporation duly organized and existing 
under the laws of (insert State) with its principal office in (insert 
city); and the UNITED STATES OF AMERICA (Government) enter into this 
Agreement effective (insert date transfer of assets became effective 
under applicable State law).
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the Office of Personnel Management (OPM), has entered into Contract 
Number ---- with the Transferor. The term contracts, as used in this 
Agreement, means the contract cited in this paragraph and all other 
contracts and purchase orders, including any and all amendments and 
modifications made between the Government and the Transferor before the 
effective date of this Agreement (whether or not performance and payment 
have been completed and releases executed if the Government or the 
Transferor has any remaining rights, duties, or obligations under these 
contracts and purchase orders).
    (2) As of -------------------------- 19---- (insert date transfer of 
assets became effective under applicable State law), the Transferor has 
transferred to the Transferee all the assets of the Transferor, or the 
entire portion of the Transferor's assets pertinent to performing the 
contract, as determined by OPM, by virtue of a(an) (insert term 
describing the legal transaction involved) between the Transferor and 
the Transferee.
    (3) The Transferee has acquired all the assets of the Transferor, or 
the entire portion of the Transferor's assets pertinent to performing 
the contract, as determined by OPM, by virtue of the transfer in 
paragraph (a)(1).
    (4) The Transferee has assumed all obligations and liabilities of 
the Transferor pertinent to performing the contract, as determined by 
OPM, by virtue of the transfer in paragraph (a)(1).
    (5) The Transferee is in a position to fully perform all obligations 
that may exist under the contract.
    (6) It is consistent with the Government's interest to recognize the 
Transferee as the successor party to the contract.
    (7) Evidence of the transfer in paragraph (a)(1) has been filed with 
the Government.
    (8) [If applicable:] A certificate dated ------------------------, 
19----, signed by the Secretary of State of (insert State), to the 
effect that the corporate name of (insert old corporate name) was 
changed to (insert new corporate name) on ----------------------, 19----
, has been filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT BY THIS 
AGREEMENT--
    (1) The Transferor confirms the transfer to the Transferee, and 
waives any claims and rights against the Government or the Federal 
Employees Health Benefits Fund that it now has or may have in the future 
in connection with the contract.

[[Page 144]]

    (2) The Transferee agrees to be bound by and to perform the contract 
in accordance with the conditions contained in the contract. The 
Transferee also assumes all obligations and liabilities of, and all 
claims against, the Transferor pertinent to the contract, as determined 
by OPM, as if the Transferee were the original party to the contract.
    (3) The Transferee ratifies all previous actions taken by the 
Transferor with respect to the contract, with the same force and effect 
as if the action had been taken by the Transferee.
    (4) The Government recognizes the Transferee as the Transferor's 
successor in interest in and to the contract. The Transferee by this 
Agreement becomes entitled to all rights, titles, and interests of the 
Transferor in and to the contract as if the Transferee were the original 
party to the contract. Following the effective date of this Agreement, 
the terms Carrier and Contractor as used in the contract, shall refer to 
the Transferee.
    (5) Except as expressly provided in this Agreement, nothing in it 
shall be construed as a waiver of any rights of the Government against 
the Transferor.
    (6) All payments and reimbursements previously made by the 
Government to the Transferor, and all other previous actions taken by 
the Government under the contract, shall be considered to have 
discharged those parts of the Government's obligations under the 
contract. All payments and reimbursements made by the Government after 
the date of this Agreement in the name of or to the Transferor shall 
have the same force and effect as if made to the Transferee, and shall 
constitute a complete discharge of the Government's obligations under 
the contract, to the extent of the amounts paid or reimbursed.
    (7) The Transferor and the Transferee agree that the Government is 
not obligated to pay or reimburse either of them for, or otherwise give 
effect to, any costs, taxes, or other expenses, or any related 
increases, directly or indirectly arising out of or resulting from the 
transfer of this Agreement, other than those that the Government in the 
absence of this transfer or Agreement would have been obligated to pay 
or reimburse under the terms of the contract.
    (8) The Transferor guarantees payment of all liabilities and the 
performance of all obligations that the Transferee (i) assumes under 
this Agreement or (ii) may undertake in the future should this contract 
be modified under its terms and conditions. The Transferor waives notice 
of, and consents to, any such future modifications.
    (9) The contract shall remain in full force and effect, except as 
modified by this Agreement. Each party has executed this Agreement 
effective (insert the date transfer of assets became effective under 
applicable State law).

UNITED STATES OF AMERICA,
By ---------------------- Date ----------------------
Title ----------------------------

    (Enter Transferor's name)

By ---------------------- Date ----------------------
    Title ----------------------------------

    (Corporate Seal)

    (Enter Transferee's name)

By ------------------------
Title ------------------------------

    (Corporate Seal)

                               Certificate

    I, ------------------------------, certify that I am the Secretary 
of (insert name of Transferor); that ----------------------------------, 
who signed this Agreement for this corporation, was then --------------
------------ of this corporation; and that this Agreement was duly 
signed for and on behalf of this corporation by authority of its 
governing body and within the scope of its corporate powers.
    Witness my hand and the seal of this corporation this ------ day of 
------------------------, 19----.

By ------------------------
    (Corporate Seal)

                               Certificate

    I, ----------------------, certify that I am the Secretary of 
(insert name of Transferee); that ------------------------, who signed 
this Agreement for this corporation, was then -------------------- of 
this corporation; and that this Agreement was duly signed for and on 
behalf of this corporation by authority of its governing body and within 
the scope of its corporate powers.
    Witness my hand and the seal of this corporation this ---- day of --
------------------------ 19----,

By______________________________________________________________________
    (Corporate Seal)

                           (End of agreement)

    (b) Failure to submit the properly completed and signed Novation 
Agreement in a timely manner shall be cause for termination of the 
contract by OPM in accordance with FEHBAR 1652.249-70.
    (c) The Contracting Officer shall terminate the contract if it is 
determined

[[Page 145]]

not to be in the Government's interest to recognize a successor in 
interest to the contract. The effective date will be decided by the 
Contracting Officer after considering the best interests of FEHBP 
enrollees.



Sec. 1642.1205  Agreement to recognize carrier's change of name.

    (a) (FAR) 42.1205 shall be implemented as provided in this section. 
The Contracting Officer shall insert the following Agreement in all 
FEHBP contracts for use when the carrier changes its name and the 
Government's and contractor's rights and obligations remain unaffected.

                        Change-of-Name Agreement

    The (insert new Carrier name), a corporation duly organized and 
existing under the laws of (insert State), and the UNITED STATES OF 
AMERICA (Government), enter into this Agreement effective (insert date 
when the change of name became effective under applicable State law).
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the Office of Personnel Management (OPM), has entered into Contract 
Number -------------- with the (insert old Carrier name). The term 
contracts as used in this Agreement means the contract cited in this 
paragraph and all other contracts and purchase orders and all 
modifications thereto made by the Government and the Contractor before 
the effective date of this Agreement (whether or not performance and 
payment have been completed and releases executed if the OPM or the 
Carrier has any remaining rights, duties, or obligations under these 
contracts and purchase orders).
    (2) The (insert old Carrier name), by an amendment to its 
certificate of incorporation, dated --------------------, 19----, has 
changed its corporate name to (insert new Carrier name).
    (3) This amendment accomplishes a change of corporate name only and 
all rights and obligations of the Government and the Carrier under the 
contract are unaffected by this change.
    (4) Documentary evidence of this change of corporate name has been 
filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT:
    (1) The contract is amended by substituting the name `` (insert new 
Carrier name)'' for the name ``(insert old Carrier name)'' wherever it 
appears in the contract; and
    (2) Each party has executed this Agreement effective the day and 
year stated in paragraph (a)(2).

UNITED STATES OF AMERICA,

------------------------------ Date ------------------
Title
    (Enter new Carrier name)

By ------------------------ Date ------------------

Title___________________________________________________________________
    (Corporate Seal)

                               Certificate

    I, ----------------------------------, certify that I am the 
Secretary of (insert new Carrier name); that --------------------------
----------, who signed this Agreement for this corporation, was then 
(insert position held) of this corporation; and that this Agreement was 
duly signed for and on behalf of this corporation by authority of its 
governing body and within the scope of its corporate powers.
    Witness my hand and the seal of this corporation this ---- day of --
------------------------ 19----.

By______________________________________________________________________
    (Corporate Seal)

                           (End of agreement)

    (b) Failure to submit the properly completed and signed Change-of-
Name Agreement in a timely manner may be cause for termination of the 
contract by OPM in accordance with FEHBAR 1652.249-70.

  Subpart 1642.70_Management Agreement (in Lieu of Novation Agreement)



Sec. 1642.7001  Management agreement.

    When it is in the best interest of FEHBP enrollees to continue a 
contract for an interim period after the carrier discontinues its 
operations and has entered into a Purchase and Sale Agreement (or other 
descriptive term), but before a successor in interest has been 
recognized by OPM, the carrier may submit for OPM approval a Management 
Agreement that enables it to continue a contract through an agreement 
with a third party to administer the day-to-day performance of the 
contract. Examples of situations in which a Management Agreement may be 
accepted by OPM are:

[[Page 146]]

    (a) When a transfer of assets does not meet the criteria for a 
novation;
    (b) While a request for a novation is pending;
    (c) While awaiting a decision on a request for a novation;
    (d) As an interim measure, when the timing of a transfer of assets 
or the timing of a carrier's withdrawal make administration of the 
contract inconvenient;
    (e) When it is not in the interests of the Government to either 
recognize a successor in interest or to immediately terminate the 
existing FEHBP contract.

                    PART 1643_CONTRACT MODIFICATIONS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.

                         Subpart 1643.2_Changes



Sec. 1643.205-70  Contract clause.

    The clause set forth in section 1652.243-70 shall be inserted in all 
FEHB Program contracts.

            PART 1644_SUBCONTRACTING POLICIES AND PROCEDURES

                         Subpart 1644.1_General

Sec.

Sec. 1644.170 Policy for FEHB Program subcontracting.

                 Subpart 1644.2_Consent to Subcontracts


Sec. 1644.270 FEHBP contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16043, May 1, 1987, unless otherwise noted.

                         Subpart 1644.1_General



Sec. 1644.170  Policy for FEHB Program subcontracting.

    (a) General policy. Carriers must follow commercially reasonable 
procurement procedures that comply, when required, with the Federal 
Acquisition Regulations (FAR) policies and procedures relating to 
competition and contract pricing for the acquisition of both commercial 
and noncommercial items.
    (b) Consent. For all experience-rated contracts, carriers will 
notify the Contracting officer in writing at least 30 days in advance of 
entering into any subcontract or subcontract modification, or as 
otherwise specified by the contract, if: the amount of the subcontract 
or the amount of the subcontract and modification charged to the FEHB 
Program equals or exceeds $550,000 and is at least 25 percent of the 
total subcontract's costs. The amount of the dollar charge to the FEHB 
Program shall be adjusted by the same amount and at the same time as any 
change to the threshold for application of the Truth in Negotiations Act 
pursuant to 41 U.S.C. 254b(a)(7). Failure to provide advance notice may 
result in a Contracting officer's disallowance of subcontract costs or a 
penalty when considering the performance aspect of the carriers' service 
charge.
    (1) All subcontracts or subcontract modifications that equal or 
exceed the threshold are subject to audit under FAR 52.215-2 ``Audit and 
Records-Negotiations'' if based on cost analysis, and subject to the 
provisions of 48 CFR 1646.301 and 1652.246-70 ``FEHB Inspection'' if 
based on price analysis.
    (2) In determining whether the amount chargeable to the FEHB Program 
contract for a given subcontract or modification equals or exceeds the 
$550,000 threshold, the following rules apply:
    (i) For initial advance notification, the carrier shall provide the 
total cost/price for the base year.
    (ii) The carrier shall provide advance notification of any 
modifications, options, including quantity or service options and option 
periods, and renewals of ``evergreen contracts'' that cause the total 
price to equal or exceed the threshold. OPM's review will be of the 
modification(s), itself, but documentation for the original subcontract 
will be required to perform the review.
    (iii) The $550,000 threshold will be adjusted by the same amount and 
at the

[[Page 147]]

same time as any change to the threshold for application of the Truth in 
Negotiations Act.

[70 FR 31382, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]

                 Subpart 1644.2_Consent to Subcontracts



Sec. 1644.270  FEHBP contract clause.

    The clause set forth at section 1652.244-70 shall be inserted in all 
experience rated FEHBP contracts.

[62 FR 47576, Sept. 10, 1997]

                      PART 1645_GOVERNMENT PROPERTY

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47576, Sept. 10, 1997, unless otherwise noted.

                   Subpart 1645.3_Providing Equipment



Sec. 1645.303-70  Contract clause.

    The clause set forth in section 1652.245-70 shall be inserted in all 
FEHB Program contracts.

                       PART 1646_QUALITY ASSURANCE

              Subpart 1646.2_Contract Quality Requirements

Sec.

Sec. 1646.201 Contract Quality Policy.

                     Subpart 1646.3_Contract Clauses


Sec. 1646.301 Contractor inspection requirements.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

              Subpart 1646.2_Contract Quality Requirements



Sec. 1646.201  Contract Quality Policy.

    (a) This section prescribes general policies and procedures to 
ensure that services acquired under the FEHB contract conform to the 
contract's quality and audit requirements.
    (b) OPM will periodically evaluate the contractor's system of 
internal controls under the quality assurance program required by the 
contract and will acknowledge in writing whether or not the system is 
consistent with the requirements set forth in the contract. After the 
initial review, subsequent reviews may be limited to changes in the 
contractor's internal control guidelines. However, a limited review does 
not diminish the contractor's obligation to apply the full internal 
control system.
    (c) OPM will issue specific quality performance standards for the 
FEHB contracts and will inform carriers of the applicable standards 
prior to negotiations for the contract year. OPM will benchmark its 
standards against standards generally accepted in the insurance 
industry. The contracting officer may authorize nationally recognized 
standards to be used to fulfill this requirement. FEHB carriers will 
comply with the performance standards issued by OPM.
    (d) In addition to reviewing carriers' quality assurance programs, 
OPM will periodically audit contractors, subcontractors and Large 
Providers' books and records to assure compliance with FEHB law, 
regulations, and the contract.

[70 FR 31382, June 1, 2005]

                     Subpart 1646.3_Contract Clauses



Sec. 1646.301  Contractor inspection requirements.

    The clause set forth at 1652.246-70 shall be inserted in all FEHBP 
contracts.

[52 FR 16044, May 1, 1987]

                   PART 1649_TERMINATION OF CONTRACTS

Sec.

Sec. 1649.002-70 Applicability of the FAR to FEHB acquisitions.

                    Subpart 1649.1_General Principles


Sec. 1649.101-70 FEHBP renewal and withdrawal of approval clause.

Sec. 1649.101-71 FEHBP termination for convenience clause.

Sec. 1649.101-72 FEHBP termination for default clause.


[[Page 148]]


    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16044, May 1, 1987, unless otherwise noted.



Sec. 1649.002-70  Applicability of the FAR to FEHB acquisitions.

    (a) Termination of FEHB contracts because of withdrawal of approval 
is controlled by 5 U.S.C. 8902(e) and 5 CFR 890.204.
    (b) Termination of FEHB contracts because of nonrenewal of the 
contract at the end of the contract term is controlled by 5 U.S.C. 
8902(a) and 5 CFR 890.205.
    (c) The procedures for settlement of contracts after they are 
terminated shall be those contained in FAR part 49.

[57 FR 19387, May 6, 1992]

                    Subpart 1649.1_General Principles



Sec. 1649.101-70  FEHBP renewal and withdrawal of approval clause.

    The clause in 1652.249-70 shall be inserted in all FEHBP contracts.



Sec. 1649.101-71  FEHBP termination for convenience clause.

    The clause set forth in 1652.249-71 shall be inserted in all FEHBP 
contracts.

[62 FR 47576, Sept. 10, 1997]



Sec. 1649.101-72  FEHBP termination for default clause.

    The clause set forth in 1652.249-72 shall be inserted in all FEHBP 
contracts.

[62 FR 47576, Sept. 10, 1997]

[[Page 149]]

                     SUBCHAPTER H_CLAUSES AND FORMS

                       PART 1652_CONTRACT CLAUSES

Sec.

Sec. 1652.000 Applicable clauses.

                  Subpart 1652.2_Texts of FEHBP Clauses


Sec. 1652.203-70 Misleading, deceptive, or unfair advertising.

Sec. 1652.204-70 Contractor records retention.

Sec. 1652.204-71 Coordination of Benefits.

Sec. 1652.204-72 Filing health benefit claims/court review of disputed 
          claims.

Sec. 1652.204-73 Taxpayer Identification Number.

Sec. 1652.204-74 Large provider agreements.

Sec. 1652.215-70 Rate Reduction for Defective Pricing or Defective Cost 
          or Pricing Data.

Sec. 1652.215-71 Investment Income.

Sec. 1652.216-70 Accounting and price adjustment.

Sec. 1652.216-71 Accounting and Allowable Cost.

Sec. 1652.222-70 Notice of significant events.

Sec. 1652.224-70 Confidentiality of records.

Sec. 1652.229-70 Taxes--Foreign Negotiated benefits contracts.

Sec. 1652.232-70 Payments--community-rated contracts.

Sec. 1652.232-71 Payments--experience-rated contracts.

Sec. 1652.232-72 Non-commingling of FEHBP funds.

Sec. 1652.232-73 Approval for the Assignment of Claims.

Sec. 1652.243-70 Changes--Negotiated benefits contracts.

Sec. 1652.244-70 Subcontracts.

Sec. 1652.245-70 Government property (negotiated benefits contracts).

Sec. 1652.246-70 FEHB Inspection.

Sec. 1652.249-70 Renewal and withdrawal of approval.

Sec. 1652.249-71 FEHBP termination for convenience of the government--
          negotiated benefits contracts.

Sec. 1652.249-72 FEHBP termination for default--negotiated benefits 
          contracts.

                   Subpart 1652.3_FEHBP Clause Matrix


Sec. 1652.370 Use of the matrix.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16044, May 1, 1987, unless otherwise noted.



Sec. 1652.000  Applicable clauses.

    The clauses of FAR subpart 52.2 shall be applicable to FEHBP 
contracts as specified in the FEHBAR Clause Matrix in subpart 1652.3.

                        Section and Clause Title


Sec. 52.202-1 Definitions.

Sec. 52.203-3 Gratuities.

Sec. 52.203-5 Covenant Against Contingent Fees.

Sec. 52.203-7 Anti-Kickback Procedures.

Sec. 52.203-12 Limitation on Payments to Influence Certain Federal 
          Transactions.

Sec. 52.209-6 Protecting the Government's Interest When Subcontracting 
          With Contractors Debarred, Suspended, or Proposed for 
          Debarment.

Sec. 52.215-2 Audit and Records--Negotiation.

Sec. 52.215-22 Price Reduction for Defective Cost or Pricing Data.

Sec. 52.215-24 Subcontractor Cost or Pricing Data.

Sec. 52.215-27 Termination of Defined Benefit Pension Plans.

Sec. 52.215-30 Facilities Capital Cost of Money.

Sec. 52.215-31 Waiver of Facilities Capital Cost of Money.

Sec. 52.215-39 Reversion or Adjustment of Plans for Postretirement 
          Benefits Other Than Pensions (PRB).

Sec. 52.219-8 Utilization of Small, Small Disadvantaged and Women-Owned 
          Small Business Concerns.

Sec. 52.222-1 Notice to the Government of Labor Disputes.

Sec. 52.222-3 Convict Labor.

Sec. 52.222-4 Contract Work Hours and Safety Standards Act--Overtime 
          Compensation--General.

Sec. 52.222-21 Certification of Nonsegregated Facilities.

Sec. 52.222-26 Equal Opportunity.

Sec. 52.222-28 Equal Opportunity Preaward Clearance of Subcontracts.

Sec. 52.222-29 Notification of Visa Denial.

Sec. 52.222-35 Affirmative Action for Special Disabled and Vietnam Era 
          Veterans.

Sec. 52.222-36 Affirmative Action for Handicapped Workers.

Sec. 52.222-37 Employment Reports on Special Disabled Veterans and 
          Veterans of the Vietnam Era.

Sec. 52.223-2 Clean Air and Water.

Sec. 52.223-6 Drug-Free Workplace.

Sec. 52.227-1 Authorization and Consent.

Sec. 52.227-2 Notice and Assistance Regarding Patent and Copyright 
          Infringement.

Sec. 52.229-3 Federal, State,and Local Taxes.

Sec. 52.229-4 Federal, State, and Local Taxes (Noncompetitive Contract).

Sec. 52.229-5 Taxes--Contracts Performed in U.S. Possessions or Puerto 
          Rico.

Sec. 52.230-2 Cost Accounting Standards.

Sec. 52.230-3 Disclosure and Consistency of Cost Accounting Practices.

Sec. 52.230-5 Administration of Cost Accounting Standards.

Sec. 52.232-8 Discounts for Prompt Payment.

Sec. 52.232-17 Interest.

[[Page 150]]


Sec. 52.232-23 Assignment of Claims.

Sec. 52.232-33 Mandatory Information For Electronic Funds Transfer 
          Payment.

Sec. 52.233-1 Disputes.

Sec. 52.242-1 Notice of Intent to Disallow Costs.

Sec. 52.242-3 Penalties for Unallowable Costs.

Sec. 52.242-13 Bankruptcy.

Sec. 52.244-5 Competition in Subcontracting.

Sec. 52.244-6 Subcontracts for Commercial Items and Commercial 
          Components.

Sec. 52.246-25 Limitation of Liability--Services.

Sec. 52.247-63 Preference for U.S.-Flag Air Carriers.

Sec. 52.251-1 Government Supply Sources.

Sec. 52.232-2 Clauses Incorporated by Reference.

Sec. 52.252-4 Alterations in Contract.

Sec. 52.252-6 Authorized Deviations in Clauses.

[62 FR 47576, Sept. 10, 1997]

                  Subpart 1652.2_Texts of FEHBP Clauses



Sec. 1652.203-70  Misleading, deceptive, or unfair advertising.

    As prescribed in 1603.7003, the following clause shall be inserted 
in all FEHBP contracts:

         Misleading, Deceptive, or Unfair Advertising (JAN 1991)

    (a) The Carrier agrees that any advertising material, including that 
labeled promotional material, marketing material, or supplemental 
literature, shall be truthful and not misleading.
    (b) Criteria to assess compliance with paragraph (a) of this clause 
are available in the FEHB Supplemental Literature Guidelines which are 
developed by OPM and should be used, along with the additional 
guidelines set forth in FEHBAR 1603.702, as the primary guide in 
preparing material; further guidance is provided in the NAIC ``Rules 
Governing Advertising of Accident and Sickness Insurance With 
Interpretive Guidelines.'' Guidelines are periodically updated and 
provided to the Carrier by OPM.
    (c) Failure to conform to paragraph (a) of this clause may result in 
a reduction in the service charge, if appropriate, and corrective action 
to protect the interest of Federal Members. Corrective action will be 
appropriate to the circumstances and may include, but is not limited to 
the following actions by OPM:
    (1) Directing the Carrier to cease and desist distribution, 
publication, or broadcast of the material;
    (2) Directing the Carrier to issue corrections at the Carrier's 
expense and in the same manner and media as the original material was 
made; and
    (3) Directing the Carrier to provide, at the Carrier's expense, the 
correction in writing by certified mail to all enrollees of the Plan(s) 
that had been the subject of the original material.
    (d) Egregious or repeated offenses may result in the following 
action by OPM:
    (1) Suspending new enrollments in the Carrier's Plan(s);
    (2) Providing Enrollees an opportunity to transfer to another plan; 
and
    (3) Terminating the contract in accordance with Section 1.15, 
Renewal and Withdrawal of Approval.
    (e) Prior to taking action as described in paragraphs (c) and (d) of 
this clause, the OPM will notify the Carrier and offer an opportunity to 
respond.
    (f) The Carrier shall incorporate this clause in subcontracts with 
its underwriter, if any, and other subcontractors directly involved in 
the preparation or distribution of such advertising material and shall 
substitute ``Contractor'' or other appropriate reference for the term 
``Carrier.''

                             (End of clause)

[55 FR 27415, July 2, 1990, as amended at 62 FR 47576, Sept. 10, 1997]



Sec. 1652.204-70  Contractor records retention.

    As prescribed in 1604.705 the following clause will be inserted in 
all FEHB Program contracts.

                 Contractor Records Retention (JUL 2005)

    Notwithstanding the provisions of Section 5.7 (FAR 52.215-2(f)) 
``Audit and Records--Negotiation'' the carrier will retain and make 
available all records applicable to a contract term that support the 
annual statement of operations and, for contracts that equal or exceed 
the threshold at FAR 15.403-4(a)(1), the rate submission for that 
contract term for a period of six years after the end of the contract 
term to which the records relate. This includes all records of Large 
Provider Agreements and subcontracts that equal or exceed the threshold 
requirements. In addition, individual enrollee and/or patient claim 
records will be maintained for six years after the end of the contract 
term to which the claim records relate. This clause is effective 
prospectively as of the 2005 contract year.

                             (End of clause)

[70 FR 31382, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



Sec. 1652.204-71  Coordination of Benefits.

    As prescribed in 1604.7001, the following clause shall be inserted 
in all FEHBP contracts:

[[Page 151]]

                   Coordination of Benefits (JAN 1991)

    (a) The Carrier shall coordinate the payment of benefits under this 
contract with the payment of benefits under Medicare, other group health 
benefits coverages, and the payment of medical and hospital costs under 
no-fault or other automobile insurance that pays benefits without regard 
to fault.
    (b) The Carrier shall not pay benefits under this contract until it 
has determined whether it is the primary carrier or unless permitted to 
do so by the Contracting Officer.
    (c) In coordinating benefits between plans, the Carrier shall follow 
the order of precedence established by the NAIC Model Guidelines for 
Coordination of Benefits (COB) as specified by OPM.
    (d) Where (1) the Carrier makes payments under this contract which 
are subject to COB provisions; (2) the payments are erroneous, not in 
accordance with the terms of the contract, or in excess of the 
limitations applicable under this contract; and (3) the Carrier is 
unable to recover such COB overpayments from the Member or the providers 
of services or supplies, the Contracting Officer may allow such amounts 
to be charged to the contract; the Carrier must be prepared to 
demonstrate that it has made a diligent effort to recover such COB 
overpayments.
    (e) COB savings shall be reported by experience rated carriers each 
year along with the Carrier's annual accounting statement in a form 
specified by OPM.
    (f) Changes in the order of precedence established by the NAIC Model 
Guidelines implemented after January 1 of any given year shall be 
required no earlier than the beginning of the following contract term.

                             (End of clause)

[55 FR 27415, July 2, 1990]



Sec. 1652.204-72  Filing health benefit claims/court review of disputed 
          claims.

    As prescribed in 1604.7101 of this chapter, the following clause 
must be inserted in all FEHB Program contracts.

 Filing Health Benefit Claims/Court Review of Disputed Claims (MAR 1995)

    (a) General. (1) The Carrier resolves claims filed under the Plan. 
All health benefit claims must be submitted initially to the Carrier. If 
the Carrier denies a claim (or a portion of a claim), the covered 
individual may ask the Carrier to reconsider its denial. If the Carrier 
affirms its denial or fails to respond as required by paragraph (b) of 
this clause, the covered individual may ask OPM to review the claim. A 
covered individual must exhaust both the Carrier and OPM review 
processes specified in this clause before seeking judicial review of the 
denied claim.
    (2) This clause applies to covered individuals and to other 
individuals or entities who are acting on the behalf of a covered 
individual and who have the covered individual's specific written 
consent to pursue payment of the disputed claim.
    (b) Time limits for reconsidering a claim. (1) The covered 
individual has 6 months from the date of the notice to the covered 
individual that a claim (or a portion of a claim) was denied by the 
Carrier in which to submit a written request for reconsideration to the 
Carrier. The time limit for requesting reconsideration may be extended 
when the covered individual shows that he or she was prevented by 
circumstances beyond his or her control from making the request within 
the time limit.
    (2) The Carrier has 30 days after the date of receipt of a timely-
filed request for reconsideration to:
    (i) Affirm the denial in writing to the covered individual;
    (ii) Pay the bill or provide the service; or
    (iii) Request from the covered individual or provider additional 
information needed to make a decision on the claim. The Carrier must 
simultaneously notify the covered individual of the information 
requested if it requests additional information from a provider. The 
Carrier has 30 days after the date the information is received to affirm 
the denial in writing to the covered individual or pay the bill or 
provide the service. The Carrier must make its decision based on the 
evidence it has if the covered individual or provider does not respond 
within 60 days after the date of the Carrier's notice requesting 
additional information. The Carrier must then send written notice to the 
covered individual of its decision on the claim. The covered individual 
may request OPM review as provided in paragraph (b)(3) of this clause if 
the Carrier fails to act within the time limit set forth in this 
paragraph.
    (3) The covered individual may write to OPM and request that OPM 
review the Carrier's decision if the Carrier either affirms its denial 
of a claim or fails to respond to a covered individual's written request 
for reconsideration within the time limit set forth in paragraph (b)(2) 
of this clause. The covered individual must submit the request for OPM 
review within the time limit specified in paragraph (e)(1) of this 
clause.
    (4) The Carrier may extend the time limit for a covered individual's 
submission of additional information to the Carrier when the covered 
individual shows he or she was not notified of the time limit or was 
prevented by circumstances beyond his or her control from submitting the 
additional information.
    (c) Information required to process requests for reconsideration. 
(1) The covered individual

[[Page 152]]

must put the request to the Carrier to reconsider a claim in writing and 
give the reasons, in terms of applicable brochure provisions, that the 
denied claim should have been approved.
    (2) If the Carrier needs additional information from the covered 
individual to make a decision, it must:
    (i) Specifically identify the information needed;
    (ii) State the reason the information is required to make a decision 
on the claim;
    (iii) Specify the time limit (60 days after the date of the 
Carrier's request) for submitting the information; and
    (iv) State the consequences of failure to respond within the time 
limit specified, as set out in paragraph (b)(2) of this section.
    (d) Carrier determinations. The Carrier must provide written notice 
to the covered individual of its determination. If the Carrier affirms 
the initial denial, the notice must inform the covered individual of:
    (1) The specific and detailed reasons for the denial;
    (2) The covered individual's right to request a review by OPM; and
    (3) The requirement that requests for OPM review must be received 
within 90 days after the date of the Carrier's denial notice and include 
a copy of the denial notice as well as documents to support the covered 
individual's position.
    (e) OPM review. (1) If the covered individual seeks further review 
of the denied claim, the covered individual must make a request to OPM 
to review the Carrier's decision. Such a request to OPM must be made:
    (i) Within 90 days after the date of the Carrier's notice to the 
covered individual that the denial was affirmed; or
    (ii) If the Carrier fails to respond to the covered individual as 
provided in paragraph (b)(2) of this clause, within 120 days after the 
date of the covered individual's timely request for reconsideration by 
the Carrier; or
    (iii) Within 120 days after the date the Carrier requests additional 
information from the covered individual, or the date the covered 
individual is notified that the Carrier is requesting additional 
information from a provider. OPM may extend the time limit for a covered 
individual's request for OPM review when the covered individual shows he 
or she was not notified of the time limit or was prevented by 
circumstances beyond his or her control from submitting the request for 
OPM review within the time limit.
    (2) In reviewing a claim denied by the Carrier, OPM may:
    (i) Request that the covered individual submit additional 
information;
    (ii) Obtain an advisory opinion from an independent physician;
    (iii) Obtain any other information as may in its judgment be 
required to make a determination; or
    (iv) Make its decision based solely on the information the covered 
individual provided with his or her request for review.
    (3) When OPM requests information from the Carrier, the Carrier must 
release the information within 30 days after the date of OPM's written 
request unless a different time limit is specified by OPM in its 
request.
    (4) Within 90 days after receipt of the request for review, OPM will 
either:
    (i) Give a written notice of its decision to the covered individual 
and the Carrier; or
    (ii) Notify the individual of the status of the review. If OPM does 
not receive requested evidence within 15 days after expiration of the 
applicable time limit in paragraph (e)(3) of this clause, OPM may make 
its decision based solely on information available to it at that time 
and give a written notice of its decision to the covered individual and 
to the Carrier.
    (f) OPM, upon its own motion, may reopen its review if it receives 
evidence that was unavailable at the time of its original decision.
    (g) Court review. (1) A suit to compel enrollment underSec. 
890.102 of Title 5, Code of Federal Regulations, must be brought against 
the employing office that made the enrollment decision.
    (2) A suit to review the legality of OPM's regulations under this 
part must be brought against the Office of Personnel Management.
    (3) Federal Employees Health Benefits (FEHB) carriers resolve FEHB 
claims under authority of Federal statute (chapter 89, title 5, United 
States Code). A covered individual may seek judicial review of OPM's 
final action on the denial of a health benefits claim. A legal action to 
review final action by OPM involving such denial of health benefits must 
be brought against OPM and not against the Carrier or the Carrier's 
subcontractors. The recovery in such a suit shall be limited to a court 
order directing OPM to require the Carrier to pay the amount of benefits 
in dispute.
    (4) An action under paragraph (3) of this clause to recover on a 
claim for health benefits:
    (i) May not be brought prior to exhaustion of the administrative 
remedies provided in paragraphs (a) through (f) of this clause;
    (ii) May not be brought later than December 31 of the 3rd year after 
the year in which the care or service was provided; and
    (iii) Will be limited to the record that was before OPM when it 
rendered its decision affirming the Carrier's denial of benefits.

                             (End of clause)

[61 FR 15198, Apr. 5, 1996, as amended at 62 FR 47576, Sept. 10, 1997]

[[Page 153]]



Sec. 1652.204-73  Taxpayer Identification Number.

    As prescribed in 1604.970, insert the following clause.

                Taxpayer Identification Number (JAN 2000)

    (a) Definitions. Common parent, as used in this provision, means 
that corporate entity that owns or controls an affiliated group of 
corporations that files its Federal income tax returns on a consolidated 
basis, and of which the Carrier is a member.
    Taxpayer Identification Number (TIN), as used in this provision, 
means the number required by the Internal Revenue Service (IRS) to be 
used by the Carrier in reporting income tax and other returns.
    (b) The Carrier must submit the information required in paragraphs 
(d) through (f) of this clause to comply with debt collection 
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of 
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by 
the IRS. The Carrier is subject to the payment reporting requirements 
described in Federal Acquisition Regulation (FAR) 4.904. The Carrier's 
failure or refusal to furnish the information will result in payment 
being withheld until the TIN number is provided.
    (c) The Government may use the TIN to collect and report on any 
delinquent amounts arising out of the Carrier's relationship with the 
Government (31 U.S.C. 7701(c)(3)). The TIN provided hereunder may be 
matched with IRS records to verify its accuracy.
    (d) Taxpayer Identification Number (TIN).


Sec. TIN:------------------------
    (e) Type of organization.


Sec. [squ] Sole proprietorship;

Sec. [squ] Partnership;

Sec. [squ] Corporate entity (not tax-exempt);

Sec. [squ] Corporate entity (tax-exempt);

Sec. [squ] Other ------------------------.

    (f) Common parent.


Sec. [squ] Carrier is not owned or controlled by a common parent as 
          defined in paragraph (a) of this clause.

Sec. [squ] Name and TIN of common parent:


Sec. Name ------------------------

Sec. TIN ------------------------

                             (End of clause)

[65 FR 36386, June 8, 2000]



Sec. 1652.204-74  Large provider agreements.

    As prescribed by 1604.7202, the contracting officer will insert the 
following clause in all FEHB Program contracts based on cost analysis 
(experience-rated):

                  Large Provider Agreements (OCT 2005)

    (a) Notification and Information Requirements. (1) The experience-
rated Carrier must provide notice to the contracting officer of its 
intent to enter into or to make a significant modification of a Large 
Provider Agreement:
    (i) Not less than 60 days before entering into any Large Provider 
Agreement; and
    (ii) Not less than 60 days before exercising a renewal or other 
option, or significant modification to a Large Provider Agreement, when 
such action would result in total costs to the FEHB Program of an 
additional 20 percent or more above the existing contract. However, if a 
carrier is exercising a simple renewal or other option contemplated by a 
Large Provider Agreement that OPM previously reviewed, and there are no 
significant changes, then a statement to the effect that the renewal or 
other option is being exercised along with the dollar amount is 
sufficient notice.
    (2) The carrier's notification to the contracting officer must be in 
writing and must, at a minimum:
    (i) Describe the supplies and/or services the proposed provider 
agreement will require;
    (ii) Identify the proposed basis for reimbursement;
    (iii) Identify the proposed provider agreement, explain why the 
carrier selected the proposed provider, and what contracting method it 
used, where applicable, including the kind of competition obtained;
    (iv) Describe the methodology the carrier used to compute the 
provider's profit; and,
    (v) Describe provider risk provisions.
    (3) The Contracting officer may request from the carrier any 
additional information on a proposed provider agreement and its terms 
and conditions prior to a provider award and during the performance of 
the agreement.
    (4) Within 30 days of receiving the carrier's notification, the 
Contracting officer will give the carrier either written comments or 
written notice that there will be no comments. If the Contracting 
officer comments, the carrier must respond in writing within 10 calendar 
days, and explain how it intends to address any concerns.
    (5) When computing the carrier's service charge, the Contracting 
officer will consider how well the carrier complies with the provisions 
of this section, including the advance notification requirements, as an 
aspect of the carrier's performance factor.
    (6) The Contracting officer's review of any Large Provider 
Agreement, option, renewal, or modification will not constitute a 
determination of the acceptability of the terms and conditions of any 
provider agreement or

[[Page 154]]

of the allowability of any costs under the carrier's contract, nor will 
it relieve the carrier of any responsibility for performing the 
contract.
    (b) Records and Inspection. The carrier must insert in all Large 
Provider Agreements the requirement that the provider will retain and 
make available to the Government all records relating to the agreement 
that support the annual statement of operations and enrollee records--
Retain for 6 years after the agreement term ends.
    (c) Audit and Records--Negotiation. The provisions of FAR 52.215-2, 
``Audit and Records--Negotiation,'' when required, or FEHBAR 1652.246-
70, ``FEHB Inspection'' apply to all experience-rated Carriers' Large 
Provider Agreements. The Carrier will insert the clauses at FAR 52.215-
2, when applicable, or FEHBAR 1652.246-70 in all Large Provider 
Agreements. In FAR 52.215-2 the carrier will substitute:
    (1) The term ``Large Provider'' for the term ``Contractor'' 
throughout the clause, and
    (2) The term ``Large Provider Agreement'' for the term 
``Subcontracts'' in paragraph (g) of FAR 52.215-2. The term 
``Contracting officer'' will mean the FEHB Program Contracting officer 
at OPM. The carrier will be responsible for ensuring the Large Provider 
complies with the provisions set forth in the clause.
    (d) Prohibited Agreements. No provider agreement made under this 
contract will provide for payment on a cost-plus-a-percentage-of-cost 
basis.
    (e) The carrier will insert this clause, 1652.204-74, in all Large 
Provider Agreements.

                             (End of clause)

[70 FR 31382, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



Sec. 1652.215-70  Rate Reduction for Defective Pricing or Defective Cost 
          or Pricing Data.

    As prescribed in 1615.407-1, the following clause shall be inserted 
in FEHBP contracts exceeding the threshold at FAR 15.403-4(a)(1) that 
are based on a combination of cost and price analysis (community rated):

 Rate Reduction for Defective Pricing or Defective Cost or Pricing Data 
                               (JAN 2004)

    (a) If any rate established in connection with this contract was 
increased because (1) the Carrier submitted, or kept in its files in 
support of the FEHBP rate, cost or pricing data that were not complete, 
accurate, or current as certified in the Certificate of Accurate Cost or 
Pricing Data (FEHBAR 1615.406-2); (2) the Carrier submitted, or kept in 
its files in support of the FEHBP rate, cost or pricing data that were 
not accurate as represented in the rate proposal documents; (3) the 
Carrier developed FEHBP rates with a rating methodology and structure 
inconsistent with that used to develop rates for similarly sized 
subscriber groups (see FEHBAR 1602.170-13) as certified in the 
Certificate of Accurate Cost or Pricing Data for Community Rated 
Carriers; or (4) the Carrier submitted or, or kept in its files in 
support of the FEHBP rate, data or information of any description that 
were not complete, accurate, and current--then, the rate shall be 
reduced in the amount by which the price was increased because of the 
defective data or information.
    (b)(1) If the Contracting Officer determines under paragraph (a) of 
this clause that a price or cost reduction should be made, the Carrier 
agrees not to raise the following matters as a defense:
    (i) The Carrier was a sole source supplier or otherwise was in a 
superior bargaining position and thus the price of the contract would 
not have been modified even if accurate, complete, and current cost or 
pricing data had been submitted or maintained and identified.
    (ii) The Contracting Officer should have known that the cost or 
pricing data in issue were defective even though the Carrier took no 
affirmative action to bring the character of the data to the attention 
of the Contracting Officer.
    (iii) The contract was based on an agreement about the total cost of 
the contract and there was no agreement about the cost of each item 
procured under the contract.
    (iv) The Carrier did not submit or keep in its files a Certificate 
of Current Cost or Pricing Data.
    (2)(i) Except as prohibited by subdivision (b)(2)(ii) of this 
clause, an offset in an amount determined appropriate by the Contracting 
Officer based upon the facts shall be allowed against the amount of a 
contract price reduction if--
    (A) The Carrier certifies to the Contracting Officer that, to the 
best of the Carrier's knowledge and belief, the Carrier is entitled to 
the offset in the amount requested; and
    (B) The Carrier proves that the cost or pricing data were available 
before the date of agreement on the price of the contract (or price of 
the modification) and that the data were not submitted before such date.
    (ii) An offset shall not be allowed if--
    (A) The understated data was known by the Carrier to be understated 
when the Certificate of Current Cost or Pricing Data was signed; or
    (B) The Government proves that the facts demonstrate that the 
contract price would not have increased in the amount to be offset

[[Page 155]]

even if the available data had been submitted before the date of 
agreement on price.
    (c) When the Contracting Officer determines that the rates shall be 
reduced and the Government is thereby entitled to a refund, the Carrier 
shall be liable to and shall pay the FEHB Fund at the time the 
overpayment is repaid--
    (1) Simple interest on the amount of the overpayment from the date 
the overpayment was paid from the FEHB Fund to the Carrier until the 
date the overcharge is liquidated. In calculating the amount of interest 
due, the quarterly rate determinations by the Secretary of the Treasury 
under the authority of 26 U.S.C. 6621(a)(2) applicable to the periods 
the overcharge was retained by the Carrier shall be used; and,
    (2) A penalty equal to the amount of overpayment, if the Carrier 
knowingly submitted cost or pricing data which was incomplete, 
inaccurate, or noncurrent.

                             (End of clause)

[62 FR 47576, Sept. 10, 1997, as amended at 64 FR 36273, July 6, 1999; 
65 FR 36387, June 8, 2000; 70 FR 31383, June 1, 2005]



Sec. 1652.215-71  Investment Income.

    As prescribed in 1615.470-1, the following clause shall be inserted 
in all FEHBP contracts based on cost analysis:

                      Investment Income (JAN 1998)

    (a) The Carrier shall invest and reinvest all FEHB funds on hand 
that are in excess of the funds needed to promptly discharge the 
obligations incurred under this contract. The Carrier shall seek to 
maximize investment income with prudent consideration to the safety and 
liquidity of investments.
    (b) All investment income earned on FEHB funds shall be credited to 
the Special Reserve on behalf of the FEHBP.
    (c) When the Contracting Officer concludes that the Carrier failed 
to comply with paragraph (a) or (b) of this clause, the Carrier shall 
credit the Special Reserve with investment income that would have been 
earned, at the rate(s) specified in paragraph (f) of this clause, had it 
not been for the Carrier's noncompliance. ``Failed to comply with 
paragraph (a) or (b)'' means: (1) Making any charges against the 
contract which are not allowable, allocable, or reasonable; or (2) 
failing to credit any income due the contract and/or failing to place 
excess funds, including subscription income and payments from OPM not 
needed to discharge promptly the obligations incurred under the 
contract, refunds, credits, payments, deposits, investment income 
earned, uncashed checks, or other amounts owed the Special Reserve, in 
income producing investments and accounts.
    (d) Investment income lost as a result of unallowable, unallocable, 
or unreasonable charges against the contract shall be paid from the 1st 
day of the contract term following the contract term in which the 
unallowable charge was made and shall end on the earlier of: (1) The 
date the amounts are returned to the Special Reserve (or the Office of 
Personnel Management); (2) the date specified by the Contracting 
Officer; or, (3) the date of the Contracting Officer's Final Decision.
    (e) Investment income lost as a result of failure to credit income 
due the contract or failure to place excess funds in income producing 
investments and accounts shall be paid from the date the funds should 
have been invested or appropriate income was not credited and shall end 
on the earlier of: (1) The date the amounts are returned to the Special 
Reserve (or the Office of Personnel Management); (2) the date specified 
by the Contracting Officer; or, (3) the date of the Contracting 
Officer's Final Decision.
    (f) The Carrier shall credit the Special Reserve for income due in 
accordance with this clause. All lost investment income payable shall 
bear simple interest at the quarterly rate determined by the Secretary 
of the Treasury under the authority of 26 U.S.C. 6621(a)(2) applicable 
to the periods in which the amount becomes due, as provided in 
paragraphs (d) and (e) of this clause.
    (g) The Carrier shall incorporate this clause into agreements with 
underwriters of the Carrier's FEHB plan and shall substitute 
``underwriter'' or other appropriate reference for the term ``Carrier.''

                             (End of clause)

[55 FR 27416, July 2, 1990, as amended at 62 FR 47577, Sept. 10, 1997; 
70 FR 31383, June 1, 2005]



Sec. 1652.216-70  Accounting and price adjustment.

    As prescribed in section 1616.7001, the following clause shall be 
inserted in all FEHBP contracts based on a combination of cost and price 
analysis (community rated).

               Accounting and Price Adjustment (JAN 2003)

    (a) Annual Accounting Statement. The Carrier, not later than 90 days 
after the end of each contract period, shall furnish to OPM for that 
contract period an accounting of its operations under the contract. The 
accounting shall be in the form prescribed by OPM.
    (b) Adjustment. (1) This contract is community rated as defined in 
FEHBAR 1602.170-2.

[[Page 156]]

    (2) The subscription rates agreed to in this contract shall be based 
on paragraphs (b)(2)(i) or (ii) of this clause. Effective January 1, 
2013 all community rated plans must base their rating methodology on the 
medical loss ratio (MLR) threshold described in paragraph (b)(2)(i) of 
this clause unless traditional community rating is mandated in the state 
where they are domiciled:
    (i) The subscription rates agreed to in this contract shall meet the 
FEHB-specific MLR threshold as defined in FEHBAR 1602.170-14. The ratio 
of a plan's incurred claims, including the issuer's expenditures for 
activities that improve health care quality, to total premium revenue 
shall not be lower than the FEHB-specific MLR threshold published 
annually by OPM in its rate instructions.
    (ii) The subscription rates agreed to in this contract shall be 
equivalent to the subscription rates given to the carrier's similarly 
sized subscriber groups (SSSGs) as defined in FEHBAR 1602.170-13. The 
subscription rates shall be determined according to the carrier's 
established policy, which must be applied consistently to the FEHBP and 
to the carrier's SSSGs. If an SSSG receives a rate lower than that 
determined according to the carrier's established policy, it is 
considered a discount. The FEHBP must receive a discount equal to or 
greater than the carrier's largest SSSG discount.
    (3) If the rates are determined by SSSG comparison, then:
    (i) If, at the time of the rate reconciliation, the subscription 
rates are found to be lower than the equivalent rates for the lower of 
the two SSSGs, the carrier may include an adjustment to the Federal 
group's rates for the next contract period, except as noted in paragraph 
(b)(3)(iii) of this clause.
    (ii) If, at the time of the rate reconciliation, the subscription 
rates are found to be higher than the equivalent rates for the lower of 
the two SSSGs, the carrier shall reimburse the Fund, for example, by 
reducing the FEHB rates for the next contract term to reflect the 
difference between the estimated rates and the rates which are derived 
using the methodology of the lower rated SSSG, except as noted in 
paragraph (b)(3)(iii) of this clause.
    (iii) Carriers may provide additional guaranteed discounts to the 
FEHBP that are not given to SSSGs. Any such guaranteed discounts must be 
clearly identified as guaranteed discounts. After the beginning of the 
contract year for which the rates are set, these guaranteed FEHBP 
discounts may not be adjusted.
    (4) If rates are determined by comparison with the FEHB-specific MLR 
threshold, then if the MLR for the carrier's FEHB plan is found to be 
lower than the published FEHB-specific MLR threshold, the carrier must 
pay a subsidization penalty equal to the difference into a subsidization 
penalty account.
    (5) The following apply to community rated plans, regardless of the 
rating methodology:
    (i) No upward adjustment in the rate established for this contract 
will be allowed or considered by the Government or will be made by the 
Carrier in this or in any other contract period on the basis of actual 
costs incurred, actual benefits provided, or actual size or composition 
of the FEHBP group during this contract period.
    (ii) For contract years beginning on or after January 1, 2009, in 
the event this contract is not renewed, the final rate reconciliation 
will be performed. The carrier must promptly pay any amount owed to OPM. 
Any amount recoverable by the carrier is limited to the amount in the 
contingency reserve for the terminating plan as of December 31 of the 
terminating year.
    (iii) Carriers may not impose surcharges (loadings not defined based 
on an established rating method) on the FEHBP subscription rates or use 
surcharges in the rate reconciliation process in any circumstance.
    (6) For contract years beginning on or after January 1, 2009, in the 
event this contract is not renewed, the final rate reconciliation will 
be performed. The carrier must promptly pay any amount owed to OPM. Any 
amount recoverable by the carrier is limited to the amount in the 
contingency reserve for the terminating plan as of December 31 of the 
terminating year.
    (7) Carriers may provide additional guaranteed discounts to the 
FEHBP that are not given to SSSGs. Any such guaranteed discounts must be 
clearly identified as guaranteed discounts. After the beginning of the 
contract year for which the rates are set, these guaranteed FEHBP 
discounts may not be adjusted.
    (8) Carriers may not impose surcharges (loadings not defined based 
on an established rating method) on the FEHBP subscription rates or use 
surcharges in the rate reconciliation process irrespective of whether 
surcharges are applied to the SSSGs.

                             (End of clause)

[62 FR 47577, Sept. 10, 1997, as amended at 64 FR 36273, July 6, 1999; 
65 FR 36387, June 8, 2000; 70 FR 31383, June 1, 2005; 74 FR 7824, Feb. 
20, 2009; 76 FR 38286, June 29, 2011; 77 FR 19525, Apr. 2, 2012]



Sec. 1652.216-71  Accounting and Allowable Cost.

    As prescribed in section 1616.7002, the following clause shall be 
inserted in all FEHBP contracts based on cost analysis (experience 
rated).

[[Page 157]]

      Accounting and Allowable Cost (FEHBAR 1652.216-71) (JAN 2003)

    (a) Annual Accounting Statements. (1) The Carrier shall furnish to 
OPM an accounting of its operations under the contract. In preparing the 
accounting, the Carrier shall follow the reporting requirements and 
statement formats prescribed by OPM in the OPM Annual and Fiscal Year 
Financial Reporting Instructions.
    (2) The Carrier shall have its Annual Accounting Statements and that 
of its underwriter, if any, audited in accordance with the FEHBP 
Experienced-Rated Carrier and Service Organization Audit Guide (Guide). 
The Carrier shall submit the audit report and the Annual Accounting 
Statements to OPM in accordance with the requirements of the Guide.
    (3) Based on the results of either the independent audit prescribed 
by the Guide or a Government audit, OPM may require the Carrier adjust 
its annual accounting statements (i) by amounts found not to constitute 
actual, allowable, allocable and reasonable costs; or (ii) to reflect 
prior overpayments or underpayments.
    (4) The Carrier shall develop corrective action plans to resolve 
audit findings identified in audits that were performed in accordance 
with the Guide. The corrective action plans will be prepared in 
accordance with and as defined by the Guide.
    (b) Definition of costs. (1) The Carrier may charge a cost to the 
contract for a contract term if the cost is actual, allowable, 
allocable, and reasonable. In addition, the Carrier must:
    (i) on request, document and make available accounting support for 
the cost to justify that the cost is actual, reasonable and necessary; 
and
    (ii) determine the cost in accordance with: (A) the terms of this 
contract, and (B) subpart 31.2 of the Federal Acquisition Regulation 
(FAR) and subpart 1631.2 of the Federal Employees Health Benefits 
Program Acquisition Regulation (FEHBAR) applicable on the first day of 
the contract period.
    (2) In the absence of specific contract terms to the contrary, the 
Carrier shall classify contract costs in accordance with the following 
criteria:
    (i) Benefits. Benefit costs consist of payments made and liabilities 
incurred for covered health care services on behalf of FEHBP subscribers 
less any refunds, rebates, allowances or other credits received.
    (ii) Administrative expenses. Administrative expenses consist of all 
actual, allowable, allocable and reasonable expenses incurred in the 
adjudication of subscriber benefit claims or incurred in the Carrier's 
overall operation of the business. Unless otherwise stated in the 
contract, administrative expenses include, in part: all taxes (excluding 
premium taxes, as provided in section 1631.205-41), insurance and 
reinsurance premiums, medical and dental consultants used in the 
adjudication process, concurrent or managed care review when not billed 
by a health care provider and other forms of utilization review, the 
cost of maintaining eligibility files, legal expenses incurred in the 
litigation of benefit payments and bank charges for letters of credit. 
Administrative expenses exclude the cost of Carrier personnel, 
equipment, and facilities directly used in the delivery of health care 
services, which are benefit costs, and the expense of managing the FEHBP 
investment program which is a reduction of investment income earned.
    (iii) Investment income. While compliance with the checks presented 
letter of credit methodology will minimize funds on hand, the Carrier 
shall invest and reinvest all funds on hand, including any in the 
Special Reserve or any attributable to the reserve for incurred but 
unpaid claims, which are in excess of the funds needed to discharge 
promptly the obligations incurred under the contract. Investment income 
represents the net amount earned by the Carrier after deducting 
investment expenses. Investment expenses are those actual, allowable, 
allocable, and reasonable contract costs that are attributable to the 
investment of funds, such as consultant or management fees.
    (iv) Other charges. (A) Mandatory statutory reserve. Charges for 
mandatory statutory reserves are not allowable unless specifically 
provided for in the contract. When the term ``mandatory statutory 
reserve'' is specifically identified as an allowable contract charge 
without further definition or explanation, it means a requirement 
imposed by State law upon the Carrier to set aside a specific amount or 
rate of funds into a restricted reserve that is accounted for separately 
from all other reserves and surpluses of the Carrier and which may be 
used only with the specific approval of the State official designated by 
law to make such approvals. The amount chargeable to the contract may 
not exceed an allocable portion of the amount actually set aside. If the 
statutory reserve is no longer required for the purpose for which it was 
created, and these funds become available for the general use of the 
Carrier, the Carrier shall return to the FEHBP a pro rata share based 
upon FEHBP's contribution to the total Carrier's set aside shall be 
returned to the FEHBP in accordance with FAR 31.201-5.
    (B) Premium taxes. (1) When the term ``premium taxes'' is used in 
this contract without further definition or explanation, it means a tax, 
fee, or other monetary payment directly or indirectly imposed on FEHB 
premiums by any State, the District of Columbia, or the

[[Page 158]]

Commonwealth of Puerto Rico or by any political subdivision or other 
governmental authority of those entities, with the sole exception of a 
tax on net income or profit, if that tax, fee, or payment is applicable 
to a broad range of business activity.
    (2) For purposes of this paragraph (B), OPM has determined that the 
term ``State'' as used in 5 U.S.C. 8909(f) includes, but is not limited 
to, a territory or possession of the United States.
    (c) Certification of Accounting Statement Accuracy. (1) The Carrier 
shall certify the annual and fiscal year accounting statements in the 
form set forth in paragraph (c)(3) of this clause. The Carrier's chief 
executive officer and the chief financial officer shall sign the 
certificate.
    (2) The Carrier shall require an authorized agent of its 
underwriter, if any, also to certify the annual accounting statement.
    (3) The certificate required shall be in the following form:

             Certification of Accounting Statement Accuracy

    This is to certify that I have reviewed this accounting statement 
and to the best of my knowledge and belief:
    1. The statement was prepared in conformity with the guidelines 
issued by the Office of Personnel Management and fairly presents the 
financial results of this reporting period in conformity with those 
guidelines.
    2. The costs included in the statement are actual, allowable, 
allocable, and reasonable in accordance with the terms of the contract 
and with the cost principles of the Federal Employees Health Benefits 
Acquisition Regulation and the Federal Acquisition Regulation;
    3. Income, rebates, allowances, refunds and other credits made or 
owed in accordance with the terms of the contract and applicable cost 
principles have been included in the statement;
    4. If applicable, the letter of credit account was managed in 
accordance with 5 CFR part 890, 48 CFR chapter 16, and OPM guidelines.

Carrier Name:___________________________________________________________


Sec. Name of Chief Executive Officer:

Sec. (Type or Print)
________________________________________________________________________


Sec. Name of Chief Financial Officer:
________________________________________________________________________


Sec. Signature of Chief Executive Officer:
________________________________________________________________________


Sec. Signature of Chief Financial Officer:
________________________________________________________________________

Date Signed:____________________________________________________________

Date Signed:____________________________________________________________

Underwriter:____________________________________________________________


Sec. Name and Title of Responsible Corporate Official:

Sec. (Type or Print:)
________________________________________________________________________


Sec. Signature of Responsible Corporate Official:
________________________________________________________________________

Date Signed:____________________________________________________________

                          (End of certificate)

                             (End of clause)

[55 FR 27416, July 2, 1990, as amended at 56 FR 57497, Nov. 12, 1991; 57 
FR 14360, Apr. 20, 1992; 62 FR 47577, Sept. 10, 1997; 64 FR 36273, July 
6, 1999; 65 FR 36387, June 8, 2000; 70 FR 31383, June 1, 2005]



Sec. 1652.222-70  Notice of significant events.

    As prescribed in 1622.103-70, the following clause shall be inserted 
in all FEHBP contracts.

                 Notice of Significant Events (JUL 2005)

    (a) The Carrier agrees to notify OPM of any Significant Event within 
ten (10) working days after the Carrier becomes aware of it. As used in 
this section, a Significant Event is any occurrence or anticipated 
occurrence that might reasonably be expected to have a material effect 
upon the Carrier's ability to meet its obligations under this contract, 
including, but not limited to, any of the following:
    (1) Disposal of major assets;
    (2) Loss of 15% or more of the Carrier's overall membership;
    (3) Termination or modification of any contract or subcontract if 
such termination or modification might have a material effect on the 
Carrier's obligations under this contract;
    (4) Addition or termination of provider agreements;
    (5) Any changes in underwriters, reinsurers, or participating plans;
    (6) The imposition of, or notice of the intent to impose, a 
receivership, conservatorship, or special regulatory monitoring;
    (7) The withdrawal of, or notice of intent to withdraw, State 
licensing, HHS qualification, or any other status under Federal or State 
law;
    (8) Default on a loan or other financial obligation;
    (9) Any actual or potential labor dispute that delays or threatens 
to delay timely performance or substantially impairs the functioning of 
the Carrier's facilities or facilities used by the Carrier in the 
performance of the contract;
    (10) Any change in its charter, constitution, or by-laws which 
affects any provision of this contract or the Carrier's participation in 
the Federal Employees Health Benefits Program; or

[[Page 159]]

    (11) Any significant changes in policies and procedures or 
interpretations of the contract or brochure which would affect the 
benefits available under the contract or the costs charged to the 
contract.
    (12) Any fraud, embezzlement or misappropriation of FEHB funds; or
    (13) Any written exceptions, reservations or qualifications 
expressed by the independent accounting firm (which ascribes to the 
standards of the American Institute of Certified Public Accountants) 
contracted with by the Carrier to provide an opinion on its annual 
financial statements.
    (b) Upon learning of a Significant Event OPM may institute action, 
in proportion to the seriousness of the event, to protect the interest 
of Members, including, but not limited to--
    (1) Directing the Carrier to take corrective action;
    (2) Suspending new enrollments under this contract;
    (3) Advising Enrollees of the Significant Event and providing them 
an opportunity to transfer to another plan;
    (4) Withholding payment of subscription income or restricting access 
to the Carrier's Letter of Credit account.
    (5) Terminating the enrollment of those enrollees who, in the 
judgment of OPM, would be adversely affected by the Significant Event; 
or
    (6) Terminating this contract pursuant to section 1.15, renewal and 
withdrawal of approval.
    (c) Prior to taking action as described in paragraph (b) of this 
clause, the OPM will notify the Carrier and offer an opportunity to 
respond.
    (d) The carrier will insert this clause in any subcontract or 
subcontract modification if the amount of the subcontract or 
modification charged to the FEHB Program (or in the case of a community-
rated carrier, applicable to the FEHB Program) equals or exceeds 
$550,000 and is at least 25 percent of the total subcontract cost. The 
amount of the dollar charge to the FEHB Program shall be adjusted by the 
same amount and at the same time as any change to the threshold for 
application of the Truth in Negotiations Act pursuant to 41 U.S.C. 
254b(a)(7).

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27417, July 2, 1990; 70 
FR 31383, June 1, 2005; 71 FR 3016, Jan. 19, 2006]



Sec. 1652.224-70  Confidentiality of records.

    As prescribed in 1624.104, the following clause shall be inserted in 
all FEHBP contracts:

                  Confidentiality of Records (JAN 1991)

    (a) The Carrier shall use the personal data on employees and 
annuitants that is provided by agencies and OPM, including social 
security numbers, for only those routine uses stipulated for the data 
and published annually in the Federal Register as a part of OPM's notice 
of systems of records.
    (b) The Carrier shall also hold all medical records, and information 
relating thereto, of Federal subscribers and family members confidential 
except as follows:
    (1) As may be reasonably necessary for the administration of this 
contract;
    (2) As authorized by the patient or his or her guardian;
    (3) As disclosure is necessary to permit Government officials having 
authority to investigate and prosecute alleged civil or criminal 
actions;
    (4) As necessary to audit the contract;
    (5) As necessary to carry out the coordination of benefits 
provisions of this contract; and
    (6) For bona fide medical research or educational purposes. Release 
of information for medical research or educational purposes shall be 
limited to aggregated information of a statistical nature that does not 
identify any individual by name, social security number, or any other 
identifier unique to an individual.
    (c) If the carrier uses medical records for the administration of 
the contract, or for bona fide medical research or educational purposes, 
it shall so state in the plan's brochure.

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27417, July 2, 1990]



Sec. 1652.229-70  Taxes--Foreign Negotiated benefits contracts.

    As prescribed in section 1629.402, the following clause shall be 
inserted in all FEHBP contracts performed outside the United States, its 
possessions, and Puerto Rico:

         Taxes--Foreign Negotiated Benefits Contracts (JAN 1998)

    (a) To the extent that this contract provides for performing 
services outside the United States, its possessions, and Puerto Rico, 
this clause applies in lieu of any Federal, State, and local taxes 
clause of the contract.
    (b) ``Contract date,'' as used in this clause, means the effective 
date of this contract or modification.
    ``Country concerned,'' as used in this clause, means any country, 
other than the United States, its possessions, and Puerto

[[Page 160]]

Rico, in which expenditures under this contract are made.
    ``Tax'' and ``taxes,'' as used in this clause, include fees and 
charges for doing business that are levied by the government of the 
country concerned or by its political subdivisions.
    ``All applicable taxes and duties,'' as used in this clause, means 
all taxes and duties, in effect on the contract date, that the taxing 
authority is imposing and collecting on the transactions covered by this 
contract, pursuant to written ruling or regulation in effect on the 
contract date.
    ``After-imposed tax,'' as used in this clause, means any new or 
increased tax or duty, or tax that was exempted or excluded on the 
contract date but whose exemption was later revoked or reduced during 
the contract period, other than excepted tax, on the transactions 
covered by this contract that the Carrier is required to pay or bear as 
the result of legislative, judicial, or administrative action taking 
effect after the contract date.
    ``After-relieved tax,'' as used in this clause, means any amount of 
tax or duty, other than an excepted tax, that would otherwise have been 
payable on the transactions covered by this contract, but which the 
Carrier is not required to pay or bear, or for which the Carrier obtains 
a refund, as the result of legislative, judicial, or administrative 
action taking effect after the contract date.
    ``Excepted tax,'' as used in this clause, means social security or 
other employment taxes, net income and franchise taxes, excess profits 
taxes, capital stock taxes, transportation taxes, unemployment 
compensation taxes, and property taxes. ``Excepted tax'' does not 
include gross income taxes levied on or measured by sales or receipts 
from sales covered by this contract, or any tax assessed on the 
Carrier's possession of, interest in, or use of property, title to which 
is in the U.S. Government.
    (c) Unless otherwise provided in this contract, the contract price 
includes all applicable taxes and duties, except taxes and duties that 
the Government of the United States and the government of the country 
concerned have agreed shall not be applicable to expenditures in such 
country by or on behalf of the United States.
    (d) The contract price shall be increased by the amount of any 
after-imposed tax or of any tax or duty specifically excluded from the 
contract price by a provision of this contract that the Carrier is 
required to pay or bear, including any interest or penalty, if the 
Carrier states in writing that the contract price does not include any 
contingency for such tax and if liability for such tax, interest, or 
penalty was not incurred through the Carrier's fault, negligence, or 
failure to follow instructions of the Contracting Officer or to comply 
with the provisions of paragraph (i) below.
    (e) The contract price shall be decreased by the amount of any 
after-relieved tax, including any interest or penalty. The Government of 
the United States shall be entitled to interest received by the Carrier 
incident to a refund of taxes to the extent that such interest was 
earned after the Carrier was paid by the Government of the United States 
for such taxes. The Government of the United States shall be entitled to 
repayment of any penalty refunded to the Carrier to the extent that the 
penalty was paid by the Government.
    (f) The contract price shall be decreased by the amount of any tax 
or duty, other than an excepted tax, that was included in the contract 
and that the Carrier is required to pay or bear, or does not obtain a 
refund of, through the Carrier's fault, negligence, or failure to follow 
instructions of the Contracting Officer or to comply with the provisions 
of paragraph (i) below.
    (g) No adjustment shall be made in the contract price under this 
clause unless the amount of the adjustment exceeds $250.
    (h) If the Carrier obtains a reduction in tax liability under the 
United States Internal Revenue Code (Title 26, U.S. Code) because of the 
payment of any tax or duty that either was included in the contract 
price or was the basis of an increase in the contract price, the amount 
of the reduction shall be paid or credited to the Government of the 
United States as the Contracting Officer directs.
    (i) The Carrier shall take all reasonable action to obtain exemption 
from or refund of any taxes or duties, including interest or penalty, 
from which the United States Government, the Carrier, any subcontractor, 
or the transactions covered by this contract are exempt under the laws 
of the country concerned or its political subdivisions or which the 
governments of the United States and of the country concerned have 
agreed shall not be applicable to expenditures in such country by or on 
behalf of the United States.
    (j) The Carrier shall promptly notify the Contracting Officer of all 
matters relating to taxes or duties that reasonably may be expected to 
result in either an increase or decrease in the contract price and shall 
take appropriate action as the Contracting Officer directs. The contract 
price shall be equitably adjusted to cover the costs of action taken by 
the Carrier at the direction of the Contracting Officer, including any 
interest, penalty, and reasonable attorneys' fees.

                             (End of clause)

[62 FR 47577, Sept. 10, 1997]

[[Page 161]]



Sec. 1652.232-70  Payments--community-rated contracts.

    As prescribed in 1632.171, the following clause shall be inserted in 
all community-rated FEHBP contracts:

                           Payments (JAN 2000)

    (a) OPM will pay to the Carrier, in full settlement of its 
obligations under this contract, subject to adjustment for error or 
fraud, the subscription charges received for the plan by the Employees 
Health Benefits Fund (hereinafter called the Fund) less the amounts set 
aside by OPM for the Contingency Reserve and for the administrative 
expenses of OPM, amounts assessed under FEHBAR 1609.7101-2, and amounts 
for obligations due pursuant to paragraph (b) of this clause, plus any 
payments made by OPM from the Contingency Reserve.
    (b) OPM will notify the Carrier of amounts due for outstanding 
obligations under the contract. Not later than 60 days after the date of 
written notice from OPM, the Carrier shall reimburse OPM. If payment is 
not received within the prescribed time frame, OPM shall withhold the 
amount due from the subscription charges owed the Carrier under 
paragraph (a) of this clause.
    (c) The specific subscription rates, charges, allowances and 
limitations applicable to the contract are set forth in Appendix B.
    (d) Recurring payments from premiums shall be due and payable not 
later than thirty days after receipt by the Fund. The Contracting 
Officer may authorize special non-recurring payments from the 
Contingency Reserve in accordance with OPM's regulations.
    (e) In the event this contract between the Carrier and OPM is 
terminated or not renewed in accordance with General Provision 1.15, 
RENEWAL and WITHDRAWAL OF APPROVAL, the Contingency Reserve of the 
Carrier held by OPM shall be available to the Carrier to pay the 
necessary and proper charges against this contract to the extent that 
the reserves held by the Carrier are insufficient for that purpose.
    (f) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). The Carrier may, at its discretion, request funds from the 
Employees Health Benefits Fund to mitigate excessive costs in relation 
to premiums. If the Carrier requests funds from the Employees Health 
Benefits Fund to mitigate risk, it will be required to perform annual 
reconciliations for the duration of the demonstration project. OPM will 
reimburse the Carrier's costs significantly in excess of the premiums 
first from the Carrier's demonstration project Contingency Reserve and 
then from the Employees Health Benefits Fund Administrative Reserve. 
After the final accounting, OPM will place any surplus demonstration 
project premiums in the regular Contingency Reserves of all carriers 
continuing in the FEHB Program for the contract year following the year 
in which the demonstration project ends. Credit will be in proportion to 
the amount of subscription charges paid and accrued to each carrier's 
plan for the last year of the demonstration project.

                             (End of clause)

[53 FR 51784, Dec. 23, 1988, as amended at 57 FR 14360, Apr. 20, 1992; 
62 FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998; 65 FR 36388, 
June 8, 2000]



Sec. 1652.232-71  Payments--experience-rated contracts.

    As prescribed in 1632.172, the following clause shall be inserted in 
all experience-rated FEHBP contracts:

                           Payments (JAN 2000)

    (a) OPM will pay to the Carrier, in full settlement of its 
obligations under this contract, subject to adjustment for error or 
fraud, the subscription charges received for the Plan by the Employees 
Health Benefits Fund (hereinafter called the Fund) less the amounts set 
aside by OPM for the Contingency Reserve and for the administrative 
expenses of OPM and amounts for obligations due pursuant to paragraph 
(b) of this clause, plus any payments made by OPM from the Contingency 
Reserve.
    (b) OPM will notify the Carrier of amounts due for outstanding 
obligations under the contract. Not later than 60 days after the date of 
written notice from OPM, the Carrier shall reimburse OPM. If payment is 
not received within the prescribed time frame, OPM shall withhold the 
amount due from the subscription charges owed the Carrier under 
paragraph (a) of this clause.
    (c) The specific subscription rates, charges, allowances and 
limitations applicable to the contract are set forth in Appendix B.
    (d) Recurring payments from premiums shall be made available for 
carrier drawdown not later than thirty days after receipt by the Fund. 
The Contracting Officer may authorize special non-recurring payments 
from the Contingency Reserve in accordance with OPM's regulations.
    (e) In the event this contract between the Carrier and OPM is 
terminated or not renewed in accordance with General Provision 1.15, 
RENEWAL and WITHDRAWAL OF APPROVAL, the Contingency Reserve of the 
Carrier held by OPM shall be available to the Carrier to pay the 
necessary and proper charges against this contract to the extent that 
the Carrier reserves are insufficient for that purpose.
    (f) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). The Carrier will perform a final reconciliation of revenue and

[[Page 162]]

costs for the demonstration project group at the end of the 
demonstration project. OPM will reimburse the Carrier's costs in excess 
of the premiums first from the Carrier's demonstration project 
Contingency Reserve and then from the Employees Health Benefits Fund 
Administrative Reserve. After the final accounting, OPM will place any 
surplus demonstration project premiums in the regular Contingency 
Reserves of all carriers continuing in the FEHB Program for the contract 
year following the year in which the demonstration project ends. Credit 
will be in proportion to the amount of subscription charges paid and 
accrued to each carrier's plan for the last year of the demonstration 
project.

                             (End of clause)

[53 FR 51784, Dec. 23, 1988, as amended at 57 FR 14361, Apr. 20, 1992; 
62 FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998; 64 FR 36274, 
July 6, 1999; 65 FR 36388, June 8, 2000]



Sec. 1652.232-72  Non-commingling of FEHBP funds.

    As prescribed in 1632.772, the following clause shall be inserted in 
all contracts based on cost analysis.

                   Non-Commingling of Funds (JAN 1991)

    (a) The Carrier and/or its underwriter shall keep all FEHBP funds 
for this contract (cash and investments) physically separate from funds 
obtained from other sources. Accounting for such FEHBP funds shall not 
be based on allocations or other sharing mechanisms and shall agree with 
the Carrier's accounting records.
    (b) In certain instances the physical separation of FEHBP funds may 
not be practical or desirable. In such cases, the Carrier may request a 
waiver from this requirement from the Contracting Officer. The waiver 
shall be requested in advance and the Carrier shall demonstrate that 
accounting techniques have been established that will clearly measure 
FEHBP cash and investment income (i.e., subsidiary ledgers). 
Reconciliations between amounts reported and actual amounts shown in 
accounting records shall be provided as supporting schedules to the 
Annual Accounting Statements.
    (c) The Carrier shall incorporate this clause in all subcontracts 
that exceed $25,000 and shall substitute ``contractor'' or other 
appropriate reference for ``Carrier and/or its underwriter.''

                             (End of clause)

[52 FR 16044, May 1, 1987. Redesignated at 53 FR 51784, Dec. 23, 1988, 
and amended at 55 FR 27418, July 2, 1990]



Sec. 1652.232-73  Approval for the Assignment of Claims.

    As prescribed in 1632.806-70, the following clause shall be inserted 
in all FEHBP contracts:

              Approval for Assignment of Claims (JAN 1991)

    (a) Notwithstanding the provisions of section 5.35, (FAR 52.232-23) 
Assignment of Claims, the Carrier shall not make any assignment under 
the Assignment of Claims Act without the prior written approval of the 
Contracting Officer.
    (b) Unless a different period is specified in the Contracting 
Officer's written approval, an assignment shall be in force only for a 
period f 1 year from the date of the Contracting Officer's approval. 
However, assignments may be renewed upon their expiration.

                             (End of clause)

[55 FR 27418, July 2, 1990]



Sec. 1652.243-70  Changes--Negotiated benefits contracts.

    As prescribed in section 1643.205-70, the following clause shall be 
inserted in all FEHBP contracts.

            Changes--Negotiated Benefits Contracts (JAN 1998)

    (a) The Contracting Officer may at any time, by written order, and 
without notice to the sureties, if any, make changes within the general 
scope of this contract in any one or more of the following:
    (1) Description of services to be performed.
    (2) Time of performance (i.e., hours of the day, days of the week, 
etc.).
    (3) Place of performance of the services.
    (b) If any such change causes an increase or decrease in the cost 
of, or the time required for, performance of any part of the work under 
this contract, whether or not changed by the order, the Contracting 
Officer shall make an equitable adjustment in the contract price, the 
delivery schedule, or both, and shall modify the contract.
    (c) The Carrier must assert its right to an adjustment under this 
clause within 30 days from the date of receipt of the written order. 
However, if the Contracting Officer decides that the facts justify it, 
the Contracting Officer may receive and act upon a proposal submitted 
before final payment of the contract.
    (d) Failure to agree to any adjustment shall be a dispute under the 
Disputes clause. However, nothing in this clause shall excuse the 
Carrier from proceeding with the contract as changed.

[[Page 163]]

                             (End of clause)

[62 FR 47578, Sept. 10, 1997]



Sec. 1652.244-70  Subcontracts.

    As prescribed in section 1644.270, the following clause will be 
inserted in all FEHB Program contracts based on cost analysis 
(experience-rated):

                         Subcontracts (JUL 2005)

    (a) The carrier will notify the Contracting officer in writing at 
least 30 days in advance of entering into any subcontract or subcontract 
modification, or as otherwise specified by this contract, if the amount 
of the subcontract or modification charged to the FEHB Program equals or 
exceeds $550,000 and is at least 25 percent of the total subcontract 
cost. The amount of the dollar charge to the FEHB Program shall be 
adjusted by the same amount and at the same time as any change to the 
threshold for application of the Truth in Negotiations Act pursuant to 
41 U.S.C. 254b(a)(7). Failure to provide advance notice may result in a 
Contracting officer's disallowance of subcontract costs or a penalty in 
the performance aspect of the carrier's service charge. In determining 
whether the amount chargeable to the FEHB Program contract for a given 
subcontract or modification equals or exceeds the $550,000 threshold, 
the following rules apply:
    (1) For initial advance notification, the carrier shall add the 
total cost/price for the base year and all options, including quantity 
or service options and option periods.
    (2) For contract modifications, options and/or renewals (e.g. 
evergreen contracts) not accounted for in paragraph (a)(1) of this 
clause, the carrier shall provide advance notification if they cause the 
total price to equal or exceed the threshold. OPM's review will be of 
the modification(s), itself, but documentation for the original 
subcontract will be required to perform the review. The $550,000 
threshold will be adjusted by the same amount and at the same time as 
any change to the threshold for application of the Truth in Negotiations 
Act. All subcontracts or subcontract modifications that equal or exceed 
the threshold are subject to audit under FAR 52.215-2 ``Audit and 
Records--Negotiations'' if based on cost analysis or 48 CFR 1646.301 and 
1552.246-70 ``FEHB Inspection'' if based on price analysis.
    (b) The advance notification required by paragraph (a) of this 
clause will include the information specified below:
    (1) A description of the supplies or services to be subcontracted;
    (2) Identification of the type of subcontract to be used;
    (3) Identification of the proposed subcontractor and an explanation 
of why and how the proposed subcontractor was selected, including the 
competition obtained;
    (4) The proposed subcontract price and the carrier's cost or price 
analysis;
    (5) The subcontractor's current, complete, and accurate cost or 
pricing data and a Certificate of Current Cost or Pricing Data must be 
submitted to the Contracting officer if required by law, regulation, or 
other contract provisions.
    (6) [Reserved]
    (7) A negotiation memorandum reflecting--
    (i) The principal elements of the subcontract price negotiations;
    (ii) The most significant consideration controlling establishment of 
initial or revised prices;
    (iii) An explanation of the reason cost or pricing data are not 
required, if the carrier believes that cost or pricing data are not 
required.
    (iv) The extent, if any, to which the carrier did not rely on the 
subcontractor's cost or pricing data in determining the price objective 
and in negotiating the final price;
    (v) The extent, if any, to which it was recognized in the 
negotiation that the subcontractor's cost or pricing data were not 
accurate, complete, or current; the action taken by the carrier and the 
subcontractor; and the effect of any such defective data on the total 
price negotiated;
    (vi) The reasons for any significant difference between the 
carrier's price objective and the price negotiated; and
    (vii) A complete explanation of the incentive fee or profit plan, 
when incentives are used. The explanation will identify each critical 
performance element, management decisions used to quantify each 
incentive element, reasons for the incentives, and a summary of all 
trade-off possibilities considered.
    (c) The carrier will obtain the Contracting officer's written 
consent before placing any subcontract for which advance notification is 
required under paragraph (a) of this clause. However, the Contracting 
officer may ratify in writing any such subcontract for which written 
consent was not obtained. Ratification will constitute the consent of 
the Contracting officer.
    (d) The Contracting officer may waive the requirement for advance 
notification and consent required by paragraphs (a), (b) and (c) of this 
clause where the carrier and subcontractor submit an application or 
renewal as a contractor team arrangement as defined in FAR subpart 9.6 
and--
    (1) The Contracting officer evaluated the arrangement during 
negotiation of the contract or contract renewal; and
    (2) The subcontractor's price and/or costs were included in the 
Plan's rates that were reviewed and approved by the Contracting

[[Page 164]]

officer during negotiation of the contract or contract renewal.
    (e) If the carrier follows the notification and consent requirements 
of paragraphs (a), (b) and (c) of this clause and subsequently obtains 
the Contracting officer's consent or ratification, then the 
reasonableness of the subcontract's costs will be inferred as provided 
for in 1631.205-81. However, consent or ratification by the Contracting 
officer will not constitute a determination:
    (1) Of the acceptability of any subcontract terms or conditions;
    (2) Of the allowability of any cost under this contract; or
    (3) That the carrier should be relieved of any responsibility for 
performing this contract.
    (f) No subcontract placed under this contract will provide for 
payment on a cost-plus-a-percentage-of-cost basis. Any fee payable under 
cost reimbursement type subcontracts will not exceed the fee limitations 
in FAR 15.404-4(c)(4)(i). Any profit or fee payable under a subcontract 
will be in accordance with the provision of Section 3.7, Service Charge.
    (g) The carrier will give the Contracting officer immediate written 
notice of any action or suit filed and prompt notice of any claim made 
against the carrier by any subcontractor or vendor that, in the opinion 
of the carrier, may result in litigation related in any way to this 
contract with respect to which the carrier may be entitled to 
reimbursement from the Government.

                             (End of clause)

[70 FR 31383, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



Sec. 1652.245-70  Government property (negotiated benefits contracts).

    As prescribed in section 1645.303-70, the following clause shall be 
inserted in all FEHBP contracts.

     Government Property (Negotiated Benefits Contracts) (JAN 1998)

    (a) Government-furnished property. (1) The Government shall deliver 
to the Carrier, for use in connection with and under the terms of this 
contract, the Government-furnished property described in this contract 
together with any related data and information that the Carrier may 
request and is reasonably required for the intended use of the property 
(hereinafter referred to as ``Government-furnished property'').
    (2) The delivery or performance dates for this contract are based 
upon the expectation that Government-furnished property suitable for use 
(except for property furnished ``as-is'') will be delivered to the 
Carrier at the times stated in this contract or, if not so stated, in 
sufficient time to enable the Carrier to meet the contract's performance 
dates.
    (3) If Government-furnished property is received by the Carrier in a 
condition not suitable for the intended use, the Carrier shall, upon 
receipt of it, notify the Contracting Officer, detailing the facts, and, 
as directed by the Contracting Officer and at Government expense, either 
repair, modify, return, or otherwise dispose of the property. After 
completing the directed action and upon written request of the Carrier, 
the Contracting Officer shall make an equitable adjustment as provided 
in paragraph (h) of this clause.
    (b) Changes in Government-furnished property. (1) The Contracting 
Officer may, by written notice, (i) decrease the Government-furnished 
property provided or to be provided under this contract, or (ii) 
substitute other Government-furnished property for the property to be 
provided by the Government, or to be acquired by the Carrier for the 
Government, under this contract. The Carrier shall promptly take such 
action as the Contracting Officer may direct regarding the removal, 
shipment, or disposal of the property covered by such notice.
    (2) Upon the Carrier's written request, the Contracting Officer 
shall make an equitable adjustment to the contract in accordance with 
paragraph (h) of this clause, if the Government has agreed in this 
contract to make the property available for performing this contract and 
there is any--
    (i) Decrease or substitution in this property pursuant to 
subparagraph (b)(1) above; or
    (ii) Withdrawal of authority to use this property, if provided under 
any other contract or lease.
    (c) Title in Government property. (1) The Government shall retain 
title to all Government-furnished property.
    (2) All Government-furnished property and all property acquired by 
the Carrier, title to which vests in the Government under this paragraph 
(collectively referred to as ``Government property''), are subject to 
the provisions of this clause. Title to Government property shall not be 
affected by its incorporation into or attachment to any property not 
owned by the Government, nor shall Government property become a fixture 
or lose its identity as personal property by being attached to any real 
property.
    (d) Use of Government property. The Government property shall be 
used only for performing this contract, unless otherwise provided in 
this contract or approved by the Contracting Officer.
    (e) Property administration. (1) The Carrier shall be responsible 
and accountable for all Government property provided under this contract 
and shall comply with Federal Acquisition Regulation (FAR) subpart 45.5, 
as in effect on the date of this contract.

[[Page 165]]

    (2) The Carrier shall establish and maintain a program for the use, 
maintenance, repair, protection, and preservation of Government property 
in accordance with sound industrial practice and the applicable 
provisions of subpart 45.5 of the FAR.
    (3) If damage occurs to Government property, the risk of which has 
been assumed by the Government under this contract, the Government shall 
replace the items or the Carrier shall make such repairs as the 
Government directs. However, if the Carrier cannot effect such repairs 
within the time required, the Carrier shall dispose of the property as 
directed by the Contracting Officer. When any property for which the 
Government is responsible is replaced or repaired, the Contracting 
Officer shall make an equitable adjustment in accordance with paragraph 
(h) of this clause.
    (4) The Carrier represents that the contract price does not include 
any amount for repairs or replacement for which the Government is 
responsible. Repair or replacement of property for which the Carrier is 
responsible shall be accomplished by the Carrier at its own expense.
    (f) Access. The Government and all its designees shall have access 
at all reasonable times to the premises in which any Government property 
is located for the purpose of inspecting the Government property.
    (g) Risk of loss. Unless otherwise provided in this contract, the 
Carrier assumes the risk of, and shall be responsible for, any loss or 
destruction of, or damage to, Government property upon its delivery to 
the Carrier. However, the Carrier is not responsible for reasonable wear 
and tear to Government property or for Government property properly 
consumed in performing this contract.
    (h) Equitable adjustment. When this clause specifies an equitable 
adjustment, it shall be made to any affected contract provision in 
accordance with the procedures of the Changes clause. When appropriate, 
the Contracting Officer may initiate an equitable adjustment in favor of 
the Government. The right to an equitable adjustment shall be the 
Carrier's exclusive remedy. The Government shall not be liable to suit 
for breach of contract for--
    (1) Any delay in delivery of Government-furnished property;
    (2) Delivery of Government-furnished property in a condition not 
suitable for its intended use;
    (3) A decrease in or substitution of Government-furnished property; 
or
    (4) Failure to repair or replace Government property for which the 
Government is responsible.
    (i) Final accounting and disposition of Government property. Upon 
completing this contract, or at such earlier dates as may be fixed by 
the Contracting Officer, the Carrier shall submit, in a form acceptable 
to the Contracting Officer, inventory schedules covering all items of 
Government property (including any resulting scrap) not consumed in 
performing this contract or delivered to the Government. The Carrier 
shall prepare for shipment, deliver f.o.b. origin, or dispose of the 
Government property as may be directed or authorized by the Contracting 
Officer. The net proceeds of any such disposal shall be credited to the 
contract price or shall be paid to the Government as the Contracting 
Officer directs.
    (j) Abandonment and restoration of Carrier's premises. Unless 
otherwise provided herein, the Government--
    (1) May abandon any Government property in place, at which time all 
obligations of the Government regarding such abandoned property shall 
cease; and
    (2) Has no obligation to restore or rehabilitate the Carrier's 
premises under any circumstances (e.g., abandonment, disposition upon 
completion of need, or upon contract completion). However, if the 
Government-furnished property is withdrawn or is unsuitable for the 
intended use, or if other Government property is substituted, then the 
equitable adjustment under paragraph (h) of this clause may properly 
include restoration or rehabilitation costs.
    (k) Communications. All communications under this clause shall be in 
writing.
    (l) Overseas contracts. If this contract is to be performed outside 
of the United States of America, its territories, or possessions, the 
words ``Government'' and ``Government-furnished'' (wherever they appear 
in this clause) shall be construed as ``United States Government'' and 
``United States Government-furnished'', respectively.

                             (End of clause)

[62 FR 47578, Sept. 10, 1997]



Sec. 1652.246-70  FEHB Inspection.

    As prescribed in 1646.301, the following clause will be inserted in 
all FEHB contracts:

                       FEHB Inspection (JUL 2005)

    (a) The Contracting officer, or an authorized representative of the 
Contracting officer, has the right to inspect or evaluate the work 
performed or being performed under the contract, and the premises where 
the work is being performed, at all reasonable times and in a manner 
that will not unreasonably delay the work.
    (b) The Contractor shall maintain and the Contracting officer, or an 
authorized representative of the Contracting officer, shall have the 
right to examine and audit all books and records relating to the 
contract for purposes of the Contracting officer's determination of the 
carrier's subcontractor or

[[Page 166]]

Large Provider's compliance with the terms of the contract, including 
its payment (including rebate and other financial arrangements) and 
performance provisions. The Contractor shall make available at its 
office at all reasonable times those books and records for examination 
and audit for the record retention period specified in the Federal 
Employees Health Benefits Acquisition Regulation (FEHBAR), 48 CFR 
1652.204-70. This subsection is applicable to subcontract and Large 
Provider Agreements with the exception of those that are subject to the 
``Audits and Records--Negotiation'' clause, 48 CFR 52.215-2.
    (c) If the Contracting officer, or an authorized representative of 
the Contracting officer, performs inspection, audit or evaluation on the 
premises of the carrier, the subcontractor, or the Large Provider, the 
carrier shall furnish or require the subcontractor or Large Provider to 
furnish all reasonable facilities for the same and convenient 
performance of these duties.
    (d) The carrier shall insert this clause, including this subsection 
(d), in all subcontracts for underwriting and claim payments and 
administrative services and in all Large Provider Agreements and shall 
substitute ``contractor'' ``Large Provider,'' or other appropriate 
reference for the term ``carrier.''

                             (End of clause)

[70 FR 31384, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



Sec. 1652.249-70  Renewal and withdrawal of approval.

    As prescribed in 1649.101-70, the following clause shall be inserted 
in all FEHBP contracts:

              Renewal and Withdrawal of Approval (JAN 1991)

    (a) Pursuant to 5 U.S.C. 8902(a), the contract renews automatically 
for a term of 1 year each January 1st, unless written notice of intent 
not to renew is given either by OPM or the Carrier not less than 60 
calendar days before the renewal date, or unless modified by mutual 
agreement.
    (b) This contract also may be terminated at other times by order of 
OPM pursuant to 5 U.S.C. 8902(e). After OPM notifies the Carrier of its 
intent to terminate the contract, OPM may take action as it deems 
necessary to protect the interests of members, including but not limited 
to--
    (1) Suspending new enrollments under the contract;
    (2) Advising enrollees of the asserted deficiencies; and
    (3) Providing enrollees an opportunity to transfer to another Plan.
    (c) OPM may, after proper notice, terminate the contract at the end 
of the contract term if it finds that the Carrier did not have at least 
300 enrollees enrolled in its plan at any time during the two preceding 
contract terms.

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 57 
FR 19388, May 6, 1992]



Sec. 1652.249-71  FEHBP termination for convenience of the government--
          negotiated benefits contracts.

    As prescribed in section 1649.101-71, the following clause shall be 
inserted in all FEHBP contracts.

FEHBP Termination for Convenience of the Government--Negotiated Benefits 
                          Contracts (JAN 1998)

    (a) The Government may terminate performance of work under this 
contract in whole or, from time to time, in part if the Contracting 
Officer determines that a termination is in the Government's interest. 
The Contracting Officer shall terminate by delivering to the Carrier a 
Notice of Termination specifying the extent of terminating and the 
effective date.
    (b) After receipt of a Notice of Termination, and except as directed 
by the Contracting Officer, the Carrier shall immediately proceed with 
the following obligations, regardless of any delay in determining or 
adjusting any amounts due under this clause:
    (1) Stop work as specified in the notice.
    (2) Place no further subcontracts except as necessary to complete 
the continued portion of the contract.
    (3) Terminate all subcontracts to the extent they relate to the work 
terminated.
    (4) Assign to the Government, as directed by the Contracting 
Officer, all right, title, and interest of the Carrier under the 
subcontracts terminated, in which case the Government shall have the 
right to settle or to pay any termination settlement proposal arising 
out of those terminations.
    (5) With approval or ratification to the extent required by the 
Contracting Officer, settle all outstanding liabilities and termination 
settlement proposals arising from the termination of subcontracts; the 
approval or ratification will be final for purposes of this clause.
    (6) As directed by the Contracting Officer, deliver to the 
Government any data, reports, or studies that, if the contract had been 
completed, would be required to be furnished to the Government.
    (7) Complete performance of the work not terminated.

[[Page 167]]

    (c) After termination, the Carrier shall submit a final termination 
settlement proposal to the Contracting Officer in the form and with the 
certification prescribed by the Contracting Officer. The Carrier shall 
submit the proposal promptly, but no later than 1 year from the 
effective date of termination, unless extended in writing by the 
Contracting Officer upon written request of the Carrier within this 1-
year period. However, if the Contracting Officer determines that the 
facts justify it, a termination settlement proposal may be received and 
acted on after 1 year or any extension. If the Carrier fails to submit 
the proposal within the time allowed, the Contracting Officer may 
determine, on the basis of information available, the amount, if any, 
due the Carrier because of the termination and shall pay the amount 
determined.
    (d) Subject to paragraph (c) of this clause, the Carrier and the 
Contracting Officer may agree upon the whole or any part of the amount 
to be paid or remaining to be paid because of the termination. The 
amount may include a reasonable allowance for profit on work done. 
However, the agreed amount, whether under this paragraph (d) or 
paragraph (e) of this clause, exclusive of costs shown in subparagraph 
(e)(3) of this clause, may not exceed the total contract price as 
reduced by (1) the amount of payments previously made and (2) the 
contract price of work not terminated. The contract shall be modified, 
and the Carrier paid the agreed amount. Paragraph (e) of this clause 
shall not limit, restrict, or affect the amount that may be agreed upon 
to be paid under this paragraph.
    (e) If the Carrier and the Contracting Officer fail to agree on the 
whole amount to be paid because of the termination of work, the 
Contracting Officer shall pay the Carrier the amounts determined by the 
Contracting Officer as follows, but without duplication of any amounts 
agreed on under paragraph (d) above:
    (1) The contract price for completed services accepted by the 
Government not previously paid for.
    (2) The total of--
    (i) The costs incurred in the performance of the work terminated, 
including initial costs and preparatory expense allocable thereto, but 
excluding any costs attributable to services paid or to be paid under 
paragraph (e)(1) of this clause;
    (ii) The cost of settling and paying termination settlement 
proposals under terminated subcontracts that are properly chargeable to 
the terminated portion of the contract if not included in subdivision 
(e)(2)(i) of this clause; and
    (iii) A sum, as profit on subdivision (e)(2)(i) of this clause, 
determined by the Contracting Officer under 49.202 of the Federal 
Acquisition Regulation, in effect on the date of this contract, to be 
fair and reasonable.
    (3) The reasonable costs of settlement of the work terminated, 
including--
    (i) Accounting, legal, clerical, and other expenses reasonably 
necessary for the preparation of termination settlement proposals and 
supporting data;
    (ii) The termination and settlement of subcontracts (excluding the 
amounts of such settlements); and
    (f) The cost principles and procedures of part 31 of the Federal 
Acquisition Regulation, in effect on the date of this contract, shall 
govern all costs claimed, agreed to, or determined under this clause.
    (g) The Carrier shall have the right of appeal, under the Disputes 
clause, from any determination made by the Contracting Officer under 
paragraph (c), (e), or (i) of this clause, except that if the Carrier 
failed to submit the termination settlement proposal or request for 
equitable adjustment within the time provided in paragraph (c) or (i), 
respectively, and failed to request a time extension, there is no right 
of appeal.
    (h) In arriving at the amount due the Carrier under this clause, 
there shall be deducted--
    (1) All unliquidated advance or other payments to the Carrier under 
the terminated portion of this contract;
    (2) Any claim which the Government has against the Carrier under 
this contract; and
    (i) If the termination is partial, the Carrier may file a proposal 
with the Contracting Officer for an equitable adjustment of the price(s) 
of the continued portion of the contract. The Contracting Officer shall 
make any equitable adjustment agreed upon. Any proposal by the Carrier 
for an equitable adjustment under this clause shall be requested within 
90 days from the effective date of termination unless extended in 
writing by the Contracting Officer.
    (j)(1) The Government may, under the terms and conditions it 
prescribes, make partial payments and payments against costs incurred by 
the Carrier for the terminated portion of the contract, if the 
Contracting Officer believes the total of these payments will not exceed 
the amount to which the Carrier will be entitled.
    (2) If the total payments exceed the amount finally determined to be 
due, the Carrier shall repay the excess to the Government upon demand, 
together with interest computed at the rate established by the Secretary 
of the Treasury under 50 U.S.C. App. 1215(b)(2). Interest shall be 
computed for the period from the date the excess payment is received by 
the Carrier to the date the excess is repaid.
    (k) Unless otherwise provided in this contract or by statute, the 
Carrier shall maintain all records and documents relating to the 
terminated portion of this contract for 3

[[Page 168]]

years after final settlement. This includes all books and other evidence 
bearing on the Carrier's costs and expenses under this contract. The 
Carrier shall make these records and documents available to the 
Government, at the Carrier's office, at all reasonable times, without 
any direct charge. If approved by the Contracting Officer, photographs, 
microphotographs, or other authentic reproductions may be maintained 
instead of original records and documents.

                             (End of clause)

[62 FR 47579, Sept. 10, 1997]



Sec. 1652.249-72  FEHBP termination for default--negotiated benefits 
          contracts.

    As prescribed inSec. 1649.101-72, the following clause shall be 
inserted in all FEHBP contracts.

 FEHBP Termination for Default--Negotiated Benefits Contracts (JAN 1998)

    (a) (1) The Government may, subject to paragraphs (c) and (d) below, 
by written notice of default to the Carrier, terminate this contract in 
whole or in part if the Carrier fails to--
    (i) Perform the services within the time specified in this contract 
or any extension;
    (ii) Make progress, so as to endanger performance of this contract 
(but see subparagraph (a)(2) below); or
    (iii) Perform any of the other provisions of this contract (but see 
subparagraph (a)(2) below).
    (2) The Government's right to terminate this contract under 
subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Carrier 
does not cure such failure within 10 days (or more if authorized in 
writing by the Contracting Officer) after receipt of the notice from the 
Contracting Officer specifying the failure.
    (b) If the Government terminates this contract in whole or in part, 
it may acquire, under the terms and in the manner the Contracting 
Officer considers appropriate, supplies or service similar to those 
terminated, and the Carrier will be liable to the Government for any 
excess costs for those supplies or services. However, the Carrier shall 
continue the work not terminated.
    (c) Except for defaults of subcontractors at any tier, the Carrier 
shall not be liable for any excess costs if the failure to perform the 
contract arises from causes beyond the control and without the fault or 
negligence of the Carrier. Examples of such causes include (1) acts of 
God or of the public enemy, (2) acts of the Government in either its 
sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, 
(6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) 
unusually severe weather. In each instance the failure to perform must 
be beyond the control and without the fault or negligence of the 
Carrier.
    (d) If the failure to perform is caused by the default of a 
subcontractor at any tier, and if the cause of the default is beyond the 
control of both the Carrier and subcontractor, and without the fault or 
negligence of either, the Carrier shall not be liable for any excess 
costs for failure to perform, unless the subcontracted supplies or 
services were obtainable from other sources in sufficient time for the 
Carrier to meet the required delivery schedule.
    (e) If this contract is terminated for default, the Government may 
require the Carrier to transfer title and deliver to the Government, as 
directed by the Contracting Officer, any completed or partially 
completed information and contract rights that the Carrier has 
specifically produced or acquired for the terminated portion of this 
contract.
    (f) If, after termination, it is determined that the Carrier was not 
in default, or that the default was excusable, the rights and 
obligations of the parties shall be the same as if the termination had 
been issued for the convenience of the Government.
    (g) The rights and remedies of the Government in this clause are in 
addition to any other rights and remedies provided by law or under this 
contract.

                             (End of clause)

[62 FR 47580, Sept. 10, 1997]

                   Subpart 1652.3_FEHBP Clause Matrix



Sec. 1652.370  Use of the matrix.

    (a) The matrix in this section lists the FAR and FEHBAR clauses to 
be used with contracts based on cost analysis and contracts based on a 
combination of cost and price analysis. Carriers shall submit initial 
applications and requests for renewals on the basis that the new 
contract or contract renewal will include the clauses indicated.
    (b) Certain contract clauses are mandatory for FEHBP contracts. 
Other clauses are to be used only when made applicable by pertinent 
sections of the FAR or FEHBAR. An ``M'' in the ``Use Status'' column 
indicates that the clause is mandatory. An ``A'' indicates that the 
clause is to be used only when the applicable conditions are met.
    (c) Clauses are incorporated in the contract either in full text or 
by reference. If the full text is to be used, the

[[Page 169]]

matrix indicates a ``T''. If the clause is incorporated by reference, 
the matrix indicates an ``R''.
[GRAPHIC] [TIFF OMITTED] TR01JN05.633


[[Page 170]]


[GRAPHIC] [TIFF OMITTED] TR01JN05.634


[[Page 171]]


[GRAPHIC] [TIFF OMITTED] TR01JN05.635


[[Page 172]]


[GRAPHIC] [TIFF OMITTED] TR01JN05.636


[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 59 
FR 14767, Mar. 30, 1994; 62 FR 47580, Sept. 10, 1997; 62 FR 50435, Sept. 
25, 1997; 63 FR 55339, Oct. 15, 1998; 65 FR 63388, June 8, 2000; 70 FR 
31385, June 1, 2005]

[[Page 173]]

                             PART 1653_FORMS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1653.000  FEHBP forms.

    The following forms specified in FAR subparts 53.2 and 53.3 are 
applicable to FEHBP acquisitions:

------------------------------------------------------------------------
       Part 53.2                Part 53.3               Form title
------------------------------------------------------------------------
53.201-1                 53.301-1402             SF 1402-Certificate of
                                                  Appointment.
53.203                   53.301-119              SF 119--Statement of
                                                  Contingent or Other
                                                  Fees.
53.204-2(a)              53.301-279              SF 279 FPDS--Individual
                                                  Contract Action Report
                                                  (over $10,000).
53.204-2(b)              53.301-281              SF 281 FPDS--Summary of
                                                  Contract Actions of
                                                  $10,000 or less.
53.229                   53.301-1094             SF 1094--U.S. Tax
                                                  Exemption Certificate.
53.229                   53.301-1094A            SF 1094A--Tax Exemption
                                                  Certificates
                                                  Accountability Record.
------------------------------------------------------------------------


[52 FR 16048, May 1, 1987, as amended at 62 FR 47583. Sept. 10, 1997]

                   PART 1699_COST ACCOUNTING STANDARDS

                Subpart 1699.7_Cost Accounting Standards



Sec. 1699.70  Cost accounting standards.

    With respect to all experience-rated contracts currently existing 
under the FEHB Program, the Cost Accounting Standards, found at 48 CFR 
part 9904, of the Code of Federal Regulations, do not apply.

[70 FR 31392, June 1, 2005]

[[Page 175]]



               CHAPTER 17--OFFICE OF PERSONNEL MANAGEMENT




  --------------------------------------------------------------------
Part                                                                Page
1733            Protests, disputes, and appeals.............         177

[[Page 177]]

                PART 1733_PROTESTS, DISPUTES, AND APPEALS

                   Subpart 1733.2_Disputes and Appeals

Sec.

Sec. 1733.203 Applicability.

Sec. 1733.203-70 Designation of the Interior Board of Contract Appeals 
          to decide OPM appeals.

Sec. 1733.209 Suspected fraudulent claims.

Sec. 1733.211 Contracting officer's decision.

Sec. 1733.212 Contracting officer's duties upon appeal.

Sec. 1733.214 Contract clause.

    Authority: 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 51 FR 44296, Dec. 9, 1986, unless otherwise noted.

                   Subpart 1733.2_Disputes and Appeals



Sec. 1733.203  Applicability.

    (a) The Office of Personnel Management's (OPM) procurement executive 
shall make the determination prescribed under FAR 33.203(b).
    (b) Requests for determinations under paragraph (a) of this section 
shall be submitted by OPM's contracting officer through OPM's head of 
the contracting activity to the procurement executive for further 
action.



Sec. 1733.203-70  Designation of the Interior Board of Contract Appeals 
          to decide OPM appeals.

    (a) The Interior Board of Contract Appeals (IBCA) has been 
designated by the Director of OPM to consider and determine appeals from 
decisions of a contracting officer arising under a contract or relating 
to a contract made by OPM. This delegation governs disputes between OPM 
and its prime contractors and does not encompass any claim made by a 
third party beneficiary of, or by a subscriber to, a Federal employee 
insurance program.
    (b) The address of IBCA is 801 North Quincy Street, Arlington, VA 
22203.
    (c) IBCA rules of procedure can be found in 43 CFR part 4.

[51 FR 44296, Dec. 9, 1986, as amended at 68 FR 62022, Oct. 31, 2003]



Sec. 1733.209  Suspected fraudulent claims.

    If the contractor is unable to support any part of the claim and 
there is evidence that the inability is attributable to 
misrepresentation of fact or to fraud on the part of the contractor, the 
contracting officer shall refer the matter through the head of the 
contracting activity to OPM's Offices of the Inspector General and the 
General Counsel.



Sec. 1733.211  Contracting officer's decision.

    The written decision required by FAR 33.211(a)(4) shall include, in 
the paragraph listed under FAR 33.211(a)(4)(v), specific reference to 
the Interior Board of Contract Appeals, 801 North Quincy Street, 
Arlington, VA 22203, and its procedures under 43 CFR part 4. The IBCA 
optional small claims (expedited) procedures and accelerated procedures 
under 43 CFR 4.113 shall also be referenced as required by the FAR.

[51 FR 44296, Dec. 9, 1986, as amended at 51 FR 44296, Dec. 9, 1986]



Sec. 1733.212  Contracting officer's duties upon appeal.

    (a) When a notice of appeal has been received, the contracting 
officer shall endorse on the appeal the date of mailing (or the date of 
receipt if the notice was not mailed) and forward it to IBCA by 
certified mail within 5 days of receipt. OPM's Office of the General 
Counsel and the Department of the Interior's (DOI) Office of the 
Solicitor shall also be notified of the appeal by the contracting 
officer. 43 CFR 4.103.
    (b) The contracting officer shall prepare and transmit the 
documentation and information required by 43 CFR 4.104 in the form of an 
appeal file to IBCA, OPM's Office of the General Counsel, DOI's Office 
of the Solicitor, and appellant or appellant's counsel within 30 days 
after receipt of a notice of appeal or advice that an appeal has been 
docketed by IBCA.



Sec. 1733.214  Contract clause.

    The Disputes clause contained in FAR 52.233-1 shall be used with its 
Alternate I in all OPM solicitations and contracts.

[[Page 179]]



        CHAPTER 18--NATIONAL AERONAUTICS AND SPACE ADMINISTRATION




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


  Editorial Note: 1. Nomenclature changes to chapter 18 appear at 58 FR 
51136, Sept. 30, 1993 and 67 FR 30602, May 7, 2002.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1801            Federal Acquisition Regulations System......         181
1802            Definitions of words and terms..............         182
1803            Improper business practices and personal 
                    conflicts of interest...................         183
1804            Administrative matters......................         183
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
1805            Publicizing contract actions................         185
1806            Competition requirements....................         185
1807            Acquisition planning........................         185
1808            Required sources of supplies and services...         186
1809            Contractor qualifications...................         186
1811            Describing agency needs.....................         188
1812            Acquisition of commercial items.............         188
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1813            Simplified acquisition procedures...........         190
1814            Sealed bidding..............................         191
1815            Contracting by negotiation..................         191
1816            Types of contracts..........................         196
1817            Special contracting methods.................         204
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1819            Small business programs.....................         206
1822            Application of labor laws to Government 
                    acquisitions............................         215
1823            Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         215
1824            Protection of privacy and freedom of 
                    information.............................         218

[[Page 180]]

1825            Foreign acquisition.........................         218
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1827            Patents, data, and copyrights...............         221
1828            Bonds and insurance.........................         226
1830            Cost accounting standards administration....         229
1831            Contract cost principles and procedures.....         230
1832            Contract financing..........................         231
1833            Protests, disputes, and appeals.............         233
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1834            Major system acquisition....................         234
1835            Research and development contracting........         235
1836            Construction and architect-engineer 
                    contracts...............................         236
1837            Service contracting.........................         238
1839            Acquisition of information technology.......         240
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1840            [Reserved]

1841            Acquisition of utility services.............         241
1842            Contract administration and audit services..         241
1843            Contract modifications......................         242
1844            Subcontracting policies and procedures......         243
1845            Government property.........................         243
1846            Quality assurance...........................         253
1847            Transportation..............................         259
1849            Termination of contracts....................         260
1850            Extraordinary contractual actions and The 
                    Safety Act..............................         260
1851            Use of Government sources by contractors....         262
                     SUBCHAPTER H--CLAUSES AND FORMS
1852            Solicitation provisions and contract clauses         263
1853            [Reserved]

             SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
1872            [Reserved]

[[Page 181]]

                          SUBCHAPTER A_GENERAL

            PART 1801_FEDERAL ACQUISITION REGULATIONS SYSTEM

Sec.

Sec. 1801.000 Scope of part.

               Subpart 1801.1_Purpose, Authority, Issuance


Sec. 1801.103 Authority.

Sec. 1801.104 Applicability.

Sec. 1801.105 Issuance.

Sec. 1801.105-1 Publication and code arrangement.

Sec. 1801.105-2 Arrangement of regulations.

Sec. 1801.106 OMB approval under the Paperwork Reduction Act.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 40534, Aug. 5, 1996, unless otherwise noted.



Sec. 1801.000  Scope of part.

    This part sets forth general information about the National 
Aeronautics and Space Administration (NASA) Federal Acquisition 
Regulations (FAR) Supplement, also referred to as the NFS.

               Subpart 1801.1_Purpose, Authority, Issuance



Sec. 1801.103  Authority. (NASA supplements paragraph (a))

    (a) Under the following authorities, the Administrator has delegated 
to the Assistant Administrator for Procurement authority to prepare, 
issue, and maintain the NFS:
    (i) The National Aeronautics and Space Act of 1958 (Public Law 85-
568; 42 U.S.C. 2451 et seq.).
    (ii) 10 U.S.C. chapter 137.
    (iii) Other statutory authority.
    (iv) FAR subpart 1.3.



Sec. 1801.104  Applicability.

    The NFS applies to all acquisitions as defined in FAR part 2 except 
those expressly excluded by the FAR or this chapter.



Sec. 1801.105  Issuance.



Sec. 1801.105-1  Publication and code arrangement.

    (b)(i) The NFS is an integrated document that contains both 
acquisition regulations that require public comment and internal Agency 
guidance and procedures that do not require public comment. NASA 
personnel must comply with all regulatory and internal guidance and 
procedures contained in the NFS.
    (ii) NFS regulations that require public comment are issued as 
chapter 18 of title 48, CFR.
    (iii) The single official NASA-maintained version of the NFS is on 
the Internet (http://www.hq.nasa.gov/office/procurement/regs/
nfstoc.htm).

[69 FR 21762, Apr. 22, 2004]



Sec. 1801.105-2  Arrangement of regulations. (NASA supplements paragraph 
          (b))

    (b)(1)(A) Numbering of NFS text implementing the FAR shall be the 
same as that of the related FAR text, except when the NFS coverage 
exceeds one paragraph. In such case the NFS text is numbered by skipping 
a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence. For 
example, two paragraphs implementing FAR 1.105-2(b)(1) are numbered 
1801.105-2(b)(1) (A) and (B), rather than (1) (i) and (ii). Further 
subdivision of the NFS implementing paragraphs would follow the 
prescribed sequence in FAR 1.105(b)(2).
    (B) NFS text that supplements the FAR is numbered the same as its 
FAR counterpart with the addition of a number 70 and up. For example, 
NFS supplement of FAR subsection 1.105-3 is numbered 1801.105-370. 
Supplemental text exceeding one paragraph is numbered using the FAR 
1.105-2(b)(2) prescribed numbering sequence without skipping a unit.
    (2) Subdivision numbering below the fourth level repeats the 
numbering sequence using italicized letters and numbers.

[[Page 182]]



Sec. 1801.106  OMB approval under the Paperwork Reduction Act. (NASA 
          paragraphs (1) and (2))

    (1) NFS requirements. The following OMB control numbers apply:

------------------------------------------------------------------------
                                                             OMB Control
                        NFS Segment                              No.
------------------------------------------------------------------------
1804.470...................................................    2700-0098
1804.74....................................................    2700-0097
1819.......................................................    2700-0073
1819.72....................................................    2700-0078
1823.271...................................................    2700-0106
1827.......................................................    2700-0052
1831.......................................................    2700-0080
1843.......................................................    2700-0054
1843.71....................................................    2700-0094
NF 533.....................................................    2700-0003
NF 1018....................................................    2700-0017
------------------------------------------------------------------------

    (2) Solicitations and contracts. Various requirements in a 
solicitation or contract, generally in the statement of work, are not 
tied to specific paragraphs cleared in paragraph (1) of this section, 
yet require information collection or recordkeeping. The following OMB 
control numbers apply to these requirements: 2700-0086 (acquisitions up 
to $25,000), 2700-0087 (solicitations that may result in bids or 
proposals not exceeding $500,000), 2700-0085 (solicitations that may 
result in bids or proposals exceeding $500,000), 2700-0088 (contracts 
not exceeding $500,000), and 2700-0089 (contracts exceeding $500,000).

[61 FR 40534, Aug. 5, 1996, as amended at 63 FR 9953, Feb. 27, 1998; 65 
FR 46627, July 31, 2000; 68 FR 43333, July 22, 2003]

                PART 1802_DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 1802.000 Scope of part.

                       Subpart 1802.1_Definitions


Sec. 1802.101 Definitions.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 40537, Aug. 5, 1996, unless otherwise noted.



Sec. 1802.000  Scope of part.

    Commonly used words and terms are defined in FAR subpart 2.1. This 
part 1802 gives NASA-specific meanings for some of these words and terms 
and defines other words and terms commonly used in the NASA acquisition 
process.

                       Subpart 1802.1_Definitions



Sec. 1802.101  Definitions.

    Administrator means the Administrator or Deputy Administrator of 
NASA.
    Contracting activity in NASA includes the NASA Headquarters 
installation, the NASA Shared Services Center, and the following field 
installations: Ames Research Center, Dryden Flight Research Center, 
Glenn Research Center at Lewis Field, Goddard Space Flight Center, 
Johnson Space Center, Kennedy Space Center, Langley Research Center, 
Marshall Space Flight Center and Stennis Space Center. A major program 
that may have contracts at multiple field centers may also be considered 
a ``contracting activity.''
    Head of the agency or agency head means the Administrator or Deputy 
Administrator of NASA.
    Head of the contracting activity (HCA) means, for field 
installations, the Director or other head, and for NASA Headquarters, 
the Director for Headquarters Operations. For Space Operations Mission 
Directorate (SOMD) contracts, the HCA is the Associate Administrator for 
SOMD in lieu of the field Center Director(s). For Exploration Systems 
Mission Directorate (ESMD) contracts, the HCA is the Associate 
Administrator for ESMD in lieu of the field Center Director(s). For NASA 
Shared Services Center (NSSC) contracts, the HCA is the Executive 
Director of the NSSC in lieu of the field Center Director(s).
    NASA Acquisition Internet Service (NAIS) means the Internet service 
(URL: hhtp://procurement.nasa.gov) NASA uses to broadcast its business 
opportunities, procurement regulations, and associated information.
    Procurement officer means the chief of the contracting office, as 
defined in FAR 2.101.
    Senior Procurement Executive means the Associate Administrator or 
Deputy Assistant Administrator for Procurement, Office of Procurement, 
NASA Headquarters (Code H).

[61 FR 40537, Aug. 5, 1996, as amended at 63 FR 9953, Feb. 27, 1998; 64 
FR 19926, Apr. 23, 1999; 68 FR 23423, May 2, 2003; 70 FR 52941, Sept. 6, 
2005; 71 FR 7873, Feb. 15, 2006; 71 FR 71073, Dec. 8, 2006]

[[Page 183]]

PART 1803_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 1803.1_Safeguards

Sec.

Sec. 1803.104 Procurement integrity.

Sec. 1803.104-1 Definitions.

                   Subpart 1803.70_IG Hotline Posters


Sec. 1803.7000 Policy.

Sec. 1803.7001 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 40537, Aug. 5, 1996, unless otherwise noted.

                        Subpart 1803.1_Safeguards



Sec. 1803.104  Procurement integrity.



Sec. 1803.104-1  Definitions.

    Agency ethics official means for Headquarters, the General Counsel 
and the Associate General Counsel for General Law, and for each center, 
the Chief Counsel.

[62 FR 36704, July 9, 1997. Redesignated at 67 FR 30603, May 7, 2002]

                   Subpart 1803.70_IG Hotline Posters



Sec. 1803.7000  Policy.

    NASA requires contractors to display NASA hotline posters prepared 
by the NASA Office of Inspector General on those contracts specified in 
1803.7001, so that employees of the contractor having knowledge of 
waste, fraud, or abuse, can readily identify a means to contact NASA's 
IG.

[66 FR 29727, June 1, 2001]



Sec. 1803.7001  Contract clause.

    Contracting officers must insert the clause at 1852.203-70, Display 
of Inspector General Hotline Posters, in solicitations and contracts 
expected to exceed $5,000,000 and performed at contractor facilities in 
the United States.

[66 FR 29727, June 1, 2001]

                    PART 1804_ADMINISTRATIVE MATTERS

                    Subpart 1804.1_Contract Executive

Sec.

Sec. 1804.170 Contract effective date.

   Subpart 1804.4_Safeguarding Classified Information Within Industry


Sec. 1804.404-70 Contract clause.

Sec. 1804.470 Security requirements for unclassified information 
          technology (IT) resources.

Sec. 1804.470-1 Scope.

Sec. 1804.470-2 Policy.

Sec. 1804.470-3 IT security requirements.

Sec. 1804.470-4 Contract clauses.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 40539, Aug. 5, 1996, unless otherwise noted.

                    Subpart 1804.1_Contract Execution



Sec. 1804.170  Contract effective date.

    (a) Contract effective date means the date agreed upon by the 
parties for beginning the period of performance under the contract. In 
no case shall the effective date precede the date on which the 
contracting officer or designated higher approval authority signs the 
document.
    (b) Costs incurred before the contract effective date are 
unallowable unless they qualify as precontract costs (see FAR 31.205-32) 
and the clause prescribed at 1831.205-70 is used.

   Subpart 1804.4_Safeguarding Classified Information Within Industry



Sec. 1804.404-70  Contract clause.

    The contracting officer shall insert the clause at 1852.204-75, 
Security Classification Requirements, in solicitations and contracts if 
work is to be performed will require security clearances. This clause 
may be modified to add instructions for obtaining security clearances 
and access to security areas that are applicable to the particular 
acquisition and installation.

[[Page 184]]



Sec. 1804.470  Security requirements for unclassified information 
          technology (IT) resources.



Sec. 1804.470-1  Scope.

    This section implements NASA's acquisition requirements pertaining 
to Federal policies for the security of unclassified information and 
information systems. Federal policies include the Federal Information 
System Management Act (FISMA) of 2002, Homeland Security Presidential 
Directive (HSPD) 12, Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.), 
OMB Circular A-130, Management of Federal Information Resources, and the 
National Institute of Standards and Technology (NIST) security 
requirements and standards. These requirements safeguard IT services 
provided to NASA such as the management, operation, maintenance, 
development, and administration of hardware, software, firmware, 
computer systems, networks, and telecommunications systems.

[72 FR 26561, May 10, 2007]



Sec. 1804.470-2  Policy.

    NASA IT security policies and procedures for unclassified 
information and IT are prescribed in NASA Policy Directive (NPD) 2810, 
Security of Information Technology; NASA Procedural Requirements (NPR) 
2810, Security of Information Technology; and interim policy updates in 
the form of NASA Information Technology Requirements (NITR). IT services 
must be performed in accordance with these policies and procedures.

[72 FR 26561, May 10, 2007]



Sec. 1804.470-3  IT security requirements.

    (a) These IT security requirements cover all NASA awards in which IT 
plays a role in the provisioning of services or products (e.g., research 
and development, engineering, manufacturing, IT outsourcing, human 
resources, and finance) that support NASA in meeting its institutional 
and mission objectives. These requirements are applicable when a 
contractor or subcontractor must obtain physical or electronic access 
beyond that granted the general public to NASA's computer systems, 
networks, or IT infrastructure. These requirements are applicable when 
NASA information is generated, stored, processed, or exchanged with NASA 
or on behalf of NASA by a contractor or subcontractor, regardless of 
whether the information resides on a NASA or a contractor/
subcontractor's information system.
    (b) The Applicable Documents List (ADL) should consist of all NASA 
Agency-level IT Security and Center IT Security Policies applicable to 
the contract. Documents listed in the ADL as well as applicable Federal 
IT Security Policies are available at the NASA IT Security Policy Web 
site at: http://www.nasa.gov/offices/ocio/itsecurity/index.html.

[76 FR 4080, Jan. 24, 2011]



Sec. 1804.470-4  Contract clause.

    (a) Insert the clause at 1852.204-76, Security Requirements for 
Unclassified Information Technology Resources, in all solicitations and 
awards when contract performance requires contractors to--
    (1) Have physical or electronic access to NASA's computer systems, 
networks, or IT infrastructure; or
    (2) Use information systems to generate, store, process, or exchange 
data with NASA or on behalf of NASA, regardless of whether the data 
resides on a NASA or a contractor's information system.
    (b) Parts of the clause and referenced ADL may be waived by the 
contracting officer if the contractor's ongoing IT security program 
meets or exceeds the requirements of NASA Procedural Requirements (NPR) 
2810.1 in effect at time of award. The current version of NPR 2810.1 is 
referenced in the ADL. The contractor shall submit a written waiver 
request to the Contracting Officer within 30 days of award. The waiver 
request will be reviewed by the Center IT Security Manager. If approved, 
the Contractor Officer will notify the contractor, by contract 
modification, which parts of the clause or provisions of the ADL are 
waived.

[76 FR 4080, Jan. 24, 2011]

[[Page 185]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                 PART 1805_PUBLICIZING CONTRACT ACTIONS

               Subpart 1805.3_Synopses of Contract Awards

Sec.

Sec. 1805.303 Announcement of contract awards.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 40543, Aug. 5, 1996, unless otherwise noted.

               Subpart 1805.3_Synopses of Contract Awards



Sec. 1805.303  Announcement of contract awards. (NASA supplements 
          paragraph (a))

    (a)(i) In lieu of the $3.5 million threshold cited in FAR 5.303(a), 
NASA Headquarters public announcement is required for award of contract 
actions that have a total anticipated value, excluding unexercised 
options, of $5 million or greater. This threshold applies to new awards, 
contract modifications, and option exercises, but not to incremental 
funding or cost overrun modifications.

[61 FR 40543, Aug. 5, 1996, as amended at 69 FR 21762, Apr. 22, 2004; 70 
FR 56857, Sept. 29, 2005; 71 FR 71073, Dec. 8, 2006]

                   PART 1806_COMPETITION REQUIREMENTS

   Subpart 1806.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 1806.202 Establishing or maintaining alternative sources.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 40545, Aug. 5, 1996, unless otherwise noted.

   Subpart 1806.2_Full and Open Competition After Exclusion of Sources



Sec. 1806.202  Establishing or maintaining alternative sources. (NASA 
          supplements paragraphs (a) and (b))

    (a) The authority of FAR 6.202 is to be used to totally or partially 
exclude a particular source.

[61 FR 40545, Aug. 5, 1996, as amended at 69 FR 21762, Apr. 22, 2004]

                     PART 1807_ACQUISITION PLANNING

                    Subpart 1807.1_Acquisition Plans

Sec.

Sec. 1807.107 Additional requirements for acquisitions involving 
          bundling.

Sec. 1807.107-170 Orders against Federal Supply Schedule contracts or 
          other indefinite-delivery contracts awarded by another agency.

                 Subpart 1807.72_Acquisition Forecasting


Sec. 1807.7200 Policy.

Sec. 1807.7201 Definitions.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47068, Sept. 6, 1996, unless otherwise noted.

                    Subpart 1807.1_Acquisition Plans



Sec. 1807.107  Additional requirements for acquisitions involving 
          bundling.

    (c) Requests for approval of proposed bundlings that do not meet the 
thresholds in FAR 7.107(b) must be sent to the Headquarters Office of 
Procurement (Code HS).
    (e) The substantial bundling documentation requirement applies to 
each proposed NASA bundling expected to exceed $5 million or more. The 
contracting officer must forward the documentation along with the 
measurable benefits analysis required by FAR 7.107(b) to the 
Headquarters Office of Procurement (Code HS) in sufficient

[[Page 186]]

time to allow a minimum of 10 days for review.

[65 FR 46876, Aug. 1, 2000]



Sec. 1807.107-70  Orders against Federal Supply Schedule contracts or 
          other indefinite-delivery contracts awarded by another agency.

    The FAR and NFS requirements for justification, review, and approval 
of bundling of contract requirements also apply to an order from a 
Federal Supply Schedule contract or other indefinite-delivery contract 
awarded by another agency if the requirements consolidated under the 
order meet the definition of ``bundling'' at FAR 2.101.

[69 FR 21763, Apr. 22, 2004]

                 Subpart 1807.72_Acquisition Forecasting



Sec. 1807.7200  Policy.

    (a) As required by the Business Opportunity Development Reform Act 
of 1988, it is NASA policy to--
    (1) Prepare an annual forecast and semiannual update of expected 
contract opportunities or classes of contract opportunities for each 
fiscal year;
    (2) Include in the forecast contract opportunities that small 
business concerns, including those owned and controlled by socially and 
economically disadvantaged individuals, may be capable of performing; 
and
    (3) Make available such forecasts to the public.
    (b) The annual forecast and semiannual update are available on the 
NASA Acquisition Internet Service (http://www.hq.nasa.gov/office/
procurement/).

[69 FR 21763, Apr. 22, 2004]



Sec. 1807.7201  Definitions.

    Class of contracts means a grouping of acquisitions, either by 
dollar value or by the nature of supplies and services to be acquired.
    Contract opportunity means planned new contract awards exceeding 
$25,000.

           PART 1808_REQUIRED SOURCES OF SUPPLIES AND SERVICES

       Subpart 1808.8_Acquisition of Printing and Related Supplies

Sec.

Sec. 1808.870 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 47073, Sept. 6, 1996, unless otherwise noted.

       Subpart 1808.8_Acquisition of Printing and Related Supplies



Sec. 1808.870  Contract clause.

    The contracting officer shall insert the clause at 1852.208-81, 
Restrictions on Printing and Duplicating, in solicitations and contracts 
where there is a requirement for any printing, and/or any duplicating/
copying in excess of that described in paragraph (c) of the clause.

                   PART 1809_CONTRACTOR QUALIFICATIONS

           Subpart 1809.1_Responsible Prospective Contractors

Sec.

Sec. 1809.104-4 Subcontractor responsibility.

Sec. 1809.105-2 Determinations and documentation.

               Subpart 1809.2_Qualifications Requirements


Sec. 1809.206 Acquisitions subject to qualification requirements.

Sec. 1809.206-1 General.

Sec. 1809.206-70 Small businesses.

Sec. 1809.206-71 Contract clause.

         Subpart 1809.4_Debarment, Suspension, and Ineligibility


Sec. 1809.403 Definitions.

   Subpart 1809.5_Organizational and Consultant Conflicts of Interest


Sec. 1809.505-4 Obtaining access to sensitive information.

Sec. 1809.507 Solicitation provisions and contract clause.

Sec. 1809.507-2 Contract clause.

[[Page 187]]

               Subpart 1809.6_Contractor Team Arrangements


Sec. 1809.670 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47075, Sept. 6, 1996, unless otherwise noted.

           Subpart 1809.1_Responsible Prospective Contractors



Sec. 1809.104-4  Subcontractor responsibility.

    Generally, the Canadian Commercial Corporation's (CCC) proposal of a 
firm as its subcontractor is sufficient basis for an affirmative 
determination of responsibility. However, when the CCC determination of 
responsibility is not consistent with other information available to the 
contracting office, the contracting officer shall request from the CCC 
and any other sources whatever information is necessary to make the 
responsibility determination.
    Upon request, CCC shall be furnished the rationale for any 
subsequent determination of nonresponsibility.



Sec. 1809.105-2  Determinations and documentation.

    (a) The contracting officer shall provide written notification to a 
prospective contractor determined not responsible, which includes the 
basis for the determination. Notification provides the prospective 
contractor with the opportunity to take corrective action prior to 
future solicitations.

[76 FR 72328, Nov. 23, 2011]

                Subpart 1809.2_Qualification requirements



Sec. 1809.206  Acquisitions subject to qualification requirements.



Sec. 1809.206-1  General. (NASA supplements paragraph (b) and (c))

    (c) If an offeror seeks to demonstrate its capability, both the 
product and the producer must meet the established standards.

[61 FR 47075, Sept. 6, 1996, as amended at 69 FR 21763, Apr. 22, 2004]



Sec. 1809.206-70  Small businesses.

    If a small business otherwise eligible for award has been placed in 
a special status on a Qualified Products List (Mil-Bul-103) or the 
Qualified Manufacturers List (QML-38510) established as a part of the 
NASA Microelectronics Reliability Program and the contracting officer 
determines that the small business does not appear to have the capacity 
to perform, the certificate of competency procedures in FAR subpart 19.6 
are applicable.



Sec. 1809.206-71  Contract clause.

    When qualified products (end items or components of end items) are 
being procured, the contracting officer shall insert the clause at 
1852.209-70, Product Removal from Qualified Products List, in the 
solicitation and in the resulting contract.

         Subpart 1809.4_Debarment, Suspension, and Ineligibility



Sec. 1809.403  Definitions.

    For purposes of FAR subpart 9.4 and this subpart, the Assistant 
Administrator for Procurement is the ``debarring official,'' the 
``suspending official,'' and the agency head's ``designee.''

   Subpart 1809.5_Organizational and Consultant Conflicts of Interest



Sec. 1809.505-4  Obtaining access to sensitive information.

    (b) In accordance with FAR 9.503, the Assistant Administrator for 
Procurement has determined that it would not be in the Government's 
interests for NASA to comply strictly with FAR 9.505-4(b) when acquiring 
services to support management activities and administrative functions. 
The Assistant Administrator for Procurement has, therefore, waived the 
requirement that before gaining access to other companies' proprietary 
or sensitive (see 1837.203-70) information contractors must enter 
specific agreements with each of those other companies to protect their 
information from unauthorized use or disclosure. Accordingly, NASA will 
not require contractors and

[[Page 188]]

subcontractors and their employees in procurements that support 
management activities and administrative functions to enter into 
separate, interrelated third party agreements to protect sensitive 
information from unauthorized use or disclosure. As an alternative to 
numerous, separate third party agreements, 1837.203-70 prescribes 
detailed policy and procedures to protect contractors from unauthorized 
use or disclosure of their sensitive information. Nothing in this 
section waives the requirements of FAR 37.204 and 1837.204.

[70 FR 35554, June 21, 2005]



Sec. 1809.507  Solicitation provisions and contract clause.



Sec. 1809.507-2  Contract clause.

    The contracting officer may insert a clause substantially the same 
as the clause at 1852.209-71, Limitation of Future Contracting, in 
solicitations and contracts.

               Subpart 1809.6_Contractor Team Arrangements



Sec. 1809.670  Contract clause.

    The contracting officer shall insert the clause at 1852.209-72, 
Composition of the Contractor, in all construction invitations for bids 
and resulting contracts. The clause may be used in other solicitations 
and contracts to clarify a contractor team arrangement where the prime 
contractor consists of more than one legal entity, such as a joint 
venture.

                    PART 1811_DESCRIBING AGENCY NEEDS

    Authority: 42 U.S.C. 2473(c)(1).

            Subpart 1811.4_Delivery or Performance Schedules



Sec. 1811.404-70  NASA contract clauses.

    The clause at 1852.211-70, Packaging, Handling, and Transportation, 
must be included in solicitations and contracts for deliverable items, 
including software, designated as Class I (mission essential), Class II 
(delicate or sensitive), or Class III (requires special handling or 
monitoring).

[65 FR 37062, June 13, 2000]

                PART 1812_ACQUISITION OF COMMERCIAL ITEMS

  Subpart 1812.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items

Sec.

Sec. 1812.301 Solicitation provisions and contract clauses for the 
          acquisition of commercial items.

          Subpart 1812.70_Commercial Space Hardware or Services


Sec. 1812.7000 Anchor tenancy contracts.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47079, Sept. 6, 1996, unless otherwise noted.

  Subpart 1812.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 1812.301  Solicitation provisions and contract clauses for the 
          acquisition of commercial items. (NASA supplements paragraph 
          (f))

    (f)(i) The following clauses are authorized for use in acquisitions 
of commercial items when required by the clause prescription:
    (A) 1852.214-71, Grouping for Aggregate Award.
    (B) 1852.214-72, Full Quantities.
    (C) 1852.215-84, Ombudsman.
    (D) 1852.219-75, Small Business Subcontracting Reporting.
    (E) 1852.219-76, NASA 8 Percent Goal.
    (F) 1852.223-70, Safety and Health.
    (G) 1852.223-71, Frequency Authorization.
    (H) 1852.223-72, Safety and Health (Short Form).
    (I) 1852.223-73, Safety and Health Plan.
    (J) 1852.223-75, Major Breach of Safety and Security.
    (K) [Reserved]
    (L) 1852.228-76, Cross-Waiver of Liability for International Space 
Station Activities.

[[Page 189]]

    (M) 1852.228-78, Cross-Waiver of Liability for Science or Space 
Exploration Activities unrelated to the International Space Station.
    (N) 1852.246-72, Material Inspection and Receiving Report.

[64 FR 19926, Apr. 23, 1999, as amended at 64 FR 51078, Sept. 21, 1999; 
65 FR 37058, June 13, 2000; 65 FR 50153, Aug. 17, 2000; 66 FR 18052, 
Apr. 5, 2001; 69 FR 26776, May 14, 2004; 77 FR 59341, Sept. 27, 2012]

          Subpart 1812.70_Commercial Space Hardware or Services



Sec. 1812.7000  Anchor tenancy contracts.

    (a) Subject to receiving an appropriation that:
    (1) Authorizes a multi-year anchor tenancy contract; and
    (2) Specifies the commercial space product or service to be 
developed or used, NASA may enter into a multi-year anchor tenancy 
contract only if Administrator determines--
    (i) The good or service meets the mission requirements of the 
National Aeronautics and Space Administration;
    (ii) The commercially procured good or service is cost effective;
    (iii) The good or service is procured through a competitive process;
    (iv) Existing or potential customers for the good or service other 
than the United States Government have been specifically identified;
    (v) The long-term viability of the venture is not dependent upon a 
continued Government market or other nonreimbursable Government support; 
and
    (vi) Private capital is at risk in the venture.
    (b) Contracts entered into under such authority may provide for the 
payment of termination liability in the event that the Government 
terminates such contracts for its convenience.
    (1) Contracts that provide for this payment of termination liability 
shall include a fixed schedule of such termination liability payments. 
Liability under such contracts shall not exceed the total payments which 
the Government would have made after the date of termination to purchase 
the good or service if the contract were not terminated.
    (2) Subject to appropriations, funds available for such termination 
liability payments may be used for purchase of the good or service upon 
successful delivery of the good or service pursuant to the contract. In 
such case, sufficient funds shall remain available to cover any 
remaining termination liability.
    (c) Limitations. (1) Contracts entered into under such authority 
shall not exceed 10 years in duration.
    (2) Such contracts shall provide for delivery of the good or service 
on a firm, fixed price basis.
    (3) To the extent practicable, reasonable performance specifications 
shall be used to define technical requirements in such contracts.
    (4) In any such contract, the Administrator shall reserve the right 
to completely or partially terminate the contract without payment of 
such termination liability because of the contractor's actual or 
anticipated failure to perform its contractual obligations.
    (d) The term ``anchor tenancy'' means an arrangement in which the 
United States Government agrees to procure sufficient quantities of a 
commercial space product or service needed to meet Government mission 
requirements so that a commercial venture is made viable.

[77 FR 65497, Oct. 29, 2012]

[[Page 190]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 1813_SIMPLIFIED ACQUISITION PROCEDURES

Sec.

Sec. 1813.000 Scope of part.

Sec. 1813.003 Policy.

              Subpart 1813.3_Simplified Acquisition Methods


Sec. 1813.302-570 NASA solicitation provisions.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 63 FR 40189, July 28, 1998, unless otherwise noted.



Sec. 1813.000  Scope of part.

    FAR part 13 and 1813 do not apply to NASA Research Announcements 
(NRA) and Announcements of Opportunity (AO). These acquisitions shall be 
conducted in accordance with the procedures in 1835.016-71 and 1872, 
respectively. However, awards resulting from NRAs or AOs that are to be 
made as procurement instruments, can be made as either a contract or a 
purchase order. When a purchase order is used, it must not exceed the 
simplified acquisition threshold and must include the appropriate 
clauses pertaining to data rights, key personnel requirements, and any 
other requirements determined necessary by the contracting officer. 
Contracting officers must determine whether obtaining the contractor's 
acceptance of the order is necessary (see FAR 13.302-3(a)).

[65 FR 46628, July 31, 2000]



Sec. 1813.003  Policy. (NASA supplements paragraph (g))

    (g) Acquisitions under these simplified acquisition procedures shall 
be fixed-price, except as provided under the unpriced purchase order 
method in FAR 13.302-2.

[63 FR 40189, July 28, 1998, as amended at 64 FR 5620, Feb. 4, 1999]

              Subpart 1813.3_Simplified Acquisition Methods



Sec. 1813.302-570  NASA solicitation provisions.

    (a)(1) The contracting officer may use the provision at 1852.213-70, 
Offeror Representations and Certifications--Other Than Commercial Items, 
in simplified acquisitions exceeding the mircro-purchase threshold that 
are for other than commercial items. This provision shall not be used 
for acquisition of commercial items as defined in FAR 2.101.
    (2) This provision provides a single, consolidated list of 
certifications and representations for the acquisition of other than 
commercial items using simplified acquisition procedures and is attached 
to the solicitation for offerors to complete and return with their 
offer.
    (i) Use the provision with its Alternate I in solicitations for 
acquisitions that are for, or specify the use of recovered materials 
(see FAR 23.4).
    (ii) Use the provision with its Alternate II in solicitations for 
the acquisition of research, studies, supplies, or services of the type 
normally acquired from higher education institutions (see FAR 26.3).
    (iii) Use the provision with its Alternate III in solicitation which 
include the clause at FAR 52.227-14, Rights in Data--General (see FAR 
27.404(d)(2) and 1827.404(d)).
    (b) The contracting officer may insert a provision substantially the 
same as the provision at 1852.213-71, Evaluation--Other than Commercial 
Items, in solicitations using simplified acquisition procedures for 
other than commercial items when a trade-off source selection process 
will be used, that is, factors in addition to technical acceptability 
and price will be considered. (See FAR 13.106.)

[67 FR 38904, June 6, 2002, as amended at 67 FR 50823, Aug. 6, 2002]

[[Page 191]]

                        PART 1814_SEALED BIDDING

                   Subpart 1814.2_Solicitation of Bids

Sec.

Sec. 1814.201-6 Solicitation provisions.

Sec. 1814.201-670 NASA solicitation provisions.

                    Subpart 1814.3_Submission of Bids


Sec. 1814.302 Bid submission.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47079, Sept. 6, 1996, unless otherwise noted.

                   Subpart 1814.2_Solicitation of Bids



Sec. 1814.201-6  Solicitation provisions.



Sec. 1814.201-670  NASA solicitation provisions.

    (a) The contracting officer shall insert the provision at 1852.214-
70, Caution to Offerors Furnishing Descriptive Literature, in 
invitations for bids. See FAR 52.214-21, Descriptive Literature.
    (b) The contracting officer shall insert the provision at 1852.214-
71, Grouping for Aggregate Award, in invitations for bids, except for 
construction, when it is in the Government's best interest not to make 
award for less than specified quantities solicited for certain items or 
groupings of certain items. Insert the item numbers and/or descriptions 
applicable for the particular procurement.
    (c) The contracting officer shall insert the provision at 1852.214-
72, Full Quantities, in invitations for bids, except for construction, 
when it is in the Government's best interest not to make award for less 
than the full quantities solicited.
    (d) If a pre-bid conference is planned, the contracting officer 
shall insert the provision at 1852.215-77, Preproposal/Pre-bid 
Conference. See 1815.209-70(a).

[61 FR 47079, Sept. 6, 1996, as amended at 63 FR 9966, Feb. 27, 1998]

                    Subpart 1814.3_Submission of Bids



Sec. 1814.302  Bid submission. (NASA supplements paragraph (b))

    (b) NASA contracting officers shall not consider telegraphic bids 
communicated by the telephone.

                  PART 1815_CONTRACTING BY NEGOTIATION

  Subpart 1815.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 1815.203-72 Risk Management.

Sec. 1815.207 Handling proposals and information.

Sec. 1815.207-70 Release of proposal information.

Sec. 1815.207-71 Appointing non-Government evaluators as special 
          Government employees.

Sec. 1815.208 Submission, modification, revision, and withdrawal of 
          proposals.

Sec. 1815.209 Solicitation provisions and contract clauses.

Sec. 1815.209-70 NASA solicitation provisions.

                     Subpart 1815.3_Source Selection


Sec. 1815.305-70 Identification of unacceptable proposals.

Sec. 1815.306 Exchanges with offerors after receipt of proposals.

                     Subpart 1815.4_Contract Pricing


Sec. 1815.403 Obtaining cost or pricing data.

Sec. 1815.403-170 Waivers of cost or pricing data.

Sec. 1815.404-471 NASA structured approach for profit or fee objective.

Sec. 1815.404-472 Payment of profit or fee under letter contracts.

Sec. 1815.407 Special cost or pricing areas.

Sec. 1815.407-2 Make-or-buy programs.

Sec. 1815.408 Solicitation provisions and contract clauses.

Sec. 1815.408-70 NASA solicitation provisions and contract clauses.

 Subpart 1815.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes


Sec. 1815.504 Award to successful offeror.

                  Subpart 1815.6_Unsolicited Proposals


Sec. 1815.602 Policy.

Sec. 1815.604 Agency points of contact.

Sec. 1815.606 Agency procedures.

Sec. 1815.606-70 Relationship of unsolicited proposals to NRAs.

Sec. 1815.609 Limited use of data.

[[Page 192]]


Sec. 1815.609-70 Limited use of proposals.

Sec. 1815.670 Foreign proposals.

                        Subpart 1815.70_Ombudsman


Sec. 1815.7001 NASA Ombudsman Program.

Sec. 1815.7003 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 63 FR 9954, Feb. 27, 1998, unless otherwise noted.

  Subpart 1815.2_Solicitation and Receipt of Proposals and Information



Sec. 1815.203-72  Risk management.

    In all RFPs and RFOs for supplies or services for which a technical 
proposal is required, proposal instructions shall require offerors to 
identify and discuss risk factors and issues throughout the proposal 
where they are relevant, and describe their approach to managing these 
risks.

[65 FR 70316, Nov. 22, 2000]



Sec. 1815.207  Handling proposals and information.



Sec. 1815.207-70  Release of proposal information.

    (a) NASA personnel participating in any way in the evaluation may 
not reveal any information concerning the evaluation to anyone not also 
participating, and then only to the extent that the information is 
required in connection with the evaluation. When non-NASA personnel 
participate, they shall be instructed to observe these restrictions.
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
procurement officer is the approval authority to disclose proposal 
information outside the Government. If outside evaluators are involved, 
this authorization may be granted only after compliance with FAR 37.2 
and 1837.204, except that the determination of unavailability of 
Government personnel required by FAR 37.2 is not required for disclosure 
of proposal information to JPL employees.
    (2) Proposal information in the following classes of proposals may 
be disclosed with the prior written approval of a NASA official one 
level above the NASA program official responsible for the overall 
conduct of the evaluation. If outside evaluators are involved, the 
determination of unavailability of Government personnel required by FAR 
37.2 is not required for disclosure in these instances.
    (i) Proposals submitted in response to broad agency announcements 
such as Announcements of Opportunity and NASA Research Announcements;
    (ii) Unsolicited proposals; and
    (iii) SBIR and STTR proposals.
    (3) If JPL personnel, in evaluating proposal information released to 
them by NASA, require assistance from non-JPL, non-Government 
evaluators, JPL must obtain written approval to release the information 
in accordance with paragraphs (b)(1) and (b)(2) of this section.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



Sec. 1815.207-71  Appointing non-Government evaluators as special 
          Government employees.

    (a) Except as provided in paragraph (c) of this section, non-
Government evaluators, except employees of JPL, shall be appointed as 
special Government employees.
    (b) Appointment as a special Government employee is a separate 
action from the approval required by paragraph 1815.207-70(b) and may be 
processed concurrently. Appointment as a special Government employee 
shall be made by:
    (1) The NASA Headquarters personnel office when the release of 
proposal information is to be made by a NASA Headquarters office; or
    (2) The installation personnel office when the release of proposal 
information is to be made by the installation.
    (c) Non-Government evaluators need not be appointed as special 
Government employees when they evaluate:
    (1) Proposals submitted in response to broad agency announcements 
such as Announcements of Opportunity and NASA Research Announcements;
    (2) Unsolicited proposals; and
    (3) SBIR and STTR proposals.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]

[[Page 193]]



Sec. 1815.208  Submission, modification, revision, and withdrawal of 
          proposals. (NASA supplements paragraph (b))

    (b) The FAR late proposal criteria do not apply to Announcements of 
Opportunity, NASA Research Announcements, and Small Business Innovative 
Research (SBIR) Phase I and Phase II solicitations, and Small Business 
Technology Transfer (STTR) solicitations. For these solicitations, 
proposals or proposal modifications received from qualified firms after 
the latest date specified for receipt may be considered if a significant 
reduction in cost to the Government is probable or if there are 
significant technical advantages, as compared with proposals previously 
received. In such cases, the project office shall investigate the 
circumstances surrounding the late submission, evaluate its content, and 
submit written recommendations and findings to the selection official or 
a designee as to whether there is an advantage to the Government in 
considering it. The selection official or a designee shall determine 
whether to consider the late submission.

[63 FR 9954, Feb. 27, 1998, as amended at 69 FR 21764, Apr. 22, 2004]



Sec. 1815.209  Solicitation provisions and contract clauses. (NASA 
          supplements paragraph (a))

    (a) The contracting officer shall insert FAR 52.215-1 in all 
competitive negotiated solicitations.



Sec. 1815.209-70  NASA solicitation provisions.

    (a) The contracting officer shall insert the provision at 1852.215-
77, Preproposal/Pre-bid Conference, in competitive requests for 
proposals and invitations for bids where the Government intends to 
conduct a prepoposal or pre-bid conference. Insert the appropriate 
specific information relating to the conference.
    (b) When it is not in the Government's best interest to make award 
for less than the specified quantities solicited for certain items or 
groupings of items, the contracting officer shall insert the provision 
at 1852.214-71, Grouping for Aggregate Award. See 1814.201-670(b).
    (c) When award will be made only on the full quantities solicited, 
the contracting officer shall insert the provision at 1852.214-72, Full 
Quantities. See 1814.201-670(c).
    (d) The contracting officer shall insert the provision at 1852.215-
81, Proposal Page Limitations, in all competitive requests for 
proposals.

[63 FR 9954, Feb. 27, 1998, as amended at 67 FR 50824, Aug. 6, 2002]

                     Subpart 1815.3_Source Selection



Sec. 1815.305-70  Identification of unacceptable proposals.

    (a) The contracting officer shall not complete the initial 
evaluation of any proposal when it is determined that the proposal is 
unacceptable because:
    (1) It does not represent a reasonable initial effort to address the 
essential requirements of the RFP or clearly demonstrates that the 
offeror does not understand the requirements;
    (2) In research and development acquisitions, a substantial design 
drawback is evident in the proposal, and sufficient correction or 
improvement to consider the proposal acceptable would require virtually 
an entirely new technical proposal; or
    (3) It contains major eficiencies or omissions or out-of-line costs 
which discussions with the offeror could not reasonably be expected to 
cure.
    (b) The contracting officer shall document the rationale for 
discontinuing the initial evaluation of a proposal in accordance with 
this section.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



Sec. 1815.306  Exchanges with offerors after receipt of proposals. (NASA 
          supplements paragraphs (c), (d), and (e))

    (c)(2) A total of no more than three proposals shall be a working 
goal in establishing the competitive range. Field installations may 
establish procedures for approval of competitive range determinations 
commensurate with the complexity or dollar value of an acquisition.
    (e)(1) In no case shall the contacting officer relax or amend RFP 
requirements for any offeror without amending the RFP and permitting the 
other

[[Page 194]]

offerors an opportunity to propose against the relaxed requirements.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998; 69 
FR 21764, Apr. 22, 2004]

                     Subpart 1815.4_Contract Pricing



Sec. 1815.403  Obtaining cost or pricing data.



Sec. 1815.403-170  Waivers of cost or pricing data.

    (a) NASA has waived the requirement for the submission of cost or 
pricing data when contracting with the Canadian Commercial Corporation 
(CCC). This waiver applies to the CCC and its subcontractors. The CCC 
will provide assurance of the fairness and reasonableness of the 
proposed price. This assurance should be relied on; however, contracting 
officers shall ensure that the appropriate level of information other 
than cost or pricing data is submitted by subcontractors to support any 
required proposal analysis, including a technical analysis and a cost 
realism analysis. The CCC also will provide for follow-up audit activity 
to ensure that any excess profits are found and refunded to NASA.
    (b) NASA has waived the requirement for the submission of cost or 
pricing data when contracting for Small Business Innovation Research 
(SBIR) program Phase II contracts. However, contracting officers shall 
ensure that the appropriate level of information other than cost or 
pricing data is submitted to determine price reasonableness and cost 
realism.

[64 FR 10573, Mar. 5, 1999]



Sec. 1815.404-471  NASA structured approach for profit or fee objective.



Sec. 1815.404-472  Payment of profit or fee under letter contracts.

    NASA's policy is to pay profit or fee only on definitized contracts.

[65 FR 12485, Mar. 9, 2000]



Sec. 1815.407  Special cost or pricing areas.



Sec. 1815.407-2  Make-or-buy programs. (NASA supplements paragraph (e))

    (e)(1) Make-or-buy programs should not include items or work efforts 
estimated to cost less than $500,000.



Sec. 1815.408  Solicitation provisions and contract clauses.



Sec. 1815.408-70  NASA solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 1852.215-
78, Make-or-Buy Program Requirements, in solicitations requiring make-
or-buy programs as provided in FAR 15.407-2(c). This provision shall be 
used in conjunction with the clause at FAR 52.215-9, Changes or 
Additions to Make-or-Buy Program. The contracting officer may add 
additional paragraphs identifying any other information required in 
order to evaluate the program.
    (b) The contracting officer shall insert the clause at 1852.215-79, 
Price Adjustment for ``Make-or-Buy'' Changes, in contracts that include 
FAR 52.215-9 with its Alternate I or II. Insert in the appropriate 
columns the items that will be subject to a reduction in the contract 
value.

 Subpart 1815.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes



Sec. 1815.504  Award to successful offeror.

    The reference to notice of award in FAR 15.504 on negotiated 
acquisitions is a generic one. It relates only to the formal 
establishment of a contractual document obligating both the Government 
and the offeror. The notice is effected by the transmittal of a fully 
approved and executed definitive contract document, such as the award 
portion of SF 33, SF 26, SF 1449, or SF 1447, or a letter contract when 
a definitized contract instrument is not available but the urgency of 
the requirement necessitates immediate performance. In this latter 
instance, the procedures for

[[Page 195]]

approval and issuance of letter contracts shall be followed.

[63 FR 9954, Feb. 27, 1998, as amended at 69 FR 21764, Apr. 22, 2004]

                  Subpart 1815.6_Unsolicited Proposals



Sec. 1815.602  Policy. (NASA paragraphs (1) and (2))

    (1) An unsolicited proposal may result in the award of a contract, 
grant, cooperative agreement, or other agreement. If a grant or 
cooperative agreement is used, the NASA Grant and Cooperative Agreement 
Handbook (NPR 5800.1) applies.
    (2) Renewal proposals (i.e., those for the extension or augmentation 
of current contracts) are subject to the same FAR and NFS regulations, 
including the requirements of the Competition in Contracting Act, as are 
proposals for new contracts.

[63 FR 9954, Feb. 27, 1998, as amended at 69 FR 63459, Nov. 2, 2004]



Sec. 1815.604  Agency points of contact. (NASA supplements paragraph 
          (a))

    (a)(6) Information titled ``Guidance for the Preparation and 
Submission of Unsolicited Proposals'' is available on the Internet at 
http://ec.msfc.nasa.gov/hq/library/unSol-Prop.html. A deviation is 
required for use of any modified or summarized version of the Internet 
information or for alternate means of general dissemination of 
unsolicited proposal information.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44409, Aug. 19, 1998; 66 
FR 53546, Oct. 23, 2001; 69 FR 21764, Apr. 22, 2004]



Sec. 1815.606  Agency procedures. (NASA supplements paragraphs (a) and 
          (b))

    (a) NASA will not accept for formal evaluation unsolicited proposals 
initially submitted to another agency or to the Jet Propulsion 
Laboratory (JPL) without the offeror's express consent.

[63 FR 9954, Feb. 27, 1998, as amended at 69 FR 21764, Apr. 22, 2004]



Sec. 1815.606-70  Relationship of unsolicited proposals to NRAs.

    An unsolicited proposal for a new effort or a renewal, identified by 
an evaluating office as being within the scope of an open NRA, shall be 
evaluated as a response to that NRA (see 1835.016-71), provided that the 
evaluating office can either:
    (a) State that the proposal is not at a competitive disadvantage, or
    (b) Give the offeror an opportunity to amend the unsolicited 
proposal to ensure compliance with the applicable NRA proposal 
preparation instructions. If these conditions cannot be met, the 
proposal must be evaluated separately.

[63 FR 9954, Feb. 27, 1998, as amended at 64 FR 48561, Sept. 7, 1999]



Sec. 1815.609  Limited use of data.



Sec. 1815.609-70  Limited use of proposals.

    Unsolicited proposals shall be evaluated outside the Government only 
to the extent authorized by, and in accordance with, the procedures 
prescribed in, 1815.207-70.



Sec. 1815.670  Foreign proposals.

    Unsolicited proposals from foreign sources are subject to NPD 
1360.2, Initiation and Development of International Cooperation in Space 
and Aeronautics Programs.

[64 FR 36606, July 7, 1999]

                        Subpart 1815.70_Ombudsman



Sec. 1815.7001  NASA Ombudsman Program.

    NASA's implementation of an ombudsman program is in NPR 5101.33, 
Procurement Advocacy Programs.

[63 FR 9954, Feb. 27, 1998, as amended at 65 FR 58931, Oct. 3, 2000; 69 
FR 63459, Nov. 2, 2004]



Sec. 1815.7003  Contract clause.

    The contracting officer shall insert a clause substantially the same 
as the one at 1852.215-84, Ombudsman, in all solicitations (including 
draft solicitations) and contracts. Use the clause with its Alternate I 
when a task or delivery order contract is contemplated.

[65 FR 38777, June 22, 2000]

[[Page 196]]

                      PART 1816_TYPES OF CONTRACTS

                  Subpart 1816.2_Fixed-Price Contracts

Sec.

Sec. 1816.202 Firm-fixed-price contracts.

Sec. 1816.202-70 NASA contract clause.

               Subpart 1816.3_Cost-Reimbursement Contracts


Sec. 1816.303-70 Cost-sharing contracts.

Sec. 1816.307 Contract clauses.

Sec. 1816.307-70 NASA contract clauses.

                   Subpart 1816.4_Incentive Contracts


Sec. 1816.402 Application of predetermined, formula-type incentives. 
          (NASA paragraphs 1,2 and 3).

Sec. 1816.402-2 Performance incentives.

Sec. 1816.402-270 NASA technical performance incentives.

Sec. 1816.404 Fixed-price contracts with award fees.

Sec. 1816.405 Cost-reimbursement incentive contracts.

Sec. 1816.405-2 Cost-plus-award-fee (CPAF) contracts.

Sec. 1816.405-270 CPAF contracts.

Sec. 1816.405-271 Base fee.

Sec. 1816.405-272 Award fee evaluation periods.

Sec. 1816.405-273 Award fee evaluations.

Sec. 1816.405-274 Award fee evaluation factors.

Sec. 1816.405-275 Award fee evaluation rating.

Sec. 1816.405-276 Award fee payments and limitations.

Sec. 1816.406 Contract clauses.

Sec. 1816.406-70 NASA contract clauses.

              Subpart 1816.5_Indefinite-Delivery Contracts


Sec. 1816.506-70 NASA contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 3478, Jan. 23, 1997, unless otherwise noted.

                  Subpart 1816.2_Fixed-Price Contracts



Sec. 1816.202  Firm-fixed-price contracts.



Sec. 1816.202-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.216-78, 
Firm-Fixed-Price, in firm-fixed-price solicitations and contracts. 
Insert the appropriate amount in the resulting contract.

               Subpart 1816.3_Cost-Reimbursement Contracts



Sec. 1816.303-70  Cost-sharing contracts.

    (a) Cost-sharing with for-profit organizations. (1) Cost sharing by 
for-profit organizations is mandatory in any contract for basic or 
applied research resulting from an unsolicited proposal, and may be 
accepted in any other contract when offered by the proposing 
organization. The requirement for cost-sharing may be waived when the 
contracting officer determines in writing that the contractor has no 
commercial, production, education, or service activities that would 
benefit from the results of the research, and the contractor has no 
means of recovering its shared costs on such projects.
    (2) The contractor's cost-sharing may be any percentage of the 
project cost. In determining the amount of cost-sharing, the contracting 
officer shall consider the relative benefits to the contractor and the 
Government. Factors that should be considered include--
    (i) The potential for the contractor to recover its contribution 
from non-Federal sources;
    (ii) The extent to which the particular area of research requires 
special stimulus in the national interest; and
    (iii) The extent to which the research effort or result is likely to 
enhance the contractor's capability, expertise, or competitive 
advantage.
    (b) Cost-sharing with not-for-profit organizations. (1) Costs to 
perform research stemming from an unsolicited proposal by universities 
and other educational or not-for-profit institutions are usually fully 
reimbursed. When the contracting officer determines that there is a 
potential for significant benefit to the institution cost-sharing will 
be considered.
    (2) The contracting officer will normally limit the institution's 
share to no more than 10 percent of the project's cost.
    (c) Implementation. Cost-sharing shall be stated as a minimum 
percentage of the total allowable costs of the project. The contractor's 
contributed costs may not be charged to the Government

[[Page 197]]

under any other contract or grant, including allocation to other 
contracts and grants as part of an independent research and development 
program.



Sec. 1816.307  Contract clauses. (NASA supplements paragraphs (a), (b), 
          (d), and (g)).

    (a)(1) In paragraph (h)(2)(ii)(B) of the Allowable Cost and Payment 
clause at FAR 52.216-7, the period of years may be increased to 
correspond with any statutory period of limitation applicable to claims 
of third parties against the contractor; provided, that a corresponding 
increase is made in the period for retention of records required in 
paragraph (f) of the clause at FAR 52.215-2, Audit and Records--
Negotiation.
    (g)(1) In paragraph (g)(2)(ii) of the Allowable Cost and Payment--
Facilities clause at FAR 52.216-13, the period of years may be increased 
to correspond with any statutory period of limitation applicable to 
claims of third parties against the contractor; provided, that a 
corresponding increase is made in the period for retention of records 
required in paragraph (f) of the clause at FAR 52.215-2, Audit and 
Records--Negotiation.

[62 FR 3478, Jan. 23, 1997, as amended at 69 FR 21764, Apr. 22, 2004]



Sec. 1816.307-70  NASA contract clauses.

    (a) The contracting officer shall insert the clause at 1852.216-73, 
Estimated Cost and Cost Sharing, in each contract in which costs are 
shared by the contractor pursuant to 1816.303-70.
    (b) The contracting officer shall insert the clause substantially as 
stated at 1852.216-74, Estimated Cost and Fixed Fee, in cost-plus-fixed-
fee contracts.
    (c) The contracting officer may insert the clause at 1852.216-75, 
Payment of Fixed Fee, in cost-plus-fixed-fee contracts. Modifications to 
the clause are authorized.
    (d) The contracting officer may insert the clause at 1852.216-81, 
Estimated Cost, in cost-no-fee contracts that are not cost sharing or 
facilities contracts.
    (e) The contracting officer may insert a clause substantially as 
stated at 1852.216-87, Submission of Vouchers for Payment, in cost-
reimbursement solicitations and contracts.
    (f) When either FAR clause 52.216-7, Allowable Cost and Payment, or 
FAR clause 52.216-13, Allowable Cost and Payment--Facilities, is 
included in the contract, as prescribed at FAR 16.307 (a) and (g), the 
contracting officer should include the clause at 1852.216-89, Assignment 
and Release Forms.

                   Subpart 1816.4_Incentive Contracts



Sec. 1816.402  Application of predetermined, formula-type incentives. 
          (NASA paragraphs 1, 2 and 3).

    When considering the use of a quality, performance, or schedule 
incentive, the following guidance applies:
    (1) A positive incentive is generally not appropriate unless--
    (i) Performance above the target (or minimum, if there are no 
negative incentives) level is of significant value to the Government;
    (ii) The value of the higher level of performance is worth the 
additional cost/fee;
    (iii) The attainment of the higher level of performance is clearly 
within the control of the contractor; and
    (iv) An upper limit is identified, beyond which no further incentive 
is earned.
    (2) A negative incentive is generally not appropriate unless--
    (i) A target level of performance can be established, which the 
contractor can reasonably be expected to reach with a diligent effort, 
but a lower level of performance is also minimally acceptable;
    (ii) The value of the negative incentive is commensurate with the 
lower level of performance and any additional administrative costs; and
    (iii) Factors likely to prevent attainment of the target level of 
performance are clearly within the control of the contractor.
    (3) When a negative incentive is used, the contract must indicate a 
level below which performance is not acceptable.

[63 FR 12997, Mar. 17, 1998, as amended at 69 FR 21764, Apr. 22, 2004]

[[Page 198]]



Sec. 1816.402-2  Performance incentives.



Sec. 1816.402-270  NASA technical performance incentives.

    (a) Pursuant to the guidelines in 1816.402, NASA has determined that 
a performance incentive shall be included in all contracts based on 
performance-oriented documents (see FAR 11.101(a)), except those awarded 
under the commercial item procedures of FAR part 12, where the primary 
deliverable(s) is (are) hardware with a total value (including options) 
greater than $25 million. Any exception to this requirement shall be 
approved in writing by the head of contracting activity. Performance 
incentives may be included in hardware contracts valued under $25 
million acquired under procedures other than FAR part 12 at the 
discretion of the procurement officer upon consideration of the 
guidelines in 1816.402. Performance incentives, which are objective and 
measure hardware performance after delivery and acceptance, are separate 
from other incentives, such as cost or delivery incentives.
    (b) When a performance incentive is used, it shall be structured to 
be both positive and negative based on hardware performance after 
delivery and acceptance, unless the contract type requires complete 
contractor liability for product performance (e.g., fixed price). In 
this latter case, a negative incentive is not required. In structuring 
the incentives, the contract shall establish a standard level of 
performance based on the salient hardware performance requirement. This 
standard performance level is normally the contract's minimum 
performance requirement. No incentive amount is earned at this standard 
performance level. Discrete units of measurement based on the same 
performance parameter shall be identified for performance above and, 
when a negative incentive is used, below the standard. Specific 
incentive amounts shall be associated with each performance level from 
maximum beneficial performance (maximum positive incentive) to, when a 
negative incentive is included, minimal beneficial performance or total 
failure (maximum negative incentive). The relationship between any given 
incentive, either positive and negative, and its associated unit of 
measurement should reflect the value to the Government of that level of 
hardware performance. The contractor should not be rewarded for above-
standard performance levels that are of no benefit to the Government.
    (c) The final calculation of the performance incentive shall be done 
when hardware performance, as defined in the contract, ceases or when 
the maximum positive incentive is reached. When hardware performance 
ceases below the standard established in the contract and a negative 
incentive is included, the Government shall calculate the amount due and 
the contractor shall pay the Government that amount. Once hardware 
performance exceeds the standard, the contractor may request payment of 
the incentive amount associated with a given level of performance, 
provided that such payments shall not be more frequent than monthly. 
When hardware performance ceases above the standard level of 
performance, or when the maximum positive incentive is reached, the 
Government shall calculate the final performance incentive earned and 
unpaid and promptly remit it to the contractor.
    (d) When the deliverable hardware lends itself to multiple, 
meaningful measures of performance, multiple performance incentives may 
be established. When the contract requires the sequential delivery of 
several hardware items (e.g. multiple spacecraft), separate performance 
incentive structures may be established to parallel the sequential 
delivery and use of the deliverables.
    (e) In determining the value of the maximum performance incentives 
available, the contracting officer shall follow the following rules:
    (1) For a CPFF contract, the sum of the maximum positive performance 
incentive and fixed fee shall not exceed the limitations in FAR 15.404-
4(c)(4)(i).
    (2) For an award fee contract.
    (i) The individual values of the maximum positive performance 
incentive and the total potential award fee (including any base fee) 
shall each be at least one-third of the total potential contract fee. 
The remaining one-third of the total potential contract fee may

[[Page 199]]

be divided between award fee and the maximum performance incentive at 
the discretion of the contracting officer.
    (ii) The maximum negative performance incentive for research and 
development hardware (e.g., the first and second units) shall be equal 
in amount to the total earned award fee (including any base fee). The 
maximum negative performance incentives for production hardware (e.g., 
the third and all subsequent units of any hardware items) shall be equal 
in amount to the total potential award fee (including any base fee). 
Where one contract contains both cases described above, any base fee 
shall be allocated reasonably among the items.
    (3) For cost reimbursement contracts other than award fee contracts, 
the maximum negative performance incentives shall not exceed the total 
earned fee under the contract.

[62 FR 3478, Jan. 23, 1997, as amended at 62 FR 58687, Oct. 30, 1997; 63 
FR 9965, Feb. 27, 1998; 63 FR 12997, Mar. 17, 1998; 63 FR 28285, May 22, 
1998; 68 FR 23424, May 2, 2003; 69 FR 21764, Apr. 22, 2004]



Sec. 1816.404  Fixed-price contracts with award fees.

    Section 1816.405-2 applies to the use of FPAF contracts as if they 
were CPAF contracts. However, neither base fee (see 1816.405-271) nor 
evaluation of cost control (see 1816.405-274) apply to FPAF contracts.

[62 FR 58687, Oct. 30, 1997]



Sec. 1816.405  Cost-reimbursement incentive contracts.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



Sec. 1816.405-2  Cost-plus-award-fee (CPAF) contracts.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



Sec. 1816.405-270  CPAF contracts.

    (a) Use of an award fee incentive requires advance approval by the 
Assistant Administrator for Procurement. Requests for approval, that 
include Determination & Findings (D&F) cited in paragraph (b) of this 
section, shall be submitted to Headquarters Office of Procurement, 
Program Operations Division.
    (b) Contracting officers shall prepare a D&F in accordance with FAR 
16.401(d) prior to using an award fee incentive. In addition to the 
items identified in FAR 16.401(e)(1), D&Fs will include a discussion of 
the other types of contracts considered and shall indicate why an award 
fee incentive is the appropriate choice. Award fee incentives should not 
be used on contracts with a total estimated cost and fee less than $2 
million per year. Use of award fee incentive for lower-valued 
acquisitions may be authorized in exceptional situations such as 
contract requirements having direct health or safety impacts, where the 
judgmental assessment of the quality of contractor performance is 
critical.
    (c) Except as provided in paragraph (d) of this section, an award 
fee incentive may be used in conjunction with other contract types for 
aspects of performance that cannot be objectively assessed. In such 
cases, the cost incentive is based on objective formulas inherent in the 
other contract types (e.g., FPI, CPIF), and the award fee provision 
should not separately incentivize cost performance.
    (d) Award fee incentives shall not be used with a cost-plus-fixed-
fee (CPFF) contract.

[76 FR 6697, Feb. 8, 2011]



Sec. 1816.405-271  Base fee.

    (a) A base fee shall not be used on CPAF contracts for which the 
periodic award fee evaluations are final (1816.405-273(a)). In these 
circumstances, contractor performance during any award fee period is 
independent of and has no effect on subsequent performance periods or 
the final results at contract completion. For other contracts, such as 
those for hardware or software development, the procurement officer may 
authorize the use of a base fee not to exceed 3 percent. Base fee shall 
not be used when an award fee incentive is used in conjunction with 
another contract type (e.g., CPIF/AF).
    (b) When a base fee is authorized for use in a CPAF contract, it 
shall be paid only if the final award fee evaluation is ``satisfactory'' 
or better. (See 1816.405-

[[Page 200]]

273 and 1816.405-275) Pending final evaluation, base fee may be paid 
during the life of the contract at defined intervals on a provisional 
basis. If the final award fee evaluation is ``unsatisfactory'', all 
provisional base fee payments shall be refunded to the Government.

[76 FR 6697, Feb. 8, 2011]



Sec. 1816.405-272  Award fee evaluation periods.

    (a) Award fee evaluation periods, including those for interim 
evaluations, should be at least 6 months in length. When appropriate, 
the procurement officer may authorize shorter evaluation periods after 
ensuring that the additional administrative costs associated with the 
shorter periods are offset by benefits accruing to the Government. Where 
practicable, such as developmental contracts with defined performance 
milestones (e.g., Preliminary Design Review, Critical Design Review, 
initial system test), establishing evaluation periods at conclusion of 
the milestones rather than calendar dates, or in combination with 
calendar dates should be considered. In no case shall an evaluation 
period be longer than 12 months.
    (b) A portion of the total available award fee contract shall be 
allocated to each of the evaluation periods. This allocation may result 
in an equal or unequal distribution of fee among the periods. The 
contracting officer should consider the nature of each contract and the 
incentive effects of fee distribution in determining the appropriate 
allocation structure.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997, 
as amended at 63 FR 13133, Mar. 18, 1998]



Sec. 1816.405-273  Award fee evaluations.

    (a) Service contracts. On contracts where the contract deliverable 
is the performance of a service over any given time period, contractor 
performance is often definitively measurable within each evaluation 
period. In these cases, all evaluations are final, and the contractor 
keeps the fee earned in any period regardless of the evaluations of 
subsequent periods. Unearned award fee in any given period in a service 
contract is lost and shall not be carried forward, or ``rolled-over,'' 
into subsequent periods.
    (b) End item contracts. On contracts, such as those for end item 
deliverables, where the true quality of contractor performance cannot be 
measured until the end of the contract, only the last evaluation is 
final. At that point, the total contract award fee pool is available, 
and the contractor's total performance is evaluated against the award 
fee plan to determine total earned award fee. In addition to the final 
evaluation, interim evaluations are done to monitor performance prior to 
contract completion, provide feedback to the contractor on the 
Government's assessment of the quality of its performance, and establish 
the basis for making interim award fee payments (see 1816.405-276(a)). 
These interim evaluations and associated interim award fee payments are 
superseded by the fee determination made in the final evaluation at 
contract completion. The Government will then pay the contractor, or the 
contractor will refund to the Government, the difference between the 
final award fee determination and the cumulative interim fee payments.
    (c) Control of evaluations. Interim and final evaluations may be 
used to provide past performance information during the source selection 
process in future acquisitions and should be marked and controlled as 
``Source Selection Information--See FAR 3.104''.

[63 FR 13133, Mar. 18, 1998]



Sec. 1816.405-274  Award fee evaluation factors.

    (a) Explicit evaluation factors shall be established for each award 
fee period. Factors shall be linked to acquisition objectives which 
shall be defined in terms of contract cost, schedule, and technical 
performance. If used, subfactors should be limited to the minimum 
necessary to ensure a thorough evaluation and an effective incentive.
    (b) Evaluation factors will be developed by the contracting officer 
based upon the characteristics of an individual procurement. Cost 
control, schedule, and technical performance considerations shall be 
included as

[[Page 201]]

evaluation factors in all CPAF contracts, as applicable. When explicit 
evaluation factor weightings are used, cost control shall be no less 
than 25 percent of the total weighted evaluation factors. The 
predominant consideration of the cost control evaluation should be a 
measurement of the contractor's performance against the negotiated 
estimated cost of the contract. This estimated cost may include the 
value of undefinitized change orders when appropriate.
    (c)(1) The technical factor must include consideration of risk 
management (including mission success, safety, security, health, export 
control, and damage to the environment, as appropriate) unless waived at 
a level above the contracting officer, with the concurrence of the 
project manager. The rationale for any waiver shall be documented in the 
contract file. When safety, export control, or security are considered 
under the technical factor, the award fee plan shall allow the following 
fee determinations, regardless of contractor performance in other 
evaluation factors, when there is a major breach of safety or security.
    (i) For evaluation of service contracts under 1816.405-273(a), an 
overall fee rating of unsatisfactory for any evaluation period in which 
there is a major breach of safety or security.
    (ii) For evaluation of end item contracts under 1816.405-273(b), an 
overall fee rating of unsatisfactory for any interim evaluation period 
in which there is a major breach of safety or security. To ensure that 
the final award fee evaluation at contract completion reflects any major 
breach of safety or security, in an interim period, the overall award 
fee pool shall be reduced by the amount of the fee available for the 
period in which the major breach occurred if an unsatisfactory fee 
rating was assigned because of a major breach of safety or security.
    (2) A major breach of safety must be related directly to the work on 
the contract. A major breach of safety is an act or omission of the 
Contractor that consists of an accident, incident, or exposure resulting 
in a fatality or mission failure; or in damage to equipment or property 
equal to or greater than $1 million; or in any ``willful'' or ``repeat'' 
violation cited by the Occupational Safety and Health Administration 
(OSHA) or by a state agency operating under an OSHA approved plan.
    (3) A major breach of security may occur on or off Government 
installations, but must be directly related to the work on the contract. 
A major breach of security is an act or omission by the contractor that 
results in compromise of classified information, illegal technology 
transfer, workplace violence resulting in criminal conviction, sabotage, 
compromise or denial of information technology services, equipment or 
property damage from vandalism greater than $250,000, or theft greater 
than $250,000.
    (4) The Assistant Administrator for Procurement shall be notified 
prior to the determination of an unsatisfactory award fee rating because 
of a major breach of safety or security.
    (d) In rare circumstances, contract costs may increase for reasons 
outside the contractor's control and for which the contractor is not 
entitled to an equitable adjustment. One example is a weather-related 
launch delay on a launch support contract. The Government shall take 
such situations into consideration when evaluating contractor cost 
control.
    (e) Emphasis on cost control should be balanced against other 
performance requirement objectives. The contractor should not be 
incentivized to pursue cost control to the point that overall 
performance is significantly degraded. For example, incentivizing an 
underrun that results in direct negative impacts on technical 
performance, safety, or other critical contract objectives is both 
undesirable and counterproductive. Therefore, evaluation of cost control 
shall conform to the following guidelines:
    (1) Normally, the contractor should be given an unsatisfactory 
rating for cost control when there is a significant overrun within its 
control. However, the contractor may receive a satisfactory or higher 
rating for cost control if the overrun is insignificant. Award fee 
ratings should decrease sharply as the size of the overrun increases. In 
any evaluation of contractor overrun performance, the Government shall 
consider the reasons for the overrun and

[[Page 202]]

assess the extent and effectiveness of the contractor's efforts to 
control or mitigate the overrun.
    (2) The contractor should normally be rewarded for an underrun 
within its control, up to the maximum award fee rating allocated for 
cost control, provided the adjectival rating for all other award fee 
evaluation factors is very good or higher (see FAR 16.401(e)(iv)).
    (3) The contractor should be rewarded for meeting the estimated cost 
of the contract, but not to the maximum rating allocated for cost 
control, to the degree that the contractor has prudently managed costs 
while meeting contract requirements. No award shall be given in this 
circumstance unless the average adjectival rating for all other award 
fee evaluation factors is satisfactory or higher.
    (f) When an AF arrangement is used in conjunction with another 
contract type, the award fee's cost control factor will only apply to a 
subjective assessment of the contractor's efforts to control costs and 
not the actual cost outcome incentivized under the basic contract type 
(e.g. CPIF, FPIF).
    (g)(1) The contractor's performance against the subcontracting plan 
incorporated in the contract shall be evaluated. Emphasis may be placed 
on the contractor's accomplishment of its goals for subcontracting with 
small business, HUBZone small business, women-owned small business, 
veteran-owned small business, and service-disabled veteran-owned small 
business concerns.
    (2) The contractor's performance against the contract target for 
participation as subcontractors by small disadvantaged business concerns 
in the NAICS Major Groups designated by the Department of Commerce (see 
FAR 19.201(c)) shall also be evaluated if the clause at FAR 52.219-26, 
Small Disadvantaged Business Participation--Incentive Subcontracting, is 
not included in the contract (see FAR 19.1204(c)).
    (3) The contractor's achievements in subcontracting high technology 
efforts as well as the contractor's performance under the Mentor-
Prot[eacute]g[eacute] Program, if applicable, may also be evaluated.
    (4) The evaluation weight given to the contractor's performance 
against the considerations in paragraphs (g)(1) through (g)(3) of this 
section should be significant (up to 15 percent of available award fee). 
The weight should motivate the contractor to focus management attention 
to subcontracting with small, HUBZone, women-owned, veteran-owned, and 
service-disabled veteran-owned small business concerns, and with small 
disadvantaged business concerns in designated NAICS Major Groups to the 
maximum extent practicable, consistent with efficient contract 
performance.
    (h) When contract changes are anticipated, the contractor's 
responsiveness to requests for change proposals should be evaluated. 
This evaluation should include the contractor's submission of timely, 
complete proposals and cooperation in negotiating the change.
    (i) Only the award fee performance evaluation factors set forth in 
the performance evaluation plan shall be used to determine award fee 
scores.
    (j) The Government may unilaterally modify the applicable award fee 
performance evaluation factors and performance evaluation areas prior to 
the start of an evaluation period. The contracting officer shall notify 
the contractor in writing of any such changes 30 days prior to the start 
of the relevant evaluation period.

[76 FR 6697, Feb. 8, 2011]



Sec. 1816.405-275  Award fee evaluation rating.

    (a) All award fee contracts shall utilize the adjectival rating 
categories and associated descriptions as well as the award fee pool 
available to be earned percentages for each adjectival rating category 
contained in FAR 16.401(e)(iv).
    (b) The following numerical scoring system shall be used in 
conjunction with the FAR adjectival rating categories and associated 
descriptions (see FAR 16.401(e)(iv)).
    (1) Excellent (100-91)
    (2) Very good (90-76)
    (3) Good (75-51)
    (4) Satisfactory (50)
    (5) Unsatisfactory (less than 50) No award fee shall be paid for an 
unsatisfactory rating.
    (c) As a benchmark for evaluation, in order to be rated 
``Excellent'' overall, the contractor would typically be

[[Page 203]]

under cost, on or ahead of schedule, and providing outstanding technical 
performance.
    (d) A weighted scoring system appropriate for the circumstances of 
the individual contract requirement should be developed. In this system, 
each evaluation factor (e.g., technical, schedule, cost control) is 
assigned a specific percentage weighting with the cumulative weightings 
of all factors totaling 100. During the award fee evaluation, each 
factor is scored from 0-100 according to the ratings defined in 
1816.405-275(b). The numerical score for each factor is then multiplied 
by the weighting for that factor to determine the weighted score. For 
example, if the technical factor has a weighting of 60 percent and the 
numerical score for that factor is 80, the weighted technical score is 
48 (80 x 60 percent). The weighted scores for each evaluation factor are 
then added to determine the total award fee score.

[76 FR 6698, Feb. 8, 2011]



Sec. 1816.405-276  Award fee payments and limitations.

    (a) Interim award fee payments. The amount of an interim award fee 
payment (see 1816.405-273(b)) is limited to the lesser of the interim 
evaluation score or 80 percent of the fee allocated to that interim 
period less any provisional payments (see paragraph (b) of this 
subsection) made during the period.
    (b) Provisional award fee payments. Provisional award fee payments 
are payments made within evaluation periods prior to an interim or final 
evaluation for that period. Provisional payments may be included in the 
contract and should be negotiated on a case-by-case basis. For a service 
contract, the total amount of award fee available in an evaluation 
period that may be provisionally paid is the lesser of a percentage 
stipulated in the contract (but not exceeding 80 percent) or the prior 
period's evaluation score. For an end item contract, the total amount of 
provisional payments in a period is limited to a percentage not to 
exceed 80 percent of the prior interim period's evaluation score.
    (c) Fee payment. The Fee Determination Official's rating for both 
interim and final evaluations will be provided to the contractor within 
45 calendar days of the end of the period being evaluated. Any fee, 
interim or final, due the contractor will be paid no later than 60 
calendar days after the end of the period being evaluated.

[63 FR 13134, Mar. 18, 1998]



Sec. 1816.406  Contract clauses.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



Sec. 1816.406-70  NASA contract clauses.

    (a) As authorized by FAR 16.406(e), the contracting officer shall 
insert the clause at 1852.216-76, Award Fee for Service Contracts, in 
solicitations and contracts when an award fee contract is contemplated 
and the contract deliverable is the performance of a service.
    (b) As authorized by FAR 16.406(e), the contracting officer shall 
insert the clause at 1852.216-77, Award Fee for End Item Contracts, in 
solicitations and contracts when an award fee contract is contemplated 
and the contract deliverables are hardware or other end items for which 
total contractor performance cannot be measured until the end of the 
contract. When the clause is used in a fixed-price award fee contract, 
it shall be modified by deleting references to base fee in paragraphs 
(a), and by deleting paragraph (c)(1), the last sentence of (c)(4), and 
the first sentence of (c)(5).
    (c) The contracting officer may insert a clause substantially as 
stated at 1852.216-83, Fixed Price Incentive, in fixed-price-incentive 
solicitations and contracts utilizing firm or successive targets. For 
items subject to incentive price revision, identify the target cost, 
target profit, target price, and ceiling price for each item.
    (d) The contracting officer shall insert the clause at 1852.216-84, 
Estimated Cost and Incentive Fee, in cost-plus-incentive-fee 
solicitations and contracts.
    (e) The contracting officer may insert the clause at 1852.216-85, 
Estimated Cost and Award Fee, in cost an award fee solicitations and 
contracts. When the contract includes performance incentives, use 
Alternate I. When the clause is used in a fixed-price

[[Page 204]]

award fee contract, it shall be modified to delete references to base 
fee and to reflect the contract type.
    (f) As provided at 1816.402-270, the contracting officer shall 
insert a clause substantially as stated at 1852.216-88, Performance 
Incentive, when the primary deliverable(s) is (are) hardware and total 
estimated cost and fee is greater than $25 million. A clause 
substantially as stated at 1852.216-88 may be included in lower dollar 
value hardware contracts with the approval of the procurement officer.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
36707, July 9, 1997; 62 FR 58687, Oct. 30, 1997; 63 FR 13134, Mar. 18, 
1998]

              Subpart 1816.5_Indefinite-Delivery Contracts



Sec. 1816.506-70  NASA contract clause.

    Insert the clause at 1852.216-80, Task Ordering Procedure, in 
solicitations and contracts when an indefinite-delivery, task order 
contract is contemplated. The clause is applicable to both fixed-price 
and cost-reimbursement type contracts. If the contract does not require 
533M reporting (See NPR 9501.2, NASA Contractor Financial Management 
Reporting System), use the clause with its Alternate I.

[62 FR 3478, Jan. 23, 1997, as amended at 64 FR 51079, Sept. 21, 1999; 
69 FR 63459, Nov. 2, 2004]

                  PART 1817_SPECIAL CONTRACTING METHODS

                         Subpart 1817.2_Options

Sec.

Sec. 1817.200 Scope of subpart.

Sec. 1817.204 Contracts.

Sec. 1817.208 Solicitation provisions and contract clauses.

          Subpart 1817.71_Exchange or Sale of Personal Property


Sec. 1817.7101 Policy.

                   Subpart 1817.730_Phased Acquisition


Sec. 1817.7300 Definitions.

Sec. 1817.7302 Contract clauses.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 55753, Oct. 29, 1996, unless otherwise noted.

                         Subpart 1817.2_Options



Sec. 1817.200  Scope of subpart.

    FAR subpart 17.2 applies to all NASA contracts.



Sec. 1817.204  Contracts.

    (e)(i) The 5-year limitation (basic plus option periods) applies to 
all NASA contracts regardless of type and other procurement award 
instruments. This includes agreements (e.g. basic ordering agreements, 
blanket purchase agreements), interagency acquisitions, and orders 
placed under agreements or awarded under a Federal Supply Schedule or 
other indefinite delivery/indefinite quantity contracts awarded by other 
agencies.
    (iii) Requests for deviations from the 5-year limitation policy 
shall be sent to the Assistant Administrator for Procurement (Code HS) 
and shall include justification for exceeding five years. The 
justification shall discuss planned future assessment of continued 
performance either prior to exercise of options or at the mid-term of a 
basic contract with no options. Evidence shall also be included showing 
that the extended years can be reasonably priced.

[69 FR 9964, Mar. 3, 2004, as amended at 69 FR 21764, Apr. 22, 2004]



Sec. 1817.208  Solicitation provisions and contract clauses. (NASA 
          supplements paragraph (c))

    (c)(3) The contracting officer shall insert a provision 
substantially the same as FAR 52.217-5 in cost reimbursement contracts 
when the other conditions of FAR 17.208(c) are met.

          Subpart 1817.71_Exchange or Sale of Personal Property



Sec. 1817.7101  Policy.

    (a) Section 201(c) of the Federal Property and Administrative 
Services Act of 1949, 63 Stat. 384, as amended (40 U.S.C.481(c)), 
authorizes the exchange or sale of Government personal property and the 
application of the exchange allowance or proceeds from the

[[Page 205]]

sale to the acquisition of similar property for replacement purposes. 
The transactions must be evidenced in writing.
    (b) NASA installations and contractors are authorized to conduct 
exchange/sale transactions as long as the requirements and restrictions 
of NPR 4300.1 and the Federal Property Management Regulations, 
Subchapter H, part 101-46, are followed. In conducting such exchanges/
sales, NASA contractors must obtain the contracting officer's prior 
written approval and must report the transactions to the cognizant NASA 
installation Property Disposal Officer (PDO).

[61 FR 55753, Oct. 29, 1996, as amended at 65 FR 58932, Oct. 3, 2000; 69 
FR 63459, Nov. 2, 2004]

                   Subpart 1817.73_Phased Acquisition



Sec. 1817.7300  Definitions.

    (a) Down-selection. In a phased acquisition, the process of 
selecting contractors for later phases from among the preceding phase 
contractors.
    (b) Phased Acquisition. An incremental acquisition implementation 
comprised of several distinct phases where the realization of program/
project objectives requires a planned, sequential acquisition of each 
phase. The phases may be acquired separately, in combination, or through 
a down-selection strategy.
    (c) Progressive Competition. A type of down-selection strategy for a 
phased acquisition. In this method, a single solicitation is issued for 
all phases of the program. The initial phase contracts are awarded, and 
the contractors for subsequent phases are expected to be chosen through 
a down-selection from among the preceding phase contractors. In each 
phase, progressively fewer contracts are awarded until a single 
contractor is chosen for the final phase. Normally, all down-selections 
are accomplished without issuance of a new, formal solicitation.



Sec. 1817.7302  Contract clauses.

    (a) The contracting officer shall insert the clause at 1852.217-71, 
Phased Acquisition Using Down-Selection Procedures, in solicitations and 
contracts for phased acquisitions using down-selection procedures other 
than the progressive competition technique. The clause may be modified 
as appropriate if the acquisition has more than two phases. The clause 
shall be included in the solicitation for each phase and in all 
contracts except that for the final phase.
    (b) The contracting officer shall insert the clause at 1852.217-72, 
Phased Acquisition Using Progressive Competition Down-Selection 
Procedures, in solicitations and contracts for phased acquisitions using 
the progressive competition technique. The clause may be modified as 
appropriate if the acquisition has more than two phases. The clause 
shall be included in the initial phase solicitation and all contracts 
except that for the final phase.

[63 FR 56091, Oct. 21, 1998, as amended at 69 FR 21764, Apr. 22, 2004]

[[Page 206]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 1819_SMALL BUSINESS PROGRAMS

Sec.

Sec. 1819.001 Definitions.

                         Subpart 1819.2_Policies


Sec. 1819.201 General policy.

Subpart 1819.3_Determination of Small Business Status for Small Business 
                                Programs


Sec. 1819.302 Protesting a small business representation.

        Subpart 1819.7_The Small Business Subcontracting Program


Sec. 1819.708 Contract clauses.

Sec. 1819.708-70 NASA solicitation provision and contract clause.

  Subpart 1819.10_Small Business Competitiveness Demonstration Program


Sec. 1819.1005 Applicability.

                   Subpart 1819.70_NASA 8 Percent Goal


Sec. 1819.7003 Contract clause.

           Subpart 1819.71_NASA Rural Area Small Business Plan


Sec. 1819.7101 Definition.

Sec. 1819.7102 General.

Sec. 1819.7103 Solicitation provision and contract clause.

        Subpart 1819.72_NASA Mentor-Prot[eacute]g[eacute] Program


Sec. 1819.7201 Scope of subpart.

Sec. 1819.7202 Eligibility.

Sec. 1819.7203 Mentor approval process.

Sec. 1819.7204 Prot[eacute]g[eacute] selection.

Sec. 1819.7205 Mentor-prot[eacute]g[eacute] agreements.

Sec. 1819.7206 Agreement contents.

Sec. 1819.7207 Agreement submission and approval process.

Sec. 1819.7208 Award Fee Pilot Program.

Sec. 1819.7209 Credit agreements.

Sec. 1819.7210 Agreement terminations.

Sec. 1819.7211 Loss of eligibility.

Sec. 1819.7212 Reporting requirements.

Sec. 1819.7213 Performance reviews.

Sec. 1819.7214 Measurement of program success

Sec. 1819.7215 Solicitation provision and contract clauses.

  Subpart 1819.73_Small Business Innovation Research (SBIR) and Small 
              Business Technology Transfer (STTR) Programs


Sec. 1819.7301 Scope of subpart.

Sec. 1819.7302 NASA contract clauses.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 36707, July 9, 1997, unless otherwise noted.



Sec. 1819.001  Definitions.

    High-Tech as used in this part means research and/or development 
efforts that are within or advance the state-of-the-art in a technology 
discipline and are performed primarily by professional engineers, 
scientists, and highly skilled and trained technicians or specialists.

                         Subpart 1819.2_Policies



Sec. 1819.201  General policy. (NASA supplements paragraphs (a), (c), 
          (d), and (f))

    (a)(i) NASA is committed to providing to small, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone, small 
disadvantaged, and women-owned small business concerns, maximum 
practicable opportunities to participate in Agency acquisitions at the 
prime contract level. The participation of NASA prime contractors in 
providing subcontracting opportunities to such entities is also an 
essential part of the Agency's commitment. The participation of these 
entities is particularly emphasized in high-technology areas where they 
have not traditionally dominated.
    (ii) NASA annually negotiates Agency small, service-disabled 
veteran-owned small business, HUBZone, small disadvantaged, and women-
owned small business prime and subcontracting goals with the Small 
Business Administration pursuant to section 15(g) of the Small Business 
Act (15 U.S.C. 644). In addition, NASA has the following statutory goals 
based on the

[[Page 207]]

total value of prime and subcontract awards:
    (A) Under Public Laws 101-144, 101-507, and 102-389, an annual goal 
of at least 8 percent for prime and subcontract awards to small 
disadvantaged business (SDB) concerns, Historically Black Colleges and 
Universities (HBCUs), minority institutions (MIs), and women-owned small 
businesses (WOSBs) (see 1819.7000); and
    (B) Under 10 U.S.C. 2323, an annual goal of 5 percent for prime and 
subcontract awards to SDBs, HBCUs, and WOSBs.

[62 FR 36707, July 9, 1997, as amended at 64 FR 25215, May 11, 1999; 65 
FR 38777, June 22, 2000; 65 FR 58932, Oct. 3, 2000; 67 FR 53947, Oct. 
23, 2001; 69 FR 21765, Apr. 22, 2004]



Sec. 1819.302  Protesting a small business representation. (NASA 
          supplements paragraph (d))

    (d)(1) The contracting officer shall not make awards of small 
business set-aside acquisitions before the expiration of the period for 
receipt of a size standard protest.

        Subpart 1819.7_The Small Business Subcontracting Program



Sec. 1819.708  Contract clauses. (NASA supplements paragraph (b))

    (b)(1) The contracting officer shall use the clause at FAR 52.219-9 
with its Alternate II when contracting by negotiation.



Sec. 1819.708-70  NASA solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 1852.219-
73, Small Business Subcontracting Plan, in invitations for bids 
containing the clause at FAR 52.219-9 with its Alternate I. Insert in 
the last sentence the number of calendar days after request that the 
offeror must submit a complete plan.
    (b) The contracting officer shall insert the clause at 1852.21975, 
Small Business Subcontracting Reporting, in solicitations and contracts 
containing the clause at FAR 52.219-9, except for contracts covered by 
an approved commercial plan.

[64 FR 25215, May 11, 1999]

  Subpart 1819.10_Small Business Competitiveness Demonstration Program



Sec. 1819.1005  Applicability.

    (b) The targeted industry categories for NASA and their North 
American Industry Classification System (NAICS) codes are:

------------------------------------------------------------------------
         NAICS code                       Industry category
------------------------------------------------------------------------
334111.....................  Electronic Computer Manufacturing.
334418.....................  Printed Circuit Assembly (Electronic
                              Assembly) Manufacturing.
334613.....................  Magnetic and Optical Recording Media
                              Manufacturing.
334119.....................  Other Computer Peripheral Equipment
                              Manufacturing.
33422......................  Radio and Television Broadcasting and
                              Wireless Communication Equipment
                              Manufacturing.
336415.....................  Guided Missile and Space Vehicle Propulsion
                              Unit and Propulsion Unit Parts
                              Manufacturing.
336419.....................  Other Guided Missile and Space Vehicle
                              Parts and Auxiliary Equipment
                              Manufacturing.
334511.....................  Search, Detection, Navigation, Guidance,
                              Aeronautical, and Nautical Systems and
                              Instrument Manufacturing.
333314.....................  Optical Instrument and Lens Manufacturing.
541511.....................  Custom Computer Programming Services.
541512.....................  Computer Systems Design Services.
51421......................  Data Processing Services.
541519.....................  Other Computer Related Services.
------------------------------------------------------------------------


[65 FR 58932, Oct. 3, 2000, as amended at 67 FR 50824, Aug. 6, 2002]

[[Page 208]]

                   Subpart 1819.70_NASA 8 Percent Goal



Sec. 1819.7003  Contract clause.

    The contracting officer shall insert the clause at 1852.219-76, NASA 
8 Percent Goal, in all solicitations and contracts other than those 
below the simplified acquisition threshold or when the contract, 
together with all its subcontracts, is to be performed entirely outside 
of any State, territory, or possession of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, and the Trust 
Territory of the Pacific Islands.

           Subpart 1819.71_NASA Rural Area Small Business Plan



Sec. 1819.7101  Definition.

    Rural area means a county with a population of fewer than twenty 
thousand individuals.



Sec. 1819.7102  General.

    Pursuant to Public Law 100-590, NASA established a Rural Area 
Business Enterprise Development Plan, including methods for encouraging 
prime and subcontractors to use small business concerns located in rural 
areas as subcontractors and suppliers. One method is to encourage the 
contractor to use its best efforts to comply with the intent of the 
statute.



Sec. 1819.7103  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 1852.219-74, Use 
of Rural Area Small Businesses, in solicitations and contracts that 
offer subcontracting possibilities or that are expected to exceed 
$550,000 ($1,000,000 for construction of public facility) unless the 
contract, together with all its subcontracts, is to be performed 
entirely outside of any State, territory, or possession of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, and 
the Trust Territory of the Pacific Islands.

[62 FR 36707, July 9, 1997, as amended at 71 FR 71073, Dec. 8, 2006]

        Subpart 1819.72_NASA Mentor-Prot[eacute]g[eacute] Program

    Source: 74 FR 25672, May 29, 2009, unless otherwise noted.



Sec. 1819.7201  Scope of subpart.

    (a) This subpart implements the NASA Mentor-Prot[eacute]g[eacute] 
Program (hereafter referred to as the Program) established under the 
authority of Title 42, U.S.C., 2473(c)(1). The purpose of the Program is 
to:
    (1) Provide incentives to NASA contractors, performing under at 
least one active approved subcontracting plan negotiated with NASA to 
assist prot[eacute]g[eacute]s in enhancing their capabilities to satisfy 
NASA and other contract and subcontract requirements;
    (2) Increase the overall participation of prot[eacute]g[eacute]s as 
subcontractors and suppliers under NASA contracts, other Federal agency 
contracts, and commercial contracts; and
    (3) Foster the establishment of long-term business relationships 
between prot[eacute]g[eacute]s and mentors.
    (b) Under the Program, eligible entities approved as mentors will 
enter into mentor-prot[eacute]g[eacute] agreements with eligible 
prot[eacute]g[eacute]s to provide appropriate developmental assistance 
to enhance the capabilities of the prot[eacute]g[eacute]s to perform as 
subcontractors and suppliers. NASA may provide the mentor award fee 
incentives. Additionally, this subpart explains the calculated 
subcontracting credit for a mentor-prot[eacute]g[eacute] program 
pursuant to FAR 52.219-9, Small Business Subcontracting Plan.



Sec. 1819.7202  Eligibility.

    (a) Eligibility of Mentors: To be eligible to participate as a 
mentor, an entity must be--
    (1) A large prime contractor performing under contracts with at 
least one approved subcontracting plan negotiated with NASA, pursuant to 
FAR subpart 19.7, The Small Business Subcontracting Program. A 
contractor may apply to become a mentor even if they currently are not 
performing under a NASA contract with an approved subcontracting plan, 
if they are currently performing for another Federal Agency under a 
contract with an approved subcontracting plan. A NASA

[[Page 209]]

mentor-prot[eacute]g[eacute] agreement will not be approved until such 
time the mentor company is performing under a NASA contract with an 
approved subcontracting plan; and
    (2) A contractor eligible for receipt of Government contracts. (i) 
An entity may not be approved for participation in the Program as a 
mentor if, at the time of requesting participation in the program, it is 
currently debarred or suspended from contracting with the Federal 
Government pursuant to FAR subpart 9.4, Debarment, Suspension, and 
Ineligibility.
    (b) Eligibility of Prot[eacute]g[eacute]s: To be eligible to 
participate as a prot[eacute]g[eacute], an entity must--
    (1) Be classified as a Small Disadvantaged Business (SDB), a women-
owned small business, a HUBZone small business, a veteran-owned or 
service-disabled veteran-owned small business, an historically black 
college and university, minority institution of higher education, as 
defined in FAR part 2, Definitions of Parts and Terms, an active NASA 
SBIR Phase II company, or a non-profit agency employing people who are 
blind or severely disabled as defined in 41 CFR chapter 51.
    (2) Be eligible for the award of Federal contracts; and
    (3) Be a small business according to the Small Business 
Administration (SBA) size standard for the North American Industry 
Classification System (NAICS) code that represents the contemplated 
supplies or services to be provided by the prot[eacute]g[eacute] to the 
mentor if the prot[eacute]g[eacute] is representing itself as a women-
owned small business, HUBZone small business, or a veteran-owned or 
service-disabled veteran-owned small business.
    (4) Except for SDBs, a prot[eacute]g[eacute] firm may self-certify 
to a mentor firm that it meets the requirements set forth in paragraph 
(a) of this section. Mentors may rely in good faith on written 
representations by potential prot[eacute]g[eacute]s that they meet the 
specified eligibility requirements. SDB status eligibility and 
documentation requirements are determined according to FAR 19.304.



Sec. 1819.7203  Mentor approval process.

    (a) An entity seeking to participate as a mentor must apply to the 
NASA Headquarters Office of Small Business Programs (OSBP), to establish 
its initial eligibility and approval as a mentor, prior to submission of 
a mentor-prot[eacute]g[eacute] agreement.
    (b) The application must provide the following information:
    (1) A statement that the entity is currently performing under at 
least one active approved subcontracting plan negotiated with NASA 
pursuant to FAR 19.702, The Small Business Subcontracting Program, and 
that the entity is currently eligible for the award of Government 
contracts.
    (2) A summary of the entity's historical and recent activities and 
accomplishments under its small and disadvantaged business utilization 
program.
    (3) The total dollar amount of NASA contracts and subcontracts that 
the entity received during the two preceding fiscal years. (Show prime 
contracts and subcontracts separately per year.)
    (4) The total dollar amount of all other Federal agency contracts 
and subcontracts that the entity received during the two preceding 
fiscal years. (Show prime contracts and subcontracts separately per 
year.)
    (5) The total dollar amount of subcontracts that the entity awarded 
under NASA contracts during the two preceding fiscal years.
    (6) The total dollar amount of subcontracts that the entity awarded 
under all other Federal agency contracts during the two preceding fiscal 
years.
    (7) The total dollar amount and percentage of subcontracts that the 
entity awarded to all SDB, women-owned small businesses, HUBZone small 
businesses, veteran-owned and service-disabled veteran-owned small 
businesses, Historically Black Colleges, and Universities, minority 
institutions of higher education and nonprofit agencies employing people 
who are blind and severely disabled under NASA contracts and other 
Federal agency contracts during the two preceding fiscal years. If the 
entity is presently required to submit a Summary Subcontracting Report 
via the Government Electronic Subcontracting Reporting System (eSRS), 
the application must include

[[Page 210]]

copies of the final reports for the two preceding fiscal years.
    (8) Information on the entity's ability to provide developmental 
assistance to its eligible prot[eacute]g[eacute]s.
    (9) Any additional information as requested by NASA OSBP.
    (c) In accordance with the Small Business Act, developmental 
assistance as described in 1819.7205(c) and provided by a mentor to its 
prot[eacute]g[eacute] pursuant to a mentor-prot[eacute]g[eacute] 
agreement may not be a basis for determining affiliation or control 
(either direct or indirect) between the parties.
    (d) Entities that apply for participation and are not approved will 
be provided the reasons and an opportunity to submit additional 
information for reconsideration.
    (e) Entities approved for participation as a mentor in the NASA 
program must resubmit a mentor application every six (6) years for 
review and approval by NASA OSBP.
    (f) A template of the mentor application is available at: http://
www.osbp.nasa.gov.



Sec. 1819.7204  Prot[eacute]g[eacute] selection.

    (a) Mentors will be solely responsible for selecting 
prot[eacute]g[eacute]s. Mentors are required to identify and select 
concerns that are defined as an SDB, women-owned small business, HUBZone 
small business, veteran-owned or service-disabled veteran-owned small 
business, Historically Black Colleges and Universities, minority 
institutions of higher education, an active NASA SBIR Phase II company 
or a nonprofit agency employing the blind or severely disabled.
    (b) The selection of prot[eacute]g[eacute]s by a mentor may not be 
protested, except as in paragraph (c) of this section.
    (c) In the event of a protest regarding the size or eligibility of 
an entity selected to be a prot[eacute]g[eacute], the mentor must refer 
the protest to the SBA to resolve in accordance with 13 CFR part 121 
(with respect to size) or 13 CFR part 124 (with respect to disadvantaged 
status).
    (d) A prot[eacute]g[eacute] may have only one active NASA mentor-
prot[eacute]g[eacute] agreement, and may not participate in the NASA 
Program more than two times as a prot[eacute]g[eacute].
    (e) Prot[eacute]g[eacute]s will be required to submit a 
prot[eacute]g[eacute] application concurrently with the agreement 
submission. This application will include the following information:
    (1) A summary of the entity's historical and recent activities, 
including annual revenue and number of employees.
    (2) The total dollar amount of NASA contracts and subcontracts that 
the entity received during the two preceding fiscal years. (Show prime 
contracts and subcontracts separately per year.)
    (3) The total dollar amount of all other Federal agency contracts 
and subcontracts that the company received during the two preceding 
fiscal years. (Show prime contracts and subcontracts separately per 
year.)
    (4) The total dollar amount of subcontracts that the company awarded 
under NASA contracts during the two preceding fiscal years.
    (5) The total dollar amount of subcontracts that the company awarded 
under all other Federal agency contracts during the two preceding fiscal 
years.



Sec. 1819.7205  Mentor-prot[eacute]g[eacute] agreements.

    (a) The agreements shall be structured after the mentor completes an 
assessment of the developmental needs of the prot[eacute]g[eacute] and a 
mutual agreement is reached regarding the developmental assistance to be 
permitted to address those needs and enhance the prot[eacute]g[eacute]'s 
ability to perform successfully under contracts and/or subcontracts.
    (b) A mentor shall not require a prot[eacute]g[eacute] to enter into 
a mentor-prot[eacute]g[eacute] agreement as a condition for award of a 
contract by the mentor, including a subcontract under a NASA contract 
awarded to the mentor.
    (c) The mentor-prot[eacute]g[eacute] agreement may provide for the 
mentor to furnish any or all of the following types of developmental 
assistance:
    (1) Assistance by the mentor's personnel in--
    (i) General business management, including organizational 
management, financial management, personnel management, marketing, 
business development, and overall business planning;
    (ii) Engineering, environmental and technical matters; and

[[Page 211]]

    (iii) Any other assistance designed to develop the capabilities of 
the prot[eacute]g[eacute] under the developmental program.
    (2) Award of subcontracts under NASA contracts or other contracts on 
a noncompetitive basis.
    (3) Advance payments under such subcontracts. The mentor must 
administer advance payments when first approved by NASA in accordance 
with FAR Subpart 32.4, Advance Payments for Non-Commercial Items.
    (4) Loans.
    (5) Investment(s) in the prot[eacute]g[eacute] in exchange for an 
ownership interest in the prot[eacute]g[eacute], not to exceed 10 
percent of the total ownership interest. Investments may include, but 
are not limited to, cash, stock, and contributions in kind.
    (6) Assistance that the mentor obtains for the prot[eacute]g[eacute] 
from one or more of the following:
    (i) Small Business Development Centers established pursuant to 
Section 21 of the Small Business Act (15 U.S.C. 648).
    (ii) Entities providing procurement technical assistance pursuant to 
10 U.S.C. Chapter 142 (Procurement Technical Assistance Centers).
    (iii) Historically Black Colleges and Universities.
    (iv) Minority institutions of higher education.
    (d) Developmental assistance provided under an approved mentor-
prot[eacute]g[eacute] agreement is distinct from, and must not 
duplicate, any effort that is the normal and expected product of the 
award and administration of the mentor's subcontracts. Costs associated 
with the latter must be accumulated and charged in accordance with the 
contractor's approved accounting practices; they are not considered 
developmental assistance costs eligible for credit under the Program.
    (e) A template of the mentor-prot[eacute]g[eacute] agreement is 
available at http://www.osbp.nasa.gov.



Sec. 1819.7206  Agreement contents.

    Each mentor-prot[eacute]g[eacute] agreement will contain the 
following elements:
    (a) The name, address, e-mail address, and telephone number of the 
mentor and prot[eacute]g[eacute] points of contact;
    (b) The NAICS code(s) that represent the contemplated supplies or 
services to be provided by the prot[eacute]g[eacute] to the mentor and a 
statement that, at the time the agreement is submitted for approval, the 
prot[eacute]g[eacute], if an SDB, a women-owned small business, a 
HUBZone small business, or a veteran-owned, a service-disabled veteran-
owned small business concern or a NASA SBIR Phase II Company, does not 
exceed the size standard for the appropriate NAICS code;
    (c) The DUNS number of the mentor and prot[eacute]g[eacute];
    (d) A statement that the mentor is eligible to participate in 
accordance with 1819.7202(a);
    (e) A statement that the prot[eacute]g[eacute] is eligible to 
participate in accordance with 1819.7202(b);
    (f) A developmental program specifying the type of assistance the 
mentor will provide to the prot[eacute]g[eacute] and how that assistance 
will--
    (1) Increase the prot[eacute]g[eacute]'s ability to participate in 
NASA, Federal, and/or commercial contracts and subcontracts; and
    (2) Increase small business subcontracting opportunities in industry 
categories where eligible prot[eacute]g[eacute]s or other small business 
firms are not dominant in the company's vendor base;
    (g) Factors to assess the prot[eacute]g[eacute]'s developmental 
progress under the Program, including specific milestones for providing 
each element of the identified assistance;
    (h) An estimate of the dollar value and type of subcontracts that 
the mentor will award to the prot[eacute]g[eacute], and the period of 
time over which the subcontracts will be awarded;
    (i) A statement from the mentor and prot[eacute]g[eacute] indicating 
a commitment to comply with the requirements for reporting in accordance 
with 1819.7212 and for review of the agreement during the duration of 
the agreement, and additionally for the prot[eacute]g[eacute], two years 
thereafter;
    (j) Procedures to terminate the agreement in accordance with 
1819.7210;
    (k) A provision that the term for the agreement will not exceed 3 
years for a credit agreement;
    (l) Additional terms and conditions as may be agreed upon by both 
parties; and

[[Page 212]]

    (m) Signatures and dates for both parties to the mentor-
prot[eacute]g[eacute] agreement.



Sec. 1819.7207  Agreement submission and approval process.

    (a) To participate in the Program, entities approved as mentors in 
accordance with 1819.7203, will submit to a Small Business Specialist at 
a NASA Center--
    (1) A signed mentor-prot[eacute]g[eacute] agreement pursuant to 
1819.7206;
    (2) The estimated cost of the technical assistance to be provided, 
broken out per year and per task, in a separate cost volume; and
    (3) NASA OSBP may require additional information as requested upon 
agreement submission.
    (b) The mentor-prot[eacute]g[eacute] agreement must be approved by 
the Assistant Administrator, NASA OSBP, prior to the mentor incurring 
eligible costs for developmental assistance provided to the 
prot[eacute]g[eacute].
    (c) The cognizant NASA center will issue a contract modification, if 
justified prior to the mentor incurring costs for developmental 
assistance to the prot[eacute]g[eacute].



Sec. 1819.7208  Award Fee Pilot Program.

    (a) Mentors will be eligible to earn a separate award fee associated 
with the provision of developmental assistance to NASA SBIR Phase II 
Prot[eacute]g[eacute]s only. The award fee will be assessed at the end 
of the Mentor-Prot[eacute]g[eacute] agreement period.
    (b) The overall developmental assistance performance of NASA 
contractors, in promoting the use of small businesses as subcontractors, 
will be a required evaluation factor in award fee plans.
    (c) Evaluation criteria to determine the award fee would include:
    (1) Active participation in the Program;
    (2) The amount and quality of developmental assistance provided;
    (3) Subcontracts awarded to small businesses and others;
    (4) Success of the prot[eacute]g[eacute]s in increasing their 
business as a result of receiving developmental assistance; and
    (5) Accomplishment of any other activity as related to the mentor-
prot[eacute]g[eacute] relationship.
    (d) The Award Fee Pilot Program is an addition to the credit 
agreement. Participants that are eligible for award fee will also 
receive credit as described in 1819.7209.



Sec. 1819.7209  Credit agreements.

    (a) The credit permits the mentor to include the cost it expends on 
a mentor-prot[eacute]g[eacute] agreement as part of any subcontracting 
plan pursuant to the clause at FAR 52.219-9, Small Business 
Subcontracting Plan. The following provisions apply to all credit 
mentor-prot[eacute]g[eacute] agreements:
    (1) Developmental assistance costs incurred by a mentor for 
providing assistance to a prot[eacute]g[eacute] pursuant to an approved 
credit mentor-prot[eacute]g[eacute] agreement may be credited as if the 
costs were incurred in a subcontract awarded to that 
prot[eacute]g[eacute]. Credit is given for the sole purpose of 
determining the performance of the mentor in attaining an applicable 
subcontracting goal established under any contract containing a 
subcontracting plan pursuant to the clause at FAR 52.219-9, Small 
Business Subcontracting Plan.
    (2) Other costs that have been reimbursed through inclusion in 
indirect expense pools may also be credited as subcontract awards for 
determining the performance of the mentor in attaining an applicable 
subcontracting goal established under any contract containing a 
subcontracting plan.
    (3) The amount of credit a mentor may receive for developmental 
assistance costs must be reported on a one-to-one basis for all dollars 
spent.



Sec. 1819.7210  Agreement terminations.

    (a) Agreements may be terminated for cause or on a voluntary basis 
by the mentor or the prot[eacute]g[eacute]. The procedures for agreement 
termination are outlined in the mentor-prot[eacute]g[eacute] agreement 
template available at http://www.osbp.nasa.gov.
    (b) NASA OSBP maintains the right to terminate an agreement if 
milestones provided under the original agreement submission, pursuant to 
1819.7206(g), are not satisfactorily

[[Page 213]]

achieved, or for other reasons as determined necessary by the NASA OSBP.



Sec. 1819.7211  Loss of eligibility.

    (a) If the mentor is suspended or debarred while performing under an 
approved mentor-prot[eacute]g[eacute] agreement, the mentor--
    (1) May not be reimbursed or take credit for any costs of providing 
developmental assistance to its prot[eacute]g[eacute], incurred more 
than 30 days after the imposition of such suspension or debarment; and
    (2) Must promptly give notice of its suspension or debarment to its 
prot[eacute]g[eacute] and NASA OSBP.
    (b) If the prot[eacute]g[eacute] is suspended or debarred while 
performing under an approved mentor-prot[eacute]g[eacute] agreement or 
the SBA determines that a prot[eacute]g[eacute] is ineligible according 
to program eligibility requirements, then--
    (1) The mentor shall not be able to receive credit for any of the 
costs of providing assistance to the prot[eacute]g[eacute] after the 
date of the determination regarding the prot[eacute]g[eacute]'s loss of 
eligibility; and
    (2) The mentor shall not be eligible to receive an award fee for the 
assistance provided to the prot[eacute]g[eacute] after the date of the 
determination regarding the prot[eacute]g[eacute]'s suspension or 
debarment, if participating in the Award Fee Pilot Program.
    (c) If the prot[eacute]g[eacute] is a Historically Black College or 
University, or other minority institution of higher education that loses 
either their accredited or minority status, then:
    (1) The mentor shall not be able to receive credit for any the costs 
of providing assistance to the prot[eacute]g[eacute] after the date of 
the determination regarding the prot[eacute]g[eacute]'s status.
    (2) The mentor shall not be eligible to receive an award fee for the 
assistance provided to the prot[eacute]g[eacute] after the date of the 
determination regarding the prot[eacute]g[eacute]'s loss of 
accreditation or minority status.



Sec. 1819.7212  Reporting requirements.

    (a) Mentors must report on the progress made under active mentor-
prot[eacute]g[eacute] agreements semiannually throughout the term of the 
agreement.
    (b) Reports are due 30 days after the end of each six-month period 
of performance commencing with the start of the agreement.
    (c) Each semiannual report must include the following data on 
performance under the mentor-prot[eacute]g[eacute] agreement:
    (1) Expenditures by the mentor.
    (2) The number and dollar value of subcontracts awarded to the 
prot[eacute]g[eacute].
    (3) Description of developmental assistance provided, including 
milestones achieved.
    (4) Impact of the agreement in terms of capabilities enhanced, 
certifications received, and/or technology transferred.
    (d) Semiannually, the prot[eacute]g[eacute] must provide an 
independently developed progress report using the semiannual report 
template, on the progress made during the prior six months by the 
prot[eacute]g[eacute] in employment, revenues, and participation in NASA 
contracts during each year of the Program participation term. The 
Prot[eacute]g[eacute] must also provide an additional post-agreement 
report for each of the two years following the expiration of the Program 
participation term.
    (e) The prot[eacute]g[eacute] semiannual report required by 
paragraph (d) of this section may be provided with the mentor semiannual 
report required by paragraph (a) of this section, or submitted 
separately.
    (f) Reports for all agreements must be submitted to the NASA OSBP 
Mentor-Prot[eacute]g[eacute] Program Manager, the mentor's cognizant 
administrative contracting officer, and their cognizant center small 
business specialist.
    (g) Templates for the semiannual report and the Post-Agreement 
report and guidance for their submission are available at: http://
www.osbp.nasa.gov.



Sec. 1819.7213  Performance reviews.

    (a) NASA OSBP will conduct annual performance reviews of the 
progress and accomplishments realized under approved mentor-
prot[eacute]g[eacute] agreements. These reviews will include 
verification of--
    (1) All costs incurred by the mentor under the agreement to 
determine if they were reasonable in the provision of developmental 
assistance to the

[[Page 214]]

prot[eacute]g[eacute] in accordance with the mentor-
prot[eacute]g[eacute] agreement and applicable regulations and 
procedures; and
    (2) The mentor's and prot[eacute]g[eacute]'s reported progress made 
by the prot[eacute]g[eacute] in employment, revenues, and participation 
in NASA contracts during the program participation term.



Sec. 1819.7214  Measurement of program success.

    (a) NASA will measure the overall success of the Program by the 
extent to which the Program results in--
    (1) An increase in the number and dollar value of contracts and 
subcontract awards to prot[eacute]g[eacute]s (under NASA contracts, 
contracts awarded by other Federal agencies, and commercial contracts) 
from the date of their entry into the program until two years after the 
conclusion of the agreement;
    (2) An increase in the number and dollar value of subcontracts 
awarded to a prot[eacute]g[eacute] (or former prot[eacute]g[eacute]) by 
its mentor (or former mentor); and
    (3) An increase in the prot[eacute]g[eacute]'s number of employees 
from the date of entry into the program until two years after the 
completion of the agreement.



Sec. 1819.7215  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at 1852.219-77, 
NASA Mentor-Prot[eacute]g[eacute] Program, in:
    (1) Any contract that includes the clause at FAR 52.219-9, Small 
Business Subcontracting Plan.
    (b) The contracting officer shall insert the clause at 1852.219-79, 
Mentor Requirements and Evaluation, in contracts where the prime 
contractor is a participant in the NASA Mentor-Prot[eacute]g[eacute] 
Program.

  Subpart 1819.73_Small Business Innovation Research (SBIR) and Small 
              Business Technology Transfer (STTR) Programs



Sec. 1819.7301  Scope of subpart.

    The Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) Programs were established and issued under 
the authority of the Small Business Act codified at 15 U.S.C. 631, as 
amended, and the Small Business Innovation Development Act of 1982 (Pub. 
L. 97-219), codified with amendments at 15 U.S.C. 638. The Small 
Business Act requires that the Small Business Administration (SBA) issue 
SBIR and STTR Program Policy Directives for the general conduct of the 
SBIR/STTR Programs within the Federal Government. The statutory purpose 
of the SBIR Program is to strengthen the role of innovative small 
business concerns (SBCs) in federally-funded research or research and 
development (R/R&D). Specific program purposes are to: Stimulate 
technological innovation; use small business to meet Federal R/R&D 
needs; foster and encourage participation by socially and economically 
disadvantaged SBCs, and by SBCs that are 51-percent owned and controlled 
by women, in technological innovation; and increase private sector 
commercialization of innovations derived from Federal R/R&D, thereby 
increasing competition, productivity and economic growth. Federal 
agencies participating in the SBIR/STTR Programs (SBIR/STTR agencies) 
are obligated to follow the guidance provided by the SBA Policy 
Directive. NASA is required to ensure its policies, regulations, and 
guidance on the SBIR/STTR Programs are consistent with SBA's Policy 
Directive. Contracting officers are required to insert the applicable 
clauses identified in 1819.7302 in all SBIR and STTR contracts.

[71 FR 61688, Oct. 19, 2006]



Sec. 1819.7302  NASA contract clauses.

    (a) Contracting officers shall insert the clause at 1852.219-80, 
Limitation on Subcontracting--SBIR Phase I Program, in all Phase I 
contracts awarded under the Small Business Innovation Research (SBIR) 
Program established pursuant to Public Law 97-219 (the Small Business 
Innovation Development Act of 1982).
    (b) Contracting officers shall insert the clause at 1852.219-81, 
Limitation on Subcontracting--SBIR Phase II Program, in all Phase II 
contracts awarded under the Small Business Innovation Research (SBIR) 
Program established pursuant to Public Law 97-219 (the

[[Page 215]]

Small Business Innovation Development Act of 1982).
    (c) Contracting officers shall insert the clause at 1852.219-82, 
Limitation on Subcontracting--STTR Program, in all contracts awarded 
under the Small Business Technology Transfer (STTR) Program established 
pursuant to Public Law 97-219 (the Small Business Innovation Development 
Act of 1982).
    (d) Contracting officers shall insert the clause at 1852.219-83, 
Limitation of the Principal Investigator--SBIR Program, in all contracts 
awarded under the Small Business Innovation Research (SBIR) Program 
established pursuant to Public Law 97-219 (the Small Business Innovation 
Development Act of 1982).
    (e) Contracting officers shall insert the clause at 1852.219-84, 
Limitation of the Principal Investigator--STTR Program, in all contracts 
awarded under the Small Business Technology Transfer (STTR) Program 
established pursuant to Public Law 97-219 (the Small Business Innovation 
Development Act of 1982).
    (f) Contracting officers shall insert the clause at 1852.219-85, 
Conditions for Final Payment--SBIR and STTR Contracts, in all contracts 
awarded under the Small Business Technology Transfer (STTR) Program and 
in all Phase I and Phase II contracts awarded under the Small Business 
Technology Transfer (STTR) Small Business Innovation Research (SBIR) 
Program established pursuant to Public Law 97-219 (the Small Business 
Innovation Development Act of 1982).

[71 FR 61688, Oct. 19, 2006]

     PART 1822_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 55755, Oct. 29, 1996, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1822 appear at 66 FR 
53547, Oct. 23, 2001.

                   Subpart 1822.1_Basic Labor Policies



Sec. 1822.103-5  Contract clause.

    Insert the clause at 52.222-1, Notice to the Government of Labor 
Disputes, in all solicitations and contracts that exceed the simplified 
acquisition threshold.

[69 FR 21765, Apr. 22, 2004]

  PART 1823_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

     Subpart 1823.2_Energy and Water Efficiency and Renewable Energy

Sec.

Sec. 1823.271 NASA Solicitation provision and contract clause.

                   Subpart 1823.5_Drug-Free Workplace


Sec. 1823.570 Drug- and alcohol-free workforce.

Sec. 1823.570-1 Definitions.

Sec. 1823.570-2 Contract clause.

Sec. 1823.570-3 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

Subpart 1823.10_Federal Compliance With Right-to-Know Laws and Pollution 
                         Prevention Requirements


Sec. 1823.1005 Contract clause.

                    Subpart 1823.70_Safety and Health


Sec. 1823.7001 NASA solicitation provisions and contract clauses.

                 Subpart 1823.71_Frequency Authorization


Sec. 1823.7101 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 55757, Oct. 29, 1996, unless otherwise noted.

     Subpart 1823.2_Energy and Water Efficiency and Renewable Energy



Sec. 1823.271  NASA Solicitation provision and contract clause.

    Insert the clause at 1852.223-76, Federal Automotive Statistical 
Tool Reporting, in solicitations and contracts

[[Page 216]]

requiring contractor operation of Government-owned or -leased motor 
vehicles, including, but not limited to, interagency fleet management 
system (IFMS) vehicles authorized in accordance with FAR 51.2.

[68 FR 43334, July 22, 2003]

                   Subpart 1823.5_Drug-Free Workplace



Sec. 1823.570  Drug- and alcohol-free workforce.

    This section sets sets forth NASA requirements for mandatory drug 
and alcohol testing of certain contractor personnel under section 203, 
National Aeronautics and Space Act of 1958, as amended, 42 U.S.C. 2473, 
72 Stat. 429; and Civil Space Employee Testing Act of 1991, Public Law 
102-195, sec. 21, 105 Stat. 1616 to 1619.

[61 FR 55757, Oct. 29, 1996. Redesignated and amended at 69 FR 21765, 
Apr. 22, 2004]



Sec. 1823.570-1  Definitions.

    As used in this subpart employee and controlled substance are as 
defined in FAR 23.503. The use of a controlled substance in accordance 
with the terms of a valid prescription, or other uses authorized by law 
shall not be subject to the requirements of 1823.570 through 1823.570-3 
and the clause at 1852.223-74.
    Employee in a sensitive position means a contractor or subcontractor 
employee who has been granted access to classified information; a 
contractor or subcontractor employee in other positions that the 
contractor or subcontractor determines could reasonably be expected to 
affect safety, security, National security, or functions other than the 
foregoing requiring a high degree of trust and confidence; and includes 
any employee performing in a position designated ``mission critical'' 
pursuant to the clause at 1852.246-70. The term also includes any 
applicant who is interviewed for a position described in this paragraph.
    Use, in violation of applicable law or Federal regulation, of 
alcohol includes having, while on duty or during a preemployment 
interview, an alcohol concentration of 0.04 percent by weight or more in 
the blood, as measured by chemical test of the individual's breath or 
blood. An individual's refusal to submit to such test is presumptive 
evidence of use, in violation of applicable law or Federal regulation, 
of alcohol.

[61 FR 55757, Oct. 29, 1996. Redesignated and amended at 69 FR 21765, 
Apr. 22, 2004]



Sec. 1823.570-2  Contract clause.

    The contracting officer shall insert the clause at 1852.223-74, 
``Drug- and Alcohol-Free Workforce,'' in all solicitations and contracts 
containing the clause at 1852.246-70, ``Mission Critical Space Systems 
Personnel Reliability Program,'' and in other solicitations and 
contracts exceeding $5 million in which work is performed by an employee 
in a sensitive position. However, the contracting officer shall not 
insert the clause at 1852.223-74 in solicitations and contracts for 
commercial items (see FAR parts 2 and 12).

[61 FR 55757, Oct. 29, 1996. Redesignated at 69 FR 21765, Apr. 22, 2004]



Sec. 1823.570-3  Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    The contracting officer shall comply with the procedures of FAR 
23.506 regarding the suspension of contract payments, the termination of 
the contract for default, and debarment and suspension of a contractor 
relative to failure to comply with the clause at 1852.223-74. Causes for 
suspension of contract payments, termination of the contract for 
default, and debarment and suspension of the contractor are the 
following:
    (a) The contractor fails to comply with paragraph (b), (c), or (d) 
of the clause at 1852.223-74; or
    (b) Such a number of contractor employees in sensitive positions 
having been convicted of violations of criminal drug statutes or 
substantial evidence of drug or alcohol abuse or misuse occurring in the 
workplace, as to indicate that the contractor has failed to make a good 
faith effort to provide a drug- and alcohol-free workforce.

[61 FR 55757, Oct. 29, 1996. Redesignated and amended at 69 FR 21765, 
Apr. 22, 2004]

[[Page 217]]

Subpart 1823.10_Federal Compliance With Right-to-Know Laws and Pollution 
                         Prevention Requirements



Sec. 1823.1005  Contract clause.

    (b) Use the clause with its Alternate I if the contract provides for 
contractor (1) Operation or maintenance of a NASA facility at which NASA 
has implemented or plans to implement an EMS, including, but not limited 
to the Jet Propulsion Laboratory and Michoud Assembly Facility; or
    (2) Activities and operations--
    (ii) The contracting officer and the procurement request initiator 
shall determine whether the contractor's activities or operations are 
covered within the EMS, in cooperation with the facility's environmental 
office, and in accordance with NPR 8553.1, ``NASA Environmental 
Management System (EMS)'' paragraph 1.2.c, and the local EMS documented 
procedures.
    (c) Use the clause with its Alternate II whenever Alternate I is 
used.

[68 FR 62023, Oct. 31, 2003, as amended at 69 FR 63459, Nov. 2, 2004]

                    Subpart 1823.70_Safety and Health



Sec. 1823.7001  NASA solicitation provisions and contract clauses.

    (a) The clause at 1852.223-70, Safety and Health, shall be included 
in all solicitations and contracts when one or more of the following 
conditions exist:
    (1) The work will be conducted completely or partly on premises 
owned or controlled by the Government.
    (2) The work includes construction, alteration, or repair of 
facilities in excess of the simplified acquisition threshold.
    (3) The work, regardless of place of performance, involves hazards 
that could endanger the public, astronauts and pilots, the NASA 
workforce (including contractor employees working on NASA contracts), or 
high value equipment or property, and the hazards are not adequately 
addressed by Occupational Safety and Health Administration (OSHA) or 
Department of Transportation (DOT) regulations (if applicable).
    (4) When the assessed risk and consequences of a failure to properly 
manage and control the hazard(s) warrants use of the clause.
    (b) The clause prescribed in paragraph (a) of this section may be 
excluded, regardless of place of performance, when the contracting 
officer, with the approval of the installation official(s) responsible 
for matters of safety and occupational health, determines that the 
application of OSHA and DOT regulations constitutes adequate safety and 
occupational health protection.
    (c) The contracting officer shall insert the provision at 1852.223-
73, Safety and Health Plan, in solicitations containing the provision at 
1852.223-70. This provision may be modified to identify specific 
information that is to be included in the plan. After receiving the 
concurrence of the center safety and occupational health official(s), 
the contracting officer shall include the plan in any resulting 
contract. Insert the provision with its Alternate I, in Invitations for 
Bid containing the clause at 1852.223-70.
    (d)(1) The contracting officer shall insert the clause at 1852.223-
75, Major Breach of Safety or Security, in all solicitations and 
contracts with estimated values of $500,000 or more, unless waived at a 
level above the contracting officer with the concurrence of the project 
manager and the installation official(s) responsible for matters of 
security, export control, safety, and occupational health.
    (2) Insert the clause with its Alternate I if--
    (i) The solicitation or contract is with an educational or other 
nonprofit institution and contains the termination clause at FAR 52.249-
5; or
    (ii) The solicitation or contract is for commercial items and 
contains the clause at FAR 52.212-4.
    (3) For contracts with estimated values below $500,000, use of the 
clause is optional.
    (e) For all solicitations and contracts exceeding the micro-purchase 
threshold that do not include the clause at 1852.223-70, Safety and 
Health, the contracting officer shall insert the clause

[[Page 218]]

at 1852.223-72, Safety and Health (Short Form).

[65 FR 37059, June 13, 2000, as amended at 65 FR 70316, Nov. 22, 2000; 
66 FR 18052, Apr. 5, 2001; 66 FR 48361, Sept. 20, 2001; 67 FR 17016, 
Apr. 9, 2002; 71 FR 8989, Feb. 22, 2006]

                 Subpart 1823.71_Frequency Authorization



Sec. 1823.7101  Contract clause.

    The contracting officer shall insert the clause at 1852.223-71, 
Frequency Authorization, in solicitations and contracts calling for 
developing, producing, constructing, testing, or operating a device for 
which a radio frequency authorization is required.

       PART 1824_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 1824.1_Protection of Individual Privacy

Sec.

Sec. 1824.102 General.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 55758, Oct. 29, 1996, unless otherwise noted.

             Subpart 1824.1_Protection of Individual Privacy



Sec. 1824.102  General.

    (1) For NASA rules and regulations implementing the Privacy Act, see 
Privacy--NASA Regulations, (14 CFR 1212). The Act applies to any 
contractor maintaining a system of records to accomplish a NASA mission.
    (2) Systems of records to which the Privacy Act does not apply 
include--
    (i) Records maintained by a contractor on individuals employed by 
the contractor on its own behalf for the purpose of providing supplies 
and services to the Federal Government; and
    (ii) Records that--
    (A) Are maintained under contracts with educational institutions to 
provide training;
    (B) Are generated on students working under the contract relative to 
their attendance (admission forms, grade reports, etc.);
    (C) Are similar to those maintained on other students; and
    (D) Are commingled with their records on other students.

                      PART 1825_FOREIGN ACQUISITION

Sec.

Sec. 1825.003 Definitions.

Sec. 1825.003-70 NASA definitions.

                Subpart 1825.1_Buy American Act_Supplies


Sec. 1825.103 Exceptions.

                     Subpart 1825.4_Trade Agreements


Sec. 1825.400 Scope of subpart.

                    Subpart 1825.9_Customs and Duties


Sec. 1825.901 Policy.

      Subpart 1825.11_Solicitation Provisions and Contract Clauses


Sec. 1825.1101 Acquisition of supplies.

Sec. 1825.1103 Other provisions and clauses.

Sec. 1825.1103-70 Export control.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 65 FR 10031, Feb. 25, 2000, unless otherwise noted.



Sec. 1825.003  Definitions.



Sec. 1825.003-70  NASA definitions.

    ``Canadian end product'', for an item with an estimated value of 
$25,000 or less, means an unmanufactured end product mined or produced 
in Canada or an end product manufactured in Canada, if the cost of its 
components mined, produced, or manufactured in Canada or the United 
States exceeds 50 percent of the cost of all its components. The cost of 
components includes transportation costs to the place of incorporation 
into the end product. For an end product with an estimated value in 
excess of $25,000, the definition at FAR 25.003 applies.

                Subpart 1825.1_Buy American Act_Supplies



Sec. 1825.103  Exceptions.

    (a)(i) The Assistant Administrator for Procurement has determined 
that

[[Page 219]]

it is inconsistent with the public interest to apply restrictions of the 
Buy American Act to Canadian end products with estimated values of 
$25,000 or less as defined in 1825.003-70. Accordingly, contracting 
officers must evaluate all offers for such Canadian end products on a 
parity with offers for domestic end products, except that applicable 
duty (whether or not a duty free entry certificate may be issued) must 
be included in evaluating offers for Canadian end products.
    (ii) The Assistant Administrator for Procurement has determined that 
for procurements subject to the Trade Agreements Act, it would be 
inconsistent with the public interest to apply the Buy American Act to 
U.S.-made end products that are substantially transformed in the United 
States.

[65 FR 10031, Feb. 25, 2000, as amended at 68 FR 11748, Mar. 12, 2003; 
69 FR 21765, Apr. 22, 2004]

                     Subpart 1825.4_Trade Agreements



Sec. 1825.400  Scope of subpart.

    (b) The Buy American Act applies to all acquisitions of Japanese end 
products or services in excess of $3,000.

[65 FR 10031, Feb. 25, 2000, as amended at 67 FR 50824, Aug. 6, 2002; 71 
FR 71073, Dec. 8, 2006]

                    Subpart 1825.9_Customs and Duties



Sec. 1825.901  Policy.

    NASA has statutory authority to exempt certain articles from import 
duties, including articles that will be launched into space, spare parts 
for such articles, ground support equipment, and unique equipment used 
in connection with an international program or launch service agreement. 
This authority is fully described in 14 CFR part 1217.

      Subpart 1825.11_Solicitation Provisions and Contract Clauses



Sec. 1825.1101  Acquisition of supplies.

    (c)(1) NASA has determined that the restrictions of the Buy American 
Act are not applicable to U.S.-made end products.
    (e) The contracting officer must add paragraph (k) as set forth in 
1852.225-8, Duty-Free Entry of Space Articles, in solicitations and 
contracts when the supplies that will be accorded duty-free entry are 
identifiable before award. Insert the supplies determined in accordance 
with FAR subpart 25.9 and 1825.903.

[65 FR 10031, Feb. 25, 2000, as amended at 68 FR 11748, Mar. 12, 2003]



Sec. 1825.1103  Other provisions and clauses.



Sec. 1825.1103-70  Export control.

    (a) Background. (1) NASA contractors and subcontractors are subject 
to U.S. export control laws and regulations, including the International 
Traffic in Arms Regulations (ITAR), 22 CFR parts 120 through 130, and 
the Export Administration Regulations (EAR), 15 CFR parts 730 through 
799. The contractor is responsible for obtaining the appropriate 
licenses or other approvals from the Department of State or the 
Department of Commerce when it exports hardware, technical data, or 
software, or provides technical assistance to a foreign destination or 
``foreign person'', as defined in 22 CFR 120.16, and there are no 
applicable or available exemptions/exceptions to the ITAR/EAR, 
respectively. A person who is lawfully admitted for permanent residence 
in the United States is not a ``foreign person''. (See 22 CFR 120.16 and 
15 CFR 734.2(b)(2)(ii))
    (2) The exemption at 22 CFR 125.4(b)(3) of the ITAR provides that a 
contractor may export technical data without a license if the contract 
between the agency and the exporter provides for the export of the data. 
The clause at 1852.225-70, Alternate I, provides contractual authority 
for the exemption, but the exemption is available only after the 
contracting officer, or designated representative, provides

[[Page 220]]

written authorization or direction enabling its use. It is NASA policy 
that the exemption at 22 CFR 125.4(b)(3) may only be used when technical 
data (including software) is exchanged with a NASA foreign partner 
pursuant to the terms of an international agreement in furtherance of an 
international collaborative effort. The contracting officer must obtain 
the approval of the Center Export Administrator before granting the 
contractor the authority to use this exemption.
    (b) Contract clause. Insert the clause at 1852.225-70, Export 
Licenses, in all solicitations and contracts, except in contracts with 
foreign entities. Insert the clause with its Alternate I when the NASA 
project office indicates that technical data (including software) is to 
be exchanged by the contractor with a NASA foreign partner pursuant to 
an international agreement.

[[Page 221]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 1827_PATENTS, DATA, AND COPYRIGHTS

Sec.

Sec. 1827.000 Scope of part.

         Subpart 1827.3_Patent Rights Under Government Contracts


Sec. 1827.301 Definitions.

Sec. 1827.302 Policy.

Sec. 1827.303 Contract clauses.

Sec. 1827.303-70 NASA solicitation provisions and contract clauses.

Sec. 1827.304 Procedures.

Sec. 1827.304-1 General.

Sec. 1827.304-2 Contracts placed by or for other Government agencies.

Sec. 1827.304-3 Contracts for construction work or architect-engineer 
          services.

Sec. 1827.304-4 Subcontracts.

Sec. 1827.304-5 Appeals.

Sec. 1827.305 Administration of the patent rights clauses.

Sec. 1827.305-4 Conveyance of invention rights acquired by the 
          Government.

              Subpart 1827.4_Rights in Data and Copyrights


Sec. 1827.404 Basic rights in data clause.

Sec. 1827.409 Solicitation provisions and contract clauses.

Sec. 1827.409-70 NASA contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 36715, July 9, 1997, unless otherwise noted.



Sec. 1827.000  Scope of part.

    This part prescribes NASA policies, procedures, and clauses 
pertaining to patents, data, and copyrights. The provisions of FAR part 
27 apply to NASA acquisitions unless specifically excepted in this part.

         Subpart 1827.3_Patent Rights Under Government Contracts



Sec. 1827.301  Definitions.

    Administrator, as used in this subpart, means the Administrator of 
NASA or a duly authorized representative.
    Contract, as used in this subpart, means any actual or proposed 
contract, agreement, understanding, or other arrangement, and includes 
any assignment, substitution of parties, or subcontract executed or 
entered into thereunder.
    Made, in lieu of the definition in FAR 27.301, as used in this 
subpart, means conceived or first actually reduced to practice; provided 
that in the case of a variety of plant, the date of determination (as 
defined in Section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 
2401(d)) must also occur during the period of contract performance.
    Reportable item, as used in this subpart, means any invention, 
discovery, improvement, or innovation of the contractor, whether or not 
patentable or otherwise protectible under Title 35 of the United States 
Code, made in the performance of any work under any NASA contract or in 
the performance of any work that is reimbursable under any clause in any 
NASA contract providing for reimbursement of costs incurred before the 
effective date of the contract. Reportable items include, but are not 
limited to, new processes, machines, manufactures, and compositions of 
matter, and improvements to, or new applications of, existing processes, 
machines, manufactures, and compositions of matter. Reportable items 
also include new computer programs, and improvements to, or new 
applications of, existing computer programs, whether or not 
copyrightable or otherwise protectible under Title 17 of the United 
States Code.
    Subject invention, in lieu of the definition in FAR 27.301, as used 
in this subpart, means any reportable item that is or may be patentable 
or otherwise protectible under Title 35 of the United States Code, or 
any novel variety of plant that is or may be protectible under the Plant 
Variety Protection Act (7 U.S.C. 2321 et seq.).

[62 FR 36715, July 9, 1997, as amended at 62 FR 58688, Oct. 30, 1997; 63 
FR 63209, Nov. 12, 1998]



Sec. 1827.302  Policy. (NASA supplements paragraphs (a), (b), (c), (d), 
          (e), (f), (g), and (i)).

    (a) Introduction. (i) NASA policy with respect to any invention, 
discovery, improvement, or innovation made in the performance of work 
under any

[[Page 222]]

NASA contract or subcontract with other than a small business firm or a 
nonprofit organization and the allocation to related property rights is 
based upon Section 305 of the National Aeronautics and Space Act of 
1958, as amended (42 U.S.C. 2457) (the Act); and, to the extent 
consistent with this statute, the Presidential Memorandum or Government 
Patent Policy to the Heads of Executive Departments and Agencies, dated 
February 18, 1983, and Section 1(d)(4) of Executive Order 12591. NASA 
policy with respect to any invention made in the performance of 
experimental, developmental, or research work with a small business firm 
or a nonprofit organization is based on 35 U.S.C. Chapter 18, as 
amended.
    (ii) NASA contracts subject to Section 305 of the Act shall ensure 
the prompt reporting of reportable items in other to protect the 
Government's interest and to provide widest practicable and appropriate 
dissemination, early utilization, expeditious development, and continued 
availability for the benefit of the scientific, industrial, and 
commercial communities and the general public.
    (b) Contractor right to elect title. (i) For NASA contracts, the 
contractor right to elect title only applies to contracts with small 
businesses and non-profit organizations. For other business entities, 
see subdivision (ii) of this paragraph.
    (ii) Contractor right to request a waiver of title. For NASA 
contracts with other than a small business firm or a nonprofit 
organization (contracts subject to Section 305 of the Act), it is the 
policy of NASA to waive the rights (to acquire title) of the United 
States (with the reservation of a Government license set forth in FAR 
27.302(c) and the march-in rights of FAR 27.302(f) and 1827.302(f)) in 
and to any subject invention if the Administrator determines that the 
interests of the United States will be served. This policy, as well as 
the procedures and instructions for such waiver of rights, is stated in 
the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1. 
Waiver may be requested in advance of contract award for any or all of 
the subject inventions, or for individually identified subject 
inventions reported under the contract. When waiver of rights is 
granted, the contractor's right to title, the rights reserved by the 
Government, and other conditions and obligations of the waiver shall be 
included in an Instrument of Waiver executed by NASA and the party 
receiving the waiver.
    (iii) It is also a policy of NASA to consider for a monetary award, 
when referred to the NASA Inventions and Contributions Board, any 
subject invention reported to NASA in accordance with this subpart, and 
for which an application for patent has been filed.
    (c) Government license. For each subject invention made in the 
performance of work under a NASA contract with other than a small 
business firm or nonprofit organization and for which waiver of rights 
has been granted in accordance with 14 CFR Section 1245, Subpart 1, the 
Administrator shall reserve an irrevocable, nonexclusive, 
nontransferable, royalty-free license for the practice of such invention 
throughout the world by or on behalf of the United States or any foreign 
Government in accordance with any treaty or agreement of the United 
States.
    (d) Government right to receive title. Under any NASA contract with 
other than a small business or nonprofit organization (i.e., those 
contracts subject to Section 305(a) of the Act), title to subject 
inventions vests in NASA when the determinations of Section 305(a)(1) or 
305(a)(2) have been made. The Administrator may grant a waiver of title 
in accordance with 14 CFR Section 1245.
    (e) Utilization reports. For any NASA contract with other than a 
small business firm or a nonprofit organization, the requirements for 
utilization reports shall be as set forth in the NASA Patent Waiver 
Regulations, 14 CFR Section 1245, Subpart 1, and any Instrument of 
Waiver executed under those Regulations.
    (f) March-in rights. For any NASA contract with other than a small 
business firm or a nonprofit organization, the march-in rights shall be 
as set forth in the NASA Patent Waiver Regulations, 14 CFR Section 1245, 
Subpart 1, and any Instrument of Waiver executed under those 
Regulations.

[[Page 223]]

    (g) Preference for United States industry. Waiver of the requirement 
for the agreement for any NASA contract with other than a small business 
firm or a nonprofit organization shall be in accordance with the NASA 
Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.
    (i) Minimum rights to contractor. (1) For NASA contracts with other 
than a small business firm or a nonprofit organization (i.e., those 
contracts subject to Section 305(a) of the Act), where title to any 
subject inventions vests in NASA, the contractor is normally granted, in 
accordance with 14 CFR 1245, a revocable, nonexclusive, royalty-free 
license in each patent application filed in any country and in any 
resulting patent. The license extends to any of the contractor's 
domestic subsidiaries and affiliates within the corporate structure, and 
includes the right to grant sublicenses of the same scope to the extent 
the contractor was legally obligated to do so at the time the contract 
was awarded. The license and right are transferable only with the 
approval of the Administrator, except when transferred to the successor 
of that part of the contractor's business to which the invention 
pertains.
    (2) The Administrator is the approval authority for revoking or 
modifying a license. The procedures for revocation or modification are 
described in 37 CFR 404.10 and 14 CFR 1245.108.



Sec. 1827.303  Contract clauses. (NASA supplements paragraphs (a), (b), 
          (c) and (d))

    (a)(1)(A) See 1827.303-70(a).
    (B) To qualify for the clause at FAR 52.227-11, a prospective 
contractor may be required to represent itself as either a small 
business firm or a nonprofit organization. If there is reason to 
question the status of the prospective contractor, the contracting 
officer may file a protest in accordance with FAR 19.302 if small 
business firm status is questioned, or require the prospective 
contractor to furnish evidence of its status as nonprofit organization.
    (5) Alternate IV to 52.227-11 is not used in NASA contracts. See 
instead 1827.303-70(a).
    (b)(1)(ii) FAR 52.227-12 is not used in NASA contracts. See instead 
1827.303-70(b).
    (c)(1)(ii) When work is to be performed outside the United States, 
its possessions, and Puerto Rico by contractors that are not domestic 
firms, see 1827.303-70(f).
    (2) See 1827.303-70 (b) and (f).
    (d)(1) When one of the conditions in FAR 27.303(d)(1) (i) through 
(iv) is met, the contracting officer shall consult with the installation 
intellectual property counsel to determine the appropriate clause.

[62 FR 36715, July 9, 1997, as amended at 64 FR 36606, July 7, 1999]



Sec. 1827.303-70  NASA solicitation provisions and contract clauses.

    (a) When the clause at FAR 52.227-11 is included in a solicitation 
or contract, it shall be modified as set forth at 1852.227-11.
    (b) The contracting officer shall insert the clause at 1852.227-70, 
New Technology, in all NASA solicitations and contracts with other than 
a small business firm or a nonprofit organization (i.e., those subject 
to section 305(a) of the Act), if the contract is to be performed in the 
United States, its possessions, or Puerto Rico and has as a purpose the 
performance of experimental, developmental, research, design, or 
engineering work. Contracts for any of the following purposes may be 
considered to involve the performance of work of the type described 
above (these examples are illustrative and not limiting):
    (1) Conduct of basic or applied research.
    (2) Development, design, or manufacture for the first time of any 
machine, article of manufacture, or composition of matter to satisfy 
NASA's specifications or special requirements.
    (3) Development of any process or technique for attaining a NASA 
objective not readily attainable through the practice of a previously 
developed process or technique.
    (4) Testing of, evaluation of, or experimentation with a machine, 
process, concept, or technique to determine whether it is suitable or 
could be made suitable for a NASA objective.

[[Page 224]]

    (5) Construction work or architect-engineer services having as a 
purpose the performance of experimental, developmental, or research work 
or test and evaluation studies involving such work.
    (6) The operation of facilities or the coordination and direction of 
the work of others, if these activities involve performing work of any 
of the types described in paragraphs (b)(1) through (5) of this section.
    (c) The contracting officer shall insert the provision at 1852.227-
71, Requests for Waiver of Rights to Inventions, in all solicitations 
that include the clause at 1852.227-70, New Technology (see paragraph 
(b) of this section).
    (d) The contracting officer shall insert the clause at 1852.227-72, 
Designation of New Technology Representative and Patent Representative, 
in all solicitations and contracts containing either of the clauses at 
FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form) 
or 1852.227-70, New Technology (see paragraph (c) of this section). It 
may also be inserted, upon consultation with the installation 
intellectual property counsel, in solicitations and contracts using 
another patent rights clause. The New Technology Representative shall be 
the Technology Utilization Officer or the Staff member (by titled 
position) having cognizance of technology utilization matters for the 
installation concerned. The Patent Representative shall be the 
intellectual property counsel (by titled position) having cognizance of 
patent matters for the installation concerned.
    (e) The contracting officer shall insert the provision at 1852.227-
84, Patent Rights Clauses, in solicitations for experimental, 
developmental, or research work to be performed in the United States, 
its possessions, or Puerto Rico when the eventual awardee may be a small 
business or a nonprofit organization.
    (f) As authorized in FAR 27.303(c)(2), when work is to be performed 
outside the United States, its possessions, and Puerto Rico by 
contractors that are not domestic firms, the clause at 1852.227-85, 
Invention Reporting and Rights--Foreign, shall be used unless the 
contracting officer determines, with concurrence of the installation 
intellectual property counsel, that the objectives of the contract would 
be better served by use of the clause at FAR 52.227-13, Patent Rights--
Acquisition by the Government. For this purpose, the contracting officer 
may presume that a contractor is not a domestic firm unless it is known 
that the firm is not foreign owned, controlled, or influenced. (See FAR 
27.304-4(a) regarding subcontracts with U.S. firms.)

[62 FR 36715, July 9, 1997, as amended at 62 FR 58688, Oct. 30, 1997]



Sec. 1827.304  Procedures.



Sec. 1827.304-1  General. (NASA supplements paragraphs (a), (b), (c), 
          (f), (g), and (h))

    (a) Contractor appeals of exceptions. In any contract with other 
than a small business firm or nonprofit organization, the NASA Patent 
Waiver Regulations, 14 CFR Section 1245, Subpart 1, shall apply.
    (b) Greater rights determinations. In any contract with other than a 
small business firm or a nonprofit organization and with respect to 
which advance waiver of rights has not been granted (see 1827.302(b)), 
the contractor (or an employee-inventor of the contractor after 
consultation with the contractor) may request waiver of title to an 
individual identified subject invention pursuant to the NASA Patent 
Waiver Regulations, 14 CFR Section 1245, Subpart 1.
    (c) Retention of rights by inventor. The NASA Patent Waiver 
Regulations, 14 CFR Section 1245, Subpart 1, apply for any invention 
made in the performance of work under any contract with other than a 
small business firm or a nonprofit organization.
    (f) Revocation or modification of contractor's minimum rights. 
Revocation or modification of the contractor's license rights (see 
1827.302-(i)(2)) shall be in accordance with 37 CFR 404.10, for subject 
inventions made and reported under any contract with other than a small 
business firm or a nonprofit organization.
    (g) Exercise of march-in rights. For contracts with other than a 
small business firm or a nonprofit organization,

[[Page 225]]

the procedures for the exercise of march-in rights shall be as set forth 
in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.
    (h) Licenses and assignments under contracts with nonprofit 
organizations. The Headquarters Associate General Counsel (Intellectual 
Property) (Code GP) is the approval authority for assignments. 
Contractor requests should be made to the Patent Representative 
designated in the clause at 1852.227-72 and forwarded, with 
recommendation, to Code GP for approval.



Sec. 1827.304-2  Contracts placed by or for other Government agencies. 
          (NASA supplements paragraph (a))

    (a)(3) When a contract is placed for another agency and the agency 
does not request the use of a specific patent rights clause, the 
contracting officer, upon consultation with the installation 
intellectual property counsel, may use the clause at FAR 52.227-11, 
Patent Rights--Retention by the Contractor (Short Form) as modified by 
1852.227-11 (see 1827.303-70(a)) or 1852.227-70, New Technology (see 
1827.303-70(b)).



Sec. 1827.304-3  Contracts for construction work or architect-engineer 
          services. (NASA supplements paragraph (a))

    (a) For construction or architect-engineer services contracts with 
other than a small business or nonprofit organization, see 1827.303-
70(b).



Sec. 1827.304-4  Subcontracts. (NASA supplements paragraph (a))

    (a)(i) Unless the contracting officer otherwise authorizes or 
directs, contractors awarding subcontracts and subcontractors awarding 
lower-tier subcontracts shall select and include one of the following 
clauses, suitably modified to identify the parties, in the indicated 
subcontracts:
    (A) The clause at 1852.227-70, New Technology, in any subcontract 
with other than a small business firm or a nonprofit organization if a 
purpose of the subcontract is the performance of experimental, 
developmental, research, design, or engineering work of any of the types 
described in 1827.303-70(b) (1)-(6).
    (B) The clause at FAR 52.227-11, Patent Rights--Retention by the 
Contractor (Short Form), modified by 1852.227-11 (see 1827.303-70(a)), 
in any subcontract with a small business firm or a nonprofit 
organization if a purpose of the subcontract is the performance of 
experimental, developmental, or research work.
    (ii) Whenever a prime contractor or a subcontractor considers it 
inappropriate to include one of the clauses discussed in paragraph (a) 
of this section in a particular subcontract, or a subcontractor refuses 
to accept the clause, the matter shall be resolved by the contracting 
officer in consultation with the intellectual property counsel.



Sec. 1827.304-5  Appeals.

    FAR 27.304-5 shall apply unless otherwise provided in the NASA 
Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.



Sec. 1827.305  Administration of the patent rights clauses.



Sec. 1827.305-4  Conveyance of invention rights acquired by the 
          Government. (NASA supplements paragraph (a))

    (a) When the Government acquires the entire right to, title to, and 
interest in an invention under the clause at 1852.227-70, New 
Technology, a determination of title is to be made in accordance with 
Section 305(a) of the National Aeronautics and Space Act of 1958, as 
amended (42 U.S.C. 2457(a)), and reflected in appropriate instruments 
executed by NASA and forwarded to the contractor.

              Subpart 1827.4_Rights in Data and Copyrights



Sec. 1827.404  Basic rights in data clause. (NASA supplements paragraphs 
          (d), (e), (f), (g), (h), and (i))

    (g) Release, publication, and use of data. (3)(A) NASA's intent is 
to ensure the most expeditious dissemination of computer software 
developed by it or its contractor. Accordingly, when the clause at FAR 
52.227-14, Rights in Data-General, is modified by 1852.227-14 (see 
1827.409(a)), the contractor may not assert claim to copyright, publish, 
or release to others computer software first produced in the performance 
of a

[[Page 226]]

contract without the contracting officer's prior written permission.

[62 FR 36715, July 9, 1997, as amended at 68 FR 45169, Aug. 1, 2003; 69 
FR 35270, June 24, 2004]



Sec. 1827.409  Solicitation provisions and contract clauses. (NASA 
          supplements paragraph (a), (b), (c), (d), (e), (i), and (k))

    (a) The contracting officer shall add subparagraph (3) set forth in 
1852.277-14 to paragraph (d) of the clause at FAR 52.227-14, Rights in 
Data--General, except in solicitations and contracts for basic or 
applied research with universities or colleges.
    (i) The contract officer shall modify the clause at FAR 52.227-17, 
Rights in Data--Special Works by adding paragraph (f) as set forth in 
1852.227-17.
    (k)(i) The contracting officer shall add paragraph (e) as set forth 
in 1852.227-19(a) to the clause at FAR 52.227-19, Commercial Computer 
Software--Restricted Rights, when it is contemplated that updates, 
correction notices, consultation information, and other similar items of 
information relating to commercial computer software delivered under a 
purchase order or contract are available and their receipt can be 
facilitated by signing a vendor supplied agreement, registration forms, 
or cards and returning them directly to the vendor.
    (ii) The contracting officer shall add paragraph (f) as set forth at 
1852.227-19(b) to the clause at FAR 52.227-19, Commercial Computer 
Software--Restricted Rights, when portions of a contractor's standard 
commercial license or lease agreement consistent with the clause, 
Federal laws, standard industry practices, and the FAR are to be 
incorporated into the purchase order or contract.
    (iii) See 1827.409-70.

[62 FR 36715, July 9, 1997, as amended at 69 FR 35270, June 24, 2004]



Sec. 1827.409-70  NASA contract clause.

    The contracting officer shall use the clause at 1852.227-86, 
Commercial Computer Software--Licensing, in lieu of FAR 52.227-19, 
Commercial Computer Software--Restricted Rights, when it is considered 
appropriate for the acquisition of existing computer software in 
accordance with FAR 27.405(b)(2).

                      PART 1828_BONDS AND INSURANCE

                          Subpart 1828.1_Bonds

Sec.

Sec. 1828.101 Bid guarantees.

Sec. 1828.101-70 NASA solicitation provision.

Sec. 1828.103 Performance and payment bonds and alternative payment 
          protections for other than construction contracts.

Sec. 1828.103-70 Subcontractors performing construction work under 
          nonconstruction contracts.

Sec. 1828.103-71 Solicitation requirements and contract clauses.

                        Subpart 1828.3_Insurance


Sec. 1828.311 Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.

Sec. 1828.311-1 Contract clause.

Sec. 1828.311-2 Agency solicitation provisions and contract clauses.

Sec. 1828.311-270 NASA solicitation provisions and contract clauses.

Sec. 1828.370 Fixed-price contract clauses.

Sec. 1828.371 Clauses incorporating cross-waivers of liability for 
          International Space Station activities and Science or Space 
          Exploration activities unrelated to the International Space 
          Station.

Sec. 1828.372 Clause for minimum insurance coverage.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 55765, Oct. 29, 1996, unless otherwise noted.

                          Subpart 1828.1_Bonds



Sec. 1828.101  Bid guarantees.



Sec. 1828.101-70  NASA solicitation provision.

    The contracting officer shall insert the provision at 1852.228-73, 
Bid Bond, in construction solicitations where offers are expected to 
exceed $100,000 and a performance bond or a performance and payment bond 
is required (see FAR 28.102 and 28.103). The contracting officer may 
increase the amount of the bid bond to protect the Government from loss, 
as long as the amount does not exceed $3 million.

[[Page 227]]



Sec. 1828.103  Performance and payment bonds and alternative payment 
          protections for other than construction contracts.



Sec. 1828.103-70  Subcontractors performing construction work under 
          nonconstruction contracts.

    (a) The contracting officer shall require prime contractors on 
nonconstruction contracts to obtain the following performance and/or 
payment protection from subcontractors performing construction work:
    (1) Performance and payment bonds when the subcontract construction 
work is in excess of $1000,000 and is determined by NASA to be subject 
to the Miller Act.
    (2) An appropriate payment protection determined according to FAR 
28.102-1(b)(1) when the subcontract construction work is greater than 
$30,000 but not greater than $100,000.
    (b) The contracting officer shall establish the penal amount in 
accordance with FAR 28.102-2 based on the subcontract value.
    (c) The bonds shall be provided on SF 25, Performance Bond, and SF 
25A, Payment Bond. These forms shall be modified to name the NASA prime 
contractor as well as the United States of America as obligees.

[61 FR 55765, Oct. 29, 1996, as amended at 71 FR 71073, Dec. 8, 2006]



Sec. 1828.103-71  Solicitation requirements and contract clauses.

    When performance and payment bonds or alternative payment 
protections are required from subcontractors performing construction 
work under nonconstruction prime contracts, the contracting officer 
shall follow the procedures in FAR 28.102-3. When alternative payment 
protections are required, insert a clause substantially the same as FAR 
52.228-13, Alternative Payment Protections, appropriately modified.

                        Subpart 1828.3_Insurance



Sec. 1828.311  Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.



Sec. 1828.311-1  Contract clause.

    The contracting officer must insert the clause at FAR 52.228-7, 
Insurance--Liability to Third Persons, as prescribed in FAR 28.311-1, 
unless--
    (a) Waived by the procurement officer; or
    (b) The successful offeror represents in its offer that it is 
totally immune from tort liability as a State agency or as a charitable 
institution.

[65 FR 54440, Sept. 8, 2000]



Sec. 1828.311-2  Agency solicitation provisions and contract clauses.



Sec. 1828.311-270  NASA solicitation provisions and contract clauses.

    (a) The contracting officer must insert the clause at 1852.228-71, 
Aircraft Flight Risks, in all cost-reimbursement contracts for the 
development, production, modification, maintenance, or overhaul of 
aircraft, or otherwise involving the furnishing of aircraft to the 
contractor, except when the aircraft are covered by a separate bailment.
    (b) The contracting officer must insert the provision at 1852.228-
80, Insurance--Immunity from Tort Liability, in solicitations for 
research and development when a cost-reimbursement contract is 
contemplated.
    (c) The contracting officer must insert FAR clause 52.228-7 and the 
associated clause at 1852.228-81, Insurance--Partial Immunity From Tort 
Liability, when the successful offeror represents in its offer that the 
offeror is partially immune from tort liability as a State agency or as 
a charitable institution.
    (d) The contracting officer must insert the clause at 1852.228-82, 
Insurance--Total Immunity From Tort Liability, when the successful 
offeror represents in its offer that the offeror is totally immune from 
tort liability as a State agency or as a charitable institution.

[65 FR 54440, Sept. 8, 2000]

[[Page 228]]



Sec. 1828.370  Fixed-price contract clauses.

    (a) The contracting officer shall insert the clause at 1852.228-70, 
Aircraft Ground and Flight Risk, in all negotiated fixed-price contracts 
for the development, production, modification, maintenance, or overhaul 
of aircraft, or otherwise involving the furnishing of aircraft to the 
contractor, except as provided in paragraph (b) of this section, unless 
the aircraft are covered by a separate bailment. See the clause preface 
for directions for modifying the clause to accommodate various 
circumstances.
    (b) The Government need not assume the risk of aircraft damage, 
loss, or destruction as provided by the clause at 1852.228-70 if the 
best estimate of premium costs that would be included in the contract 
price for insurance coverage for such damage, loss, or destruction at 
any plant or facility is less than $500. If it is determined not to 
assume this risk, the clause at 1852.228-70 shall not be made a part of 
the contract, and the cost of necessary insurance to be obtained by the 
contractor to cover this risk shall be considered in establishing the 
contract price. In such cases, however, if performance of the contract 
is expected to involve the flight of Government-furnished aircraft, the 
substance of the clause at 1852.228-71, Aircraft Flight Risks, suitably 
adapted for use in a fixed-price contract, shall be used.
    (c) When the clause at 1852.228-70 is used, the term ``Contractor's 
premises'' shall be expressly defined in the contract Schedule and shall 
be limited to places where aircraft may be located during the 
performance of the contract. Contractor's premises may include, but are 
not limited to, those owned or leased by the contractor or those for 
which the contractor has a permit, license, or other right of use either 
exclusively or jointly with others, including Government airfields.



Sec. 1828.371  Clauses incorporating cross-waivers of liability for 
          International Space Station activities and Science or Space 
          Exploration activities unrelated to the International Space 
          Station.

    (a) In contracts covering International Space Station activities, or 
Science or Space Exploration activities unrelated to the International 
Space Station that involve a launch, NASA shall require the contractor 
to agree to waive all claims against any entity or person defined in the 
clause based on damage arising out of Protected Space Operations. This 
cross-waiver shall apply only if the person, entity, or property causing 
the damage is involved in Protected Space Operations and the person, 
entity, or property damaged is damaged by virtue of its involvement in 
Protected Space Operations. The cross-waivers will require the 
contractor to extend the cross-waiver provisions to their subcontractors 
at any tier and related entities ensuring those subcontractors and 
related entities also waive all claims against any entity or person 
defined in the clause for damages arising out of Protected Space 
Operations. The purpose of the clauses prescribed in this section is to 
extend the cross-waivers under other agreements to NASA contractors that 
perform work in support of NASA's obligations under these agreements.
    (b) The contracting officer shall insert the clause at 1852.228-78, 
Cross-Waiver of Liability for Science or Space Exploration Activities 
unrelated to the International Space Station, in solicitations and 
contracts above the simplified acquisition threshold for the acquisition 
of launches for science or space exploration activities unrelated to the 
International Space Station or for acquisitions for science or space 
exploration activities that are not related to the International Space 
Station but involve a launch. If a science or space exploration activity 
is in support of the International Space Station, the contracting 
officer shall insert the clause prescribed by paragraph (c) of this 
section and designate its application to that particular launch.
    (c) The contracting officer shall insert the clause at 1852.228-76, 
Cross-Waiver of Liability for International Space Station Activities, in 
solicitations and contracts above the simplified acquisition threshold 
when the work to be performed involves Protected Space Operations, as 
that term is defined in the clause, relating to the International Space 
Station.

[[Page 229]]

    (d) At the contracting officer's discretion, the clauses prescribed 
by paragraphs (b) and (c) of this section may be used in solicitations, 
contracts, new work modifications, or extensions to existing contracts 
under the simplified acquisition threshold involving science or space 
exploration activities unrelated to the International Space Station, or 
International Space Station activities, respectively, in appropriate 
circumstances. Examples of such circumstances are when the value of 
contractor property on a Government installation used in performance of 
the contract is significant, or when it is likely that the contractor or 
subcontractor will have its valuable property exposed to risk or damage 
caused by other participants in the science or space exploration 
activities unrelated to the International Space Station, or 
International Space Station activities.

[77 FR 59341, Sept. 27, 2012]



Sec. 1828.372  Clause for minimum insurance coverage.

    In accordance with FAR 28.306(b) and 28.307, the contracting officer 
may insert a clause substantially as stated at 1852.228-75, Minimum 
Insurance Coverage, in fixed-price solicitations and in cost-
reimbursement contracts. The contracting officer may modify the clause 
to require additional coverage, such as vessel liability, and higher 
limits if appropriate for a particular acquisition.

           PART 1830_COST ACCOUNTING STANDARDS ADMINISTRATION

 Subpart 1830.70_Facilities Capital Employed for Facilities in Use and 
                    For Facilities Under Construction

Sec.

Sec. 1830.7001 Facilities capital employed for facilities in use.

Sec. 1830.7001-1--1830.7001-3 [Reserved]

Sec. 1830.7001-4 Postaward FCCOM applications.

Sec. 1830.7002 Facilities capital employed for facilities under 
          construction.

Sec. 1830.7002-1 Definitions.

Sec. 1830.7002-2 Cost of money calculations.

Sec. 1830.7002-3 Representative investment calculations.

Sec. 1830.7002-4 Determining imputed cost of money.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 55767, Oct. 29, 1996, unless otherwise noted.

 Subpart 1830.70_Facilities Capital Employed for Facilities in Use and 
                    For Facilities Under Construction



Sec. 1830.7001  Facilities capital employed for facilities in use.



Sec. 1830.7001-1--1830.7001-3  [Reserved]



Sec. 1830.7001-4  Postaward FCCOM applications.

    (a) Interim billings based on costs incurred. (1) The contractor may 
include FCCOM in cost reimbursement and progress payment invoices. To 
determine the amount that qualifies as cost incurred, multiply the 
incurred portions of the overhead pool allocation bases by the latest 
available cost of money factors. These FCCOM calculations are interim 
estimates subject to adjustment.
    (2) As actual cost of money factors are finalized, use the new 
factors to calculate FCCOM for the next accounting period.
    (b) Final settlements. (1) Contract FCCOM for final cost 
determination or repricing is based on each year's final cost of money 
factors determined under CAS 414 and supported by separate Forms CASB-
CMF.
    (2) Separately compute contract FCCOM in a manner similar to yearly 
final overhead rates. As in overhead rates, include in the final 
settlement an adjustment from interim to final contract FCCOM. Do not 
adjust the contract estimated or target cost.



Sec. 1830.7002  Facilities capital employed for facilities under 
          construction.



Sec. 1830.7002-1  Definitions.

    (a) Cost of money rate is either--
    (1) The interest rate determined by the Secretary of the Treasury 
under Public Law 92-41 (85 Stat. 97); or
    (2) The time-weighted average of such rates for each cost accounting 
period during which the capital asset is being constructed, fabricated, 
or developed.
    (b) Representative investment is the calculated amount considered 
invested

[[Page 230]]

by the contractor during the cost accounting period to construct, 
fabricate, or develop the capital asset.



Sec. 1830.7002-2  Cost of money calculations.

    (a) The interest rate referenced in 1830.7002-1(a)(1) is established 
semi-annually and published in the Federal Register during the fourth 
week of December and June.
    (b) To calculate the time-weighted average interest rate referenced 
in 1830.7002-1(a)(2), multiply the rates in effect during the months of 
construction by the number of months each rate was in effect, and then 
divide the sum of the products by the total number of months.



Sec. 1830.7002-3  Representative investment calculations.

    (a) The calculation of the representative investment requires 
consideration of the rate or expenditure pattern of the costs to 
construct, fabricate, or develop a capital asset.
    (b) If the majority of the costs were incurred toward the beginning, 
middle, or end of the cost accounting period, the contractor shall 
either:
    (1) Determine a representative investment for the cost accounting 
period by calculating the average of the month-end balances for that 
cost accounting period; or
    (2) Treat month-end balances as individual representative 
investments.
    (c) If the costs were incurred in a fairly uniform expenditure 
pattern throughout the construction, fabrication, or development period, 
the contractor may either:
    (1) Determine a representative investment for the cost accounting 
period by averaging the beginning and ending balances of the 
construction, fabrication, or development cost account for the cost 
accounting period; or
    (2) Treat month-end balances as individual representative 
investments.
    (d) The method chosen by the contractor to determine the 
representative investment amount may be different for each capital asset 
being constructed, fabricated, or developed, provided the method fits 
the expenditure pattern of the costs incurred.



Sec. 1830.7002-4  Determining imputed cost of money.

    (a) Determine the imputed cost of money for an asset under 
construction, fabrication, or development by applying a cost of money 
rate (see 1830.7002-2) to the representative investment (see 1830.7002-
3).
    (1) When a representative investment is determined for a cost 
accounting period in accordance with 1830.7002-3(b)(1) or 1830.7002-
3(c)(1), the cost of money rate shall be the time-weighted average rate.
    (2) When a monthly representative investment is used in accordance 
with 1830.7002-3(b)(2) or 1830.7002-3(c)(2), the cost of money rate 
shall be that in effect each month. Under this method, the FCCOM is 
determined monthly, and the total for the cost accounting period is the 
sum of the monthly calculations.
    (b) The imputed cost of money will be capitalized only once in any 
cost accounting period, either at the end of the accounting period or 
the end of the construction, fabrication, or development period, 
whichever comes first.
    (c) When the construction, fabrication, or development of an asset 
takes more than one accounting period, the cost of money capitalized for 
the first accounting period will be included in determining the 
representative investment for any future cost accounting periods.

            PART 1831_CONTRACT COST PRINCIPLES AND PROCEDURES

         Subpart 1831.2_Contracts With Commercial Organizations

Sec.

Sec. 1831.205 Selected costs.

Sec. 1831.205-70 Contract clause.

Sec. 1831.205-671 Solicitation provision.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 55768, Oct. 29, 1996, unless otherwise noted.

[[Page 231]]

         Subpart 1831.2_Contracts with Commercial Organizations



Sec. 1831.205  Selected costs.



Sec. 1831.205-70  Contract clause.

    The contracting officer must insert the clause at 1852.231-70, 
Precontract Costs, in contracts for which specific coverage of 
precontract costs is authorized.

[61 FR 55768, Oct. 29, 1996, as amended at 65 FR 46628, July 31, 2000; 
69 FR 35271, June 24, 2004]



Sec. 1831.205-671  Solicitation provision.

    The contracting officer must insert a provision substantially the 
same as the provision at 1852.231-71, Determination of Compensation, in 
solicitations for services which contemplate the award of a cost 
reimbursement or non-competitive fixed-price type service contract 
having a total potential value in excess of $500,000.

[62 FR 4467, Jan. 30, 1997, as amended at 65 FR 46628, July 31, 2000]

                      PART 1832_CONTRACT FINANCING

Sec.

          Subpart 1832.1_Non-Commercial Item Purchase Financing


Sec. 1832.111 Contract clauses for non-commercial purchases.

Sec. 1832.111-70 NASA contract clause.

            Subpart 1832.2_Commercial Item Purchase Financing


Sec. 1832.202-1 Policy.

Sec. 1832.206 Solicitation provisions and contract clauses.

        Subpart 1832.4_Advance Payments For Non-Commercial Items


Sec. 1832.412 Contract clause.

Sec. 1832.412-70 NASA Contract clauses.

             Subpart 1832.5_Progress Payments Based on Costs


Sec. 1832.501 General.

Sec. 1832.501-1 Customary progress payment rates.

Sec. 1832.502-4 Contract clauses.

Sec. 1832.502-470 NASA contract clause.

                     Subpart 1832.7_Contract Funding


Sec. 1832.705 Contract clauses.

Sec. 1832.705-2 Clauses for limitation of cost or funds.

Sec. 1832.705-270 NASA clauses for limitation of cost or funds.

               Subpart 1832.10_Performance-Based Payments


Sec. 1832.1005 Contract clauses.

Sec. 1832.1009 Title.

                Subpart 1832.11_Electronic Funds Transfer


Sec. 1832.1110 Solicitation provision and contract clauses.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 55768, Oct. 29, 1996, unless otherwise noted.

          Subpart 1832.1_Non-Commercial Item Purchase Financing



Sec. 1832.111  Contract clauses for non-commercial purchases.



Sec. 1832.111-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.232-79, 
Payment for On-Site Preparatory Costs, in solicitations and contracts 
for construction on a fixed-price basis when progress payments are 
contemplated and pro rata payment of on-site preparatory costs to the 
contractor is appropriate.

            Subpart 1832.2_Commercial Item Purchase Financing



Sec. 1832.202-1  Policy. (NASA supplements paragraph (b))

    (b)(6) Advance payment limitations do not apply to expendable launch 
vehicle (ELV) service contracts.

[61 FR 55768, Oct. 29, 1996, as amended at 69 FR 35271, June 24, 2004]



Sec. 1832.206  Solicitation provisions and contract clauses. (NASA 
          supplements paragraph (g))

    (g)(2) The installment payment rate shall be that which is common in 
the commercial marketplace for the purchased item. If there is no 
commonly used rate, the contracting officer shall determine the 
appropriate rate. In no case shall the rate exceed that established in 
the clause at FAR 52.232-30.

[[Page 232]]

        Subpart 1832.4_Advance Payments for Non-Commercial Items



Sec. 1832.412  Contract clause. (NASA supplement paragraphs (e) and (f))

    (e) The contracting officer shall use Alternates IV and V when 
advance payments are provided on Phase I contracts of the Small Business 
Innovation Research (SBIR) or Small Business Technology Transfer (STTR) 
programs.
    (f) See 1832.412(e).

[63 FR 14040, Mar. 24, 1998]



Sec. 1832.412-70  NASA Contract clauses.

    When the clause at FAR 52.232-12 or its Alternates II or V are used, 
insert the clause at 1852.232-70, NASA Modification of FAR 52.232-12.

[63 FR 14040, Mar. 24, 1998]

             Subpart 1832.5_Progress Payments Based on Costs



Sec. 1832.501  General.



Sec. 1832.501-1  Customary progress payment rates. (NASA supplements 
          paragraph (a))

    (a) The customary progress payment rate for all NASA contracts is 85 
percent for large business, 90 percent for small business, 95 percent 
for small disadvantaged business, and 100 percent for Phase II contracts 
in the Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) programs. The contracting officer shall 
insert the applicable percentage in paragraphs (a) and (b) of the clause 
at FAR 52.232-16.



Sec. 1832.502-4  Contract clauses.



Sec. 1832.502-470  NASA contract clause.

    The contracting officer may insert a clause substantially as stated 
at 1852.232-82, Submission of Requests for Progress Payments, in fixed-
price solicitations and contracts that provide for progress payments. 
The recipient of the requests and number of copies may be changed as 
required.

                     Subpart 1832.7_Contract Funding



Sec. 1832.705  Contract clauses.



Sec. 1832.705-2  Clauses for limitation of cost or funds.



Sec. 1832.705-270  NASA clauses for limitation of cost or funds.

    (a) The contracting officer shall insert the clause at 1852.232-77, 
Limitation of Funds (Fixed-Price Contract), in solicitations and 
contracts for fixed-price incrementally funded research and development.
    (b) The contracting officer shall insert a clause substantially as 
stated at 1852.232-81, Contract Funding, in Section B of solicitations 
and contracts containing the clause at FAR 52.232-22, Limitation of 
Funds. Insert the amounts of funds available for payment, the items 
covered, and the applicable period of performance. The amount obligated 
for fee in paragraph (b) of the clause should always be sufficient to 
pay fee anticipated to be earned for the work funded by the amount in 
paragraph (a) of the clause.

               Subpart 1832.10_Performance-Based Payments



Sec. 1832.1005  Contract clauses. (NASA supplements paragraph (a))

    (a) If the contract is for launch services, the contracting officer 
shall delete paragraph (f) of the clause at FAR 52.232-32 in accordance 
with 1832.1009.

[61 FR 55768, Oct. 29, 1996, as amended at 65 FR 31103, May 16, 2000; 69 
FR 35271, June 24, 2004]



Sec. 1832.1009  Title.

    In accordance with 42 U.S.C. 2465d, NASA shall not take title to 
launch vehicles under contracts for launch services unless one of the 
exceptions in the law applies. However, the law does not eliminate 
NASA's right to take title to other property acquired or produced by the 
contractor under a contract containing a title provision.

[[Page 233]]

                Subpart 1832.11_Electronic Funds Transfer



Sec. 1832.1110  Solicitation provision and contract clauses. (NASA 
          supplements paragraphs (a), (b), and (c)).

    (a)(1) NASA does not use the Central Contractor Registration. Use 
the clause at FAR 52.232-34, Payment by Electronic Funds Transfer--Other 
than Central Contractor Registration.
    (b) In accordance with FAR 32.1106(b), the use of a nondomestic EFT 
mechanism is authorized. When a nondomestic EFT mechanism is used, the 
contracting officer shall replace the paragraph at FAR 52.232-34(c) with 
a description of the EFT mechanism that will be used for the contract.

[64 FR 18373, Apr. 14, 1999, as amended at 69 FR 35271, June 24, 2004]

                PART 1833_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 1833.1_Protests

Sec.

Sec. 1833.103 Protests to the agency.

Sec. 1833.106-70 Solicitation provision.

                   Subpart 1833.2_Disputes and Appeals


Sec. 1833.215 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 55771, Oct. 29, 1996, unless otherwise noted.

                         Subpart 1833.1_Protests



Sec. 1833.103  Protests to the agency. (NASA supplements paragraphs (c), 
          (d) and (f).)

    (c) An independent review under the provision at 1852.233-70 is 
available as an alternative to a protest to the contracting officer, but 
not as an appeal of a protest decision. All independent reviews shall be 
conducted by the Associate Administrator for Procurement or designee. 
Such reviews are different from the Ombudsman Program described at 
1815.7001.
    (d) NASA shall summarily dismiss and take no further action upon any 
protest to the Agency if the substance of the protest is pending in 
judicial proceedings or the protester has filed a protest on the same 
acquisition with the United States GeneralAccounting Office prior to 
receipt of an Agency protest decision.
    (4) When a potential bidder or offeror submits an Agency protest to 
NASA to the contracting officer or alternatively requests an independent 
review, the decision of the contracting officer or the independent 
review official shall be final and is not subject to any appeal or 
reconsideration within NASA.

[62 FR 11108, Mar. 11, 1997, as amended at 64 FR 36607, July 7, 1999; 67 
FR 61519, Oct. 1, 2002; 69 FR 35271, June 24, 2004]



Sec. 1833.106-70  Solicitation provision.

    Contracting officers shall insert the provision at 1852.233-70 in 
all solicitations.

[62 FR 11108, Mar. 11, 1997]

                   Subpart 1833.2_Disputes and Appeals



Sec. 1833.215  Contract clause.

    The contracting officer shall use the clause at FAR 52.233-1, 
Disputes, with its Alternate I whenever continued performance is vital 
to national security, the public health and welfare, important agency 
programs, or other essential supplies or services whose timely 
reprocurement from other sources would be impracticable.

[[Page 234]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                   PART 1834_MAJOR SYSTEM ACQUISITION

              Subpart 1834.2_Earned Value Management System

Sec.

Sec. 1834.201 Policy.

Sec. 1834.203 Solicitation provisions and contract clause.

Sec. 1834.203-70 NASA solicitation provision and contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 71 FR 66120, Nov. 13, 2006, unless otherwise noted.

              Subpart 1834.2_Earned Value Management System



Sec. 1834.201  Policy.

    (a) NASA requires use of an Earned Value Management System (EVMS) on 
acquisitions for development or production work, including development 
or production work for flight and ground support systems and components, 
prototypes, and institutional investments (facilities, IT 
infrastructure, etc.) as specified below:
    (1) For cost or fixed-price incentive contracts and subcontracts 
valued at $50 Million or more the contractor shall have an EVMS that has 
been determined by the cognizant Federal agency to be in compliance with 
the guidelines in the American National Standards Institute/Electronic 
Industries Alliance Standard 748, Earned Value Management Systems (ANSI/
EIA-748).
    (2) For cost or fixed-price incentive contracts and subcontracts 
valued at $20 Million or more but less than $50 Million, the contractor 
shall have an EVMS that complies with the guidelines in ANSI/EIA-748, as 
determined by the cognizant Contracting Officer.
    (3) For cost or fixed-price incentive contracts and subcontracts 
valued at less than $20 Million the application of EVM is optional and 
is a risk-based decision at the discretion of the program/project 
manager.
    (b) Requiring earned value management for firm-fixed-price (FFP) 
contracts and subcontracts of any dollar value is discouraged; however, 
a schedule management system and adequate reporting shall be required to 
plan and track schedule performance for development or production 
contracts valued at $20 Million or more. In addition, for FFP contracts 
that are part of a program/project of $50 Million or more, the 
contracting officer shall collaborate with the government's program/
project manager to ensure the appropriate data can be obtained or 
generated to fulfill program management needs and comply with NASA 
Procedural Requirements (NPR) 7120.5.
    (c) An EVMS is not required on non-developmental contracts for 
engineering support services, steady state operations, basic and applied 
research, and routine services such as janitorial services or grounds 
maintenance services.
    (d) Contracting officers shall request the assistance of the 
cognizant Defense Contract Management Agency (DCMA) office in 
determining the adequacy of proposed EVMS plans and procedures and 
system compliance.
    (e) Notwithstanding the EVMS requirements above, if an offeror 
proposes to use a system that has not been determined to be in 
compliance with the American National Standards Institute/Electronics 
Industries Alliance (ANSI/EIA) Standard-748, Earned Value Management 
Systems, the offeror shall submit a comprehensive plan for compliance 
with these EVMS standards, as specified in 1852.234-1, Notice of Earned 
Value Management System. Offerors shall not be eliminated from 
consideration for contract award because they do not have an EVMS that 
complies with these standards.

[76 FR 40280, July 8, 2011]



Sec. 1834.203  Solicitation provisions and contract clause.

    The FAR EVMS solicitation provisions and contract clause are not 
used in NASA contracts. See 1834.203-70 for the NASA EVMS solicitation 
provision and contract clause.

[[Page 235]]



Sec. 1834.203-70  NASA solicitation provision and contract clause.

    Except for firm-fixed price contracts and the contracts identified 
in 1834.201(a)(3), the contracting officer shall insert--
    (a) The provision at 1852.234-1, Notice of Earned Value Management 
System, in solicitations for contracts for--
    (1) Development or production, including flight and ground support 
projects, and institutional projects (facility, IT investment, etc.), 
with a value exceeding $20M; and
    (2) Acquisitions of any value designated as major by the project 
manager in accordance with OMB Circular A-11; and
    (b) The clause at 1852.234-2, Earned Value Management System, in 
solicitations and contracts with a value exceeding $50M that include the 
provision at 1852.234-1. The contracting officer shall use the clause 
with its Alternate I when the contract value is less than $50M.

[71 FR 66120, Nov. 13, 2006, as amended at 76 FR 40281, July 8, 2011]

             PART 1835_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 1835.016-70 Foreign participation under broad agency announcements 
          (BAAs).

Sec. 1835.016-71 NASA Research Announcements.

Sec. 1835.070 NASA contract clauses and solicitation provision.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 4469, Jan. 30, 1997, unless otherwise noted.



Sec. 1835.016-70  Foreign participation under broad agency announcements 
          (BAAs).

    (a) Policy. (1) NASA seeks the broadest participation in response to 
broad agency announcements, including foreign proposals or proposals 
including foreign participation. NASA's policy is to conduct research 
with foreign entities on a cooperative, no-exchange-of-funds basis (see 
NPD 1360.2, Initiation and Development of International Cooperation in 
Space and Aeronautics Programs). NASA does not normally fund foreign 
research proposals or foreign research efforts that are part of U.S. 
research proposals. Rather, cooperative research efforts are implemented 
via international agreements between NASA and the sponsoring foreign 
agency or funding/sponsoring institution under which the parties agree 
to each bear the cost of discharging their respective responsibilities.
    (2) In accordance with the National Space Transportation Policy, use 
of a non-U.S. manufactured launch vehicle is permitted only on a no-
exchange-of-funds basis.
    (3) NASA funding may not be used for subcontracted foreign research 
efforts. The direct purchase of supplies and/or services, which do not 
constitute research, from non-U.S. sources by U.S. award recipients is 
permitted.

[64 FR 48561, Sept. 7, 1999, as amended at 69 FR 35272, June 24, 2004]



Sec. 1835.016-71  NASA Research Announcements.

    (a) Scope. An NRA is used to announce research interests in support 
of NASA's programs, and, after peer or scientific review using factors 
in the NRA, select proposals for funding. Unlike an RFP containing a 
statement of work or specification to which offerors are to respond, an 
NRA provides for the submission of competitive project ideas, conceived 
by the offerors, in one or more program areas of interest. An NRA shall 
not be used when the requirement is sufficiently defined to specify an 
end product or service.

[62 FR 4469, Jan. 30, 1997, as amended at 62 FR 14017, Mar. 25, 1997; 63 
FR 9967, Feb. 27, 1998. Redesignated and amended at 64 FR 48561, Sept. 
7, 1999; 65 FR 12485, Mar. 9, 2000; 65 FR 46628, July 31, 2000; 65 FR 
82297, Dec. 28, 2000; 66 FR 53547, Oct. 23, 2001; 67 FR 30604, May 7, 
2002; 69 FR 35272, June 24, 2004]



Sec. 1835.070  NASA contract clauses and solicitation provision.

    (a) The contracting officer shall insert the clause at 1852.235-70, 
Center for AeroSpace Information, in all research and development 
contracts, and interagency agreements and cost-reimbursement supply 
contracts involving research and development work.
    (b) The contracting officer shall insert the clause at 1852.235-71, 
Key Personnel and Facilities, in contracts

[[Page 236]]

when source selection has been substantially predicated upon the 
possession by a given offeror of special capabilities, as represented by 
key personnel or facilities.
    (c) The contracting officer shall ensure that the provision at 
1852.235-72, Instructions for Responding to NASA Research Announcements, 
is inserted in all NRAs. The instructions may be supplemented, but only 
to the minimum extent necessary.
    (d) The contracting officer shall insert the clause at 1852.235-73, 
Final Scientific and Technical Reports, in all research and development 
contracts, and in interagency agreements and cost-reimbursement supply 
contracts involving research and development work.
    (1) The contracting officer, after consultation with and concurrence 
of the program or project manager and the center Export Control 
Administrator, shall insert the clause with its Alternate I when the 
contract includes ``fundamental research'' as defined at 22 CFR 
120.11(8) and no prior review of data, including the final report, 
produced during the performance of the contract is required for export 
control or national security purposes before the contractor may publish, 
release, or otherwise disseminate the data.
    (2) The contracting officer, after consultation with and concurrence 
by the program or project manager and where necessary the center Export 
Control Administrator, shall insert the clause with its Alternate II, 
when prior review of all data produced during the performance of the 
contract is required before the contractor may publish, release, or 
otherwise disseminate the data. For example, when data produced during 
performance of the contract may be subject to export control, national 
security restrictions, or other restrictions designated by NASA; or, to 
the extent the contractor receives or is given access to data that 
includes restrictive markings, may include proprietary information of 
others.
    (3) Except when Alternate II applies in accordance with paragraph 
(d)(2) of this section, the contracting officer shall insert the clause 
with its Alternate III in all SBIR and STTR contracts.
    (e) The contracting officer shall insert a clause substantially the 
same as the clause at 1852.235-74, Additional Reports of Work--Research 
and Development, in all research and development contracts, and in 
interagency agreements and cost-reimbursement supply contracts involving 
research and development work, when periodic reports, such as monthly or 
quarterly reports, or reports on the completion of significant units or 
phases of work are required for monitoring contract performance. The 
clause should be modified to reflect the reporting requirements of the 
contract and to indicate the timeframe for submission of the final 
report.

[68 FR 5231, Feb. 3, 2003, as amended at 70 FR 2022, Jan. 12, 2005]

         PART 1836_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

     Subpart 1836.2_Special Aspects of Contracting for Construction

Sec.

Sec. 1836.203 Government estimate of construction costs.

Sec. 1836.213-370 Additive and deductive items.

                     Subpart 1836.5_Contract Clauses


Sec. 1836.513 Accident prevention.

Sec. 1836.570 NASA solicitation provisions and contract clause.

               Subpart 1836.6_Architect-Engineer Services


Sec. 1836.602 Selection of firms for architect-engineer contracts.

Sec. 1836.602-1 Selection criteria.

                       Subpart 1836.70_Partnering


Sec. 1836.7004 NASA solicitation provision and contract clause.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 62 FR 4471, Jan. 30, 1997, unless otherwise noted.

     Subpart 1836.2_Special Aspects of Contracting for Construction



Sec. 1836.203  Government estimate of construction costs.(NASA 
          supplements paragraph (c))

    (c)(i) If the acquisition is by sealed bidding, the contracting 
officer shall

[[Page 237]]

file a sealed copy of the detailed Government estimate with the bids 
until bid opening. After the bids are read and recorded, the contracting 
officer shall read the estimate, and record it in the same detail as the 
bids.
    (ii) If the acquisition is by negotiation, the contracting officer 
may disclose the overall amount of the Government estimate after award 
upon request of offerors.



Sec. 1836.213-370  Additive and deductive items.

    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 invitation for bids for a first 
or base bid item covering the work generally as specified and one or 
more additive or deductive bid items progressively adding or omitting 
specified features of the work in a stated order of priority. In such 
case, the contracting officer, before the opening of bids, shall record 
in the contract file the amount of funds available for the project and 
determine the low bidder and the items to be awarded in accordance with 
the provision at 1852.236-71, Additive or Deductive Items.

[62 FR 36721, July 9, 1997. Redesignated at 64 FR 5621, Feb. 4, 1999]

                     Subpart 1836.5_Contract Clauses



Sec. 1836.513  Accident prevention.

    The contracting officer must insert the clause at 1852.223-70, 
Safety and Health, in lieu of FAR clause 52.236-13, Accident Prevention, 
and its Alternate I.

[67 FR 17016, Apr. 9, 2002]



Sec. 1836.570  NASA solicitation provisions and contract clause.

    (a) The contracting officer shall insert the provision at 1852.236-
71, Additive or Deductive Items, in invitations for bids for 
construction when it is desired to add or deduct bid items to meet 
available funding.
    (b) The contracting officer shall insert the provision at 1852.236-
72, Bids with Unit Prices, in invitations for bids for construction when 
the invitation contemplates unit prices of items.
    (c) The contracting officer shall insert the clause at 1852.236-73, 
Hurricane Plan, in solicitations and contracts for construction at sites 
that experience hurricanes.
    (d) The contracting officer shall insert the provision at 1852.236-
74, Magnitude of Requirement, in solicitations for construction. Insert 
the appropriate estimated dollar range in accordance with FAR 36.204.

               Subpart 1836.6_Architect-Engineer Services



Sec. 1836.602  Selection of firms for architect-engineer contracts.



Sec. 1836.602-1  Selection criteria. (NASA supplements paragraph (a))

    (a)(2) The evaluation of specialized experience and technical 
competence shall be limited to the immediately preceding ten years.
    (4) The evaluation of past performance shall be limited to the 
immediately preceding ten years.
    (6) The architect-engineer selection board may also establish 
evaluation criteria regarding the volume of work previously awarded to 
the firm by NASA, with the object of effecting an equitable distribution 
of contracts among qualified architect-engineer firms, including 
minority-owned firms and firms that have not had prior NASA contracts.

[62 FR 4471, Jan. 30, 1997, as amended at 66 FR 53548, Oct. 23, 2001]

                       Subpart 1836.70_Partnering



Sec. 1836.7004  NASA solicitation provision and contract clause.

    The contracting officer may insert a clause substantially the same 
as stated at 1852.236-75, Partnering for Construction Contracts, in 
solicitations and contracts for construction, when it has been 
determined that the benefits to be derived from partnering exceed the 
costs.

    Source: 63 FR 44170, Aug. 18, 1998, unless otherwise noted.

[[Page 238]]

                      PART 1837_SERVICE CONTRACTING

                Subpart 1837.1_Service Contracts_General

Sec.

Sec. 1837.101 Definitions.

Sec. 1837.104 Personal services contracts.

Sec. 1837.110 Solicitation provisions and contract clauses.

Sec. 1837.110-70 NASA solicitation provision and contract clauses.

Sec. 1837.170 Pension portability.

             Subpart 1837.2_Advisory and Assistance Services


Sec. 1837.203 Policy.

Sec. 1837.203-70 Providing contractors access to sensitive information.

Sec. 1837.203-71 Release of contractors' sensitive information.

Sec. 1837.203-72 NASA contract clauses.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 4472, Jan. 30, 1997, unless otherwise noted.

                Subpart 1837.1_Service Contracts_General



Sec. 1837.101  Definitions.

    Pension portability means the recognition and continuation in a 
successor service contract of the predecessor service contract 
employees' pension rights and benefits.



Sec. 1837.104  Personal services contracts. (NASA supplements paragraph 
          (b))

    (b) Section 203(c)(9) of the National Aeronautics and Space Act of 
1958 (42 U.S.C. 2473(c)(9)) authorizes NASA ``to obtain services as 
authorized by Section 3109 of Title 5, United States Code.'' It is NASA 
policy to obtain the personal services of experts and consultants by 
appointment rather than by contract. The policies, responsibilities, and 
procedures pertaining to the appointment of experts and consultants are 
in NPR 3300.1, Appointment of Personnel To/From NASA, Chapter 4, 
Employment of Experts and Consultants.

[62 FR 4472, Jan. 30, 1997, as amended at 64 FR 12485, Mar. 9, 2000; 66 
FR 53548, Oct. 23, 2001; 69 FR 63459, Nov. 2, 2004]



Sec. 1837.110  Solicitation provisions and contract clauses.



Sec. 1837.110-70  NASA solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at 1852.237-70, 
Emergency Evacuation Procedures, in solicitations and contracts for on-
site support services where emergency evacuations of the NASA 
installation may occur, e.g., snow, hurricanes, tornadoes, earthquakes, 
or other emergencies.
    (b) The contracting officer shall insert the clause at 1852.237-71, 
Pension Portability, in solicitations, contracts or negotiated contract 
modifications for additional work when the procurement officer makes the 
determination in 1837.170(a)(2).

[62 FR 4472, Jan. 30, 1997, as amended at 62 FR 36721, July 9, 1997; 62 
FR 58688, Oct. 30, 1997]



Sec. 1837.170  Pension portability.

    (a) It is NASA's policy not to require pension portability in 
service contracts. However, pension portability requirements may be 
included in solicitations, contracts, or contract modifications for 
additional work under the following conditions:
    (1)(i) There is a continuing need for the same or similar services 
for a minimum of five years (inclusive of options), and, if the 
contractor changes, a high percentage of the predecessor contractor's 
employees are expected to remain with the program; or
    (ii) The employees under a predecessor contract were covered by a 
portable pension plan, a follow-on contract or a contract consolidating 
existing services is awarded, and the total contract period covered by 
the plan covers a minimum of five years (including both the predecessor 
and successor contracts); and
    (2) The procurement officer determines in writing, with full 
supporting rationale, that such a requirement is in the Government's 
best interest. The procurement officer shall maintain a record of all 
such determinations.
    (b) When pension portability is required, the plan shall comply with 
the requirements of the clause at 1852.237-71, Pension Portability, (see 
1837.110-

[[Page 239]]

70(b)), and the contract shall also include a clear description of the 
plan, including service, pay, liabilities, vesting, termination, and 
benefits from prior contracts.

             Subpart 1837.2_Advisory and Assistance Services



Sec. 1837.203  Policy. (NASA supplements paragraph (c))

    (c) Advisory and assistance services of individual experts and 
consultants shall normally be obtained by appointment rather than by 
contract (see NPR 3300.1, Appointment of Personnel To/From NASA, Chapter 
4, Employment of Experts and Consultants).

[62 FR 4472, Jan. 30, 1997, as amended at 64 FR 51079, Sept. 21, 1999; 
66 FR 53548, Oct. 23, 2001; 69 FR 63459, Nov. 2, 2004]



Sec. 1837.203-70  Providing contractors access to sensitive 
information.

    (a)(1) As used in this subpart, ``sensitive information'' refers to 
information that the contractor has developed at private expense or that 
the Government has generated that qualifies for an exception to the 
Freedom of Information Act, which is not currently in the public domain, 
may embody trade secrets or commercial or financial information, and may 
be sensitive or privileged, the disclosure of which is likely to have 
either of the following effects: To impair the Government's ability to 
obtain this type of information in the future; or to cause substantial 
harm to the competitive position of the person from whom the information 
was obtained. The term is not intended to resemble the markings of 
national security documents as in sensitive-secret-top secret.
    (2) As used in this subpart, ``requiring organization'' refers to 
the NASA organizational element or activity that requires specified 
services to be provided.
    (3) As used in this subpart, ``service provider'' refers to the 
service contractor that receives sensitive information from NASA to 
provide services to the requiring organization. (b)(1) To support 
management activities and administrative functions, NASA relies on 
numerous service providers. These contractors may require access to 
sensitive information in the Government's possession, which may be 
entitled to protection from unauthorized use or disclosure.
    (2) As an initial step, the requiring organization shall identify 
when needed services may entail access to sensitive information and 
shall determine whether providing access is necessary for accomplishing 
the Agency's mission. The requiring organization shall review any 
service provider requests for access to information to determine whether 
the access is necessary and whether the information requested is 
considered ``sensitive'' as defined in paragraph (a)(1) of this section.
    (c) When the requiring organization determines that providing 
specified services will entail access to sensitive information, the 
solicitation shall require each potential service provider to submit 
with its proposal a preliminary analysis of possible organizational 
conflicts of interest that might flow from the award of a contract. 
After selection, or whenever it becomes clear that performance will 
necessitate access to sensitive information, the service provider must 
submit a comprehensive organizational conflicts of interest avoidance 
plan.
    (d) This comprehensive plan shall incorporate any previous studies 
performed, shall thoroughly analyze all organizational conflicts of 
interest that might arise because the service provider has access to 
other companies' sensitive information, and shall establish specific 
methods to control, mitigate, or eliminate all problems identified. The 
contracting officer, with advice from Center counsel, shall review the 
plan for completeness and identify to the service provider substantive 
weaknesses and omissions for necessary correction. Once the service 
provider has corrected the substantive weaknesses and omissions, the 
contracting officer shall incorporate the revised plan into the 
contract, as a compliance document.
    (e) If the service provider will be operating an information 
technology system for NASA that contains sensitive information, the 
operating contract shall include the clause at 1852.204-76, Security 
Requirements for Unclassified Information Technology Resources,

[[Page 240]]

which requires the implementation of an Information Technology Security 
Plan to protect information processed, stored, or transmitted from 
unauthorized access, alteration, disclosure, or use.
    (f) NASA will monitor performance to assure any service provider 
that requires access to sensitive information follows the steps outlined 
in the clause at 1852.237-72, Access to Sensitive Information, to 
protect the information from unauthorized use or disclosure.

[70 FR 35554, June 21, 2005]



Sec. 1837.203-71  Release of contractors' sensitive information.

    Pursuant to the clause at 1852.237-73, Release of Sensitive 
Information, offerors and contractors agree that NASA may release their 
sensitive information when requested by service providers in accordance 
with the procedures prescribed in 1837.203-70 and subject to the 
safeguards and protections delineated in the clause at 1852.237-72, 
Access to Sensitive Information. As required by the clause at 1852.237-
73, or other contract clause or solicitation provision, contractors must 
identify information they claim to be ``sensitive'' submitted as part of 
a proposal or in the course of performing a contract. The contracting 
officer shall evaluate all contractor claims of sensitivity in deciding 
how NASA should respond to requests from service providers for access to 
information.

[70 FR 35554, June 21, 2005]



Sec. 1837.203-72  NASA contract clauses.

    (a) The contracting officer shall insert the clause at 1852.237-72, 
Access to Sensitive Information, in all solicitations and contracts for 
services that may require access to sensitive information belonging to 
other companies or generated by the Government.
    (b) The contracting officer shall insert the clause at 1852.237-73, 
Release of Sensitive Information, in all solicitations, contracts, and 
basic ordering agreements.

[70 FR 35554, June 21, 2005]

             PART 1839_ACQUISITION OF INFORMATION TECHNOLOGY

                         Subpart 1829.1_General

Sec.

Sec. 1839.107 Contract clause.

Sec. 1839.107-70 NASA contract clause.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 62 FR 4473, Jan. 30, 1997, unless otherwise noted.

                         Subpart 1839.1_General



Sec. 1839.107  Contract clause.

[62 FR 4473, Jan. 30, 1997. Redesignated at 62 FR 36721, July 9, 1997]



Sec. 1839.107-70  NASA contract clause.

    (a)(1) The contracting officer shall insert the clause substantially 
as stated at 1852.239-70, Alternate Delivery Points, in solicitations 
and contracts for information technology when:
    (i) An indefinite delivery/indefinite quantity contract will be used 
or when the contract will include options for additional quantities; and
    (ii) Delivery is F.O.B. destination to the contracting activity.
    (2) When delivery is F.O.B. origin and Government bills of lading 
(GBL) are used, the contracting officer shall use the clause with its 
Alternate I.

[62 FR 4473, Jan. 30, 1997. Redesignated at 62 FR 36721, July 9, 1997]

[[Page 241]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                          PART 1840 [RESERVED]

                PART 1841_ACQUISITION OF UTILITY SERVICES

       Subpart 1841.5_Solicitation Provision and Contract Clauses

Sec.

Sec. 1841.501 Solicitation provision and contract clauses.

Sec. 1841.501-70 NASA contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 4474, Jan. 30, 1997, unless otherwise noted.

       Subpart 1841.5_Solicitation Provision and Contract Clauses



Sec. 1841.501  Solicitation provision and contract clauses.



Sec. 1841.501-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.241-70, 
Renewal of Contract, in solicitations and contracts for utility services 
if it is desirable that the utility service be provided under the same 
terms and conditions for more than 1 year.

          PART 1842_CONTRACT ADMINISTRATION AND AUDIT SERVICES

             Subpart 1842.2_Contract Administration Services

Sec.

Sec. 1842.271 NASA clause.

            Subpart 1842.70_Additional NASA Contract Clauses


Sec. 1842.7001 Observance of legal holidays.

Sec. 1842.7002 Travel outside of the United States.

Sec. 1842.7003 Emergency medical services and evacuation.

                 Subpart 1842.71_Submission of Vouchers


Sec. 1842.7101 Submission of vouchers.

     Subpart 1842.72_NASA Contractor Financial Management Reporting


Sec. 1842.7201 General.

Sec. 1842.7202 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 14017, Mar. 25, 1997, unless otherwise noted.

             Subpart 1842.2_Contract Administration Services



Sec. 1842.271  NASA clause.

    Insert the clause at 1852.242-70, Technical Direction, when 
paragraph 3(m) of the NASA Form 1634 specifically authorizes a COTR to 
issue technical direction.

            Subpart 1842.70_Additional NASA Contract Clauses



Sec. 1842.7001  Observance of legal holidays.

    (a) The contracting officer shall insert the clause at 1852.242-72, 
Observance of Legal Holidays, in contracts when work will be performed 
at a NASA installation.
    (b) The clause shall be used with its Alternate I in cost-
reimbursement contracts when it is desired that contractor employees not 
have access to the installation during Government holidays. This 
alternate may be appropriately modified for fixed-price contracts.
    (c) The clause may be used with its Alternate II in cost-
reimbursement contracts when it is desired that administrative leave be 
granted contractor personnel in special circumstances, such as inclement 
weather or potentially hazardous conditions. This alternate may be 
appropriately modified for fixed-price contracts.

[62 FR 14017, Mar. 25, 1997, as amended at 63 FR 32764, June 16, 1998; 
65 FR 46628, July 31, 2000]



Sec. 1842.7002  Travel outside of the United States.

    The contracting officer shall insert the clause at 1852.242-71, 
Travel Outside of the United States, in cost-reimbursement solicitations 
and contracts where a contractor may travel outside of the United States 
and it is appropriate to require Government approval of the travel.

[[Page 242]]



Sec. 1842.7003  Emergency medical services and evacuation.

    The contracting officer must insert the clause at 1852.242-78, 
Emergency Medical Services and Evacuation, in all solicitations and 
contracts when employees of the contractor are required to travel 
outside the United States or to remote locations in the United States.

[66 FR 18054, Apr. 5, 2001]

                 Subpart 1842.71_Submission of Vouchers



Sec. 1842.7101  Submission of vouchers.

    (a) Vouchers shall be submitted in accordance with the clause at 
1852.216-87, Submission of Vouchers for Payment.
    (b) The auditor shall retain an unpaid copy of the voucher.
    (c) When a voucher submitted in accordance with the clause at 
1852.216-87 contains one or more individual direct freight charges of 
$100 or more, an additional copy of Standard Form 1034A and Standard 
Form 1035A shall be submitted and marked for return to the contractor 
after payment. This copy shall be transmitted quarterly by the 
contractor with the freight bills to the General Services 
Administration. When a voucher is identified as the ``Completion 
Voucher,'' an additional copy shall be submitted for transmittal to the 
NASA contracting officer.

     Subpart 1842.72_NASA Contractor Financial Management Reporting



Sec. 1842.7201  General.

    (a) [Reserved]
    (b) Reporting requirements. (1) Use of the NASA Contractor Financial 
Management Reports, the NASA form 533 series, is required on cost-type, 
price redetermination, and fixed-price incentive contracts when the 
following dollar, period of performance, and scope criteria are met:

----------------------------------------------------------------------------------------------------------------
        Contract value/scope           Period of performance             533M                      533Q
----------------------------------------------------------------------------------------------------------------
$500K to $999K......................  1 year or more.........  Required................  Optional.
$1,000,000 and over.................  Less than 1 year.......  Required................  Optional.
$1,000,000 and over.................  1 year or more.........  Required................  Required.
----------------------------------------------------------------------------------------------------------------

    (2) When it is probable that a contract will ultimately meet the 
criteria in paragraph (b)(1) of this section through change orders, 
supplemental agreements, etc., the reporting requirement must be 
implemented in the contract based on the estimated final contract value 
at the time of award.

[62 FR 14017, Mar. 25, 1997, as amended at 69 FR 44609, July 27, 2004]



Sec. 1842.7202  Contract clause.

    The contracting officer shall insert the clause at 1852.242-73, NASA 
Contractor Financial Management Reporting, in solicitations and 
contracts when any of the NASA Form 533 series of reports is required 
from the contractor.

[62 FR 36721, July 9, 1997]

                    PART 1843_CONTRACT MODIFICATIONS

                      Subpart 1843.2_Change Orders

Sec.

Sec. 1843.205 Contract clauses.

Sec. 1843.205-70 NASA contract clauses.

                     Subpart 1843.71_Shared Savings


Sec. 1843.7101 Shared Savings Program.

Sec. 1843.7102 Solicitation provision and contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 14022, Mar. 25, 1997, unless otherwise noted.

                      Subpart 1843.2_Change Orders



Sec. 1843.205  Contract clauses.

    As authorized in the prefaces of clauses FAR 52.243-1, Changes--
Fixed Price; FAR 52.243-2, Changes--Cost Reimbursement; and FAR 52.243-
4,

[[Page 243]]

Changes; and in the prescription at 43.205(c) for FAR 52.243-3, 
Changes--Time-and-Material or Labor-Hours, the period within which a 
contractor must assert its right to an equitable adjustment may be 
varied not to exceed 60 calendar days.

[65 FR 58932, Oct. 3, 2000]



Sec. 1843.205-70  NASA contract clauses.

    (a)(1) The contracting officer may insert in contracts a clause 
substantially the same as 1852.243-70, Engineering Change Proposals, 
when ECPs are expected. Paragraphs (c) and (d) of the basic clause and 
Alternate I of the clause shall be changed to reflect the specific type 
of contract.
    (2) If it is desirable to preclude a large number of small-dollar, 
contractor-initiated engineering changes and to reduce the 
administrative cost of reviewing them, the contracting officer shall use 
the clause with its Alternate I.
    (3) If the contract is a cost-reimbursement type, the contracting 
officer shall use the clause with its Alternate II.
    (b) The contracting officer may insert a clause substantially as 
stated at 1852.243-72, Equitable Adjustments, in solicitations and 
contracts for--
    (1) Dismantling, demolishing, or removing improvements; or
    (2) Construction, when the contract amount is expected to exceed the 
simplified acquisition threshold and a fixed-price contract is 
contemplated.

[62 FR 14022, Mar. 25, 1997, as amended at 63 FR 17339, Apr. 9, 1998; 66 
FR 53548, Oct. 23, 2001]

                     Subpart 1843.71_Shared Savings



Sec. 1843.7101  Shared Savings Program.

    This subpart establishes and describes the methods for implementing 
and administering a Shared Savings Program. This program provides an 
incentive for contractors to propose and implement, with NASA approval, 
significant cost reduction initiatives. NASA will benefit as the more 
efficient business practices that are implemented lead to reduced costs 
on current and follow-on contracts. In return, contractors are entitled 
to share in cost savings subject to limits established in the contract. 
The contracting officer may require the contractor to provide periodic 
reporting, or other justification, or to require other steps (e.g., cost 
segregation) to ensure projected cost savings are being realized.



Sec. 1843.7102  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 1852.243-71, 
Shared Savings, in all solicitations and contracts expected to exceed 
$1,000,000, except those awarded under FAR part 12, NRA and AO 
procedures, or the SBIR and STTR programs.

            PART 1844_SUBCONTRACTING POLICIES AND PROCEDURES

                 Subpart 1844.2_Consent to Subcontracts

Sec.

Sec. 1844.204 Contract clauses.

Sec. 1844.204-70 NASA contract clause.

    Authority: 42 U.S.C. 2473(a)(1).

    Source: 62 FR 14023, Mar. 25, 1997, unless otherwise noted.

                 Subpart 1844.2_Consent to Subcontracts



Sec. 1844.204  Contract clauses.



Sec. 1844.204-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.244-70, 
Geographic Participation in the Aerospace Program, in all research and 
development solicitations and contracts of $500,000 or over that will be 
performed within the United States.

                      PART 1845_GOVERNMENT PROPERTY

                         Subpart 1845.1_General

Sec.

Sec. 1845.107 Contract clauses.

Sec. 1845.107-70 NASA solicitation provisions and contract clauses.

  Subpart 1845.3_Authorizing the Use and Rental of Government Property


Sec. 1845.301-71 Use of Government property for commercial work.

[[Page 244]]


Sec. 1845.302 Use of Government property on contracts with foreign 
          governments or international organizations.

Subpart 1845.4 [Reserved]

        Subpart 1845.5_Support Government Property Administration


Sec. 1845.501-70 General.

Sec. 1845.503-70 Delegations of property administration and plant 
          clearance.

Sec. 1845.505-70 Responsibilities of the property administrator.

Sec. 1845.506-70 Responsibilities of the plant clearance officer.

  Subpart 1845.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory


Sec. 1845.604 Restrictions on purchase or retention of contractor 
          inventory.

Sec. 1845.606-70 Contractor's approved scrap procedure.

Sec. 1845.607 Scrap.

Sec. 1845.607-1 General.

Sec. 1845.607-170 Contractor's approved scrap procedure.

Sec. 1845.607-2 Recovering precious metals.

Sec. 1845.610 Sale of surplus contractor inventory.

Sec. 1845.610-4 Contractor inventory in foreign countries.

                    Subpart 1845.71_Forms Preparation


Sec. 1845.7101 Instructions for preparing NASA Form 1018.

Sec. 1845.7101-1 Property classification.

Sec. 1845.7101-2 Transfers of property.

Sec. 1845.7101-3 Unit acquisition cost.

Sec. 1845.7101-4 Types of deletions from contractor property records.

Sec. 1845.7101-5 Contractor's privileged financial and business 
          information.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 36722, July 9, 1997, unless otherwise noted.

                         Subpart 1845.1_General



Sec. 1845.107  Contract clauses.



Sec. 1845.107-70  NASA solicitation provisions and contract clauses.

    (a)(1) The contracting officer shall insert the clause at 1852.245-
70, Contractor Requests for Government-Provided Property, in cost 
reimbursement solicitations and contracts.
    (2) Use the clause with its Alternate I when the center Supply and 
Equipment Management Officer (SEMO) consents to permit the contractor to 
screen Government inventory for available property in lieu of contractor 
acquisition of new items.
    (b)(1) The contracting officer shall insert the clause at 1852.245-
71, Installation--Accountable Government Property, in solicitations and 
contracts when Government property is to be made available to a 
contractor working on a NASA installation, and the Government will 
maintain accountability for the property. The contracting officer shall 
list in the clause the applicable property user responsibilities. For 
purposes of this clause, NASA installations include local off-site 
buildings owned or leased by NASA.
    (2) Use of this clause is subject to the SEMO's concurrence that 
adequate Government property management resources are available for 
oversight of the property in accordance with all applicable NASA 
installation property management directives.
    (3) The contracting officer shall identify, in the contract, the 
nature, quantity, and acquisition cost of the property and make it 
available on a nocharge basis.
    (4) The contracting officer shall use the clause with its Alternate 
I if the SEMO requests that the contractor be restricted from use of the 
center central receiving facility for the purposes of receiving 
contractor-acquired property.
    (5) For contractors with both onsite and offsite performance 
requirements, contracting officers shall list Government property 
provided for offsite use separately in the contract. This Government 
property is furnished under FAR 52.245-1, Government Property, and 
remains accountable to the contractor during its use on the contract. 
This Government property is not subject to the clause at 1852.245-71, 
Installation--Accountable Government Property. The contracting officer 
shall address any specific maintenance considerations (e.g., requiring 
or precluding use of an installation calibration or repair facility) 
elsewhere in the contract.
    (c) The contracting officer shall insert the clause at 1852.245-72, 
Liability for e Government Property Furnished for Repair or Other 
Services, in fixed-price, time-and-material, and labor-

[[Page 245]]

hour solicitations and contracts (except for experimental, 
developmental, or research work with educational or nonprofit 
institutions, where no profit is contemplated) for repair, modification, 
rehabilitation, or other servicing of Government property, if such 
property is to be furnished to a contractor for that purpose and no 
other Government property is to be furnished. The contracting officer 
shall not require additional insurance under the clause unless the 
circumstances clearly indicate advantages to the Government.
    (d) The contracting officer shall insert the clause at 1852.245-73, 
Financial Reporting of NASA Property in the Custody of Contractors, in 
cost reimbursement solicitations and contracts unless all property to be 
provided is subject to the clause at 1852.245-71, Installation--
Accountable Government Property. The clause shall also be included in 
other types of solicitations and contracts when it is known at award 
that property will be provided to the contractor or that the contractor 
will acquire property title to which will vest in the Government prior 
to delivery.
    (e) The contracting officer shall insert the clause at 1852.245-74, 
Identification and Marking of Government Property, in solicitations and 
contracts that--
    (1) Include the clause at FAR 52.245-1; or
    (2) Require the delivery of supplies.
    (f) The contracting officer shall insert the clause at 1852.245-75, 
Property Management Changes, in solicitations and contracts that provide 
for progress payments or include any of the property clauses prescribed 
in FAR Part 45.
    (g) The contracting officer shall insert the clause at 1852.245-76, 
List of Government Property Furnished Pursuant to FAR 52.245-1, in 
solicitations and contracts when the contractor is to be accountable 
under the contract for Government property.
    (h) The contracting officer shall insert the clause at 1852.245-77, 
List of Government Property Furnished Pursuant to FAR 52.245-2, in 
solicitations and contracts containing the clause at 52.245-2, 
Government Property Installation Operation Services. In addition, the 
contracting officer shall insert the following language in the blanks in 
paragraph (e) of the clause at 52.245-2:
    ``The Government property provided under this clause is identified 
in clause 1852.245-77 of this contract.''
    (i) The contracting officer shall insert the clause at 1852.245-78, 
Physical Inventory of Capital Personal Property, in cost reimbursement 
and fixed-price solicitations and contracts that provide Government 
property.
    (j) The contracting officer shall insert the clause at 1852.245-79, 
Records and Disposition Reports for Government Property with Potential 
Historic or Significant Real Value, in solicitations and contracts when, 
after consultation with the center Historic Preservation Officer, it is 
determined that the items acquired for or produced by the contract are 
likely to have historic significance or increased value due to their use 
in support of NASA projects and programs.
    (k)(1) The contracting officer shall insert the provision at 
1852.245-80, Government Property Management Information, in 
solicitations when it is known, or there is a reasonable chance, that 
Government property will be provided to the contractor for contract 
performance.
    (2) The contracting officer shall use the provision with Alternate 1 
when there are sufficient time and resources to allow prospective 
contractors the opportunity to inspect the property.
    (l) The contracting officer shall insert the provision at 1852.245-
81, List of Available Government Property, in solicitations when 
Government property will be made available for contract performance.
    (m) The contracting officer shall insert the clause at 1852.245-82, 
Occupancy Management Requirements, in solicitations and contracts that 
require performance on, or in, any NASA Center, Installation, facility 
or other NASA owned property.
    (n) The contracting officer shall insert the clause at 1852.245-83 
Real Property Management Requirements, in solicitations and contracts 
for acquisition, construction, modification (including when the 
modification is a consequence of another approved task, e.g., 
installation of telephonic or local area

[[Page 246]]

network equipment), demolition, or management of real property.

[76 FR 2004, Jan. 12, 2011]

  Subpart 1845.3_Authorizing the Use and Rental of Government Property

    Source: 76 FR 2005, Jan. 12, 2011, unless otherwise noted.



Sec. 1845.301-71  Use of Government property for commercial work.

    (a) The coverage at FAR 45.3 applies to a contractor's commercial 
(any non-Government) use of any NASA equipment.



Sec. 1845.302  Use of Government property on contracts with foreign 
          governments or international organizations.

    (a) NASA contracting officers will recover a fair share of the cost 
of Government property if such property is used in performing services 
or manufacturing articles for foreign countries or for international 
organizations.

Subpart 1845.4 [Reserved]

        Subpart 1845.5_Support Government Property Administration

    Source: 76 FR 2005, Jan. 12, 2011, unless otherwise noted.



Sec. 1845.501-70  General.

    (b) When the Industrial Property Officer or Property Administrator 
determines that the contractor's proposed systems, standards and 
practices for the management of Government property are inadequate to 
manage Government property, the Contracting Officer should: (1) Require 
the contractor to provide a written revision that addresses the 
determination of the Industrial Property Officer or Property 
Administrator.



Sec. 1845.503-70  Delegations of property administration and plant 
          clearance.

    (e) Under the clause at 1852.245-71, Installation-Accountable 
Government Property, property is managed by center logistics functions 
using NASA internal policy and procedural guidance, except--
    (1) When contractors are provided or are allowed the use of property 
that is not governed by that procedural guidance, management of that 
property is governed by the applicable FAR clause.
    (2) When the contractor is responsible for performance of any 
segment of a property system under a FAR property clause, then property 
administration and plant clearance are required.



Sec. 1845.505-70  Responsibilities of the property administrator.

    (c) When the property administrator determines that all or a portion 
of a contractor's property management practices and processes do not 
afford sufficient protection against loss, damage or destruction of 
Government property:
    (1) The property administrator shall increase surveillance to 
prevent, to the extent possible, any loss, damage, or destruction of 
Government property; and
    (2) Advise the contracting officer of any known or reported 
incidence of loss, damage or destruction identified during any period in 
which the contracting officer has revoked the Government's acceptance of 
risk.
    (d) The property administrator shall review records and the results 
of contractor actions to identify any and all incidence where the 
contractor fails to report property no longer required for performance 
for periods longer than called for in their standards and practices.



Sec. 1845.506-70  Responsibilities of the plant clearance officer.

    When plant clearance is not delegated to DOD, NASA plant clearance 
officers shall be responsible for--
    (a) Providing the contractor with instructions and advice regarding 
the proper preparation of inventory schedules;
    (b) Accepting or rejecting inventory schedules;
    (c) Conducting or arranging for inventory verification;
    (d) Initiating prescribed screening and effecting resulting actions;
    (e) Final plant clearance of contractor inventory;

[[Page 247]]

    (f) Pre-inventory scrap determinations, as appropriate;
    (g) Evaluating the adequacy of the contractor's procedures for 
property disposal and providing feedback to the Property Administrator 
regarding the contractor's performance in property disposal activities;
    (h) Determining the method of disposal;
    (i) Surveillance of any contractor conducted sales;
    (j) Accounting for all contractor inventory reported by the 
contractor;
    (k) Advising and assisting, as appropriate, the contractor, the 
Supply and Equipment Management Officer (SEMO) and other Federal 
agencies in all actions relating to the proper and timely disposal of 
contractor inventory;
    (l) Approving the method of sale, evaluating bids, and approving 
sale prices for any contractor-conducted sales; and
    (m) Recommending the reasonableness of selling expenses related to 
any contractor-conducted sales.

  Subpart 1845.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory



Sec. 1845.604  Restrictions on purchase or retention of contractor 
          inventory.

    (1) No contractor may sell contractor inventory to persons known by 
it to be NASA or DOD personnel who have been engaged in administering or 
terminating NASA contracts.
    (2)(i) The contractor's or subcontractor's authority to approve the 
sale, purchase, or retention of Government property on a contract which 
is excess to needs after Government reutilization screening at less than 
cost by a subcontractor, and the subcontractor's authority to sell, 
purchase, or retain such property at less than cost with the approval of 
the contractor or next higher-tier subcontractor does not include 
authority to approve--
    (A) A sale by a subcontractor to the contractor, the next higher-
tier subcontractor, or their affiliates; or
    (B) A sale, purchase, or retention by a subcontractor affiliated 
with the contractor or next higher-tier subcontractor.
    (ii) Each excluded sale, purchase, or retention requires the written 
approval of the plant clearance officer.



Sec. 1845.606-70  Contractor's approved scrap procedure.

    (a) When a contractor has an approved scrap procedure, certain 
property may be routinely disposed of in accordance with that procedure 
and not processed under this section.
    (d) Property in scrap condition, other than that disposed of through 
the contractor's approved scrap procedure, shall be reported on 
appropriate inventory schedules for disposition in accordance with the 
provisions of FAR Part 45 and NFS 1845.

[76 FR 2006, Jan. 12, 2011]



Sec. 1845.607  Scrap.



Sec. 1845.607-1  General.



Sec. 1845.607-170  Contractor's approved scrap procedure.

    (a) When a contractor has an approved scrap procedure, certain 
property may be routinely disposed of in accordance with that procedure 
and not processed under this section.
    (b)-(c) [Reserved]
    (d) Property in scrap condition, other than that disposed of through 
the contractor's approved scrap procedure, shall be reported on 
appropriate inventory schedules for disposition in accordance with the 
provisions of FAR part 45 and 1845.

[62 FR 36722, July 9, 1997, as amended at 69 FR 44610, July 27, 2004]



Sec. 1845.607-2  Recovering precious metals. (NASA supplements paragraph 
          (b)).

    (b) Silver, gold, platinum, palladium, rhodium, iridium, osmium, and 
ruthenium; scrap bearing such metals; and items containing recoverable 
quantities of them shall be reported to the Defense Reutilization and 
Marketing Service, DRMS-R, Federal Center, Battle Creek, MI 49017-3092, 
for instructions regarding disposition.

[[Page 248]]



Sec. 1845.610  Sale of surplus contractor inventory.



Sec. 1845.610-4  Contractor inventory in foreign countries.

    NASA procedures for disposal are in NPR 4300.1, NASA Personal 
Property Disposal Procedures and Guidelines.

[62 FR 36722, July 9, 1997, as amended at 65 FR 58932, Oct. 3, 2000; 69 
FR 44610, July 27, 2004]

                    Subpart 1845.71_Forms Preparation



Sec. 1845.7101  Instructions for preparing NASA Form 1018.

    NASA must account for and report assets in accordance with 31 U.S.C. 
3512 and 31 U.S.C. 3515, Federal Accounting Standards, and Office of 
Management and Budget (OMB) instructions. Since contractors maintain 
NASA's official records for its assets in their possession, NASA must 
obtain periodic data from those records to meet these requirements. 
Changes in Federal Accounting Standards and OMB reporting requirements 
may occur from year to year, requiring contractor submission of 
supplemental information with the NASA Form (NF) 1018. The specific 
Statements of Federal Financial Accounting Standards (SFFAS) to be used 
for property records are SFFAS No. 3 ``Accounting for Inventory and 
Related Property'', SFFAS No. 6 ``Accounting for Property, Plant and 
Equipment'', SFFAS No. 10 ``Accounting for Internal Use Software'', and 
SFFAS No. 11 ``Amendments to PP&E: Definitions'' issued by the Federal 
Accounting Standards Advisory Board. Classifications of property, 
related costs to be reported, and other reporting requirements are 
discussed in this subpart. NF 1018 (see 1853.3) provides critical 
information for NASA financial statements and property management. 
Accuracy, completeness, and timeliness of the report are critical to 
many aspects of NASA's operations.

[68 FR 62024, Oct. 31, 2003]



Sec. 1845.7101-1  Property classification.

    (a) General. (1) Contractors shall report costs in the 
classifications on NF 1018, as described in this section. The cost of 
heritage assets and obsolete property will be reported on the NF 1018 
under the appropriate classification. Supplemental reporting may also be 
required.
    (2)(i) Heritage assets are property, plant and equipment that 
possess one or more of the following characteristics:
    (A) Historical or natural significance;
    (B) Cultural, educational or artistic importance; or
    (C) Significant architectural characteristics.
    (ii) Examples of NASA heritage assets include buildings and 
structures designated as National Historic Landmarks as well as 
aircraft, spacecraft and related components on display to enhance public 
understanding of NASA programs. Heritage assets which serve both a 
heritage and government operation function are considered multi-use when 
the predominant use is in general government operations. Multi-use 
heritage assets will not be considered heritage assets for NF 1018 
supplemental reporting purposes.
    (3) Obsolete property is property for which there are no current 
plans for use in its intended purpose (i.e., it no longer provides 
service to NASA operations). Examples of obsolete property are items in 
configurations which are no longer required or used by NASA or items 
held for engineering evaluation purposes only. NASA may have approved 
the retention of these items for programmatic reasons even though they 
have no current plans for use.
    (b) Land. Includes costs of land and improvements to land. 
Contractors shall report land with a unit acquisition cost of $100,000 
or more.
    (c) Buildings. Includes costs of buildings, improvements to 
buildings, and fixed equipment required for the operation of a building 
which is permanently attached to and a part of the building and cannot 
be removed without cutting into the walls, ceilings, of floors. 
Contractors shall report buildings with a unit acquisition cost of 
$100,000 or more. Examples of fixed equipment required for functioning 
of a building include plumbing, heating and lighting equipment, 
elevators, central

[[Page 249]]

air conditioning systems, and built-in safes and vaults.
    (d) Other Structures and Facilities. Includes costs of acquisitions 
and improvements of real property (i.e. structures and facilities other 
than buildings); for example, airfield pavements, harbor and port 
facilities, power production facilities and distribution systems, 
reclamation and irrigation facilities, flood control and navigation 
aids, utility systems (heating, sewage, water and electrical) when they 
serve several buildings or structures, communication systems, traffic 
aids, roads and bridges, railroads, monuments and memorials, and 
nonstructural improvements such as sidewalks, parking areas, and fences. 
Contractors shall report other structures and facilities with a unit 
acquisition cost of $100,000 or more and a useful life of two years or 
more.
    (e) Leasehold improvements. Includes NASA-funded costs of 
improvements to leased buildings, structures, and facilities, as well as 
easements and right-of-way, where NASA is the lessee or the cost is 
charged to a NASA contract. Contractors shall report leasehold 
improvements with a unit acquisition cost of $100,000 or more and a 
useful life of two years or more.
    (f) Construction in progress. Includes costs of work in process for 
the construction of Buildings, Other Structures and Facilities, and 
Leasehold Improvements to which NASA has title, regardless of value.
    (g) Equipment. Includes costs of commercially available personal 
property capable of stand-alone use in manufacturing supplies, 
performing services, or any general or administrative purpose (for 
example, machine tools, furniture, vehicles, computers, software, test 
equipment, including their accessory or auxiliary items). Software 
integrated into and necessary to operate another item of Government 
property is considered to be an auxiliary item (see FAR 45.501) and 
should be considered part of the item of which it is an integral part. 
Other software to which NASA has title shall be classified as an 
individual item of equipment for reporting purposes if it has a useful 
life of 2 years or more and acquisition cost of $1,000,000 or more (also 
see 1845.7101-3(g)). Enhancement costs for existing software should be 
added to the software acquisition cost if the enhancement results in 
significant additional capability beyond that for which the software was 
originally developed (i.e., a capability that was not included in the 
original software specifications, the total cost of the enhancement is 
$1,000,000 or more, or the expected useful life of the enhanced software 
is 2 years or more). Software licenses are excluded. Contractors shall 
separately report:
    (1) The amount for all items with a unit acquisition cost of 
$100,000 or more and a useful life of two years or more; and
    (2) All other items.
    (h) Special tooling. Includes costs of equipment and manufacturing 
aids (and their components and replacements) of such a specialized 
nature that, without substantial modification or alteration, their use 
is limited to development or production of particular supplies or parts, 
or performance of particular services (see FAR 45.101). Examples include 
jigs, dies, fixtures, molds, patterns, taps and gauges. Contractors 
shall separately report:
    (1) The amount for all items with a unit acquisition cost of 
$100,000 or more and a useful life of two years or more; and
    (2) All other items.
    (i) Special test equipment. Includes costs of equipment used to 
accomplish special purpose testing in performing a contract, and items 
or assemblies of equipment (see FAR 45.101). Contractors shall 
separately report:
    (1) The amount for all items with a unit acquisition cost of 
$100,000 or more and a useful life of two years or more; and
    (2) All other items.
    (j) Material. Includes costs of NASA-owned property held in 
inventory regardless of whether or not it is unique to NASA programs, 
that may become a part of an end item or be expended in performing a 
contract. Examples include raw and processed material, spares, parts, 
assemblies, small tools and supplies. Material that is part of work-in-
process is not included. Contractors shall report the amount for all

[[Page 250]]

Materials in inventory, regardless of unit acquisition cost.
    (k) Agency-Peculiar Property. Includes costs of completed items, 
unique to NASA aeronautical and space programs, which are capable of 
stand-alone operation. Examples include research aircraft, reusable 
space vehicles, ground support equipment, prototypes, and mock-ups. The 
amount of property, title to which vests in NASA as a result of progress 
payments to fixed price subcontractors, shall be included to reflect the 
pro rata cost of undelivered agency-peculiar property. Completed end 
items not related to the International Space Station or the Space 
Shuttle program which otherwise meet the definition of Agency-Peculiar 
Property, and are destined for permanent operation in space, such as 
satellites and space probes, shall not be reported. Contractors shall 
separately report:
    (1) The amount for all items with a unit acquisition cost of 
$100,000 or more and a useful life of two years or more; and
    (2) All other items.
    (l) Contract Work-in-Process. Work-in-process (WIP) consists of 
property items under construction (i.e., not complete). It includes 
costs of all work-in-process regardless of value, and excludes costs of 
completed items reported in other categories. While the costs of WIP for 
International Space Station and Space Shuttle components should be 
included as WIP, satellites and space probes and their components should 
be excluded from WIP as those items will be accounted for by NASA.

[65 FR 54814, Sept. 11, 2000, as amended at 65 FR 82297, Dec. 28, 2000; 
66 FR 41806, Aug. 9, 2001; 67 FR 68534, Nov. 12, 2002; 68 FR 62024, Oct. 
31, 2003]



Sec. 1845.7101-2  Transfers of property.

    A transfer is a change in accountability between and among prime 
contracts, NASA Centers, and other Government agencies (e.g., between 
contracts of the same NASA Center, contracts of different NASA Centers, 
a contract of one NASA Center to another, a NASA Center to a contract of 
another NASA Center, and a contract to another Government agency or its 
contract). To enable NASA to properly control and account for all 
transfers, they shall be adequately documented. Adequate documentation 
includes the appropriate dollar amount of the asset(s) transferred (as 
prescribed in 1845.7101-3) and the formal, signed NASA or contractor 
authorization approving the transfer. In addition, procurement, 
property, and financial organizations at NASA Centers must effect all 
transfers of accountability, although physical shipment and receipt of 
property may be made directly by contractors. The procedures described 
in this section shall be followed to provide an administrative and audit 
trail, even if property is physically shipped directly from one 
contractor to another. Property shipped between September 1 and 
September 30, inclusively, shall be accounted for and reported by the 
shipping contractor, regardless of the method of shipment, unless 
written evidence of receipt at destination has been received. 
Repairables provided under fixed price repair contracts that include the 
clause at 1852.245-72, Liability for Government Property Furnished for 
Repair or Other Services, remain accountable to the cognizant NASA 
Center and are not reportable on NF 1018; repairables provided under a 
cost-reimbursement contract, however, are accountable to the contractor 
and reportable on NF 1018. All materials provided to conduct repairs are 
reportable, regardless of contract type.
    (a) Approval and notification. The contractor must obtain approval 
of the contracting officer or designee for transfers of property off the 
prime contract before shipment. Each shipping document must be signed by 
the contracting officer or designee demonstrating such approval. Each 
shipping document must contain contract numbers, shipping references, 
property classifications in which the items are recorded (including 
Federal Supply Classification group (FSC) codes for equipment), unit 
acquisition costs (as defined in 1845.7101-3, Unit Acquisition Cost), 
original Government acquisition dates for items with a unit acquisition 
cost of $100,000 or more and a useful life of two years or more, and any 
other appropriate identifying or descriptive data. Where the DD Form 
250, Material Inspection and Receiving Report, is

[[Page 251]]

used, the FSC code will be part of the national stock number (NSN) 
entered in Block 16 or, if the NSN is not provided, the FSC alone shall 
be shown in Block 16. The original Government acquisition date shall be 
shown in Block 23, by item. Other formats, such as the DD Form 1149, 
Requisition and Invoice/Shipping Document, should be clearly annotated 
with the required information. Unit acquisition costs shall be obtained 
from records maintained pursuant to FAR part 45 and this part 1845, or, 
for uncompleted items where property records have not yet been 
established, from such other record systems as are appropriate such as 
manufacturing or engineering records used for work control and billing 
purposes. Shipping contractors shall furnish a copy of the formally 
approved shipping document to the cognizant property administrator. 
Shipping and receiving contractors shall promptly submit copies of 
shipping and receiving documents to the Center Deputy Chief Financial 
Officer, Finance, responsible for their respective contracts when 
accountability for NASA property is transferred to, or received from, 
other contracts, contractors, NASA Centers, or Government agencies.
    (b) Reclassification. If property is transferred to another contract 
or contractor, the receiving contractor shall record the property in the 
same property classification and amount appearing on the shipping 
document. For example, when a contractor receives an item from another 
contractor that is identified on the shipping document as equipment, but 
that the recipient intends to incorporate into special test equipment, 
the recipient shall first record the item in the equipment account and 
subsequently reclassify it as special test equipment. Reclassification 
of equipment, special tooling, special test equipment, or agency-
peculiar property requires prior approval of the contracting officer or 
a designee.
    (c) Incomplete documentation. If contractors receive transfer 
documents having insufficient detail to properly record the transfer 
(e.g., omission of property classification, FSC, unit acquisition cost, 
Government acquisition date, required signatures, etc.) they shall 
request the omitted data directly from the shipping contractor or 
through the property administrator. The contracting officer shall assist 
the Government Property Administrator and the receiving contractor to 
obtain all required information for the receiving contractor to 
establish adequate property records.

[65 FR 54815, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001; 
67 FR 68534, Nov. 12, 2002; 68 FR 62025, Oct. 31, 2003; 76 FR 2006, Jan. 
12, 2011]



Sec. 1845.7101-3  Unit acquisition cost.

    (a) The unit acquisition cost shall include all costs incurred to 
bring the property to a form and location suitable for its intended use. 
The following is representative of the types of costs that shall be 
included, when applicable:
    (1) Amounts paid to vendors or other contractors.
    (2) Transportation charges to the point of initial use.
    (3) Handling and storage charges.
    (4) Labor and other direct or indirect production costs (for assets 
produced or constructed).
    (5) Engineering, architectural, and other outside services for 
designs, plans, specifications, and surveys.
    (6) Acquisition and preparation costs of buildings and other 
facilities.
    (7) An appropriate share of the cost of the equipment and facilities 
used in construction work.
    (8) Fixed equipment and related installation costs required for 
activities in a building or facility.
    (9) Direct costs of inspection, supervision, and administration of 
construction contracts and construction work.
    (10) Legal and recording fees and damage claims.
    (11) Fair values of facilities and equipment donated to the 
Government.
    (b) Acquisition cost shall include, where appropriate, for 
contractor acquired property, related fees, or a pro rata portion of 
fees, paid by NASA to the contractor. Situations where inclusion of fees 
in the acquisition cost would be appropriate are those in which the 
contractor designs, develops, fabricates or purchases property for NASA 
and part of the fees paid to the contractor by NASA are related to that 
effort.

[[Page 252]]

    (c) Acquisition cost shall be developed using actual costs to the 
greatest extent possible, especially costs directly related to 
fabrication such as labor and materials. Where estimates are used, there 
must be a documented methodology based on a historical basis. All 
acquisition costs shall be properly documented, supported and retained. 
Supporting documentation shall be made available upon request.
    (d) The use of weighted average methodologies is acceptable for 
valuation of Material.
    (e) Contractors shall report unit acquisition costs using records 
that are part of the prescribed property or financial control system as 
provided in this section. Fabrication costs shall be based on approved 
systems or procedures and include all direct and indirect costs of 
fabrication.
    (f) Only modifications that improve an item's capacity or extend its 
useful life two years or more and that cost $100,000 or more shall be 
reported on the NF 1018 on the $100,000 & Over line. The costs of any 
other modifications, excluding routine maintenance, will be reported on 
the Under $100,000 line. If an item's original unit acquisition cost is 
less than $100,000, but a single subsequent modification costs $100,000 
or more, that modification only will be reported as an item $100,000 or 
more on subsequent NF 1018s. The original acquisition cost of the item 
will continue to be included in the under $100,000 total. The quantity 
for the modified item will remain ``1'' and be reported with the 
original acquisition cost of the item. If an item's acquisition cost is 
reduced by removal of components so that its remaining acquisition cost 
is under $100,000, it shall be reported as under $100,000.
    (g) Software acquisition costs include software costs incurred up 
through acceptance testing and material internal costs incurred to 
implement the software and otherwise make the software ready for use. 
Costs incurred after acceptance testing are excluded. License, 
maintenance, training, and data conversion costs are also excluded. If 
the software is purchased as part of a package, the costs will need to 
be segregated in such manner as to ensure that the excluded costs 
(maintenance, training, etc.) are not reported as part of the software's 
acquisition cost. Enhancement costs for existing software should be 
added to the acquisition cost if the enhancement results in significant 
additional capability beyond that for which the software was originally 
developed (i.e. a capability that was not included in the original 
software specifications), the total cost of the enhancement is 
$1,000,000 or more, and the expected useful life of the enhanced 
software is 2 years or more. Include the same types of cost as indicated 
above under new software. Costs incurred solely to repair a design flaw 
or perform minor upgrades should not be included.
    (h) The computation of work in process (WIP) shall include all 
direct and indirect costs of fabrication, including associated systems, 
subsystems, and spare parts and components furnished or acquired and 
charged to work in process pending incorporation into a finished item. 
These types of items make up what is sometimes called production 
inventory and include programmed extra units to cover replacement during 
the fabrication process (production spares). Also included are 
deliverable items on which the contractor or a subcontractor has begun 
work, and materials issued from inventory. The computation of WIP shall 
incorporate the other requirements for unit acquisition cost as outlined 
in paragraphs (a) through (e) of this section. In addition, acquisition 
cost of property furnished by the Government, which has been 
incorporated in the property item under construction or in process of 
fabrication, should be included. Do not include costs for operation or 
repairing existing completed property items. Once the property is 
complete, include all the costs outlined above in its acquisition value 
in the property record. The WIP values are inception to date until such 
time as the WIP is completed. It does not include future costs.

[65 FR 54815, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001; 
67 FR 68534, Nov. 12, 2002; 68 FR 62025, Oct. 31, 2003]

[[Page 253]]



Sec. 1845.7101-4  Types of deletions from contractor property records.

    Contractors shall report the types of deletions from contract 
property records as described in this section.
    (a) Lost, damaged or destroyed. Deletion amounts that result from 
relief from responsibility under FAR 45.503 granted during the reporting 
period.
    (b) Transferred in Place. Deletion amounts that result from transfer 
of property to a follow-on prime contract or other prime contract with 
the same contractor.
    (c) Transferred to NASA Center accountability. Deletion amounts that 
result from transfer of accountability to the NASA Center responsible 
for the contract, whether or not items are physically moved.
    (d) Transferred to another NASA Center. Deletion amounts that result 
from transfer of accountability to a NASA Center other than the one 
responsible for the contract, whether or not items are physically moved.
    (e) Transferred to another Government agency. Deletion amounts that 
result from transfer of property to another Government agency.
    (f) Purchased at cost/returned for credit. Deletion amounts that 
result from contractor purchase or retention of contractor acquired 
property as provided in FAR 45.605-1, or from contractor returns to 
suppliers under FAR 45.605-2.
    (g) Disposed of through plant clearance process. Deletions other 
than transfers within the Federal Government, e.g., donations to 
eligible recipients, sold at less than cost, or abandoned/directed 
destruction, or trade-ins.
    (h) Other. Types of deletion other than those reported in paragraph 
(a) through (g) of this section such as those resulting from 
reclassifications (e.g. from equipment to agency-peculiar property).

[65 FR 54816, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001; 
67 FR 68535, Nov. 12, 2002]



Sec. 1845.7101-5  Contractor's privileged financial and business 
          information.

    If a transfer of property between contractors involves disclosing 
costs of a proprietary nature, the contractor shall furnish unit 
acquisition costs only on copies of shipping documents sent to the 
shipping and receiving NASA Centers.

[65 FR 54816, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001]

                       PART 1846_QUALITY ASSURANCE

                     Subpart 1846.3_Contract Clauses

Sec.

Sec. 1846.370 NASA contract clauses.

          Subpart 1846.4_Government Contract Quality Assurance


Sec. 1846.470 Contract clause.

        Subpart 1846.6_Material Inspection and Receiving Reports


Sec. 1846.670 Introduction.

Sec. 1846.670-1 General.

Sec. 1846.670-2 Applicability.

Sec. 1846.670-3 Use.

Sec. 1846.670-4 Multiple shipments.

Sec. 1846.670-5 Forms.

Sec. 1846.671 Contract quality assurance on shipments between 
          contractors.

Sec. 1846.672 Preparing DD Forms 250 and 250c.

Sec. 1846.672-1 Preparation instructions.

Sec. 1846.672-2 Consolidated shipments.

Sec. 1846.672-3 Multiple consignee instructions.

Sec. 1846.672-4 Correction instructions.

Sec. 1846.672-5 Invoice instructions.

Sec. 1846.672-6 Packing list instructions.

Sec. 1846.672-7 Receiving instructions.

Sec. 1846.673 Distribution of DD Forms 250 and 250c.

Sec. 1846.674 Contract clause.

    Authority: U.S.C. 2473(c)(1).

    Source: 62 FR 14024, Mar. 25, 1997, unless otherwise noted.

                     Subpart 1846.3_Contract Clauses



Sec. 1846.370  NASA contract clauses.

    (a) The contracting officer shall insert the clause at 1852.246-70, 
Mission Critical Space System Personnel Reliability Program, in 
solicitations and contracts involving critical positions designated in 
accordance with 14 CFR 1214.5, Mission Critical Space System Personnel 
Reliability Program.
    (b) The contracting officer shall insert the clause at 1852.246-73, 
Human Space Flight Item, in solicitations and contracts for human space 
flight hardware and flight-related equipment if the highest available 
quality standards are necessary to ensure astronaut safety.

[[Page 254]]

          Subpart 1846.4_Government Contract Quality Assurance



Sec. 1846.470  Contract clause.

    The contracting officer may insert a clause substantially as stated 
at 1852.246-71, Government Contract Quality Assurance Functions, in 
solicitations and contracts to specify the location(s) of quality 
assurance functions.

        Subpart 1846.6_Material Inspection and Receiving Reports



Sec. 1846.670  Introduction.



Sec. 1846.670-1  General.

    (a) This Subpart contains procedures and instructions for use of the 
Material Inspection and Receiving Report (MIRR) (DD Form 250 series) and 
commercial shipping/packing lists used to evidence Government contract 
quality.
    (b) MIRRs are used to document contract quality assurance (CQA), 
acceptance of supplies and services, and shipments. MIRRs are not used 
for--
    (1) Shipments by subcontractors not made to the Government;
    (2) Shipment of contractor inventory (see FAR 45.601); or
    (3) Movement of Government property unless for original acquisition.

[62 FR 14024, Mar. 25, 1997, as amended at 69 FR 44610, July 27, 2004]



Sec. 1846.670-2  Applicability.

    (a) This subpart applies to all deliveries of supplies or services 
acquired by or for NASA except:
    (1) Acquisitions under FAR part 13;
    (2) Negotiated subsistence acquisitions; or
    (3) Contracts for which the end item is a technical or scientific 
report.
    (b) The DD Form 250 may be used for imprest fund purchases, purchase 
orders, delivery orders placed against Federal Supply Schedule 
contracts, delivery orders placed against indefinite-delivery contracts, 
or delivery orders placed against blanket purchase agreements, or when 
the purchasing, requisitioning, or ordering document provides for 
inspection and/or acceptance.
    (c) When NASA provides CQA and/or acceptance services for non-NASA 
activities, the MIRR shall be prepared in accordance with the 
instructions of this subpart unless the contract specifies otherwise.



Sec. 1846.670-3  Use.

    The DD Form 250 is a multipurpose report used for--
    (a) Providing evidence of CQA at origin or destination;
    (b) Providing evidence of acceptance at origin or destination;
    (c) Packing list documentation;
    (d) Receiving;
    (e) Shipping;
    (f) Contractor invoice; and
    (g) Contractor invoice support.



Sec. 1846.670-4  Multiple shipments.

    (a) If the ``shipped to,'' ``marked for,'' ``shipped from,'' 
``CQA,'' and ``acceptance'' data are the same for more than one shipment 
made on the same day under the same contract in a single car, truck, or 
other vehicle, one MIRR shall be prepared to cover all such shipments.
    (b) If the volume of the shipments precludes the use of a single 
car, truck, or other vehicle, a separate MIRR shall be provided for each 
vehicle.

[62 FR 14024, Mar. 25, 1997, as amended at 69 FR 44610, July 27, 2004]



Sec. 1846.670-5  Forms.

    (a) Contractors may obtain MIRR forms from the contracting office at 
no cost.
    (b) Contractors may print forms, provided their format and 
dimensions are identical to the MIRR forms printed by the Government.



Sec. 1846.671  Contract quality assurance on shipments between 
          contractors.

    (a) The supplier's commercial shipping document/packing list shall 
indicate performance of required CQA actions at subcontract level.
    The following entries shall be made on the document/packing list:

    Required CQA of items has been performed.
________________________________________________________________________
(Signature of Authorized Government Representative)

________________________________________________________________________
(Date)

________________________________________________________________________
(Typed Name and Office)


[[Page 255]]


    (b) Distribution for Government purposes shall be one copy each--
    (1) With shipment;
    (2) For the Government representative at consignee (via mail); and
    (3) For the Government representative at consignor.



Sec. 1846.672  Preparing DD Forms 250 and 250c.



Sec. 1846.672-1  Preparation instructions.

    (a) General. (1) Dates shall utilize seven spaces consisting of the 
last two digits of the year, three-alpha month abbreviation, and two 
digits for the day (e.g., 96SEP24).
    (2) Addresses shall consist of the name, street address/P.O. box, 
city, State, and ZIP code.
    (3) The data entered in the blocks at the top of DD Form 250C shall 
be identical to the comparable entries in Blocks 1, 2, 3, and 6 of the 
DD Form 250.
    (4) Overflow data of the DD Form 250 shall be entered in Block 16 or 
in the body of the DD Form 250c with block cross reference. Additional 
DD Form 250c sheets solely for continuation of Block 23 data shall not 
be numbered or distributed as part of the MIRR.
    (b) Classified information. Classified information shall not appear 
on the MIRR, nor shall the MIRR be classified.
    (c) Block 1--PROC. INSTRUMENT IDEN. (CONTRACT). Enter the contract 
number, with its identifying center prefix, as contained in the 
contractual document, including any call/order number.
    (d) Block 2--SHIPMENT NO. (1) The shipment number is a three-alpha 
character prefix and a four-character numeric or alpha-numeric serial 
number.
    (i) The prefix shall be controlled and assigned by the prime 
contractor and shall consist of three alpha characters for each 
``shipped from'' address (Block 11). The prefix shall be different for 
each ``Shipped From'' address and shall remain constant throughout the 
contract period.
    (ii) The serial number for the first shipment under a prime contract 
from each ``shipped from'' address shall be 0001; subsequent shipments 
under that prime contract shall be consecutively numbered. Alpha-
numerics shall be used when more than 9,999 numbers are required. Alpha-
numerics shall be serially assigned, with the alpha in the first 
position, followed by the three-position numeric serial number. The 
alpha-numeric sequence shall be (the letters I and O shall not be used) 
A001 through A999 (10,001 through 10,999); B001 through B999 (11,001 
through 11,999); to Z999. When this series is completely used, numbering 
shall revert to 0001.
    (2) The shipment number of the initial shipment shall be reassigned 
when a ``replacement shipment'' is involved (see paragraph (r)(4)(iv) of 
this section).
    (3) The prime contractor shall control deliveries and on the last 
shipment of the contract shall suffix the shipment number with a ``Z'' 
in addition to that required for line items (see Block 17). If the 
contract final shipment is from other than the prime contractor's plant, 
the prime contractor may elect
    (i) To direct the subcontractor to suffix the ``Z'' or
    (ii), On receipt of the subcontractor final shipment information, to 
correct the DD Form 250 covering the last shipment from the prime 
contractor's plant by adding a ``Z'' to that shipment number.
    (e) Block 3--DATE SHIPPED. Enter the date the shipment is released 
to the carrier or the date of completion of services. If the shipment 
will be released after the date of CQA and/or acceptance, enter the 
estimated date of release. When the date is estimated, enter an ``E'' 
after it. Distribution of the MIRR shall not be delayed for entry of the 
actual shipping date. Reissurance of the MIRR is not required to show 
the actual shipping date.
    (f) Block 4--B/L TCN. When applicable, enter the commercial or 
Government bill of lading number after ``B/L''; and the Transportation 
Control Number after ``TCN.''
    (g) Block 5--DISCOUNT TERMS. (1) The Contractor may enter the 
discount in terms of percentages on all copies of the MIRR.
    (2) When the MIRR is used as an invoice, see 1846.672-5.
    (h) Block 6--INVOICE. (1) The contractor may enter the invoice 
number and actual or estimated date on all

[[Page 256]]

copies of the MIRR. When the date is estimated, enter an ``E'' after the 
date. Do not correct MIRRs other than invoice copies to reflect the 
actual date of invoice submission.
    (2) When the MIRR is used as an invoice, see 1846.672-5.
    (i) Block 7--PAGE/OF. Consecutively number the pages comprising the 
MIRR. On each page, enter the total number of pages of the MIRR.
    (j) Block 8--ACCEPTANCE POINT. Enter an ``S'' for origin or ``D'' 
for destination as specified in the contract as the point of acceptance. 
Enter an alphabetic ``O'' for other if the point of acceptance is not 
specified in the contract.
    (k) Block 9--PRIME CONTRACTOR. Enter the code and address.
    (l) Block 10--ADMINISTERED BY. Enter the code and address of the 
contracting office cited in the contract.
    (m) Block 11--SHIPPED FROM/CODE/FOB. (1) Enter the code and address 
of the ``shipped from'' location. If identical to Block 9, enter ``See 
Block 9.''
    (2) For performance of services that do not require delivery of 
items upon completion, enter the code and address of the location at 
which the services were performed. If the DD Form 250 covers performance 
at multiple locations or if identical to Block 9, enter ``See Block 9.''
    (3) Enter on the same line and to the right of ``FOB'' an ``S'' for 
origin or ``D'' for destination as specified in the contract. Enter an 
alphabetic ``O'' if the FOB point cited in the contract is other than 
origin or destination.
    (n) Block 12--PAYMENT WILL BE MADE BY. Enter the address of the 
payment office cited in the contract.
    (o) Block 13--SHIPPED TO/CODE. Enter the code and address from the 
contract or shipping instructions.
    (p) Block 14--MARKED FOR/CODE. Enter the code and address from the 
contract or shipping instructions.
    (q) Block 15--ITEM NO. Enter the item number used in the contract. 
If four or fewer digits are used, position them to the left of the 
vertical dashed line. Where a six-digit identification is used, enter 
the last two digits to the right of the vertical dashed line.
    (r) Block 16--STOCK/PART NO./DESCRIPTION. (1) Enter, as applicable, 
for each item, using single spacing between each line item, the 
following:
    (i) The Federal Stock Number (FSN) or noncatalog number and, if 
applicable, prefix or suffix. When a number is not provided or it is 
necessary to supplement the number, include other identification such as 
the manufacturer's name or Federal Supply Code (as published in 
Cataloging Handbook H4-1), and part numbers. Additional part numbers may 
be shown in parentheses. Also enter the descriptive noun of the item 
nomenclature and, if provided, the Government-assigned management/
material control code. In the case of equal-kind supply items, the first 
entry shall be the description without regard to kind (e.g., 
``Resistor''). Below this description, enter the contract item number in 
Block 15 and stock/part number followed by the size or type in Block 16.
    (ii) On the next printing line, if required by the contract for 
control purposes, enter the make, model, serial number, lot, batch, 
hazard indicator, and/or similar description.
    (iii) On the next printing line, enter the FEDSTRIP requisition 
number(s) when provided in the contract or shipping instructions.
    (2) For service items, enter the word ``SERVICE'' followed by a 
short description of less than 20 characters. Do not complete items 4, 
13, and 14 when material is not shipped.
    (3) For all contracts administered by the Defense Contract 
Management Command, with the exception of fast pay procedures, enter and 
complete the following:

         Gross Shipping Wt. ---- (State weight in pounds only).

    (4) Enter on the next line the following as appropriate (entries may 
be extended through Block 20). When entries apply to more than one item 
in the MIRR, enter them only once after the last item and reference the 
applicable item numbers.
    (i) Enter in capital letters any special handling instructions/
limits for material environmental control (e.g., temperature, humidity, 
aging, freezing, and shock).
    (ii) When an FSN is required by, but not cited in, a contract and 
has not

[[Page 257]]

been furnished by the Government, shipment may be made at the direction 
of the contracting officer. Enter the authority for the shipment.
    (iii) When Government-furnished property (GFP) is included with or 
incorporated into the line item, enter ``GFP''.
    (iv) When the shipment consists of replacements for supplies 
previously furnished, enter in capital letters ``REPLACEMENT SHIPMENT'' 
(see paragraph (s)(3) of this section for replacement indicators.)
    (v) For items shipped with missing components, enter and complete 
the following: ``Item(s) shipped short of the following component(s): 
FSN or comparable identification --------, Quantity --------, Estimated 
Value --------, Authority --------.''
    (vi) When shipment is made of components that were short on a prior 
shipment, enter and complete the following: ``These components were 
listed as shortages on Shipment Number --------, date shipped ------
--.''
    (vii) When shipments involve drums, cylinders, reels, containers, 
skids, etc., designated as returnable under contract provisions, enter 
and complete the following: ``Return to --------, Quantity --------, 
Item --------, Ownership (Government/contractor).''
    (viii) Enter shipping container number(s), the type, and the total 
number of the shipping container(s) included in the shipment.
    (ix) The MIRR shall be used to record and report the waivers and 
deviations from contract specifications, including the source and 
authority for the waiver or deviation (e.g., the contracting office 
authorizing the waiver or deviation and the identification of the 
authorizing document).
    (x) For shipments involving discount terms, enter ``DISCOUNT 
EXPEDITE'' in at least one-inch outline-type letters.
    (xi) When test/evaluation results are a condition of acceptance and 
are not available before shipment, the following note shall be entered 
if the shipment is approved by the contracting officer: ``Note: 
Acceptance and payment are contingent upon receipt of approved test/
evalution results.'' The contracting officer shall advise (A) the 
consignee of the results (approval/disapproval) and (B) the contractor 
to withhold invoicing pending attachment to its invoice of the approved 
test/evaluation results.
    (xii) The copy of the DD Form 250 required to support payment for 
destination acceptance (top copy of the four with shipment) or 
Alternative Release Procedure (ARP) origin acceptance (additional copy 
furnished to the Quality Assurance Representative (QAR)) shall be 
identified by entering ``PAYMENT COPY'' in approximately one-half-inch 
outline-type letters with ``FORWARD TO BLOCK 12 ADDRESS'' in 
approximately one-quarter-inch letters immediately below. Do not 
obliterate any other entries.
    (xiii) A double line shall be drawn completely across the form 
following the last entry.
    (s) Block 17--QUANTITY SHIP/REC'D. (1) Enter the quantity shipped, 
using the unit of measure indicated in the contract for payment. When a 
second unit of measure is used for purposes other than payment, enter 
the appropriate quantity directly below in parentheses.
    (2) Enter a ``Z'' below the first digit of the quantity when the 
total quantity of the item is delivered, including variations within 
contract terms; and all shortages on items previously shipped short are 
delivered.
    (3) If a replacement shipment is involved, enter below the first 
digit of the quantity the letter ``A'' top designate first replacement, 
``B'' for second replacement, and so forth. The final shipment indicator 
``Z'' shall not be used when a final line item shipment is replaced.
    (t) Block 18 UNIT. Enter the abbreviation of the unit of measure 
indicated in the contract for payment. When a second unit of measure is 
indicated in the contract for purposes other than payment or is used for 
shipping purposes, enter the abbreviation of the second unit of measure 
directly below in parentheses. Authorized abbreviations are listed in 
MIL-STD-129, Marking for Shipping and Storage.
    (u) Block 19--UNIT PRICE. Enter the unit price on all NASA copies 
whenever the MIRR is used for voucher or receiving purposes.

[[Page 258]]

    (v) Block 20--AMOUNT. Enter the extended amount when the unit price 
is entered in Block 19.
    (w) Block 21--CONTRACT QUALITY ASSURANCE. The words ``conform to 
contract'' contained in the printed statements in Blocks A and B relate 
to contract obligations pertaining to quality and to the quantity of the 
items on the report. The statements shall not be modified. Notes taking 
exception shall be entered in Block 16 or on attached supporting 
documents with block cross reference.
    (1) ``A. ORIGIN.''
    (i) The authorized Government representative shall--
    (A) Place an ``X'' when applicable in the appropriate CQA and/or 
acceptance box(es) to evidence origin CQA and/or acceptance. When the 
contract requires CQA at destination in addition to origin CQA, an 
asterisk shall be entered at the end of the statement and an explanatory 
note in Block 16;
    (B) Sign and date; and
    (C) Enter the typed, stamped, or printed name of the signer and 
office code.
    (2) ``B. DESTINATION.''
    (i) When acceptance at origin is indicated in Block 21A, no entries 
shall be made in Block 21B.
    (ii) When acceptance of CQA and acceptance are at destination, the 
authorized Government representative shall--
    (A) Place an ``X'' in the appropriate box(es);
    (B) Sign and date; and
    (C) Enter the typed, stamped, or printed name of the signer and 
office code.
    (x) Block 22--RECEIVER'S USE. This block shall be used by the 
receiving authority (Government or contractor) to denote receipt, 
quantity, and condition. The receiving activity shall enter in this 
block the date the supplies arrived. For example, when off-loading or 
in-checking occurs subsequent to the day of arrival of the carrier at 
the installation, the date of the carrier's arrival is the date received 
for purposes of this block.
    (y) Block 23--CONTRACTOR USE ONLY. This block is provided and 
reserved for contractor use.



Sec. 1846.672-2  Consolidated shipments.

    When individual shipments are held at the contractor's plant for 
authorized transportation consolidation to a single destination on a 
single bill of lading, the applicable DD Forms 250 may be prepared at 
the time of CQA or acceptance prior to the time of actual shipment (see 
Block 3).



Sec. 1846.672-3  Multiple consignee instructions.

    The contractor may prepare one MIRR when the identical item(s) of a 
contract is to be shipped to more than one consignee, with the same or 
varying quantities, and the shipment requires origin acceptance. Prepare 
the MIRR using the procedures in this subpart with the following 
changes:
    (a) Blocks 2, 4, 13, and, if applicable, 14--Enter ``See Attached 
Distribution List.''
    (b) Block 15--The contractor may group item numbers for identical 
stock/part number and description.
    (c) Block 17--Enter the ``total'' quantity shipped by item or, if 
applicable, grouped identical items.
    (d) Use the DD Form 250c to list each individual ``Shipped To'' and 
``Marked For'' with--
    (1) Code(s) and complete shipping address and a sequential shipment 
number for each;
    (2) Item number(s);
    (3) Quantity;
    (4) The FEDSTRIP requisition number and quantity for each when 
provided in the contract or shipping instructions; and
    (5) If applicable, bill of lading number and mode of shipment code.



Sec. 1846.672-4  Correction instructions.

    When, because of errors of omissions, it is necessary to correct the 
MIRR after distribution, it shall be revised by correcting the original 
master and distributing the corrected form. The corrections shall be 
made as follows:
    (a) Circle the error and place the corrected information in the same 
block. If space is limited, enter the corrected information in Block 16, 
referencing the error page and block.
    (b) When corrections are made to Blocks 15 and 17, enter the words 
``CORRECTIONS HAVE BEEN

[[Page 259]]

VERIFIED'' on page 1. The authorized Government representative shall 
date and sign immediately below the statement. This verification 
statement and signature are not required for other corrections.
    (c) MIRRs shall not be corrected for Block 19 and 20 entries.
    (d) Clearly mark pages of the MIRR requiring correction with the 
words ``CORRECTED COPY'', avoiding obliteration of any other entries. 
Even though corrections are made on continuation sheets only, also mark 
page 1 ``CORRECTED COPY''.
    (e) Page 1 and only those continuation pages marked ``CORRECTED 
COPY'' shall be distributed to the initial distribution. A complete MIRR 
with corrections shall be distributed to new addressee(s) created by 
error corrections.



Sec. 1846.672-5  Invoice instructions.

    The Government encourages, but does not require, contractors to use 
copies of the MIRR as an invoice in lieu of a commercial form. If the 
MIRR is used as an invoice, four copies shall be prepared and forwarded 
to the payment office as follows:
    (a) Complete Blocks 5, 6, 19, and 20.
    (b) Mark, in letters approximately one inch high, the first copy 
``ORIGINAL INVOICE'' and the remaining three copies ``INVOICE COPY''.
    (c) Forward the four copies to the payment office (Block 12 
address).



Sec. 1846.672-6  Packing list instructions.

    Copies of the MIRR may be used as a packing list. The packing list 
copies shall be in addition to the copies of the MIRR required for 
distribution (see 1846.673) and shall be marked ``PACKING LIST''.



Sec. 1846.672-7  Receiving instructions.

    When the MIRR is used for receiving purposes, procedures shall be as 
prescribed by local directives. If acceptance or CQA and acceptance of 
supplies are required upon arrival at destination, see Block 21B for 
instructions.



Sec. 1846.673  Distribution of DD Forms 250 and 250c.

    (a) DD Forms 250 and 250c shall be distributed in accordance with 
installation procedures.
    (b) The contractor is responsible for distributing DD Forms 250 and 
250c in accordance with the provisions of the contract or instructions 
of the contracting officer.



Sec. 1846.674  Contract clause.

    The contracting officer shall insert the clause at 1852.246-72, 
Material Inspection and Receiving Report, in solicitations and 
contracts, except those using simplified acquisition procedures or where 
the only deliverable items are technical or scientific reports. Insert 
the number of copies to be prepared. Paragraph (a) may be changed to 
specify advance copies or separate distribution of the DD Form 250.

                        PART 1847_TRANSPORTATION

            Subpart 1847.3_Transportation in Supply Contracts

Sec.

Sec. 1847.305 Solicitation provisions, contract clauses, and 
          transportation factors.

Sec. 1847.305-70 NASA contract clauses.

            Subpart 1847.70_Protection of the Florida Manatee


Sec. 1847.7001 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 14028, Mar. 25, 1997, unless otherwise noted.

            Subpart 1847.3_Transportation in Supply Contracts



Sec. 1847.305  Solicitation provisions, contract clauses, and 
          transportation factors.



Sec. 1847.305-70  NASA contract clauses.

    (a) The contracting officer may insert a clause substantially as 
stated at 1852.247-72, Advance Notice of Shipment, in solicitations and 
contracts when the f.o.b. point is destination and special Government 
assistance is required in the delivery or receipt of the items.

[[Page 260]]

    (b) The contracting officer shall insert a clause substantially as 
stated at 1852.247-73, Bills of Lading, in f.o.b. origin solicitations 
and contracts.

[62 FR 14028, Mar. 25, 1997, as amended at 67 FR 38908, June 6, 2002]

            Subpart 1847.70_Protection of the Florida Manatee



Sec. 1847.7001  Contract clause.

    The contracting officer shall insert the clause at 1852.247-71, 
Protection of the Florida Manatee, in solicitations and contracts when 
deliveries or vessel operations, dockside work, or disassembly functions 
under the contract will involve use of waterways inhabited by manatees. 
The clause shall also be included in applicable subcontracts (including 
vendor deliveries).

                   PART 1849_TERMINATION OF CONTRACTS

               Subpart 1849.5_Contract Termination Clauses

Sec.

Sec. 1849.505 Other termination clause.

Sec. 1849.505-70 NASA contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 14030, Mar. 25, 1997, unless otherwise noted.

               Subpart 1849.5_Contract Termination Clauses



Sec. 1849.505  Other termination clause.



Sec. 1849.505-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.249-72, 
Termination (Utilities), in all solicitations and contracts for 
utilities services.

     PART 1850_EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

            Subpart 1850.1_Extraordinary Contractual Actions

Sec.

Sec. 1850.102 Delegation of and limitations of exercise of authority.

Sec. 1850.102-2 Contract adjustment boards.

Sec. 1850.103 Contract adjustments.

Sec. 1850.103-5 Processing cases.

Sec. 1850.103-570 Submission of request to the Contract Adjustment 
          Board.

Sec. 1850.103-6 Disposition.

Sec. 1850.103-670 Implementation of the Contract Adjustment Board's 
          decision.

Sec. 1850.104 Residual powers.

Sec. 1850.104-3 Special procedures for unusually hazardous or nuclear 
          risks.

Sec. 1850.104-370 Subcontractor indemnification requests.

Sec. 1850.104-70 Lead NASA installation.

    Source: 76 FR 72328, Nov. 23, 2011, unless otherwise noted.

            Subpart 1850.1_Extraordinary Contractual Actions



Sec. 1850.102  Delegation of and limitations of exercise of authority.



Sec. 1850.102-2  Contract adjustment boards.

    14 CFR part 1209, subpart 3, Contract Adjustment Board, establishes 
the Contract Adjustment Board (CAB) as the approving authority to 
consider and dispose of requests from NASA contractors for extraordinary 
contractual actions.



Sec. 1850.103  Contract adjustments.



Sec. 1850.103-5  Processing cases.



Sec. 1850.103-570  Submission of request to the Contract Adjustment 
          Board.

    (a) After investigating the facts and issues relevant to the 
contractor's request, the contracting officer shall forward the request 
to the Associate General Counsel for General Law, including in the 
forwarding letter--
    (1) The nature of the case;
    (2) The recommended disposition; and,
    (3) If contractual action is recommended, the contracting officer's 
opinion that the action will facilitate the national defense.
    (b) The forwarding letter shall enclose the contractor's request, 
all supporting material submitted by the contractor, and any material 
the contracting officer has obtained while investigating the facts and 
issues relevant to the request. Any classified information in the 
material forwarded shall be so identified.
    (c) Electronic submittal is preferred for unclassified material.

[[Page 261]]



Sec. 1850.103-6  Disposition.



Sec. 1850.103-670  Implementation of the Contract Adjustment Board's 
          decision.

    (a) The contracting officer shall take action authorized in the 
CAB's decision.
    (b) Immediately upon execution, including any required Headquarters 
approval, of a contract or contract modification or amendment 
implementing the CAB decision, the contracting officer shall forward a 
copy of the contractual document to the Associate General Counsel for 
General Law.



Sec. 1850.104  Residual powers.



Sec. 1850.104-3  Special procedures for unusually hazardous or nuclear 
          risks.

    (a) Indemnification requests. (1) Contractor indemnification 
requests must be submitted to the cognizant contracting officer for the 
contract for which the indemnification clause is requested. Contractors 
shall submit a single request and shall ensure that duplicate requests 
are not submitted by associate divisions, subsidiaries, or central 
offices of the contractor.
    (2) The contractor shall also provide evidence, such as a 
certificate of insurance or other customary proof of insurance, that 
such insurance is either in force or is available and will be in force 
during the indemnified period.
    (b) Action on indemnification requests. (1) If recommending 
approval, the contracting officer shall forward the required information 
to the Assistant Administrator for Procurement, Program Operations 
Division, along with the following:
    (i) For contracts of five years duration or longer, a determination, 
with supporting rationale, whether the indemnification approval and 
insurance coverage and premiums should be reviewed for adequacy and 
continued validity at points in time within the extended contract 
period.
    (ii) A recommended Memorandum of Decision. In addition to the 
applicable requirements of FAR 50.103-6, the Memorandum of Decision 
shall contain the following:
    (A) The specific definition of the unusually hazardous risk to which 
the contractor is exposed in the performance of the contract(s);
    (B) A complete discussion of the contractor's financial protection 
program; and
    (C) The extent to, and conditions under, which indemnification is 
being approved for subcontracts.
    (d) If approving subcontractor indemnification, the contracting 
officer shall document the file with a memorandum for record addressing 
the items set forth in FAR 50.104-3(b) and include an analysis of the 
subcontractor's financial protection program. In performing this 
analysis, the contracting officer shall take into consideration the 
availability, cost, terms and conditions of insurance in relation to the 
unusually hazardous risk.



Sec. 1850.104-370  Subcontractor indemnification requests.

    Subcontractors shall submit requests for indemnification to the 
prime contractor and through higher tier subcontractor(s), as 
applicable. If the prime contractor agrees an indemnity clause should be 
flowed down to the subcontractor, the prime contractor shall forward its 
written request for subcontractor indemnification to the cognizant 
contracting officer for approval in accordance with FAR 50.104-3. The 
prime contractor's request shall provide information responsive to 
1850.104-3, FAR 50.104-3, and FAR 50.104-3(b)(1)(i), (ii), (iv), (v), 
and (vii). The agreed upon definition of the unusually hazardous risk to 
be incorporated into the subcontract shall be the same as that 
incorporated in the prime contract.



Sec. 1850.104-70  Lead NASA installation.

    (a) Contractors applying for indemnification shall determine which 
NASA installation has the highest dollar amount of contracts for which 
indemnification is requested. The indemnification request should be 
submitted to the procurement officer for that installation, who will 
then designate a cognizant contracting officer. Contractors shall submit 
a single request and ensure duplicate requests are not submitted by 
associate divisions, subsidiaries, or central offices of the contractor.

[[Page 262]]

    (b) The receiving installation will become the lead installation and 
will remain so indefinitely. Lead installation designation may change to 
another installation if the affected procurement officers agree to the 
change. Should a change occur in the lead installation, all records 
related to indemnification of that contractor shall be transferred to 
the gaining installation.

           PART 1851_USE OF GOVERNMENT SOURCES BY CONTRACTORS

       Subpart 1851.1_Contractor Use of Government Supply Sources

Sec.

Sec. 1851.102-70 Contractor acquisition of filing cabinets.

  Subpart 1851.2_Contractor Use of Interagency Fleet Management System 
                             (IFMS) Vehicles


Sec. 1851.205 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 14032, Mar. 25, 1997, unless otherwise noted.

       Subpart 1851.1_Contractor Use of Government Supply Sources



Sec. 1851.102-70  Contractor acquisition of filing cabinets.

    (a) The Contractor officer must approve any planned contractor 
acquisition of filing cabinets whose title will vest in the Government. 
The contracting officer shall ensure that the contractor takes the 
following actions before submitting a request for approval:
    (1) Transfer inactive records to contractor storage areas;
    (2) Dispose of unnecessary records in accordance with corporate 
procedures;
    (3) Use less expensive shelf filing methods; and
    (4) Take other actions to reduce the need for filing cabinets.
    (b) If after taking the actions in paragraphs (a)(1) through (4) of 
this section, the contractor requires additional filing capacity, it 
shall submit for contracting officer approval a request to order filing 
cabinets. This request shall include a discussion of why sufficient 
additional filing capacity is necessary and shall address the results of 
the actions in paragraphs (a) (1) through (4) of this section. The 
contracting officer shall review the request in consultation with the 
Records Management Officer, the Property and Supply Officer, and the 
project officer, is appropriate.

[62 FR 14032, Mar. 25, 1997, as amended at 69 FR 44610, July 27, 2004]

  Subpart 1851.2_Contractor Use of Interagency Fleet Management System 
                             (IFMS) Vehicles



Sec. 1851.205  Contract clause.

    When the clause at FAR 52.251-2 is included in a solicitation or 
contract, also include the clause set forth at 1852.223-76.

[68 FR 43334, July 22, 2003]

[[Page 263]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 1852_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 1852.000 Scope of part.

             Subpart 1852.2_Texts of Provisions and Clauses


Sec. 1852.203-70 Display of Inspector General Hotline Posters.

Sec. 1852.204-75 Security classification requirements.

Sec. 1852.204-76 Security requirements for unclassified information 
          technology resources.

Sec. 1852.208-81 Restrictions on printing and duplicating.

Sec. 1852.209-70 Product removal from Qualified Products List.

Sec. 1852.209-71 Limitation of future contracting.

Sec. 1852.209-72 Composition of the contractor.

Sec. 1852.210-70 Brand name or equal.

Sec. 1852.211-70 Packaging, handling, and transportation.

Sec. 1852.212-70 Notice of delay.

Sec. 1852.212-74 Period of performance.

Sec. 1852.213-70 Offeror Representations and Certifications--Other Than 
          Commercial Items.

Sec. 1852.213-71 Evaluation--Other Than Commercial Items.

Sec. 1852.214-70 Caution to offerors furnishing descriptive literature.

Sec. 1852.214-71 Grouping for aggregate award.

Sec. 1852.214-72 Full quantities.

Sec. 1852.215-77 Preproposal/pre-bid conference.

Sec. 1852.215-78 Make or buy program requirements.

Sec. 1852.215-79 Price adjustment for ``Make- or-Buy'' changes.

Sec. 1852.215-81 Proposal page limitations.

Sec. 1852.215-84 Ombudsman.

Sec. 1852.216-73 Estimated cost and cost sharing.

Sec. 1852.216-74 Estimated cost and fixed fee.

Sec. 1852.216-75 Payment of fixed fee.

Sec. 1852.216-76 Award fee for service contracts.

Sec. 1852.216-77 Award fee for end item contracts.

Sec. 1852.216-78 Firm fixed price.

Sec. 1852.216-80 Task ordering procedure.

Sec. 1852.216-81 Estimated cost.

Sec. 1852.216-83 Fixed price incentive.

Sec. 1852.216-84 Estimated cost and incentive fee.

Sec. 1852.216-85 Estimated cost and award fee.

Sec. 1852.216-87 Submission of vouchers for payment.

Sec. 1852.216-88 Performance incentive.

Sec. 1852.216-89 Assignment and release forms.

Sec. 1852.217-70 Property administration and reporting.

Sec. 1852.217-71 Phased acquisition using down-selection procedures.

Sec. 1852.217-72 Phased acquisition using progressive competition down-
          selection procedures.

Sec. 1852.219-73 Small business subcontracting plan.

Sec. 1852.219-74 Use of Rural Area Small Businesses.

Sec. 1852.219-75 Small business subcontracting reporting.

Sec. 1852.219-76 NASA 8 percent goal.

Sec. 1852.219-77 NASA Mentor-Prot[eacute]g[eacute] program.

Sec. 1852.219-79 Mentor requirements and evaluation.

Sec. 1852.219-80 Limitation on subcontracting--SBIR Phase I Program.

Sec. 1852.219-81 Limitation on subcontracting--SBIR Phase II program.

Sec. 1852.219-82 Limitation on subcontracting--STTR program.

Sec. 1852.219-83 Limitation of the principal investigator--SBIR program.

Sec. 1852.219-84 Limitation of the principal investigator--STTR program.

Sec. 1852.219-85 Conditions for final payment--SBIR and STTR contracts.

Sec. 1852.223-70 Safety and health.

Sec. 1852.223-71 Frequency authorization.

Sec. 1852.223-72 Safety and Health (Short Form).

Sec. 1852.223-73 Safety and health plan.

Sec. 1852.223-74 Drug- and alcohol-free workforce.

Sec. 1852.223-75 Major breach of safety or security.

Sec. 1852.223-76 Federal Automotive Statistical Tool Reporting.

Sec. 1852.225-8 Duty-free entry of space articles.

Sec. 1852.225-70 Export Licenses.

Sec. 1852.225-72 [Reserved]

Sec. 1852.227-11 Patent Rights--Retention by the Contractor (Short 
          Form).

Sec. 1852.227-14 Rights in data--General.

Sec. 1852.227-17 Rights in data--Special works.

Sec. 1852.227-19 Commercial computer software--Restricted rights.

Sec. 1852.227-70 New technology.

Sec. 1852.227-71 Requests for waiver of rights to inventions.

Sec. 1852.227-72 Designation of new technology representative and patent 
          representative.

Sec. 1852.227-84 Patent rights clauses.

Sec. 1852.227-85 Invention reporting and rights--Foreign.

Sec. 1852.227-86 Commercial computer software--Licensing.

Sec. 1852.228-70 Aircraft ground and flight risk.

Sec. 1852.228-71 Aircraft flight risks.

Sec. 1852.228-73 Bid bond.

Sec. 1852.228-75 Minimum insurance coverage.

[[Page 264]]


Sec. 1852.228-76 Cross-waiver of liability for international space 
          station activities.

Sec. 1852.228-78 Cross-waiver of liability for science or space 
          exploration activities unrelated to the International Space 
          Station.

Sec. 1852.228-80 Insurance--Immunity From Tort Liability.

Sec. 1852.228-81 Insurance--Partial Immunity From Tort Liability.

Sec. 1852.228-82 Insurance--Total Immunity From Tort Liability.

Sec. 1852.231-70 Precontract costs.

Sec. 1852.231-71 Determination of compensation reasonableness.

Sec. 1852.232-70 NASA Modification of FAR 52.232-12.

Sec. 1852.232-77 Limitation of funds (Fixed-Price Contract).

Sec. 1852.232-79 Payment for on-site preparatory costs.

Sec. 1852.232-81 Contract funding.

Sec. 1852.232-82 Submission of requests for progress payments.

Sec. 1852.233-70 Protests to NASA.

Sec. 1852.234-1 Notice of Earned Value Management System.

Sec. 1852.234-2 Earned Value Management System.

Sec. 1852.235-70 Center for AeroSpace Information.

Sec. 1852.235-71 Key personnel and facilities.

Sec. 1852.235-72 Instructions for responding to NASA Research 
          Announcements.

Sec. 1852.235-73 Final scientific and technical reports.

Sec. 1852.235-74 Additional reports of work--research and development.

Sec. 1852.236-71 Additive or deductive items.

Sec. 1852.236-72 Bids with unit prices.

Sec. 1852.236-73 Hurricane plan.

Sec. 1852.236-74 Magnitude of requirement.

Sec. 1852.236-75 Partnering for construction contracts.

Sec. 1852.237-70 Emergency evacuation procedures.

Sec. 1852.237-71 Pension portability.

Sec. 1852.237-72 Access to Sensitive Information.

Sec. 1852.237-73 Release of sensitive information.

Sec. 1852.239-70 Alternate delivery points.

Sec. 1852.241-70 Renewal of contract.

Sec. 1852.242-70 Technical direction.

Sec. 1852.242-71 Travel outside of the United States.

Sec. 1852.242-72 Observance of legal holidays.

Sec. 1852.242-73 NASA contractor financial management reporting.

Sec. 1852.242-78 Emergency medical services and evacuation.

Sec. 1852.243-70 Engineering change proposals.

Sec. 1852.243-71 Shared savings.

Sec. 1852.243-72 Equitable adjustments.

Sec. 1852.244-70 Geographic participation in the aerospace program.

Sec. 1852.245-70 Contractor requests for Government-provided property.

Sec. 1852.245-71 Installation-accountable Government property.

Sec. 1852.245-72 Liability for Government property furnished for repair 
          or other services.

Sec. 1852.245-73 Financial reporting of NASA property in the custody of 
          contractors.

Sec. 1852.245-74 Identification and marking of Government equipment.

Sec. 1852.245-75 Property management changes.

Sec. 1852.245-76 List of Government property furnished pursuant to FAR 
          52.245-1.

Sec. 1852.245-77 List of Government property furnished pursuant to FAR 
          52.245-2.

Sec. 1852.245-78 Physical inventory of capital personal property.

Sec. 1852.245-79 Records and disposition reports for Government property 
          with potential historic or significant real value.

Sec. 1852.245-80 Government property management information.

Sec. 1852.245-81 List of available Government property.

Sec. 1852.245-82 Occupancy management requirements.

Sec. 1852.245-83 Real property management requirements.

Sec. 1852.246-70 Mission Critical Space System Personnel Reliability 
          Program.

Sec. 1852.246-71 Government contract quality assurance functions.

Sec. 1852.246-72 Material Inspection and Receiving Report.

Sec. 1852.246-73 Human space flight item.

Sec. 1852.247-71 Protection of the Florida manatee.

Sec. 1852.247-72 Advance notice of shipment.

Sec. 1852.247-73 Bills of Lading.

Sec. 1852.249-72 Termination (utilities).

               Subpart 1852.3_Provision and Clause Matrix


Sec. 1852.300 Scope of subpart.

Sec. 1852.301 Solicitation provisions and contract clauses (Matrix).

    Authority: 42 U.S.C. 2473 (c)(1).

    Source: 54 FR 28340, July 5, 1989, unless otherwise noted.



Sec. 1852.000  Scope of part.

    This part, in conjunction with FAR part 52--
    (a) Sets forth the provisions and clauses prescribed in the NFS,
    (b) Gives instructions for their use, and
    (c) Presents a matrix listing the provisions and clauses applicable 
to each principal contract type and/or purpose (e.g., fixed-price 
supply, cost-reimbursement research and development).

[61 FR 40547, Aug. 5, 1996]

[[Page 265]]

             Subpart 1852.2_Texts of Provisions and Clauses



Sec. 1852.203-70  Display of Inspector General Hotline Posters.

    As prescribed in 1803.7001, insert the following clause:

         Display of Inspector General Hotline Posters (JUN 2001)

    (a) The Contractor shall display prominently in common work areas 
within business segments performing work under this contract, Inspector 
General Hotline Posters available under paragraph (b) of this clause.
    (b) Inspector General Hotline Posters may be obtained from NASA 
Office of Inspector General, Code W, Washington, DC, 20546-0001, (202) 
358-1220.

[66 FR 29727, June 1, 2001]



Sec. 1852.204-75  Security classification requirements.

    As prescribed in 1804.404-70, insert the following clause:

             Security Classification Requirements (SEP 1989)

    Performance under this contract will involve access to and/or 
generation of classified information, work in a security area, or both, 
up to the level of ---------------- [insert the applicable security 
clearance level]. See Federal Acquisition Regulation clause 52.204-2 in 
this contract and DD Form 254, Contract Security Classification 
Specification, Attachment -------- [Insert the attachment number of the 
DD Form 254].

                             (End of clause)

[61 FR 40548, Aug. 5, 1996]



Sec. 1852.204-76  Security requirements for unclassified information 
          technology resources.

    As prescribed in 1804.470-4(a), insert the following clause:

Security Requirements for Unclassified Information Technology Resources 
                              (MONTH YEAR)

    (a) The contractor shall protect the confidentiality, integrity, and 
availability of NASA Electronic Information and IT resources and protect 
NASA Electronic Information from unauthorized disclosure.
    (b) This clause is applicable to all NASA contractors and sub-
contractors that process, manage, access, or store unclassified 
electronic information, to include Sensitive But Unclassified (SBU) 
information, for NASA in support of NASA's missions, programs, projects 
and/or institutional requirements. Applicable requirements, regulations, 
policies, and guidelines are identified in the Applicable Documents List 
(ADL) provided as an attachment to the contract. The documents listed in 
the ADL can be found at: http://www.nasa.gov/offices/ocio/itsecurity/
index.html. For policy information considered sensitive, the documents 
will be identified as such in the ADL and made available through the 
Contracting Officer.
    (c) Definitions. (1) IT resources means any hardware or software or 
interconnected system or subsystem of equipment, that is used to 
process, manage, access, or store electronic information.
    (2) NASA Electronic Information is any data (as defined in the 
Rights in Data clause of this contract) or information (including 
information incidental to contract administration, such as financial, 
administrative, cost or pricing, or management information) that is 
processed, managed, accessed or stored on an IT system(s) in the 
performance of a NASA contract.
    (3) IT Security Management 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. Unlike the IT security plan, which addresses the IT 
system, the IT Security Management Plan addresses how the contractor 
will manage personnel and processes associated with IT Security on the 
instant contract.
    (4) IT Security Plan--this is a FISMA requirement; see the ADL for 
applicable requirements. The IT Security Plan is specific to the IT 
System and not the contract. Within 30 days after award, the contractor 
shall develop and deliver an IT Security Management Plan to the 
Contracting Officer; the approval authority will be included in the ADL. 
All contractor personnel requiring physical or logical access to NASA IT 
resources must complete NASA's annual IT Security Awareness training. 
Refer to the IT Training policy located in the IT Security Web site at 
https://itsecurity.nasa.gov/policies/index.html.
    (d) The contractor shall afford Government access to the 
Contractor's and subcontractors' 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 NASA Electronic 
Information or to the function of IT systems operated on behalf of NASA, 
and to preserve evidence of computer crime.

[[Page 266]]

    (e) At the completion of the contract, the contractor shall return 
all NASA information and IT resources provided to the contractor during 
the performance of the contract in accordance with retention 
documentation available in the ADL. The contractor shall provide a 
listing of all NASA Electronic information and IT resources generated in 
performance of the contract. At that time, the contractor shall request 
disposition instructions from the Contracting Officer. The Contracting 
Officer will provide disposition instructions within 30 calendar days of 
the contractor's request. Parts of the clause and referenced ADL may be 
waived by the contracting officer, if the contractor's ongoing IT 
security program meets or exceeds the requirements of NASA Procedural 
Requirements (NPR) 2810.1 in effect at time of award. The current 
version of NPR 2810.1 is referenced in the ADL. The contractor shall 
submit a written waiver request to the Contracting Officer within 30 
days of award. The waiver request will be reviewed by the Center IT 
Security Manager. If approved, the Contractor Officer will notify the 
contractor, by contract modification, which parts of the clause or 
provisions of the ADL are waived.
    (f) The contractor shall insert this clause, including this 
paragraph in all subcontracts that process, manage, access or store NASA 
Electronic Information in support of the mission of the Agency.

                             (End of clause)

[76 FR 4080, Jan. 24, 2011]



Sec. 1852.208-81  Restrictions on Printing and Duplicating.

    As prescribed in 1808.870, insert the following clause:

           Restrictions on Printing and Duplicating (NOV 2004)

    (a) The Contractor may duplicate or copy any documentation required 
by this contract in accordance with the provisions of the Government 
Printing and Binding Regulations, No. 26, S. Pub 101-9, U.S. Government 
Printing Office, Washington, DC, 20402, published by the Joint Committee 
on Printing, U.S. Congress.
    (b) The Contractor shall not perform, or procure from any commercial 
source, any printing in connection with the performance of work under 
this contract. The term ``printing'' includes the processes of 
composition, platemaking, presswork, duplicating, silk screen processes, 
binding, microform, and the end items of such processes and equipment.
    (c) The Contractor is authorized to duplicate or copy production 
units provided the requirement does not exceed 5,000 production units of 
any one page or 25,000 units in the aggregate of multiple pages. Such 
pages may not exceed a maximum image size of 10-\3/4\ by 14-\1/4\ 
inches. A ``production unit'' is one sheet, size 8-\1/2\ x 11 inches 
(215 x 280 mm), one side only, and one color ink.
    (d) This clause does not preclude writing, editing, preparation of 
manuscript copy, or preparation of related illustrative material as a 
part of this contract, or administrative duplicating/copying (for 
example, necessary forms and instructional materials used by the 
Contractor to respond to the terms of the contract).
    (e) Costs associated with printing, duplicating, or copying in 
excess of the limits in paragraph (c) of this clause are unallowable 
without prior written approval of the Contracting Officer. If the 
Contractor has reason to believe that any activity required in 
fulfillment of the contract will necessitate any printing or substantial 
duplicating or copying, it immediately shall provide written notice to 
the Contracting Officer and request approval prior to proceeding with 
the activity. Requests will be processed by the Contracting Officer in 
accordance with the provisions of the Government Printing and Binding 
Regulations, NFS 1808.802, and NPR 1490.5, NASA Procedural Requirements 
for Printing, Duplicating, and Copying Management.
    (f) The Contractor shall include in each subcontract which may 
involve a requirement for any printing, duplicating, and copying in 
excess of the limits specified in paragraph (c) of this clause, a 
provision substantially the same as this clause, including this 
paragraph (f).

                             (End of clause)

[66 FR 53548, Oct. 23, 2001, as amended at 69 FR 63459, Nov. 2, 2004]



Sec. 1852.209-70  Product removal from Qualified Products List.

    As prescribed in 1809.206-71, insert the following clause:

         Product Removal From Qualified Products List (DEC 1988)

    If, during the performance of this contract, the product being 
furnished is removed from the Qualified Products List for any reason, 
the Government may terminate the contract for Default pursuant to the 
default clause of the contract.

                             (End of clause)

[61 FR 40549, Aug. 5, 1996]

[[Page 267]]



Sec. 1852.209-71  Limitation of future contracting.

    As prescribed in 1809.507-2, the contracting officer may insert a 
clause substantially as follows in solicitations and contracts, in 
compliance with FAR 9.507-2:

               Limitation of Future Contracting (DEC 1988)

    (a) The Contracting Officer has determined that this acquisition may 
give rise to a potential organizational conflict of interest. 
Accordingly, the attention of prospective offerors is invited to FAR 
Subpart 9.5--Organizational Conflicts of Interest.
    (b) The nature of this conflict is [describe the conflict].
    (c) The restrictions upon future contracting are as follows:
    (1) If the Contractor, under the terms of this contract, or through 
the performance of tasks pursuant to this contract, is required to 
develop specifications or statements or work that are to be incorporated 
into a solicitation, the Contractor shall be ineligible to perform the 
work described in that solicitation as a prime of first-tier 
subcontractor under an ensuing NASA contract. This restriction shall 
remain in effect for a reasonable time, as agreed to by the Contracting 
Officer and the Contractor, sufficient to avoid unfair competitive 
advantage or potential bias (this time shall in no case be less than the 
duration of the initial production contract). NASA shall not 
unilaterally require the Contractor to prepare such specifications or 
statements of work under this contract.
    (2) To the extent that the work under this contract requires access 
to proprietary, business confidential, or financial data of other 
companies, and as long as these data remain proprietary or confidential, 
the Contractor shall protect these data from unauthorized use and 
disclosure and agrees not to use them to complete with those other 
companies.

                             (End of clause)

[61 FR 40549, Aug. 5, 1996]



Sec. 1852.209-72  Composition of the contractor.

    As prescribed in 1809.670, insert the following clause:

                Composition of the Contractor (DEC 1988)

    If the Contractor is comprised of more than one legal entity, each 
entity shall be jointly and severally liable under this contract.

                             (End of clause)

[61 FR 40549, Aug. 5, 1996]



Sec. 1852.210-70  Brand name or equal.

    As prescribed in 1810.011-70(a), insert the following provision:

                     Brand Name or Equal (DEC 1988)

    (a) As used in this provision, ``brand name'' means identification 
of products by make and model. The term ``bid'' means ``offer'' if this 
is a negotiated acquisition.
    (b) If items called for by this solicitation are identified in the 
Schedule by a ``brand name or equal'' description, that identification 
is intended to be descriptive, not restrictive, and is to indicate the 
quality and characteristics of products that will be satisfactory. Bids 
offering ``equal'' products, including products of the brand name 
manufacturer other than the one described by brand name, will be 
considered for award if the products are clearly identified in the bids 
and are determined by the Government to meet fully the salient 
characteristics requirements referenced in the solicitation.
    (c) Unless the offeror clearly indicates in the bid that it is 
offering an ``equal'' product, the bid shall be considered as offering a 
brand-name product referenced in the solicitation.
    (d)(1) If the offeror proposes to furnish an ``equal'' product, the 
brand name, if any, of the product to be furnished shall be inserted in 
the space provided in the solicitation, or that product shall be 
otherwise clearly identified in the bid. The evaluation of bids and the 
determination as to equality of the product offered shall be the 
responsibility of the Government and will be based on information 
furnished by the offeror or identified in its bid, as well as on other 
information reasonably available to the contracting activity.
    (2) Caution to Offerors: The contracting office is not responsible 
for locating or securing any information not identified in the bid and 
reasonably available to the contracting office. Accordingly, to ensure 
that sufficient information is available, the offeror must furnish as a 
part of its bid all descriptive material (such as cuts, illustrations, 
drawings, or other information) necessary for the contracting office to 
(i) determine whether the product offered meets the salient 
characteristics requirements 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 references to information previously 
furnished or to information otherwise available to the contracting 
office.

[[Page 268]]

    (3) If the offeror proposes to modify a product so as to make it 
conform to the requirements of the solicitation, it shall (i) include in 
the bid a clear description of the proposed modifications and (ii) 
clearly mark any descriptive material to show them.
    (4) If this is a sealed-bid acquisition, modifications proposed 
after bid opening to make a product conform to a brand name product 
referenced in the solicitation will not be considered.

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 56 FR 12460, Mar. 26, 1991]



Sec. 1852.211-70  Packaging, handling, and transportation.

    As prescribed in 1811.404-70, insert the following clause:

           Packaging, Handling, and Transportation (SEP 2005)

    (a) The Contractor shall comply with NASA Procedural Requirements 
(NPR) 6000.1, ``Requirements for Packaging, Handling, and Transportation 
for Aeronautical and Space Systems, Equipment, and Associated 
Components'', as may be supplemented by the statement of work or 
specifications of this contract, for all items designated as Class I, 
II, or III.
    (b) The Contractor's packaging, handling, and transportation 
procedures may be used, in whole or in part, subject to the written 
approval of the Contracting Officer, provided (1) the Contractor's 
procedures are not in conflict with any requirements of this contract, 
and (2) the requirements of this contract shall take precedence in the 
event of any conflict with the Contractor's procedures.
    (c) The Contractor must place the requirements of this clause in all 
subcontracts for items that will become components of deliverable Class 
I, II, or III items.

                             (End of clause)

[65 FR 37062, June 13, 2000, as amended at 70 FR 52941, Sept. 6, 2005]



Sec. 1852.212-70  Notice of delay.

    As prescribed at 1812.104-70(a), insert the following clause:

                       Notice of Delay (DEC 1988)

    If, because of technical difficulties, the Contractor becomes unable 
to complete the contract work at the time specified, notwithstanding the 
exercise of good faith and diligent efforts in performing the work 
called for under this contract, the Contractor shall give the 
Contracting Officer written notice of the anticipated delay and the 
reasons for it. The notice and reasons shall be delivered promptly after 
the condition creating the anticipated delay becomes known to the 
Contractor but in no event less than 45 days before the completion date 
specified in this contract, unless otherwise permitted by the 
Contracting Officer. When notice is given, the Contracting Officer may 
extend the time specified in the Schedule for such period as is deemed 
advisable.

                             (End of clause)



Sec. 1852.212-74  Period of performance.

    As prescribed in 1812.104-70(e), insert the following clause:

                    Period of Performance (DEC 1988)

    The period of performance of this contract shall be [Insert period 
of performance dates].

                             (End of clause)



Sec. 1852.213-70  Offeror Representations and Certifications--Other Than 
          Commercial Items.

    As prescribed in 1813.302-570, insert the following provision:

Offeror Representations and Certifications--Other Than Commercial Items 
                               (JUL 2004)

    (a) Definitions. As used in this provision--
    ``Emerging small business'' means a small business concern whose 
size is no greater than 50 percent of the numerical size standard for 
the NAICS code designated.
    ``Forced or indentured child labor'' means all work or service--
    (1) Exacted from any person under the age of 18 under the menace of 
any penalty for its nonperformance and for which the worker does not 
offer himself voluntarily; or
    (2) Performed by any person under the age of 18 pursuant to a 
contract the enforcement of which can be accomplished by process or 
penalties.
    ``Service-disabled veteran-owned small business concern''--
    (1) Means a small business concern--
    (i) Not less than 51 percent of which is owned by one or more 
service-disabled veterans or, in the case of any publicly owned 
business, not less than 51 percent of the stock of which is owned by one 
or more service-disabled veterans; and
    (ii) The management and daily business operations of which are 
controlled by one or more service-disabled veterans or, in the case of a 
service-disabled veteran with permanent and severe disability, the 
spouse or permanent caregiver of such veteran.

[[Page 269]]

    (2) Service-disabled veteran means a veteran, as defined in 38 
U.S.C. 101(2), with a disability that is service-connected, as defined 
in 38 U.S.C. 101(16).
    ``Small business concern'' means a concern, including its 
affiliates, that is independently owned and operated, not dominant in 
the field of operation in which it is bidding on Government contracts, 
and qualified as a small business under the criteria in 13 CFR part 121 
and size standards in this solicitation.
    ``Veteran-owned small business concern'' means a small business 
concern--
    (1) Not less than 51 percent of which is owned by one or more 
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any 
publicly owned business, not less than 51 percent of the stock of which 
is owned by one or more veterans; and
    (2) The management and daily business operations of which are 
controlled by one or more veterans.
    ``Women-owned small business concern'' means a small business 
concern--
    (1) That is at least 51 percent owned by one or more women; or, in 
the case of any publicly owned business, at least 51 percent of the 
stock of which is owned by one or more women; and
    (2) Whose management and daily business operations are controlled by 
one or more women.
    (b) Taxpayer Identification Number (TIN) (26 U.S.C. 6109, 31 U.S.C. 
7701). (1) All offerors must submit the information required in 
paragraphs (b)(3) through (b)(5) of this provision to comply with debt 
collection requirements of 31 U.S.C. 7701(c) and 3325(d), reporting 
requirements of 26 U.S.C. 6041, 6041A, and 6050M, and implementing 
regulations issued by the Internal Revenue Service (IRS).
    (2) The TIN may be used by the Government to collect and report on 
any delinquent amounts arising out of the offeror's relationships with 
the Government (31 U.S.C. 7701(c)(3)). If the resulting contract is 
subject to the payment reporting requirements described in FAR 4.904, 
the TIN provided hereunder may be matched with IRS records to verify the 
accuracy of the offeror's TIN.
    (3) Taxpayer Identification Number (TIN).


Sec. [ ] TIN:--------------------------.

Sec. [ ] TIN has been applied for.

Sec. [ ] TIN is not required because:
    [ ] Offeror is a nonresident alien, foreign corporation, or foreign 
partnership that does not have income effectively connected with the 
conduct of a trade or business in the United States and does not have an 
office or place of business or a fiscal paying agent in the United 
States;
    [ ] Offeror is an agency or instrumentality of a foreign government;
    [ ] Offeror is an agency or instrumentality of the Federal 
Government.

    (4) Type of organization.


Sec. [ ] Sole proprietorship;

Sec. [ ] Partnership;

Sec. [ ] Corporate entity (not tax-exempt);

Sec. [ ] Corporate entity (tax-exempt);

Sec. [ ] Government entity (Federal, State, or local);

Sec. [ ] Foreign government;

Sec. [ ] International organization per 26 CFR 1.6049-4;

Sec. [ ] Other ----------.

    (5) Common parent.


Sec. [ ] Offeror is not owned or controlled by a common parent;

Sec. [ ] Name and TIN of common parent:
    Name ----------------------------.
    TIN--------------------------.

    (c) Offerors must complete the following representations when the 
resulting contract will be performed in the United States or its 
outlying areas. Check all that apply.
    (1) Small business concern. The offeror represents as part of its 
offer that it [ ] is, [ ] is not a small business concern.
    (2) Veteran-owned small business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents as part of its offer 
that it [ ] is, [ ] is not a veteran-owned small business concern.
    (3) Service-disabled veteran-owned small business concern. [Complete 
only if the offeror represented itself as a veteran-owned small business 
concern in paragraph (c)(2) of this provision.] The offeror represents 
as part of its offer that it [ ] is, [ ] is not a service-disabled 
veteran-owned small business concern.
    (4) Small disadvantaged business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents, for general 
statistical purposes, that it [ ] is, [ ] is not a small disadvantaged 
business concern as defined in 13 CFR 124.1002.
    (5) Women-owned small business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents that it [ ] is, [ ] is 
not a women-owned small business concern.
    (6) Small Business Size for the Small Business Competitiveness
    Demonstration Program and for the Targeted Industry Categories under 
the Small Business Competitiveness Demonstration Program. [Complete only 
if the offeror has represented itself to be a small business concern 
under the size standards for this solicitation.]
    (i) [Complete only for solicitations indicated as being set-aside 
for emerging small businesses in one of the four designated industry 
groups (DIGs).] The offeror represents

[[Page 270]]

as part of its offer that it [ ] is, [ ] is not an emerging small 
business.
    (ii) [Complete only for solicitations indicated as being for one of 
the targeted industry categories (TICs) or four designated industry 
groups (DIGs).] Offeror represents as follows:
    (A) Offeror's number of employees for the past 12 months (check the 
Employees column if size standard stated in the solicitation is 
expressed in terms of number of employees); or
    (B) Offeror's average annual gross revenue for the last 3 fiscal 
years (check the Average Annual Gross Number of Revenues column if size 
standard stated in the solicitation is expressed in terms of annual 
receipts).
    (Check one of the following):

 
         Number of employees             Average annual gross revenues
 
--50 or fewer                          --$1 million or less.
--51-100                               --$1,000,001-$2 million.
--101-250                              --$2,000,001-$3.5 million.
--251-500                              --$3,500,001-$5 million.
--501-750                              --$5,000,001-$10 million.
--751-1000                             --$10,000,001-$17 million.
--Over 1000                            --Over $17 million.
 

    (7) HUBZone small business concern. [Complete only if the offeror 
represented itself as a small business concern in paragraph (c)(1) of 
this provision.] The offeror represents as part of its offer that--
    (i) It [ ] is, [ ] is not a HUBZone small business concern listed, 
on the date of this representation, on the List of Qualified HUBZone 
Small Business Concerns maintained by the Small Business Administration, 
and no material change in ownership and control, principal office, or 
HUBZone employee percentage has occurred since it was certified by the 
Small Business Administration in accordance with 13 CFR part 126; and
    (ii) It [ ] is, [ ] is not a joint venture that complies with the 
requirements of 13 CFR part 126, and the representation in paragraph 
(c)(7)(i) of this provision is accurate for the HUBZone small business 
concern or concerns that are participating in the joint venture. [The 
offeror shall enter the name or names of the HUBZone small business 
concern or concerns that are participating in the joint venture: ------
----.] Each HUBZone small business concern participating in the joint 
venture shall submit a separate signed copy of the HUBZone 
representation.
    (8) (Complete if dollar value of the resultant contract is expected 
to exceed $25,000 and the offeror has represented itself as 
disadvantaged in paragraph (c)(4) of this provision.) [The offeror shall 
check the category in which its ownership falls]:

-- Black American.
-- Hispanic American.
-- Native American (American Indians, Eskimos, Aleuts, or Native 
Hawaiians).
-- Asian-Pacific American (persons with origins from Burma, Thailand, 
Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan, Laos, 
Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust 
Territory of the Pacific Islands (Republic of Palau), Republic of the 
Marshall Islands, Federated States of Micronesia, the Commonwealth of 
the Northern Mariana Islands, Guam, Samoa, Macao, Hong Kong, Fiji, 
Tonga, Kiribati, Tuvalu, or Nauru).
-- Subcontinent Asian (Asian-Indian) American (persons with origins from 
India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands, or 
Nepal).
-- Individual/concern, other than one of the preceding.

    (d) Representations required to implement provisions of Executive 
Order 11246--
    (1) Previous contracts and compliance. The offeror represents that--
    (i) It [ ] has, [ ] has not participated in a previous contract or 
subcontract subject to the Equal Opportunity clause of this 
solicitation; and
    (ii) It [ ] has, [ ] has not filed all required compliance reports.
    (2) Affirmative Action Compliance. The offeror represents that--
    (i) It [ ] has developed and has on file, [ ] has not developed and 
does not have on file, at each establishment, affirmative action 
programs required by rules and regulations of the Secretary of Labor (41 
CFR parts 60-1 and 60-2), or
    (ii) It [ ] has not previously had contracts subject to the written 
affirmative action programs requirement of the rules and regulations of 
the Secretary of Labor.
    (e) Buy American Act Certificate. (Applies only if the clause at 
Federal Acquisition Regulation (FAR) 52.225-1, Buy American Act--
Supplies, is included in this solicitation.)
    (1) The offeror certifies that each end product, except those listed 
in paragraph (e)(2) of this provision, is a domestic end product and 
that the offeror has considered components of unknown origin to have 
been mined, produced, or manufactured outside the United States. The 
offeror shall list as foreign end products those end products 
manufactured in the United States that do not qualify as domestic end 
products. The terms ``component,'' ``domestic end product,'' ``end 
product,'' ``foreign end product,'' and ``United States'' are defined in 
the clause of this solicitation entitled ``Buy American Act-Supplies.''
    (2) Foreign End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________


[[Page 271]]

________________________________________________________________________
[List as necessary]

    (3) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25.
    (f)(1) Buy American Act--Free Trade Agreements--Israeli Trade Act 
Certificate. (Applies only if the clause at FAR 52.225-3, Buy American 
Act--Free Trade Agreements--Israeli Trade Act, is included in this 
solicitation.)
    (i) The offeror certifies that each end product, except those listed 
in paragraph (f)(1)(ii) or (f)(1)(iii) of this provision, is a domestic 
end product and that the offeror has considered components of unknown 
origin to have been mined, produced, or manufactured outside the United 
States. The terms ``component,'' ``domestic end product,'' ``end 
product,'' ``foreign end product,'' and ``United States'' are defined in 
the clause of this solicitation entitled ``Buy American Act--Free Trade 
Agreements--Israeli Trade Act''
    (ii) The offeror certifies that the following supplies are NAFTA 
country end products or Israeli end products as defined in the clause of 
this solicitation entitled ``Buy American Act--Free Trade Agreements--
Israeli Trade Act: NAFTA Country or Israeli End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iii) The offeror shall list those supplies that are foreign end 
products (other than those listed in paragraph (f)(1)(ii) of this 
provision) as defined in the clause of this solicitation entitled ``Buy 
American Act--North American Free Trade Agreement--Israeli Trade Act.'' 
The offeror shall list as other foreign end products those end products 
manufactured in the United States that do not qualify as domestic end 
products.
    Other Foreign End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iv) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25.
    (2) Buy American Act--Free Trade Agreements--Israeli Trade Act 
Certificate, Alternate I (JAN 2004). If Alternate I to the clause at FAR 
52.225-3 is included in this solicitation, substitute the following 
paragraph (f)(1)(ii) for paragraph (f)(1)(ii) of the basic provision:
    (f)(1)(ii) The offeror certifies that the following supplies are 
Canadian end products as defined in the clause of this solicitation 
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade Act'':
    Canadian End Products:

                              Line Item No.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(List as necessary)

    (3) Buy American Act--Free Trade Agreements--Israeli Trade Act 
Certificate, Alternate II (JAN 2004). If Alternate II to the clause at 
FAR 52.225-3 is included in this solicitation, substitute the following 
paragraph (f)(1)(ii) for paragraph (f)(1)(ii) of the basic provision:
    (f)(1)(ii) The offeror certifies that the following supplies are 
Canadian end products or Israeli end products as defined in the clause 
of this solicitation entitled ``Buy American Act--Free Trade 
Agreements--Israeli Trade Act'':
    Canadian or Israeli End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (4) Trade Agreements Certificate. (Applies only if the clause at FAR 
52.225-5, Trade Agreements, is included in this solicitation.)
    (i) The offeror certifies that each end product, except those listed 
in paragraph (f)(4)(ii) of this provision, is a U.S.-made, designated 
country, Caribbean Basin country, or FTA country end product, as defined 
in the clause of this solicitation entitled ``Trade Agreements.''
    (ii) The offeror shall list as other end products those end products 
that are not U.S.-made, designated country, Caribbean Basin country, or 
NAFTA country end products.
    Other End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iii) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25. For line items subject to the 
Trade Agreements Act, the Government will evaluate offers of U.S.-made, 
designated country, Caribbean Basin country, or FTA country end products 
without regard to the restrictions of the Buy American Act. The 
Government will consider for award only offers of U.S.-made, designated 
country, Caribbean Basin country, or FTA country end

[[Page 272]]

products unless the Contracting Officer determines that there are no 
offers for such products or that the offers for such products are 
insufficient to fulfill the requirements of the solicitation.
    (g) Certification Regarding Knowledge of Child Labor for Listed End 
Products (Executive Order 13126). [The Contracting Officer must list in 
paragraph (g)(1) any end products being acquired under this solicitation 
that are included in the List of Products Requiring Contractor 
Certification as to Forced or Indentured Child Labor, unless excluded at 
FAR 22.1503(b).]
    (1) Listed end products.

            Listed End Product and Listed Countries of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (2) Certification. [If the Contracting Officer has identified end 
products and countries of origin in paragraph (g)(1) of this provision, 
then the offeror must certify to either (g)(2)(i) or (g)(2)(ii) by 
checking the appropriate block.]
    [ ] (i) The offeror will not supply any end product listed in 
paragraph (g)(1) of this provision that was mined, produced, or 
manufactured in the corresponding country as listed for that product.
    [ ] (ii) The offeror may supply an end product listed in paragraph 
(g)(1) of this provision that was mined, produced, or manufactured in 
the corresponding country as listed for that product. The offeror 
certifies that it has made a good faith effort to determine whether 
forced or indentured child labor was used to mine, produce, or 
manufacture any such end product furnished under this contract. On the 
basis of those efforts, the offeror certifies that it is not aware of 
any such use of child labor.

                           (End of provision)

    Alternate I (MAR 2004) As prescribed in 1813.302-570(a)(2)(i), add 
the following paragraph to the end of the basic provision and identify 
appropriately:

    ( ) Recovered Material Certification. As required by the Resource 
Conservation and Recovery Act of 1976 (42 U.S.C. 6962(c)(3)(A)(i)), the 
offeror certifies, that the percentage of recovered materials to be used 
in the performance of the contract will be at least the amount required 
by the applicable contract specifications.

    Alternate II (MAR 2004) As prescribed in 1813.302-570(a)(2)(ii), add 
the following paragraph to the end of the basic provision and identify 
appropriately:

 ( ) Historically Black College or University and Minority Institution 
                             Representation

    (1) Definitions. As used in this provision--
    ``Historically black college or university'' means an institution 
determined by the Secretary of Education to meet the requirements of 34 
CFR 608.2. For the Department of Defense, the National Aeronautics and 
Space Administration, and the Coast Guard, the term also includes any 
nonprofit research institution that was an integral part of such a 
college or university before November 14, 1986.
    ``Minority institution'' means an institution of higher education 
meeting the requirements of Section 1046(3) of the Higher Education Act 
of 1965 (20 U.S.C. 1067k, including a Hispanic-serving institution of 
higher education, as defined in Section 316(b)(1) of the Act (20 U.S.C. 
1101a)).
    (2) Representation. The offeror represents that it--
    ( ) is ( ) is not a historically black college or university;
    ( ) is ( ) is not a minority institution.

    Alternate III (MAR 2004) As prescribed in 1813.302-570(a)(2)(iii), 
add the following paragraph to the end of the basic provision and 
identify appropriately:

    ( ) Representation of Limited Rights Data and Restricted Computer 
Software
    (1) This solicitation sets forth the work to be performed if a 
contract award results, and the Government's known delivery requirements 
for data (as defined in FAR 27.401). Any resulting contract may also 
provide the Government the option to order additional data under the 
Additional Data Requirements clause at FAR 52.227-16, if included in the 
contract. Any data delivered under the resulting contract will be 
subject to the Rights in Data-General clause at FAR 52.227-14 that is to 
be included in this contract. Under the latter clause, a Contractor may 
withhold from delivery data that qualify as limited rights data or 
restricted computer software, and deliver form, fit, and function data 
in lieu thereof. The latter clause also may be used with its Alternates 
II and/or III to obtain delivery of limited rights data or restricted 
computer software, marked with limited rights or restricted rights 
notices, as appropriate. In addition, use of Alternate V with this 
latter clause provides the Government the right to inspect such data at 
the Contractor's facility.
    (2) As an aid in determining the Government's need to include 
Alternate II or Alternate III in the clause at FAR 52.227-14, Rights in 
Data-General, the offeror shall complete paragraph (3) of this provision 
to either state that none of the data qualify as limited rights data or 
restricted computer software, or identify, to the extent feasible,

[[Page 273]]

which of the data qualifies as limited rights data or restricted 
computer software. Any identification of limited rights data or 
restricted computer software in the offeror's response is not 
determinative of the status of such data should a contract be awarded to 
the offeror.
    (3) The offeror has reviewed the requirements for the delivery of 
data or software and states [offeror check appropriate block]--
    ( ) None of the data proposed for fulfilling such requirements 
qualifies as limited rights data or restricted computer software.
    ( ) Data proposed for fulfilling such requirements qualify as 
limited rights data or restricted computer software and are identified 
as follows:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    Note: ``Limited rights data'' and ``Restricted computer software'' 
are defined in the contract clause entitled ``Rights in Data-General.''

[67 FR 38905, June 6, 2002, as amended at 69 FR 13261, Mar. 22, 2004; 69 
FR 44610, July 27, 2004]



Sec. 1852.213-71  Evaluation--Other Than Commercial Items.

    As prescribed in 1813.302-570(b) insert the following provision:

            Evaluation--Other Than Commercial Items--Jun 2002

    (a) The Government will award a contract resulting from this 
solicitation to the responsible offeror whose offer conforming to the 
solicitation will be most advantageous to the Government, price and 
other factors considered. The following factors shall be used to 
evaluate offers:
________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[Contracting Officer shall insert the evaluation factors, such as (i) 
technical capability of the item offered to meet the Government 
requirement; (ii) price; (iii) past performance (see FAR 15.304).]

    (b) Options. The Government will evaluate offers for award purposes 
by adding the total price for all options to the total price for the 
basic requirement. The Government may determine that an offer is 
unacceptable if the option prices are significantly unbalanced. 
Evaluation of options shall not obligate the Government to exercise the 
option(s).

                           (End of provision)

[67 FR 38905, June 6, 2002, as amended at 67 FR 50824, Aug. 6, 2002]



Sec. 1852.214-70  Caution to offerors furnishing descriptive literature.

    As prescribed in 1814.201-670(a), insert the following provision:

    Caution to Offerors Furnishing Descriptive Literature (DEC 1988)

    Bidders are cautioned against furnishing as a part of their bids 
descriptive literature that includes language reserving to the bidder 
the right to deviate from the requirements of the invitation for bids. 
Statements that ``Data are subject to change without notice,'' ``Prices 
subject to change without notice,'' or words having a similar effect are 
examples of such reservation. The Government will reject as 
nonresponsive any bid that incorporates literature containing such 
language or any bid that must be evaluated by using literature 
containing such language. Bidders should clearly label any submissions 
of descriptive literature not intended to form a part of a bid as such 
in order to preclude any need for the Government to interpret the 
bidder's intent in submitting descriptive literature. [See FAR 14.202-
5.]

                           (End of provision)

[61 FR 47082, Sept. 6, 1996]



Sec. 1852.214-71  Grouping for Aggregate Award.

    As prescribed in 1814.201-670(c), insert the following provision:

                 Grouping for Aggregate Award (MAR 1989)

    (a) The Government will evaluate offers and make award on a basis of 
the aggregate offers for items
    [Insert the item numbers and/or descriptions].
    The Government will not consider an offer for quantities less than 
those specified for these items.
    (b) If this is an invitation for bids, the Government will reject as 
nonresponsive a bid that is not made on the total quantities for all of 
the items specified in paragraph (a) of this section.

                           (End of provision)

[61 FR 47082, Sept. 6, 1996]



Sec. 1852.214-72  Full quantities.

    As prescribed in 1814.201-670(b), insert the following provision:

[[Page 274]]

                       Full Quantities (DEC 1988)

    The Government will not consider an offer for quantities of items 
less than those specified. If this is an invitation for bids, the 
Government will reject as nonresponsive a bid that is not made on full 
quantities.

                           (End of provision)

[61 FR 47082, Sept. 6, 1996]



Sec. 1852.215-77  Preproposal/pre-bid conference.

    As prescribed in 1815.209-70(a), insert the following provision:

                Preproposal/Pre-Bid Conference (DEC 1988)

    (a) A preproposal/pre-bid conference will be held as indicated 
below:
    Date:
    Time:
    Location:
    Other Information, as applicable:
    [Insert the applicable conference information.]
    (b) Attendance at the preproposal/pre-bid conference is recommended; 
however, attendance is neither required nor a prerequisite for proposal/
bid submission and will not be considered in the evaluation.

                           (End of provision)

[62 FR 3483, Jan. 23, 1997, as amended at 63 FR 9965, Feb. 27, 1998]



Sec. 1852.215-78  Make or buy program requirements.

    As prescribed in 1815.408-70(a), insert the following provision:

               Make or Buy Program Requirements (FEB 1998)

    The offeror shall submit a Make-or-Buy Program in accordance with 
the requirements of Federal Acquisition Regulation (FAR) 15.407-2. The 
offeror shall include the following supporting documentation with its 
proposal:
    (a) A description of each major item or work effort.
    (b) Categorization of each major item or work effort as ``must 
make,'' ``must buy,'' or ``can either make or buy.''
    (c) For each item or work effort categorized as ``can either make or 
buy,'' a proposal either to ``make'' or ``buy.''
    (d) Reasons for (i) categorizing items and work effort as ``must 
make'' or ``must buy'' and (ii) proposing to ``make'' or ``buy'' those 
categorized as ``can either make or buy.'' The reasons must include the 
consideration given to the applicable evaluation factors described in 
the solicitation and be in sufficient detail to permit the Contracting 
Officer to evaluate the categorization and proposal.
    (e) Designation of the offeror's plant or division proposed to make 
each item or perform each work effort and a statement as to whether the 
existing or proposed new facility is in or near a labor surplus area.
    (f) Identification of proposed subcontractors, if known, and their 
location and size status.
    (g) Any recommendations to defer make-or-buy decisions when 
categorization of some items or work efforts is impracticable at the 
time of submission.

                           (End of provision)

[62 FR 3483, Jan. 23, 1997, as amended at 63 FR 9965, Feb. 27, 1998; 63 
FR 32764, June 16, 1998]



Sec. 1852.215-79  Price adjustment for ``Make- or-Buy'' changes.

    As prescribed in 1815.407-70(b), insert the following clause:

         Price Adjustment for ``Make-or-Buy'' Changes (DEC 1988)

    The following make-or-buy items are subject to the provisions of 
paragraph (d) of the clause at FAR 52.215-21, Change or Additions to 
Make-or-Buy Program, of this contract:

 
          Item Description                 Make-or-Buy Determination
------------------------------------------------------------------------
 
------------------------------------------------------------------------

                             (End of clause)

[62 FR 3483, Jan. 23, 1997, as amended at 63 FR 9966, Feb. 27, 1998]



Sec. 1852.215-81  Proposal page limitations.

    As prescribed in 1815.209-70(d), insert the following provision:

                  Proposal Page Limitations (FEB 1998)

    (a) The following page limitations are established for each portion 
of the proposal submitted in response to this solicitation.

 
   Proposed Section (List each
       volume or section)               Page Limit (Specify limit)
------------------------------------------------------------------------
------------------                ------------------
------------------                ------------------
------------------                ------------------
------------------                ------------------
------------------------------------------------------------------------

    (b) A page is defined as one side of sheet, 8\1/2\ x 
11, with at least one inch margins on

[[Page 275]]

all sides, using not smaller than 12 point type. Foldouts count as an 
equivalent number of 8\1/2\ x 11 pages. The metric 
standard format most closely approximating the described standard 8\1/
2\ x 11 size may also be used.
    (c) Title pages and tables of contents are excluded from the page 
counts specified in paragraph (a) of this provision. In addition, the 
Cost section of your proposal is not page limited. However, this section 
is to be strictly limited to cost and price information. Information 
that can be construed as belonging in one of the other sections of the 
proposal will be so construed and counted against that section's page 
limitation.
    (d) If final proposal revisions are requested, separate page 
limitations will be specified in the Government's request for that 
submission.
    (e) Pages submitted in excess of the limitations specified in this 
provision will not be evaluated by the Government and will be returned 
to the offeror.

                           (End of provision)

[62 FR 3483, Jan. 23, 1997, as amended at 63 FR 9966, Feb. 27, 1998]



Sec. 1852.215-84  Ombudsman.

    As prescribed in 1815.7003, insert the following clause:

                          Ombudsman (NOV 2011)

    (a) An ombudsman has been appointed to hear and facilitate the 
resolution of concerns from offerors, potential offerors, and 
contractors during the preaward and postaward phases of this 
acquisition. When requested, the ombudsman will maintain strict 
confidentiality as to the source of the concern. The existence of the 
ombudsman is not to diminish the authority of the contracting officer, 
the Source Evaluation Board, or the selection official. Further, the 
ombudsman does not participate in the evaluation of proposals, the 
source selection process, or the adjudication of formal contract 
disputes. Therefore, before consulting with an ombudsman, interested 
parties must first address their concerns, issues, disagreements, and/or 
recommendations to the contracting officer for resolution.
    (b) If resolution cannot be made by the contracting officer, 
interested parties may contact the installation ombudsman, whose name, 
address, telephone number, facsimile number, and email address may be 
found at: http://prod.nais.nasa.gov/pub/pub--library/Omb.html. Concerns, 
issues, disagreements, and recommendations which cannot be resolved at 
the installation may be referred to the Agency ombudsman identified at 
the above URL. Please do not contact the ombudsman to request copies of 
the solicitation, verify offer due date, or clarify technical 
requirements. Such inquiries shall be directed to the Contracting 
Officer or as specified elsewhere in this document.

                             (End of clause)

    Alternate I (JUN 2000). As prescribed in 1815.7003, insert the 
following paragraph (c):

    (c) If this is a task or delivery order contract, the ombudsman 
shall review complaints from contractors and ensure they are afforded a 
fair opportunity to be considered, consistent with the procedures of the 
contract.

[62 FR 3484, Jan. 23, 1997, as amended at 65 FR 38777, June 22, 2000; 68 
FR 62023, Oct. 31, 2003; 76 FR 72329, Nov. 23, 2011]



Sec. 1852.216-73  Estimated cost and cost sharing.

    As prescribed in 1816.307-70(a), insert the following clause:

               Estimated Cost and Cost Sharing (DEC 1991)

    (a) It is estimated that the total cost of performing the work under 
this contract will be $----------.
    (b) For performance of the work under this contract, the Contractor 
shall be reimbursed for not more than ---- percent of the costs of 
performance determined to be allowable under the Allowable Cost and 
Payment clause. The remaining ---- percent or more of the costs of 
performance so determined shall constitute the Contractor's share, for 
which it will not be reimbursed by the Government.
    (c) For purposes of the -------------- [insert ``Limitation of 
Cost'' or ``Limitation of Funds''] clause, the total estimated cost to 
the Government is hereby established as $-------- (insert estimated 
Government share); this amount is the maximum Government liability.
    (d) The Contractor shall maintain records of all contract costs 
claimed by the Contractor as constituting part of its share. Those 
records shall be subject to audit by the Government. Costs contributed 
by the Contractor shall not be charged to the Government under any other 
grant, contract, or agreement (including allocation to other grants, 
contracts, or agreements as part of an independent research and 
development program).

                             (End of clause)

[62 FR 3484, Jan. 23, 1997]

[[Page 276]]



Sec. 1852.216-74  Estimated cost and fixed fee.

    As prescribed in 1816.307-70(b), insert the following clause:

                 Estimated Cost and Fixed Fee (DEC 1991)

    The estimated cost of this contract is ------------ exclusive of the 
fixed fee of ------------. The total estimated cost and fixed fee is --
----------.

                             (End of clause)

[62 FR 3484, Jan. 23, 1997]



Sec. 1852.216-75  Payment of fixed fee.

    As prescribed in 1816.307-70(c), insert the following clause:

                     Payment of Fixed Fee (DEC 1988)

    The fixed fee shall be paid in monthly installments based upon the 
percentage of completion of work as determined by the Contracting 
Officer.

                             (End of clause)

[62 FR 3484, Jan. 23, 1997]



Sec. 1852.216-76  Award fee for service contracts.

    As prescribed in 1816.406-70(a), insert the following clause:

               Award Fee for Service Contracts (APR 2012)

    (a) The contractor can earn award fee from a minimum of zero dollars 
to the maximum stated in NASA FAR Supplement clause 1852.216-85, 
``Estimated Cost and Award Fee'' in this contract.
    (b) Beginning 6* months after the effective date of this contract, 
the Government shall evaluate the Contractor's performance every 6* 
months to determine the amount of award fee earned by the contractor 
during the period. The Contractor may submit a self-evaluation of 
performance for each evaluation period under consideration. These self-
evaluations will be considered by the Government in its evaluation. The 
Government's Fee Determination Official (FDO) will determine the award 
fee amounts based on the Contractor's performance in accordance with 
[identify performance evaluation plan]. The plan may be revised 
unilaterally by the Government prior to the beginning of any rating 
period to redirect emphasis.
    (c) The Government will advise the Contractor in writing of the 
evaluation results. The [insert payment office] will make payment based 
on [Insert method of authorizing award fee payment, e.g., issuance of 
unilateral modification by contracting officer].
    (d) The Contracting Officer may direct the withholding of earned 
award fee payments until a reserve is set aside in an amount that the 
Contracting Officer considers necessary to protect the Government's 
interest relative to an orderly and timely closeout of the contract. 
This reserve shall not exceed 15 percent of the contract's total 
potential award fee or $100,000, whichever is less.
    (e) The amount of award fee which can be awarded in each evaluation 
period is limited to the amounts set forth at [identify location of 
award fee amounts]. Award fee which is not earned in an evaluation 
period cannot be reallocated to future evaluation periods.
    (f)(1) Provisional award fee payments [insert ``will'' or ``will 
not'', as applicable] be made under this contract pending the 
determination of the amount of fee earned for an evaluation period. If 
applicable, provisional award fee payments will be made to the 
Contractor on a [insert the frequency of provisional payments (not more 
often than monthly)] basis. The total amount of award fee available in 
an evaluation period that will be provisionally paid is the lesser of 
[Insert a percent not to exceed 80 percent] or the prior period's 
evaluation score.
    (2) Provisional award fee payments will be superseded by the final 
award fee evaluation for that period. If provisional payments exceed the 
final evaluation score, the Contractor will either credit the next 
payment voucher for the amount of such overpayment or refund the 
difference to the Government, as directed by the Contracting Officer.
    (3) If the Contracting Officer determines that the Contractor will 
not achieve a level of performance commensurate with the provisional 
rate, payment of provisional award fee will be discontinued or reduced 
in such amounts as the Contracting Officer deems appropriate. The 
Contracting Officer will notify the Contractor in writing if it is 
determined that such discontinuance or reduction is appropriate.
    (4) Provisional award fee payments [insert ``will'' or ``will not'', 
as appropriate] be made prior to the first award fee determination by 
the Government.
    (g) Award fee determinations are unilateral decisions made solely at 
the discretion of the Government.
    * [A period of time greater or lesser than 6 months may be 
substituted in accordance with 1816.405-272(a).]

                             (End of clause)

[77 FR 18106, Mar. 27, 2012]

[[Page 277]]



Sec. 1852.216-77  Award fee for end item contracts.

    As prescribed in 1816.406-70(b), insert the following clause:

               Award Fee for End Item Contracts (APR 2012)

    (a) The contractor can earn award fee, or base fee, if any, from a 
minimum of zero dollars to the maximum stated in NASA FAR Supplement 
clause 1852.216-85, ``Estimated Cost and Award Fee'' in this contract. 
All award fee evaluations, with the exception of the last evaluation, 
will be interim evaluations. At the last evaluation, which is final, the 
Contractor's performance for the entire contract will be evaluated to 
determine total earned award fee. No award fee or base fee will be paid 
to the Contractor if the final award fee evaluation is ``poor/
unsatisfactory.''
    (b) Beginning 6* months after the effective date of this contract, 
the Government will evaluate the Contractor's interim performance every 
6* months to monitor Contractor performance prior to contract completion 
and to provide feedback to the Contractor. The evaluation will be 
performed in accordance with [identify performance evaluation plan] to 
this contract. The Contractor may submit a self-evaluation of 
performance for each period under consideration. These self-evaluations 
will be considered by the Government in its evaluation. The Government 
will advise the Contractor in writing of the evaluation results. The 
plan may be revised unilaterally by the Government prior to the 
beginning of any rating period to redirect emphasis.
    (c)(1) Base fee, if applicable, will be paid in [Insert ``monthly'', 
or less frequent period] installments based on the percent of completion 
of the work as determined by the Contracting Officer.
    (2) Interim award fee payments will be made to the Contractor based 
on each interim evaluation. The amount of the interim award fee payment 
is limited to the lesser of the interim evaluation score or 80 percent 
of the fee allocated to that period less any provisional payments made 
during the period. All interim award fee payments will be superseded by 
the final award fee determination.
    (3) Provisional award fee payments will [insert ``not'' if 
applicable] be made under this contract pending each interim evaluation. 
If applicable, provisional award fee payments will be made to the 
Contractor on a [insert the frequency of provisional payments (not more 
often than monthly) basis. The amount of award fee which will be 
provisionally paid in each evaluation period is limited to [Insert a 
percent not to exceed 80 percent] of the prior interim evaluation score 
(see [insert applicable cite]). Provisional award fee payments made each 
evaluation period will be superseded by the interim award fee evaluation 
for that period. If provisional payments made exceed the interim 
evaluation score, the Contractor will either credit the next payment 
voucher for the amount of such overpayment or refund the difference to 
the Government, as directed by the Contracting Officer. If the 
Government determines that (i) the total amount of provisional fee 
payments will apparently substantially exceed the anticipated final 
evaluation score, or (ii) the prior interim evaluation is ``poor/
unsatisfactory,'' the Contracting Officer will direct the suspension or 
reduction of the future payments and/or request a prompt refund of 
excess payments as appropriate. Written notification of the 
determination will be provided to the Contractor with a copy to the 
Deputy Chief Financial Officer (Finance).
    (4) All interim (and provisional, if applicable) fee payments will 
be superseded by the fee determination made in the final award fee 
evaluation. The Government will then pay the Contractor, or the 
Contractor will refund to the Government the difference between the 
final award fee determination and the cumulative interim (and 
provisional, if applicable) fee payments. If the final award fee 
evaluation is ``poor/unsatisfactory'', any base fee paid will be 
refunded to the Government.
    (5) Payment of base fee, if applicable, will be made based on 
submission of an invoice by the Contractor. Payment of award fee will be 
made by the [insert payment office] based on [Insert method of making 
award fee payment, e.g., issuance of a unilateral modification by the 
Contracting Officer].
    (d) The Contracting Officer may direct the withholding of interim 
award fee payments until a reserve is set aside in an amount that the 
Contracting Officer considers necessary to protect the Government's 
interest relative to an orderly and timely closeout of the contract. 
This reserve shall not exceed 15 percent of the contracts total 
potential award fee or $100,000, whichever is less.
    (e) Award fee determinations are unilateral decisions made solely at 
the discretion of the Government.
    * [A period of time greater or lesser than 6 months may be 
substituted in accordance with 1816.405-272(a).]

                             (End of clause)

[77 FR 18106, Mar. 27, 2012]



Sec. 1852.216-78  Firm fixed price.

    As prescribed in 1816.202-70, insert the following clause:

[[Page 278]]

                       Firm Fixed Price (DEC 1988)

    The total firm fixed price of this contract is $ [Insert the 
appropriate amount].

                             (End of clause)

[62 FR 3485, Jan. 23, 1997]



Sec. 1852.216-80  Task ordering procedure.

    As prescribed in 1816.506-70, insert the following clause:

                   Task Ordering Procedures (OCT 1996)

    (a) Only the Contracting Officer may issue task orders to the 
Contractor, providing specific authorization or direction to perform 
work within the scope of the contract and as specified in the schedule. 
The Contractor may incur costs under this contract in performance of 
task orders and task order modifications issued in accordance with this 
clause. No other costs are authorized unless otherwise specified in the 
contract or expressly authorized by the Contracting Officer.
    (b) Prior to issuing a task order, the Contracting Officer shall 
provide the Contractor with the following date:
    (1) A functional description of the work identifying the objectives 
or results desired from the contemplated task order.
    (2) Proposed performance standards to be used as criteria for 
determining whether the work requirements have been met.
    (3) A request for a task plan from the Contractor to include the 
technical approach, period of performance, appropriate cost information, 
and any other information required to determine the reasonableness of 
the Contractor's proposal.
    (c) Within ---- calendar days after receipt of the Contracting 
Officer's request, the Contractor shall submit a task plan conforming to 
the request.
    (d) After review and any necessary discussions, the Contracting 
Officer may issue a task order to the Contractor containing, as a 
minimum, the following:
    (1) Date of the order.
    (2) Contract number and order number.
    (3) Functional description of the work identifying the objectives or 
results desired from the task order, including special instructions or 
other information necessary for performance of the task.
    (4) Performance standards, and where appropriate, quality assurance 
standards.
    (5) Maximum dollar amount authorized (cost and fee or price). This 
includes allocation of award fee among award fee periods, if applicable.
    (6) Any other resources (travel, materials, equipment, facilities, 
etc.) authorized.
    (7) Delivery/performance schedule including start and end dates.
    (8) If contract funding is by individual task order, accounting and 
appropriation data.
    (e) The Contractor shall provide acknowledgement of receipt to the 
Contracting Officer within ---- calendar days after receipt of the task 
order.
    (f) If time constraints do not permit issuance of a fully defined 
task order in accordance with the procedures described in paragraphs (a) 
through (d), a task order which includes a ceiling price may be issued.
    (g) The Contracting officer may amend tasks in the same manner in 
which they are issued.
    (h) In the event of a conflict between the requirements of the task 
order and the Contractor's approved task plan, the task order shall 
prevail.

                             (End of clause)

    Alternate I (OCT 1996). As prescribed in 1816.506-70, insert the 
following paragraph (i) if the contract does not include 533M reporting:

    (i) Contractor shall submit monthly task order progress reports. As 
a minimum, the reports shall contain the following information:
    (1) Contract number, task order number, and date of the order.
    (2) Task ceiling price.
    (3) Cost and hours incurred to date for each issued task.
    (4) Costs and hours estimated to complete each issued task.
    (5) Significant issues/problems associated with a task.
    (6) Cost summary of the status of all tasks issued under the 
contract.

[62 FR 3485, Jan. 23, 1997]



Sec. 1852.216-81  Estimated cost.

    As prescribed in 1816.307-70(d), insert the following clause:

                        Estimated cost (DEC 1988)

    The total estimated cost for complete performance of this contract 
is $ [Insert total estimated cost of the contract]. See FAR clause 
52.216-11, Cost Contract--No Fee, of this contract.

                             (End of clause)

[62 FR 3486, Jan. 23, 1997]



Sec. 1852.216-83  Fixed price incentive.

    As prescribed in 1816.406-70(c), insert the following clause:

                    Fixed Price Incentive (OCT 1996)

    The target cost of this contract is $------. The Target profit of 
this contract is $------.

[[Page 279]]

The target price (target cost plus target profit) of this contract is 
$------. [The ceiling price is $------.]
    The cost sharing for target cost underruns is: Government ---- 
percent; Contractor ---- percent.
    The cost sharing for target cost overruns is: Government ---- 
percent; Contractor ---- percent.

                             (End of clause)

[62 FR 3486, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997]



Sec. 1852.216-84  Estimated cost and incentive fee.

    As prescribed in 1816.406-70(d), insert the following clause:

               Estimated Cost and Incentive Fee (OCT 1996)

    The target cost of this contract is $------. The target fee of this 
contract is $------. The total target cost and target fee as 
contemplated by the Incentive Fee clause of this contract are $------.
    The maximum fee is $------.
    The minimum fee is $------.
    The cost sharing for cost underruns is: Government ---- percent; 
Contractor ---- percent.
    The cost sharing for cost overruns is: Government ---- percent; 
Contractor ---- percent.

                             (End of clause)

[62 FR 3486, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997]



Sec. 1852.216-85  Estimated cost and award fee.

    As prescribed in 1816.406-70(e), insert the following clause:

                 Estimated Cost and Award Fee (SEP 1993)

    The estimated cost of this contract is $------. The maximum 
available award fee, excluding base fee, if any, is $------. The base 
fee is $------. Total estimated cost, base fee, and maximum award fee 
are $------.

                             (End of clause)

    Alternate I (SEP 1993). As prescribed in 1816.405-70(e), insert the 
following sentence at the end of the clause:

    The maximum positive performance incentive is $------. The maximum 
negative performance incentive is (1).
    (1) For research development hardware contracts, insert [equal to 
total earned award fee (including any base fee)]. For production 
hardware contracts, insert [$total potential award fee amount, including 
any base fee)].

                             (End of clause)

[62 FR 3486, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997]



Sec. 1852.216-87  Submission of vouchers for payment.

    As prescribed in 1816.307-70(e), insert the following clause:

             Submission for Vouchers for Payment (MAR 1998)

    (a) The designated billing office for cost vouchers for purposes of 
the Prompt Payment clause of this contract is indicated below. Public 
vouchers for payment of costs shall include a reference to the number of 
this contract.
    (b)(1) If the contractor is authorized to submit interim cost 
vouchers directly to the NASA paying office, the original voucher should 
be submitted to: [Insert the mailing address for submission of cost 
vouchers]
    (2) For any period that the Defense Contract Audit Agency has 
authorized the Contractor to submit interim cost vouchers directly to 
the Government paying office, interim vouchers are not required to be 
sent to the Auditor, and are considered to be provisionally approved for 
payment, subject to final audit.
    (3) Copies of vouchers should be submitted as directed by the 
Contracting Officer. (c) If the contractor is not authorized to submit 
interim cost vouchers directly to the paying office as described in 
paragraph (b), the contractor shall prepare and submit vouchers as 
follows:
    (1) One original Standard Form (SF) 1034, SF 1035, or equivalent 
Contractor's attachment to: [Insert the appropriate NASA or DCAA mailing 
office address for submission of cost vouchers]
    (2) Five copies of SF 1034, SF 1035A, or equivalent Contractor's 
attachment to the following offices by insertion in the memorandum block 
of their names and addresses:
    (i) Copy 1 NASA Contracting Officer;
    (ii) Copy 2 Auditor;
    (iii) Copy 3 Contractor;
    (iv) Copy 4 Contract administration office; and
    (v) Copy 5 Project management office.
    (3) The Contracting Officer may designate other recipients as 
required.
    (d) Public vouchers for payment of fee shall be prepared similarly 
to the procedures in paragraphs (b) or (c) of this clause, whichever is 
applicable, and be forwarded to: [insert the mailing address for 
submission of fee

[[Page 280]]

vouchers] This is the designated billing office for fee vouchers for 
purposes of the Prompt Payment clause of this contract.
    (e) In the event that amounts are withheld from payment in 
accordance with provisions of this contract, a separate voucher for the 
amount withheld will be required before payment for that amount may be 
made.

                             (End of clause)

[63 FR 15321, Mar. 31, 1998]



Sec. 1852.216-88  Performance incentive.

    As prescribed in 1816.406-70(f), insert the following clause:

                    Performance Incentive (JAN 1997)

    (a) A performance incentive applies to the following hardware 
item(s) delivered under this contract: (1).
    The performance incentive will measure the performance of those 
items against the salient hardware performance requirement, called 
``unit(s) of measurement,'' e.g., months in service or amount of data 
transmitted, identified below. The performance incentive becomes 
effective when the hardware is put into service. It includes a standard 
performance level, a positive incentive, and a negative incentive, which 
are described in this clause.
    (b) Standard performance level. At the standard performance level, 
the Contractor has met the contract requirement for the unit of 
measurement. Neither positive nor negative incentives apply when this 
level is achieved but not exceeded. The standard performance level for 
(1) ---- is established as follows: (2).
    (c) Positive incentive. The Contractor earns a separate positive 
incentive amount for each hardware item listed in paragraph (a) of this 
clause when the standard performance level for that item is exceeded. 
The amount earned for each item varies with the units of measurement 
achieved, up to a maximum positive performance incentive amount of $ (3) 
---- per item. The units of measurement and the incentive amounts 
associated with achieving each unit are shown below: (4).
    (d) Negative incentive. The Contractor will pay to the Government a 
negative incentive amount for each hardware item that fails to achieve 
the standard performance level. The amount to be paid for each item 
varies with the units of measurement achieved, up to the maximum 
negative incentive amount of $ (5) ----. The units of measurement and 
the incentive amounts associated with achieving each unit are shown 
below: (6).
    (e) The final calculation of positive or negative performance 
incentive amounts shall be done when performance (as defined by the unit 
of measurement) ceases or when the maximum positive incentive is 
reached.
    (1) When the Contracting Officer determines that the performance 
level achieved fell below the standard performance level, the Contractor 
will either pay the amount due the Government or credit the next payment 
voucher for the amount due, as directed by the Contracting Officer.
    (2) When the performance level exceeds the standard level, the 
Contractor may request payment of the incentive amount associated with a 
given level of performance, provided that such payments shall not be 
more frequent than monthly. When performance ceases or the maximum 
positive incentive is reached, the Government shall calculate the final 
performance incentive earned and unpaid and promptly remit it to the 
contractor.
    (f) If performance cannot be demonstrated, through no fault of the 
Contractor, within [insert number of months or years] after the date of 
hardware acceptance by the Government, the Contractor will be paid 
[insert percentage] of the maximum performance incentive.
    (g) The decisions made as to the amount(s) of positive or negative 
incentives are subject to the Disputes clause.
    (1) Insert applicable item number(s) and/or nomenclature.
    (2) Insert a specific unit of measurement for each hardware item 
listed in (1) and each salient characteristic, if more than one.
    (3) Insert the maximum positive performance incentive amount (see 
1816.402-270(e) (1) and (2)).
    (4) Insert all units of measurement and associated dollar amounts up 
to the maximum performance incentive.
    (5) Insert the appropriate amount in accordance with 1816.402-
270(e).
    (6) Insert all units of measurement and associated dollar amounts up 
to the maximum negative performance incentive.

                             (End of clause)

[62 FR 3486, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997]



Sec. 1852.216-89  Assignment and release forms.

    As prescribed in 1816.307-70(f), insert the following clause:

                 Assignment and Release Forms (JUL 1997)

    The Contractor shall use the following forms to fulfill the 
assignment and release requirements of FAR clause 52.216-7, Allowable 
Cost and Payment, and FAR clause 52.216-13, Allowable Cost and Payment 
(Facilities):
    NASA Form 778, Contractor's Release;
    NASA Form 779, Assignee's Release;

[[Page 281]]

    NASA Form 780, Contractor's Assignment of Refunds, Rebates, Credits, 
and Other Amounts; and
    NASA Form 781, Assignee's Assignment of Refunds, Rebates, Credits, 
and Other Amounts.
    Computer generated forms are acceptable, provided that they comply 
with FAR clause 52.253-1, Computer Generated Forms.

                             (End of clause)

[62 FR 36733, July 9, 1997; 62 FR 40309, July 28, 1997]



Sec. 1852.217-70  Property administration and reporting.

    As prescribed in 1817.7004-7 and 1817.7005-4, insert the following 
clause:

            Property Administration and Reporting (DEC 2005)

    All property acquired for, and reimbursed by, NASA or transferred by 
NASA for use under this NASA-Interagency Purchase Request shall be 
controlled and accounted for in accordance with the servicing agency's 
normal procedures. All excess items, however, costing $500 or more and 
in condition Code 7 or better (GSA Condition Codes) shall be reported to 
the NASA originating office for possible reutilization before 
disposition.

                             (End of clause)

[70 FR 74206, Dec. 15, 2005]



Sec. 1852.217-71  Phased acquisition using down-selection procedures.

    As prescribed in 1817.7302(a), insert the following clause:

      Phased Acquisition Using Down-Selection Procedures (MAY 2000)

    (a) This solicitation is for the acquisition of --------------------
---- [insert Program title]. The acquisition will be conducted as a two-
phased procurement using a competitive down-selection technique between 
phases. In this technique, two or more contractors will be selected for 
Phase 1. It is expected that the single contractor for Phase 2 will be 
chosen from among these contractors after a competitive down-selection.
    (b) Phase 1 is for the ---------------------- [insert purpose of 
phase]. Phase 2 is for ---------------------- [insert general Phase 2 
goals].
    (c) The competition for Phase 2 will be based on the results of 
Phase 1, and the award criteria for Phase 2 will include successful 
completion of Phase 1 requirements.
    (d) NASA will issue a separate, formal solicitation for Phase 2 that 
will include all information required for preparation of proposals, 
including the final evaluation factors.
    (e) Phase 2 will be synopsized in the Governmentwide Point of Entry 
(GPE) in accordance with FAR 5.201 and 5.203 unless one of the 
exceptions in FAR 5.202 applies. Notwithstanding NASA's expectation that 
only the Phase 1 contractors will be capable of successfully competing 
for Phase 2, all proposals will be considered. Any other responsible 
source may indicate its desire to submit a proposal by responding to the 
Phase 2 synopsis, and NASA will provide that source a solicitation.
    (f) To be considered for Phase 2 award, offerors must demonstrate a 
design maturity equivalent to that of the Phase 1 contractors. This, 
demonstration shall include the following Phase 1 deliverables upon 
which Phase 2 award will be based: ------------------------------ 
[(insert the specific Phase 1 deliverables]. Failure to fully and 
completely demonstrate the appropriate level of design maturity may 
render the proposal unacceptable with no further consideration for 
contract award.
    (g) The following draft Phase 2 evaluation factors are provided for 
your information. Please note that these evaluation factors are not 
final, and NASA reserves the right to change them at any time up to and 
including the date upon which Phase 2 proposals are solicited.
    [Insert draft Phase 2 evaluation factors (and subfactors, if 
available), including demonstration of successful completion of Phase 1 
requirements.]
    (h) Although NASA will request Phase 2 proposals from Phase 
contractors, submission of the Phase 2 proposal is not a requirement of 
the Phase 1 contract. Accordingly, the costs of preparing these 
proposals shall not be a direct charge to the Phase 1 contract or any 
other Government contract.
    (i) The anticipated schedule for conducting this phased procurement 
is provided for your information. These dates are projections only and 
are not intended to commit NASA to complete a particular action at a 
given time. [Insert dates below].

Phase 1 award--
Phase 2 synopsis--
Phase 2 proposal requested--
Phase 2 proposal receipt--
Phase 2 award--

                             (End of clause)

[63 FR 56093, Oct. 21, 1998, as amended at 65 FR 30013, May 10, 2000; 76 
FR 72330, Nov. 23, 2011]

[[Page 282]]



Sec. 1852.217-72  Phased acquisition using progressive competition down-
          selection procedures.

    As prescribed in 1817.7302(b), insert the following clause:

    Phased Acquisition Using Progressive Competition Down-Selection 
                          Procedures (MAY 2000)

    (a) This solicitation is for the acquisition of --------------------
---------- [insert Program title]. The acquisition will be conducted as 
a two-phased procurement using a progressive competition down-selection 
technique between phases. In this technique, two or more contractors 
will be selected for Phase
    1. It is expected that the single contractor for Phase 2 will be 
chosen from among these contractors after a competitive down-selection.
    (b) Phase 1 is for the ------------------------------ [insert 
purpose of phase]. Phase 2 is for ---------------------------- [insert 
general Phase 2 goals].
    (c) The competition for Phase 2 will be based on the results of 
Phase 1, and the award criteria for Phase 2 will include successful 
completion of Phase 1 requirements.
    (d) NASA does not intend to issue a separate, formal solicitation 
for Phase 2. Instead, Phase 2 proposals will be requested from the Phase 
1 contractors by means of -------------------------------------- 
[indicate method of requesting proposals, e.g., by a letter]. All 
information required for preparation of Phase 2 proposals, including the 
final evaluation criteria and factors, will be provided at that time.
    (e) Phase 2 will be synopsized in the Governmentwide Point of Entry 
(GPE) in accordance with FAR 5.201 and 5.203 unless one of the 
exceptions in FAR 5.202 applies. Notwithstanding NASA's expectation that 
only the Phase 1 contractors will be capable of successfully competing 
for Phase 2, all proposals will be considered. Any other responsible 
source may indicate its desire to submit a proposal by responding to the 
Phase 2 synopsis, and NASA will provide that source to all the material 
furnished to the Phase 1 contractors that is necessary to submit a 
proposal.
    (f) To be considered for Phase 2 award, offerors must demonstrate a 
design maturity equivalent to that of the Phase 1 contractors. This, 
demonstration shall include the following Phase 1 deliverables upon 
which Phase 2 award will be based: -------------------------------- 
[insert the specific Phase 1 deliverables]. Failure to fully and 
completely demonstrate the appropriate level of design maturity may 
render the proposal unacceptable with no further consideration for 
contract award.
    (g) The following draft Phase 2 evaluation factors are provided for 
your information. Please note that these evaluation factors are not 
final, and NASA reserves the right to change them at any time up to and 
including the date upon which Phase 2 proposals are requested. Any such 
changes in evaluation factors will not necessitate issuance of a new, 
formal solicitation for Phase 2.
    [Insert draft Phase 2 evaluation factors (and subfactors, if 
available), including demonstration of successful completion of Phase 1 
requirements.]
    (h) Although NASA will request Phase 2 proposals from Phase 1 
contractors, submission of the Phase 2 proposal is not a requirement of 
the Phase 1 contract. Accordingly, the costs of preparing these 
proposals shall not be a direct charge to the Phase 1 contract or any 
other Government contract.
    (i) The anticipated schedule for conducting this phased procurement 
is provided for your information. These dates are projections only and 
are not intended to commit NASA to complete a particular action at a 
given time. [Insert dates below].

Phase 1 award--
Phase 2 synopsis--
Phase 2 proposal requested--
Phase 2 proposal receipt--
Phase 2 award--

                             (End of clause)

[63 FR 56093, Oct. 21, 1998, as amended at 65 FR 30013, May 10, 2000; 76 
FR 72330, Nov. 23, 2011]



Sec. 1852.219-73  Small business subcontracting plan.

    As prescribed in 1819.708-70(a), insert the following provision:

              Small Business Subcontracting Plan (MAY 1999)

    (a) This provision is not applicable to small business concerns.
    (b) The contract expected to result from this solicitation will 
contain FAR clause 52.219-9, ``Small Business Subcontracting Plan.'' The 
apparent low bidder must submit the complete plan within [Insert number 
of days] calendar days after request by the Contracting Officer.

                           (End of provision)

[62 FR 36733, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 64 
FR 25215, May 11, 1999]



Sec. 1852.219-74  Use of rural area small businesses.

    As prescribed in 1819.7103, insert the following clause:

[[Page 283]]

               Use of Rural Area Small Business (SEP 1990)

    (a) Definitions.
    Rural area means any county with a population of fewer than twenty 
thousand individuals.
    Small business concern, as used in this clause, means a concern, 
including its affiliates, that is independently owned and operated, not 
dominant in the field of operation in which it is bidding under this 
contract, and qualified as a small business under the criteria and size 
standards in 13 CFR part 121.
    (b) NASA prime and subcontractors are encouraged to use their best 
efforts to award subcontracts to small business concerns located in 
rural areas.
    (c) Contractors acting in good faith may rely on written 
representations by their subcontractors regarding their status as small 
business concerns located in rural areas.
    (d) The Contractor agrees to insert the provisions of this clause, 
including this paragraph (d), in all subcontracts hereunder that offer 
subcontracting possibilities.

                             (End of clause)

[55 FR 47479, Nov. 14, 1990]



Sec. 1852.219-75  Small business subcontracting reporting.

    As prescribed in 1819.708-70(b), insert the following clause:

           Small Business Subcontracting Reporting (MAY 1999)

    (a) The Contractor shall submit the Summary Subcontract Report 
(Standard Form (SF) 295) semiannually for the reporting periods 
specified in block 4 of the form. All other instructions for SF 295 
remain in effect.
    (b) The Contractor shall include this clause in all subcontracts 
that include the clause at FAR 52.219-9.

                             (End of clause)

[62 FR 36733, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 64 
FR 25216, May 11, 1999]



Sec. 1852.219-76  NASA 8 percent goal.

    As prescribed in 1819.7003 insert the following clause:

                     NASA 8 Percent Goal (JUL 1997)

    (a) Definitions.
    Historically Black Colleges or University, as used in this clause 
means an institution determined by the Secretary of Education to meet 
the requirements of 34 CFR Section 608.2. The term also includes any 
nonprofit research institution that was an integral part of such a 
college or university before November 14, 1986.
    Minority institutions, as used in this clause, means an institution 
of higher education meeting the requirements of section 1046(3) of the 
Higher Education Act of 1965 (20 U.S.C. 1135d-5(3)) which for the 
purposes of this clause includes a Hispanic-serving institution of 
higher education as defined in section 316(b)(1) of the Act (20 U.S.C. 
1059c(b)(1)).
    Small disadvantaged business concern, as used in this clause, means 
a small business concern that (1) is at least 51 percent unconditionally 
owned by one or more individuals who are both socially and economically 
disadvantaged, or a publicly owned business having at least 51 percent 
of its stock unconditionally owned by one or more socially and 
economically disadvantaged individuals, and (2) has its management and 
daily business controlled by one or more such individuals. This term 
also means a small business concern that is at least 51 percent 
unconditionally owned by an economically disadvantaged Indian tribe or 
Native Hawaiian Organization, or a publicly owned business having at 
least 51 percent of its stock unconditionally owned by one or more of 
these entities, which has its management and daily business controlled 
by members of an economically disadvantaged Indian tribe or Native 
Hawaiian Organization, and which meets the requirements of 13 CFR 124.
    Women-owned small business concern, as used in this clause, means a 
small business concern (1) which is at least 51 percent owned by one or 
more women or, in the case of any publicly owned business, at least 51 
percent of the stock of which is owned by one or more women, and (2) 
whose management and daily business operations are controlled by one or 
more women.
    (b) The NASA Administrator is required by statute to establish 
annually a goal to make available to small disadvantaged business 
concerns, Historically Black Colleges and Universities, minority 
institutions, and women-owned small business concerns, at least 8 
percent of NASA's procurement dollars under prime contracts or 
subcontracts awarded in support of authorized programs, including the 
space station by the time operational status is obtained.
    (c) The contractor hereby agrees to assist NASA in achieving this 
goal by using its best efforts to award subcontracts to such entities to 
the fullest extent consistent with efficient contract performance.
    (d) Contractors acting in good faith may rely on written 
representations by their subcontractors regarding their status as small 
disadvantaged business concerns, Historically Black Colleges and 
Universities, minority institutions, and women-owned small business 
concerns.

[[Page 284]]

                             (End of clause)

[62 FR 36733, July 9, 1997; 62 FR 40309, July 28, 1997]



Sec. 1852.219-77  NASA Mentor-Prot[eacute]g[eacute] Program.

    As prescribed in 1819.7215, insert the following clause:

         NASA Mentor-Prot[eacute]g[eacute] Program (Month/Year)

    (a) Prime contractors are encouraged to participate in the NASA 
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 NASA 
contracts.
    (b) The Program consists of:
    (1) Mentors, which are large businesses and prime contractors with 
at least one active and approved NASA subcontracting plan;
    (2) Prot[eacute]g[eacute]s, which are subcontractors to the prime 
contractor. Prot[eacute]g[eacute]s must qualify as certified small 
disadvantaged business concerns, women-owned small business concerns, 
veteran-owned or service-disabled veteran-owned small business concerns, 
HUBZone small business concerns, Historically Black Colleges and 
Universities, minority institutions of higher education, meeting the 
qualifications defined in FAR part 2, Definitions of Parts and Term, 
active NASA SBIR Phase II companies or nonprofit agencies employing 
people who are blind or severely disabled as defined in 41 CFR Chapter 
51.
    (3) Mentor-prot[eacute]g[eacute] agreements endorsed by the 
cognizant NASA centers and approved by the NASA Office of Small Business 
Programs (OSBP);
    (4) In contracts with award fee incentives, potential for payment of 
an award fee for voluntary participation and successful performance in 
the Mentor-Prot[eacute]g[eacute] Program, in accordance with NFS 
1819.7208.
    (c) Mentor participation in the Program, described in NFS 1819.72, 
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 NASA contracts 
and subcontracts.
    (d) Contractors interested in participating in the program are 
encouraged to contact the NASA OSBP, Washington, DC 20546, (202) 358-
2088, for further information.

                             (End of clause)

[74 FR 25676, May 29, 2009]



Sec. 1852.219-79  Mentor requirements and evaluation.

    As prescribed in 1819.7215, insert the following clause:

             Mentor Requirements and Evaluation (Month/Year)

    (a) The purpose of the NASA Mentor-Prot[eacute]g[eacute] Program is 
for a NASA prime contractor to provide developmental assistance to 
certain subcontractors qualifying as prot[eacute]g[eacute]s.
    Eligible prot[eacute]g[eacute]s include certified small 
disadvantaged business concerns, women-owned small business concerns, 
veteran-owned or service-disabled veteran-owned small business concerns, 
HUBZone small business concerns, Historically Black Colleges and 
Universities, minority institutions of higher education, as defined in 
FAR part 2, Definitions of Parts and Terms, active NASA SBIR Phase II 
companies and nonprofit agencies employing the blind or severely 
handicapped as defined in 41 CFR chapter 51.
    (b) NASA will evaluate the contractor's performance on the following 
factors. If this contract includes an award fee incentive, this 
assessment will be accomplished as part of the fee evaluation process.
    (1) Specific actions taken by the contractor, during the evaluation 
period, to increase the participation of prot[eacute]g[eacute]s as 
subcontractors and suppliers;
    (2) Specific actions taken by the contractor during this evaluation 
period to develop the technical and corporate administrative expertise 
of a prot[eacute]g[eacute] as defined in the agreement;
    (3) To what extent the mentor and prot[eacute]g[eacute] have met the 
developmental milestones outlined in the agreement; and
    (4) To what extent the entities' 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 
and agencies other than the mentor.
    (c) Semiannual reports shall be submitted by the mentor and the 
prot[eacute]g[eacute] to the cognizant NASA center and NASA Headquarters 
Office of Small Business Programs (OSBP), following the semiannual 
report template found on the Web site at http://www.osbp.nasa.gov.
    (d) The mentor will notify the cognizant NASA center and NASA OSBP 
in writing, at least 30 days in advance of the mentor's intent to 
voluntarily withdraw from the program or upon receipt of a 
prot[eacute]g[eacute]'s notice to withdraw from the Program;
    (e) 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 NASA Mentor-Prot[eacute]g[eacute] program manager, 
the technical program manager, and the contracting

[[Page 285]]

officer during a formal program review regarding Program 
accomplishments, as it pertains to the approved agreement.
    (f) NASA may terminate mentor-prot[eacute]g[eacute] agreements for 
good cause, thereby excluding mentors or prot[eacute]g[eacute]s from 
participating in the NASA Mentor-Prot[eacute]g[eacute] program. These 
actions shall be approved by the NASA OSBP. NASA shall terminate an 
agreement by delivering to the contractor a letter specifying the reason 
for termination and the effective date. Termination of an agreement 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.

                             (End of clause)



Sec. 1852.219-80  Limitation on subcontracting--SBIR Phase I program.

    As prescribed in 1819.7302(a), insert the following clause:

      Limitation on Subcontracting--SBIR Phase I Program (OCT 2006)

    The Contractor shall perform a minimum of two-thirds of the research 
and/or analytical effort (total contract price less profit) conducted 
under this contract. Any deviation from this requirement must be 
approved in advance and in writing by the Contracting Officer.

                             (End of clause)

[71 FR 61688, Oct. 19, 2006]



Sec. 1852.219-81  Limitation on subcontracting--SBIR Phase II program.

    As prescribed in 1819.7302(b), insert the following clause:

     Limitation on Subcontracting--SBIR Phase II Program (OCT 2006)

    The Contractor shall perform a minimum of one-half of the research 
and/or analytical effort (total contract price less profit) conducted 
under this contract. Any deviation from this requirement must be 
approved in advance and in writing by the Contracting Officer. Since the 
selection of R&D contractors is substantially based on the best 
scientific and technological sources, it is important that the 
Contractor not subcontract technical or scientific work without the 
Contracting Officer's advance approval.

                             (End of clause)

[71 FR 61688, Oct. 19, 2006]



Sec. 1852.219-82  Limitation on subcontracting--STTR program.

    As prescribed in 1819.7302(c), insert the following clause:

          Limitation on Subcontracting--STTR Program (OCT 2006)

    The Contractor shall perform a minimum of 40 percent of the work 
under this contract (total contract price including cost sharing if any, 
less profit if any). A minimum of 30 percent of the work under this 
contract shall be performed by the research institution. Since the 
selection of R&D contractors is substantially based on the best 
scientific and technological sources, it is important that the 
Contractor not subcontract technical or scientific work without the 
Contracting Officer's advance approval.

                             (End of clause)

[71 FR 61688, Oct. 19, 2006]



Sec. 1852.219-83  Limitation of the principal investigator--SBIR 
          program.

    As prescribed in 1819.7302(d), insert the following clause:

    Limitation of the Principal Investigator--SBIR Program (OCT 2006)

    The primary employment of the principal investigator (PI) shall be 
with the small business concern (SBC)/Contractor during the conduct of 
this contract. Primary employment means that more than one-half of the 
principal investigator's time is spent in the employ of the SBC/
Contractor. This precludes full-time employment with another 
organization. Deviations from these requirements must be approved in 
advance and in writing by the Contracting Officer and are not subject to 
a change in the firm-fixed price of the contract. The PI for this 
contract is (insert name).

                             (End of clause)

[71 FR 61688, Oct. 19, 2006]



Sec. 1852.219-84  Limitation of the principal investigator--STTR 
          program.

    As prescribed in 1819.7302(e), insert the following clause:

    Limitation of the Principal Investigator--STTR Program (OCT 2006)

    (a) The primary employment of the principal investigator (PI) 
identified in paragraph (b) of this clause is with the small business 
concern (SBC)/Contractor or the research institution (RI). Primary 
employment

[[Page 286]]

means that more than one-half of the principal investigator's time is 
spent in the employ of the SBC/Contractor or RI.
    (b) The PI is considered to be key personnel in the performance of 
this contract. The SBC/Contractor, whether or not the employer of the 
PI, shall exercise primary management direction and control over the PI 
and be overall responsible for the PI's performance under this contract. 
Deviations from these requirements must be approved in advance and in 
writing by the Contracting Officer and are not subject to a change in 
the firm-fixed price of the contract. The PI for this contract is 
(insert name).

                             (End of clause)

[71 FR 61688, Oct. 19, 2006]



Sec. 1852.219-85  Conditions for final payment--SBIR and STTR contracts.

    As prescribed in 1819.7302(f), insert the following clause:

    Conditions for Final Payment--SBIR AND STTR Contracts (OCT 2006)

    As a condition for final payment under this contract, the Contractor 
shall provide the following certifications as part of its final payment 
invoice request:
    During performance of this contract--
    1. Essentially equivalent work performed under this contract has not 
been proposed for funding to another Federal agency;
    2. No other Federal funding award has been received for essentially 
equivalent work performed under this contract;
    3. Deliverable items submitted under this contract have not been 
submitted as deliverable items under another Federal funding award;
    4. For SBIR contracts: The subcontracting limitation set forth in 
this contract was not exceeded except as approved in writing by the 
Contracting Officer on (insert date of approval or modification 
number.);
    5. For STTR contracts: The subcontracting limitation set forth in 
this contract was not exceeded;
    6. For SBIR contracts: The primary employment of the principal 
investigator (PI) identified in this SBIR contract was with the 
Contractor, except as approved in writing by the Contracting Officer on 
(insert date of approval or modification number); and
    7. For STTR contracts: The primary employment of the principal 
investigator (PI) identified in this STTR contract was the SBC/
Contractor or the research institution (RI). The PI identified in the 
STTR contract was considered key in the performance of this contract. 
The SBC/Contractor, whether or not the employer of the PI, did exercise 
primary management direction and control over the PI and was overall 
responsible for the PI's performance under this contract. Any 
substitutions of this individual were approved in writing by the 
Contracting Officer on (insert date of approval or modification number).
    I understand that the willful provision of false information or 
concealing a material fact in this representation is a criminal offense 
under Title 18 USC, Section 1001, False Statements, as well as Title 18 
U.S.C., Section 287, False Claims.

                             (End of clause)

[71 FR 61688, Oct. 19, 2006]



Sec. 1852.223-70  Safety and health.

    As prescribed in 1823.7004(c), insert the following clause:

                      Safety and Health (APR 2002)

    (a) Safety is the freedom from those conditions that can cause 
death, injury, occupational illness, damage to or loss of equipment or 
property, or damage to the environment. NASA's safety priority is to 
protect: (1) The public, (2) astronauts and pilots, (3) the NASA 
workforce (including contractor employees working on NASA contracts), 
and (4) high-value equipment and property.
    (b) The Contractor shall take all reasonable safety and occupational 
health measures in performing this contract. The Contractor shall comply 
with all Federal, State, and local laws applicable to safety and 
occupational health and with the safety and occupational health 
standards, specifications, reporting requirements, and any other 
relevant requirements of this contract.
    (c) The Contractor shall take, or cause to be taken, any other 
safety, and occupational health measures the Contracting Officer may 
reasonably direct. To the extent that the Contractor may be entitled to 
an equitable adjustment for those measures under the terms and 
conditions of this contract, the equitable adjustment shall be 
determined pursuant to the procedures of the changes clause of this 
contract; provided, that no adjustment shall be made under this Safety 
and Health clause for any change for which an equitable adjustment is 
expressly provided under any other clause of the contract.
    (d) The Contractor shall immediately notify and promptly report to 
the Contracting Officer or a designee any accident, incident, or 
exposure resulting in fatality, lost-time occupational injury, 
occupational disease, contamination of property beyond any stated 
acceptable limits set forth in the contract Schedule; or property loss 
of $25,000 or more, or Close Call (a situation or occurrence with no 
injury, no damage or only minor damage (less than $1,000) but possesses 
the potential to cause any type mishap, or any injury, damage, or 
negative mission impact) that

[[Page 287]]

may be of immediate interest to NASA, arising out of work performed 
under this contract. The Contractor is not required to include in any 
report an expression of opinion as to the fault or negligence of any 
employee. In addition, service contractors (excluding construction 
contracts) shall provide quarterly reports specifying lost-time 
frequency rate, number of lost-time injuries, exposure, and accident/
incident dollar losses as specified in the contract Schedule.
    (e) The Contractor shall investigate all work-related incidents, 
accidents, and Close Calls, to the extent necessary to determine their 
causes and furnish the Contracting Officer a report, in such form as the 
Contracting Officer may require, of the investigative findings and 
proposed or completed corrective actions.
    (f)(1) The Contracting Officer may notify the Contractor in writing 
of any noncompliance with this clause and specify corrective actions to 
be taken. When the Contracting Officer becomes aware of noncompliance 
that may pose a serious or imminent danger to safety and health of the 
public, astronauts and pilots, the NASA workforce (including contractor 
employees working on NASA contracts), or high value mission critical 
equipment or property, the Contracting Officer shall notify the 
Contractor orally, with written confirmation. The Contractor shall 
promptly take and report any necessary corrective action.
    (2) If the Contractor fails or refuses to institute prompt 
corrective action in accordance with subparagraph (f)(1) of this clause, 
the Contracting Officer may invoke the stop-work order clause in this 
contract or any other remedy available to the Government in the event of 
such failure or refusal.
    (g) The Contractor (or subcontractor or supplier) shall insert the 
substance of this clause, including this paragraph (g) and any 
applicable Schedule provisions and clauses, with appropriate changes of 
designations of the parties, in all solicitations and subcontracts of 
every tier, when one or more of the following conditions exist:
    (1) The work will be conducted completely or partly on premises 
owned or controlled by the Government.
    (2) The work includes construction, alteration, or repair of 
facilities in excess of the simplified acquisition threshold.
    (3) The work, regardless of place of performance, involves hazards 
that could endanger the public, astronauts and pilots, the NASA 
workforce (including Contractor employees working on NASA contracts), or 
high value equipment or property, and the hazards are not adequately 
addressed by Occupational Safety and Health Administration (OSHA) or 
Department of Transportation (DOT) regulations (if applicable).
    (4) When the Contractor (or subcontractor or supplier) determines 
that the assessed risk and consequences of a failure to properly manage 
and control the hazard(s) warrants use of the clause.
    (h) The Contractor (or subcontractor or supplier) may exclude the 
provisions of paragraph (g) from its solicitation(s) and subcontract(s) 
of every tier when it determines that the clause is not necessary 
because the application of the OSHA and DOT (if applicable) regulations 
constitute adequate safety and occupational health protection. When a 
determination is made to exclude the provisions of paragraph (g) from a 
solicitation and subcontract, the Contractor must notify and provide the 
basis for the determination to the Contracting Officer. In subcontracts 
of every tier above the micro-purchase threshold for which paragraph (g) 
does not apply, the Contractor (or subcontractor or supplier) shall 
insert the substance of paragraphs (a), (b), (c), and (f) of this 
clause).
    (i) Authorized Government representatives of the Contracting Officer 
shall have access to and the right to examine the sites or areas where 
work under this contract is being performed in order to determine the 
adequacy of the Contractor's safety and occupational health measures 
under this clause.
    (j) The contractor shall continually update the safety and health 
plan when necessary. In particular, the Contractor shall furnish a list 
of all hazardous operations to be performed, and a list of other major 
or key operations required or planned in the performance of the 
contract, even though not deemed hazardous by the Contractor. NASA and 
the Contractor shall jointly decide which operations are to be 
considered hazardous, with NASA as the final authority. Before hazardous 
operations commence, the Contractor shall submit for NASA concurrence--
    (1) Written hazardous operating procedures for all hazardous 
operations; and/or
    (2) Qualification standards for personnel involved in hazardous 
operations.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 56 FR 12460, Mar. 26, 1991; 58 
FR 51142, Sept. 30, 1993; 61 FR 5315, Feb. 12, 1996; 62 FR 14033, Mar. 
25, 1997; 65 FR 37060, June 13, 2000; 65 FR 70316, Nov. 22, 2000; 66 FR 
18052, Apr. 5, 2001; 67 FR 17016, Apr. 9, 2002]



Sec. 1852.223-71  Frequency authorization.

    As prescribed in 1823.7101, insert the following clause:

                   Frequency Authorization (DEC 1988)

    (a) Authorization of radio frequencies required in support of this 
contract shall be obtained by the Contractor or subcontractor in need 
thereof.

[[Page 288]]

    (b) For any experimental, developmental, or operational equipment 
for which the appropriate frequency allocation has not been made, the 
Contractor or subcontractor shall provide the technical operating 
characteristics of the proposed electromagnetic radiating device to the 
Contracting Officer during the initial planning, experimental, or 
developmental phase of contractual performance. Procedures furnished by 
the Contracting Officer shall be followed in obtaining radio frequency 
authorization.
    (c) This clause, including this paragraph (c), shall be included in 
all subcontracts that call for developing, producing, testing, or 
operating a device for which a radio frequency authorization is 
required.

                             (End of clause)



Sec. 1852.223-72  Safety and Health (Short Form).

    As prescribed in 1823.7001(e), insert the following clause:

                Safety and Health (Short Form) (APR 2002)

    (a) Safety is the freedom from those conditions that can cause 
death, injury, occupational illness; damage to or loss of equipment or 
property, or damage to the environment. NASA's safety priority is to 
protect: (1) The public, (2) astronauts and pilots, (3) the NASA 
workforce (including contractor employees working on NASA contracts), 
and (4) high-value equipment and property.
    (b) The Contractor shall take all reasonable safety and occupational 
health measures consistent with standard industry practice in performing 
this contract. The Contractor shall comply with all Federal, State, and 
local laws applicable to safety and occupational health and with the 
safety and occupational health standards, specifications, reporting 
requirements, and any other relevant requirements of this contract.
    (c) The Contractor shall take, or cause to be taken, any other 
safety, and occupational health measures the Contracting Officer may 
reasonably direct. To the extent that the Contractor may be entitled to 
an equitable adjustment for those measures under the terms and 
conditions of this contract, the equitable adjustment shall be 
determined pursuant to the procedures of the Changes clause of this 
contract; provided, that no adjustment shall be made under this Safety 
and Health clause for any change for which an equitable adjustment is 
expressly provided under any other clause of the contract.
    (d) The Contracting Officer may notify the Contractor in writing of 
any noncompliance with this clause and specify corrective actions to be 
taken. In situations where the Contracting Officer becomes aware of 
noncompliance that may pose a serious or imminent danger to safety and 
health of the public, astronauts and pilots, the NASA workforce 
(including Contractor employees working on NASA contracts), or high 
value mission critical equipment or property, the Contracting Officer 
shall notify the Contractor orally, with written confirmation. The 
Contractor shall promptly take and report any necessary corrective 
action. The Government may pursue appropriate remedies in the event the 
Contractor fails to promptly take the necessary corrective action.
    (e) The Contractor (or subcontractor or supplier) shall insert the 
substance of this clause, including this paragraph (d) and any 
applicable Schedule provisions, with appropriate changes of designations 
of the parties, in subcontracts of every tier that exceed the micro-
purchase threshold.

                             (End of clause)

[66 FR 18052, Apr. 5, 2001, as amended at 67 FR 17017, Apr. 9, 2002]



Sec. 1852.223-73  Safety and Health Plan.

    As prescribed in 1823.7001(c), insert the following provision:

                    Safety and Health Plan (NOV 2004)

    (a) The offeror shall submit a detailed safety and occupational 
health plan as part of its proposal (see NPR 8715.3, NASA Safety Manual, 
Appendices). The plan shall include a detailed discussion of the 
policies, procedures, and techniques that will be used to ensure the 
safety and occupational health of Contractor employees and to ensure the 
safety of all working conditions throughout the performance of the 
contract.
    (b) When applicable, the plan shall address the policies, 
procedures, and techniques that will be used to ensure the safety and 
occupational health of the public, astronauts and pilots, the NASA 
workforce (including Contractor employees working on NASA contracts), 
and high-value equipment and property.
    (c) The plan shall similarly address subcontractor employee safety 
and occupational health for those proposed subcontracts that contain one 
or more of the following conditions:
    (1) The work will be conducted completely or partly on premises 
owned or controlled by the government.
    (2) The work includes construction, alteration, or repair of 
facilities in excess of the simplified acquisition threshold.
    (3) The work, regardless of place of performance, involves hazards 
that could endanger the public, astronauts and pilots, the NASA 
workforce (including Contractor employees working on NASA contracts), or 
high

[[Page 289]]

value equipment or property, and the hazards are not adequately 
addressed by Occupational Safety and Health Administration (OSHA) or 
Department of Transportation (DOT) regulations (if applicable).
    (4) When the assessed risk and consequences of a failure to properly 
manage and control the hazards warrants use of the clause.
    (d) This plan, as approved by the Contracting Officer, will be 
included in any resulting contract.

                           (End of provision)

    Alternate I (NOV 2004) As prescribed in 1823.7001(c), delete the 
first sentence in paragraph (a) of the basic provision and substitute 
the following:

    The apparent low bidder, upon request by the Contracting Officer, 
shall submit a detailed safety and occupational health plan (see NPR 
8715.3, NASA Safety Manual, Appendices). The plan shall be submitted 
within the time specified by the Contracting Officer. Failure to submit 
an acceptable plan shall make the bidder ineligible for the award of a 
contract.

[66 FR 48361, Sept. 20, 2001, as amended at 67 FR 17017, Apr. 9, 2002; 
69 FR 63459, Nov. 2, 2004]



Sec. 1852.223-74  Drug- and alcohol-free workforce.

    As prescribed in 1823.570-2, insert the following clause:

               Drug- and Alcohol-Free Workforce (MAR 1996)

    (a) Definitions. As used in this clause the terms ``employee,'' 
``controlled substance,'' ``employee in a sensitive position,'' and 
``use, in violation of applicable law or Federal regulation, of 
alcohol'' are as defined in 48 CFR 1823.570-2.
    (b) (1) The Contractor shall institute and maintain a program for 
achieving a drug- and alcohol-free workforce. As a minimum, the program 
shall provide for preemployment, reasonable suspicion, random, post-
accident, and periodic recurring (follow-up) testing of contractor 
employees in sensitive positions for use, in violation of applicable law 
or Federal regulation, of alcohol or a controlled substance. The 
Contractor may establish its testing or rehabilitation program in 
cooperation with other contractors or organizations.
    (2) This clause neither prohibits nor requires the Contractor to 
test employees in a foreign country. If the Contractor chooses to 
conduct such testing, this does not authorize the Contractor to violate 
foreign law in conducting such testing.
    (3) The Contractor's program shall test for the use of marijuana and 
cocaine. The Contractor's program may test for the use of other 
controlled substances.
    (4) The Contractor's program shall conform to the ``Mandatory 
Guidelines for Federal Workplace Drug Testing Programs'' published by 
the Department of Health and Human Services (59 FR 29908, June 9, 1994) 
and the procedures in 49 CFR part 40, ``Procedures for Transportation 
Workplace Drug Testing Programs,'' in which references to ``DOT'' shall 
be read as ``NASA'', and the split sample method of collection shall be 
used.
    (c) (1) The Contractor's program shall provide, where appropriate, 
for the suspension, disqualification, or dismissal of any employee in a 
sensitive position in any instance where a test conducted and confirmed 
under the Contractor's program indicates that such individual has used, 
in violation of applicable law or Federal regulation, alcohol or a 
controlled substance.
    (2) The Contractor's program shall further prohibit any such 
individual from working in a sensitive position on a NASA contract, 
unless such individual has completed a program of rehabilitation 
described in paragraph (d) of this clause.
    (3) The Contractor's program shall further prohibit any such 
individual from working in any sensitive position on a NASA contract if 
the individual is determined under the Contractor's program to have 
used, in violation of applicable law or Federal regulation, alcohol or a 
controlled substance and the individual meets any of the following 
criteria:
    (i) The individual had undertaken or completed a rehabilitation 
program described in paragraph (d) of this clause prior to such use;
    (ii) Following such determination, the individual refuses to 
undertake such a rehabilitation program;
    (iii) Following such determination, the individual fails to complete 
such a rehabilitation program; or
    (iv) The individual used a controlled substance or alcohol while on 
duty.
    (d) The Contractor shall institute and maintain an appropriate 
rehabilitation program which shall, as a minimum, provide for the 
identification and opportunity for treatment of employees whose duties 
include responsibility for safety-sensitive, security, or National 
security functions who are in need of assistance in resolving problems 
with the use of alcohol or controlled substances.
    (e) The requirements of this clause shall take precedence over any 
state or local Government laws, rules, regulations, ordinances, 
standards, or orders that are inconsistent with the requirements of this 
clause.
    (f) For any collective bargaining agreement, the Contractor will 
negotiate the

[[Page 290]]

terms of its program with employee representatives, as appropriate, 
under labor relations laws or negotiated agreements. Such negotiation, 
however, cannot change the requirements of this clause. Employees 
covered under collective bargaining agreements will not be subject to 
the requirements of this clause until those agreements have been 
modified, as necessary; provided, however, that if one year after 
commencement of negotiation the parties have failed to reach agreement, 
an impasse will be determined to have been reached and the Contractor 
will unilaterally implement the requirements of this clause.
    (g) The Contractor shall insert a clause containing all the terms of 
this clause, including this paragraph (g), in all subcontracts in which 
work is performed by an employee in a sensitive position, except 
subcontracts for commercial items (see FAR parts 2 and 12).

                             (End of clause)

[61 FR 7226, Feb. 27, 1996, as amended at 69 FR 60968, Oct. 14, 2004]



Sec. 1852.223-75  Major breach of safety or security.

    As prescribed in 1823.7001(d), insert the following clause:

              Major Breach of Safety or Security (FEB 2002)

    (a) Safety is the freedom from those conditions that can cause 
death, injury, occupational illness, damage to or loss of equipment or 
property, or damage to the environment. Safety is essential to NASA and 
is a material part of this contract. NASA's safety priority is to 
protect: (1) The public; (2) astronauts and pilots; (3) the NASA 
workforce (including contractor employees working on NASA contracts); 
and (4) high-value equipment and property. A major breach of safety may 
constitute a breach of contract that entitles the Government to exercise 
any of its rights and remedies applicable to material parts of this 
contract, including termination for default. A major breach of safety 
must be related directly to the work on the contract. A major breach of 
safety is an act or omission of the Contractor that consists of an 
accident, incident, or exposure resulting in a fatality or mission 
failure; or in damage to equipment or property equal to or greater than 
$1 million; or in any ``willful'' or ``repeat'' violation cited by the 
Occupational Safety and Health Administration (OSHA) or by a state 
agency operating under an OSHA approved plan.
    (b) Security is the condition of safeguarding against espionage, 
sabotage, crime (including computer crime), or attack. A major breach of 
security may constitute a breach of contract that entitles the 
Government to exercise any of its rights and remedies applicable to 
material parts of this contract, including termination for default. A 
major breach of security may occur on or off Government installations, 
but must be related directly to the work on the contract. A major breach 
of security is an act or omission by the Contractor that results in 
compromise of classified information, illegal technology transfer, 
workplace violence resulting in criminal conviction, sabotage, 
compromise or denial of information technology services, equipment or 
property damage from vandalism greater than $250,000, or theft greater 
than $250,000.
    (c) In the event of a major breach of safety or security, the 
Contractor shall report the breach to the Contracting Officer. If 
directed by the Contracting Officer, the Contractor shall conduct its 
own investigation and report the results to the Government. The 
Contractor shall cooperate with the Government investigation, if 
conducted.
    Alternate I (FEB 2006) As prescribed in 1823.7001(d)(2), substitute 
the following paragraphs (a) and (b) for paragraphs (a) and (b) of the 
basic clause:

    (a) Safety is the freedom from those conditions that can cause 
death, injury, occupational illness, damage to or loss of equipment or 
property, or damage to the environment. Safety is essential to NASA and 
is a material part of this contract. NASA's safety priority is to 
protect: (1) The public; (2) astronauts and pilots; (3) the NASA 
workforce (including contractor employees working on NASA contracts); 
and (4) high-value equipment and property. A major breach of safety may 
constitute a breach of contract that entitles the Government to exercise 
any of its rights and remedies applicable to material parts of this 
contract, including termination. A major breach of safety must be 
related directly to the work on the contract. A major breach of safety 
is an act or omission of the Contractor that consists of an accident, 
incident, or exposure resulting in a fatality or mission failure; or in 
damage to equipment or property equal to or greater than $1 million; or 
in any ``willful'' or ``repeat'' violation cited by the Occupational 
Safety and Health Administration (OSHA) or by a state agency operating 
under an OSHA approved plan.
    (b) Security is the condition of safeguarding against espionage, 
sabotage, crime (including computer crime), or attack. A major breach of 
security may constitute a breach of contract that entitles the 
Government to exercise any of its rights and remedies applicable to 
material parts of this contract, including termination. A major breach 
of security may occur on or off Government installations, but must be 
related directly to the work on the contract. A

[[Page 291]]

major breach of security is an act or omission by the Contractor that 
results in compromise of classified information, illegal technology 
transfer, workplace violence resulting in criminal conviction, sabotage, 
compromise or denial of information technology services, equipment or 
property damage from vandalism greater than $250,000, or theft greater 
than $250,000.

                             (End of clause)

[65 FR 37061, June 13, 2000, as amended at 65 FR 70316, Nov. 22, 2000; 
66 FR 18053, Apr. 5, 2001; 67 FR 7618, Feb. 20, 2002; 71 FR 8989, Feb. 
22, 2006]



Sec. 1852.223-76  Federal Automotive Statistical Tool Reporting.

    As prescribed at 1823.271 and 1851.205, insert the following clause:

        Federal Automotive Statistical Tool Reporting (JUL 2003)

    If authorized to operate Government-owned or -leased vehicles, 
including interagency fleet management system (IFMS) vehicles or related 
services in performance of this contract, the Contractor shall report 
the data describing vehicle usage required by the Federal Automotive 
Statistical Tool (FAST) by October 15 of each year. FAST is accessed 
through http://fastweb.inel.gov/.

                             (End of clause)

[68 FR 43334, July 22, 2003]



Sec. 1852.225-8  Duty-free entry of space articles.

    As prescribed in 1825.1101(e), add the following paragraph (k) to 
the basic clause at FAR 52.225-8:

    (k) The following supplies will be given duty-free entry:
[Insert the supplies that are to be accorded duty-free entry.]

                            (End of addition)

[65 FR 10033, Feb. 25, 2000]



Sec. 1852.225-70  Export Licenses.

    As prescribed in 1825.1103-70(b), insert the following clause:

                       Export Licenses (FEB 2000)

    (a) The Contractor shall comply with all U.S. export control laws 
and regulations, including the International Traffic in Arms Regulations 
(ITAR), 22 CFR parts 120-130, and the Export Administration Regulations 
(EAR), 15 CFR parts 730-799, in the performance of this contract. In the 
absence of available license exemptions/exceptions, the Contractor shall 
be responsible for obtaining the appropriate licenses or other 
approvals, if required, for exports of hardware, technical data, and 
software, or for the provision of technical assistance.
    (b) The Contractor shall be responsible for obtaining export 
licenses, if required, before utilizing foreign persons in the 
performance of this contract, including instances where the work is to 
be performed on-site at [insert name of NASA installation], where the 
foreign person will have access to export-controlled technical data or 
software.
    (c) The Contractor shall be responsible for all regulatory record 
keeping requirements associated with the use of licenses and license 
exemptions/exceptions.
    (d) The Contractor shall be responsible for ensuring that the 
provisions of this clause apply to its subcontractors.

                             (End of clause)

    Alternate I (FEB 2000). As prescribed in 1825.1103-70(b), add the 
following paragraph (e) as Alternate I to the clause:

    (e) The Contractor may request, in writing, that the Contracting 
Officer authorizes it to export ITAR-controlled technical data 
(including software) pursuant to the exemption at 22 CFR 125.4(b)(3). 
The Contracting Officer or designated representative may authorize or 
direct the use of the exemption where the data does not disclose details 
of the design, development, production, or manufacture of any defense 
article.

[65 FR 6916, Feb. 11, 2000, as amended at 65 FR 10033, Feb. 25, 2000]



Sec. 1852.225-72  [Reserved]



Sec. 1852.227-11  Patent Rights--Retention by the Contractor (Short 
          Form).

    As prescribed at 1827.303-70(a), modify the clause at FAR 52.227-11 
by adding the following subparagraph (5) to paragraph (c) of the basic 
clause; adding the following subparagraph (5) to paragraph (f); and 
using the following subparagraph (2) in lieu of subparagraph (g)(2) of 
the basic clause:

    (c)(5) The Contractor may use whatever format is convenient to 
disclose subject inventions required in subparagraph (c)(1). NASA 
prefers that the contractor use either the electronic or paper version 
of NASA Form 1679, Disclosure of Invention and New Technology (Including 
Software) to disclose subject inventions. Both the electronic and paper 
versions of NASA Form 1679 may be

[[Page 292]]

accessed at the electronic New Technology Reporting Web site http://
invention.nasa.gov.

                            (End of addition)

    (f)(5) The Contractor shall provide the Contracting Officer the 
following:
    (i) A listing every 12 months (or such longer period as the 
Contracting Officer may specify) from the date of the contract, of all 
subject inventions required to be disclosed during the period.
    (ii) A final report prior to closeout of the contract listing all 
subject inventions or certifying that there were none.
    (iii) Upon request, the filing date, serial number and title, a copy 
of the patent application, and patent number and issue date for any 
subject invention in any country in which the contractor has applied for 
patents.
    (iv) An irrevocable power to inspect and make copies of the patent 
application file, by the Government, when a Federal Government employee 
is a coinventor.

                            (End of addition)

    (g)(2) The Contractor shall include the clause in the NASA FAR 
Supplement at 1852.227-70, New Technology, suitably modified to identify 
the parties, in all subcontracts, regardless of tier, for experimental, 
developmental, research, design, or engineering work to be performed by 
other than a small business firm or nonprofit organization.

                          (End of substitution)

[67 FR 30604, May 7, 2002]



Sec. 1852.227-14  Rights in data--General.

    As prescribed in 1827.409(a), add the following subparagraph (3) to 
paragraph (d) of the basic clause at FAR 52.227-14:

    (3)(i) The Contractor agrees not to establish claims to copyright, 
publish or release to others any computer software first produced in the 
performance of this contract without the Contracting Officer's prior 
written permission.
    (ii) If the Government desires to obtain copyright in computer 
software first produced in the performance of this contract and 
permission has not been granted as set forth in paragraph (d)(3)(i) of 
this clause, the Contracting Officer may direct the contractor to 
assert, or authorize the assertion of, claim to copyright in such data 
and to assign, or obtain the assignment of, such copyright to the 
Government or its designated assignee.
    (iii) Whenever the word ``establish'' is used in this clause, with 
reference to a claim to copyright, it shall be construed to mean 
``assert''.

                            (End of addition)

[55 FR 27089, June 29, 1990, as amended at 60 FR 47312, Sept. 12, 1995; 
62 FR 36734, July 9, 1997]



Sec. 1852.227-17  Rights in data--Special works.

    As prescribed in 1827.409(i), add the following paragraph (f) to the 
basic clause at FAR 52.227-17:

    (f) Whenever the words ``establish'' and ``establishment'' are used 
in this clause, with reference to a claim to copyright, they shall be 
construed to mean ``assert'' and ``assertion'', respectively.

                            (End of addition)

[60 FR 47312, Sept. 12, 1995. Redesignated at 61 FR 5315, Feb. 12, 1996, 
as amended at 62 FR 36734, July 9, 1997]



Sec. 1852.227-19  Commercial computer software--Restricted rights.

    (a) As prescribed in 1827.409(k)(i), add the following paragraph (e) 
to the basic clause at FAR 52.227-19:

    (e) For the purposes of receiving updates, correction notices, 
consultation information, or other similar information regarding any 
computer software delivered under this contract/purchase order, the NASA 
Contracting Officer or the NASA Contracting Officer's Technical 
Representative/User may sign any vendor supplied agreements, 
registration forms, or cards and return them directly to the vendor; 
however, such signing shall not alter any of the rights or obligations 
of either NASA or the vendor set forth in this clause or elsewhere in 
this contract/purchase order.

                            (End of addition)

    (b) As prescribed in 1827.409(k)(ii), add the following paragraph 
(f) to the basic clause at FAR 52.227-19:

    (f) Subject to paragraphs (a) through (e) above, those applicable 
portions of the Contractor's standard commercial license or lease 
agreement pertaining to any computer software delivered under this 
purchase order/contract that are consistent with Federal laws, standard 
industry practices, and the Federal Acquisition Regulation (FAR) shall 
be incorporated into and made part of this purchase order/contract.

[[Page 293]]

                            (End of addition)

[55 FR 27090, June 29, 1990, as amended at 55 FR 47480, Nov. 14, 1990; 
55 FR 53153, Dec. 27, 1990; 62 FR 36734, July 9, 1997]



Sec. 1852.227-70  New technology.

    As prescribed in 1827.303-70(b), insert the following clause:

                        New Technology (NOV 1998)

    (a) Definitions. Administrator, as used in this clause, means the 
Administrator of the National Aeronautics and Space Administration 
(NASA) or duly authorized representative.
    Contract, as used in this clause, means any actual or proposed 
contract, agreement, understanding, or other arrangement, and includes 
any assignment, substitution of parties, or subcontract executed or 
entered into thereunder.
    Made, as used in this clause, means conception or first actual 
reduction to practice; provided, that in the case of a variety of plant, 
the date of determination (as defined in section 41(d) of the Plant 
Variety Protection Act, 7 U.S.C. 2401(d)) must also occur during the 
period of contract performance.
    Nonprofit organization, as used in this clause, means a domestic 
university or other institution of higher education or an organization 
of the type described in section 501(c)(3) of the Internal Revenue Code 
of 1954 (26 U.S.C. 501(c)) and exempt from taxation under section 501(a) 
of the Internal Revenue Code (26 U.S.C. 501(a)), or any domestic 
nonprofit scientific or educational organization qualified under a State 
nonprofit organization statute.
    Practical application, as used in this clause, means to manufacture, 
in the case of a composition or product; to practice, in the case of a 
process or method; or to operate, in case of a machine or system; and, 
in each case, under such conditions as to establish that the invention 
is being utilized and that its benefits are, to the extent permitted by 
law or Government regulations, available to the public on reasonable 
terms.
    Reportable item, as used in this clause, means any invention, 
discovery, improvement, or innovation of the contractor, whether or not 
patentable or otherwise protectible under Title 35 of the United States 
Code, made in the performance of any work under any NASA contract or in 
the performance of any work that is reimbursable under any clause in any 
NASA contract providing for reimbursement of costs incurred before the 
effective date of the contract. Reportable items include, but are not 
limited to, new processes, machines, manufactures, and compositions of 
matter, and improvements to, or new applications of, existing processes, 
machines, manufactures, and compositions of matter. Reportable items 
also include new computer programs, and improvements to, or new 
applications of, existing computer programs, whether or not 
copyrightable or otherwise protectible under Title 17 of the United 
States Code.
    Small business firm, as used in this clause, means a domestic small 
business concern as defined at 15 U.S.C. 632 and implementing 
regulations of the Administrator of the Small Business Administration. 
(For the purpose of this definition, the size standard contained in 13 
CFR 121.3-8 for small business contractors and in 13 CFR 121.3-12 for 
small business subcontractors will be used.)
    Subject invention, as used in this clause, means any reportable item 
which is or may be patentable or otherwise protectible under Title 35 of 
the United States Code, or any novel variety of plant that is or may be 
protectible under the Plant Variety Protection Act (7 U.S.C. 2321, et 
seq.).
    (b) Allocation of principal rights--(1) Presumption of title. (i) 
Any reportable item that the Administrator considers to be a subject 
invention shall be presumed to have been made in the manner specified in 
paragraph (1) or (2) of section 305(a) of the National Aeronautics and 
Space Act of 1958 (42 U.S.C. 2457(a)) (hereinafter called ``the Act''), 
and the above presumption shall be conclusive unless at the time of 
reporting the reportable item the Contractor submits to the Contracting 
Officer a written statement, containing supporting details, 
demonstrating that the reportable item was not made in the manner 
specified in paragraph (1) or (2) of section 305(a) of the Act.
    (ii) Regardless of whether title to a given subject invention would 
otherwise be subject to an advance waiver or is the subject of a 
petition for waiver, the Contractor may nevertheless file the statement 
described in paragraph (b)(1)(i) of this clause. The Administrator will 
review the information furnished by the Contractor in any such statement 
and any other available information relating to the circumstances 
surrounding the making of the subject invention and will notify the 
Contractor whether the Administrator has determined that the subject 
invention was made in the manner specified in paragraph (1) or (2) of 
section 305(a) of the Act.
    (2) Property rights in subject inventions. Each subject invention 
for which the presumption of paragraph (b)(1)(i) of this clause is 
conclusive or for which there has been a determination that it was made 
in the manner specified in paragraph (1) or (2) of section 305(a) of the 
Act shall be the exclusive property of the United States as represented 
by NASA unless the Administrator waives all or any part of the rights of 
the United States, as provided in paragraph (b)(3) of this clause.

[[Page 294]]

    (3) Waiver of rights. (i) Section 305(f) of the Act provides for the 
promulgation of regulations by which the Administrator may waive the 
rights of the United States with respect to any invention or class of 
inventions made or that may be made under conditions specified in 
paragraph (1) or (2) of section 305(a) of the Act. The promulgated NASA 
Patent Waiver Regulations, 14 CFR part 1245, subpart 1, have adopted the 
Presidential Memorandum on Government Patent Policy of February 18, 
1983, as a guide in acting on petitions (requests) for such waiver of 
rights.
    (ii) As provided in 14 CFR part 1245, subpart 1, Contractors may 
petition, either prior to execution of the contract or within 30 days 
after execution of the contract, for advance waiver of rights to any or 
all of the inventions that may be made under a contract. If such a 
petition is not submitted, or if after submission it is denied, the 
Contractor (or an employee inventor of the Contractor) may petition for 
waiver of rights to an identified subject invention within eight months 
of first disclosure of invention in accordance with paragraph (e)(2) of 
this clause, or within such longer period as may be authorized in 
accordance with 14 CFR 1245.105.
    (c) Minimum rights reserved by the Government. (1) With respect to 
each subject invention for which a waiver of rights is applicable in 
accordance with 14 CFR part 1245, subpart 1, the Government reserves--
    (i) An irrevocable, nonexclusive, nontransferable, royalty-free 
license for the practice of such invention throughout the world by or on 
behalf of the United States or any foreign government in accordance with 
any treaty or agreement with the United States; and
    (ii) Such other rights as stated in 14 CFR 1245.107.
    (2) Nothing contained in this paragraph (c) shall be considered to 
grant to the Government any rights with respect to any invention other 
than a subject invention.
    (d) Minimum rights to the Contractor. (1) The Contractor is hereby 
granted a revocable, nonexclusive, royalty-free license in each patent 
application filed in any country on a subject invention and any 
resulting patent in which the Government acquires title, unless the 
Contractor fails to disclose the subject invention within the times 
specified in paragraph (e)(2) of this clause. The Contractor's license 
extends to its domestic subsidiaries and affiliates, if any, within the 
corporate structure of which the Contractor is a party and includes the 
right to grant sublicenses of the same scope to the extent the 
Contractor was legally obligated to do so at the time the contract was 
awarded. The license is transferable only with the approval of the 
Administrator except when transferred to the successor of that part of 
the Contractor's business to which the invention pertains.
    (2) The Contractor's domestic license may be revoked or modified by 
the Administrator to the extent necessary to achieve expeditious 
practical application of the subject invention pursuant to an 
application for an exclusive license submitted in accordance with 37 CFR 
part 404, Licensing of Government Owned Inventions. This license will 
not be revoked in that field of use or the geographical areas in which 
the Contractor has achieved practical application and continues to make 
the benefits of the invention reasonably accessible to the public. The 
license in any foreign country may be revoked or modified at the 
discretion of the Administrator to the extent the Contractor, its 
licensees, or its domestic subsidiaries or affiliates have failed to 
achieve practical application in that foreign country.
    (3) Before revocation or modification of the license, the Contractor 
will be provided a written notice of the Administrator's intention to 
revoke or modify the license, and the Contractor will be allowed 30 days 
(or such other time as may be authorized by the Administrator for good 
cause shown by the Contractor) after the notice to show cause why the 
license should not be revoked or modified. The Contractor has the right 
to appeal to the Administrator any decision concerning the revocation or 
modification of its license.
    (e) Invention identification, disclosures, and reports. (1) The 
Contractor shall establish and maintain active and effective procedures 
to assure that reportable items are promptly identified and disclosed to 
Contractor personnel responsible for the administration of this New 
Technology clause within six months of conception and/or first actual 
reduction to practice, whichever occurs first in the performance of work 
under this contract. These procedures shall include the maintenance of 
laboratory notebooks or equivalent records and other records as are 
reasonably necessary to document the conception and/or the first actual 
reduction to practice of the reportable items, and records that show 
that the procedures for identifying and disclosing reportable items are 
followed. Upon request, the Contractor shall furnish the Contracting 
Officer a description of such procedures for evaluation and for 
determination as to their effectiveness.
    (2) The Contractor will disclose each reportable item to the 
Contracting Officer within two months after the inventor discloses it in 
writing to Contractor personnel responsible for the administration of 
this New Technology clause or, if earlier, within six months after the 
Contractor becomes aware that a reportable item has been made, but in 
any event for subject inventions before any on sale, public use, or 
publication of such invention known to the Contractor. The disclosure to 
the agency shall be in the form of a written report and shall identify 
the

[[Page 295]]

contract under which the reportable item was made and the inventor(s) or 
innovator(s). It shall be sufficiently complete in technical detail to 
convey a clear understanding, to the extent known at the time of the 
disclosure, of the nature, purpose, operation, and physical, chemical, 
biological, or electrical characteristics of the reportable item. The 
disclosure shall also identify any publication, on sale, or public use 
of any subject invention and whether a manuscript describing such 
invention has been submitted for publication and, if so, whether it has 
been accepted for publication at the time of disclosure. In addition, 
after disclosure to the agency, the Contractor will promptly notify the 
agency of the acceptance of any manuscript describing a subject 
invention for publication or of any on sale or public use planned by the 
Contractor for such invention.
    (3) The Contractor may use whatever format is convenient to disclose 
reportable items required in subparagraph (e)(2). NASA prefers that the 
Contractor use either the electronic or paper version of NASA Form 1679, 
Disclosure of Invention and New Technology (Including Software) to 
disclose reportable items. Both the electronic and paper versions of 
NASA Form 1679 may be accessed at the electronic New Technology 
Reporting Web site http://invention.nasa.gov.
    (4) The Contractor shall furnish the Contracting Officer the 
following:
    (i) Interim reports every 12 months (or such longer period as may be 
specified by the Contracting Officer) from the date of the contract, 
listing reportable items during that period, and certifying that all 
reportable items have been disclosed (or that there are no such 
inventions) and that the procedures required by paragraph (e)(1) of this 
clause have been followed.
    (ii) A final report, within 3 months after completion of the 
contracted work, listing all reportable items or certifying that there 
were no such reportable items, and listing all subcontracts at any tier 
containing a patent rights clause or certifying that there were no such 
subcontracts.
    (5) The Contractor agrees, upon written request of the Contracting 
Officer, to furnish additional technical and other information available 
to the Contractor as is necessary for the preparation of a patent 
application on a subject invention and for the prosecution of the patent 
application, and to execute all papers necessary to file patent 
applications on subject inventions and to establish the Government's 
rights in the subject inventions.
    (6) The Contractor agrees, subject to section 27.302(i), of the 
Federal Acquisition Regulation (FAR), that the Government may duplicate 
and disclose subject invention disclosures and all other reports and 
papers furnished or required to be furnished pursuant to this clause.
    (f) Examination of records relating to inventions. (1) The 
Contracting Officer or any authorized representative shall, until 3 
years after final payment under this contract, have the right to examine 
any books (including laboratory notebooks), records, and documents of 
the Contractor relating to the conception or first actual reduction to 
practice of inventions in the same field of technology as the work under 
this contract to determine whether--
    (i) Any such inventions are subject inventions;
    (ii) The Contractor has established and maintained the procedures 
required by paragraph (e)(1) of this clause; and
    (iii) The Contractor and its inventors have complied with the 
procedures.
    (2) If the Contracting Officer learns of an unreported Contractor 
invention that the Contracting Officer believes may be a subject 
invention, the Contractor may be required to disclose the invention to 
the agency for a determination of ownership rights.
    (3) Any examination of records under this paragraph will be subject 
to appropriate conditions to protect the confidentiality of the 
information involved.
    (g) Withholding of payment (this paragraph does not apply to 
subcontracts). (1) Any time before final payment under this contract, 
the Contracting Officer may, in the Government's interest, withhold 
payment until a reserve not exceeding $50,000 or 5 percent of the amount 
of this contract, whichever is less, shall have been set aside if, in 
the Contracting Officer's opinion, the Contractor fails to--
    (i) Establish, maintain, and follow effective procedures for 
identifying and disclosing reportable items pursuant to paragraph (e)(1) 
of this clause;
    (ii) Disclose any reportable items pursuant to paragraph (e)(2) of 
this clause;
    (iii) Deliver acceptable interim reports pursuant to paragraph 
(e)(3)(i) of this clause; or
    (iv) Provide the information regarding subcontracts pursuant to 
paragraph (h)(4) of this clause.
    (2) Such reserve or balance shall be withheld until the Contracting 
Officer has determined that the Contractor has rectified whatever 
deficiencies exist and has delivered all reports, disclosures, and other 
information required by this clause.
    (3) Final payment under this contract shall not be made before the 
Contractor delivers to the Contracting Officer all disclosures of 
reportable items required by paragraph (e)(2) of this clause, and an 
acceptable final report pursuant to paragraph (e)(3)(ii) of this clause.

[[Page 296]]

    (4) The Contracting Officer may decrease or increase the sums 
withheld up to the maximum authorized above. No amount shall be withheld 
under this paragraph while the amount specified by this paragraph is 
being withheld under other provisions of the contract. The withholding 
of any amount or the subsequent payment thereof shall not be construed 
as a waiver of any Government rights.
    (h) Subcontracts. (1) Unless otherwise authorized or directed by the 
Contracting Officer, the Contractor shall--
    (i) Include this clause (suitably modified to identify the parties) 
in any subcontract hereunder (regardless of tier) with other than a 
small business firm or nonprofit organization for the performance of 
experimental, developmental, or research work; and
    (ii) Include the clause at FAR 52.227-11 (suitably modified to 
identify the parties) in any subcontract hereunder (regardless of tier) 
with a small business firm or nonprofit organization for the performance 
of experimental, developmental, or research work.
    (2) In the event of a refusal by a prospective subcontractor to 
accept such a clause the Contractor--
    (i) Shall promptly submit a written notice to the Contracting 
Officer setting forth the subcontractor's reasons for such refusal and 
other pertinent information that may expedite disposition of the matter; 
and
    (ii) Shall not proceed with such subcontract without the written 
authorization of the Contracting Officer.
    (3) In the case of subcontracts at any tier, the agency, 
subcontractor, and Contractor agree that the mutual obligations of the 
parties created by this clause constitute a contract between the 
subcontractor and NASA with respect to those matters covered by this 
clause.
    (4) The Contractor shall promptly notify the Contracting Officer in 
writing upon the award of any subcontract at any tier containing a 
patent rights clause by identifying the subcontractor, the applicable 
patent rights clause, the work to be performed under the subcontract, 
and the dates of award and estimated completion. Upon request of the 
Contracting Officer, the Contractor shall furnish a copy of such 
subcontract, and, no more frequently than annually, a listing of the 
subcontracts that have been awarded.
    (5) The subcontractor will retain all rights provided for the 
Contractor in the clause of paragraph (h)(1)(i) or (ii) of this clause, 
whichever is included in the subcontract, and the Contractor will not, 
as part of the consideration for awarding the subcontract, obtain rights 
in the subcontractor's subject inventions.
    (i) Preference for United States industry. Unless provided 
otherwise, no Contractor that receives title to any subject invention 
and no assignee of any such Contractor shall grant to any person the 
exclusive right to use or sell any subject invention in the United 
States unless such person agrees that any products embodying the subject 
invention will be manufactured substantially in the United States. 
However, in individual cases, the requirement may be waived by the 
Administrator upon a showing by the Contractor or assignee that 
reasonable but unsuccessful efforts have been made to grant licenses on 
similar terms to potential licensees that would be likely to manufacture 
substantially in the United States or that under the circumstances 
domestic manufacture is not commercially feasible.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 54 FR 53631, Dec. 29, 1989; 60 
FR 40521, Aug. 9, 1995; 62 FR 36734, July 9, 1997; 63 FR 63209, Nov. 12, 
1998; 67 FR 30604, May 7, 2002]



Sec. 1852.227-71  Requests for waiver of rights to inventions.

    As prescribed in 1827.30-70(c), insert the following provision in 
all solicitations that include the clause at 1852.227-70, New 
Technology:

         Requests for Waiver of Rights to Inventions (APR 1984)

    (a) In accordance with the NASA Patent Waiver Regulations, 14 CFR 
part 1245, subpart 1, waiver of rights to any or all inventions made or 
that may be made under a NASA contract or subcontract with other than a 
small business firm or a domestic nonprofit organization may be 
requested at different time periods. Advance waiver of rights to any or 
all inventions that may be made under a contract or subcontract may be 
requested prior to the execution of the contract or subcontract, or 
within 30 days after execution by the selected contractor. In addition, 
waiver of rights to an identified invention made and reported under a 
contract or subcontract may be requested, even though a request for an 
advance waiver was not made or, if made, was not granted.
    (b) Each request for waiver of rights shall be by petition to the 
Administrator and shall include an identification of the petitioner; 
place of business and address; if petitioner is represented by counsel, 
the name, address and telephone number of the counsel; the signature of 
the petitioner or authorized representative; and the date of signature. 
No specific forms need be used, but the request should contain a 
positive statement that waiver of rights is being requested under the 
NASA Patent Waiver Regulations; a clear indication of whether the 
request is for an advance waiver or for a waiver of rights for an

[[Page 297]]

individual identified invention; whether foreign rights are also 
requested and, if so, the countries, and a citation of the specific 
section or sections of the regulations under which such rights are 
requested; and the name, address, and telephone number of the party with 
whom to communicate when the request is acted upon. Requests for advance 
waiver of rights should, preferably, be included with the proposal, but 
in any event in advance of negotiations.
    (c) Petitions for advance waiver, prior to contract execution, must 
be submitted to the Contracting Officer. All other petitions will be 
submitted to the Patent Representative designated in the contract.
    (d) Petitions submitted with proposals selected for negotiation of a 
contract will be forwarded by the Contracting Officer to the 
installation Patent Counsel for processing and then to the Inventions 
and Contributions Board. The Board will consider these petitions and 
where the Board makes the findings to support the waiver, the Board will 
recommend to the Administrator that waiver be granted, and will notify 
the petitioner and the Contracting Officer of the Administrator's 
determination. The Contracting Officer will be informed by the Board 
whenever there is insufficient time or information or other reasons to 
permit a decision to be made without unduly delaying the execution of 
the contract. In the latter event, the petitioner will be so notified by 
the Contracting Officer. All other petitions will be processed by 
installation Patent Counsel and forwarded to the Board. The Board shall 
notify the petitioner of its action and if waiver is granted, the 
conditions, reservations, and obligations thereof will be included in 
the Instrument of Waiver. Whenever the Board notifies a petitioner of a 
recommendation adverse to, or different from, the waiver requested, the 
petitioner may request reconsideration under procedures set forth in the 
Regulations.

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 62 FR 36734, July 9, 1997]



Sec. 1852.227-72  Designation of new technology representative and 
          patent representative.

    As prescribed in 1827.303-70(d), insert the following clause:

 Designation of New Technology Representative and Patent Representative 
                               (JUL 1997)

    (a) For purposes of administration of the clause of this contract 
entitled ``New Technology'' or ``Patent Rights--Retention by the 
Contractor (Short Form),'' whichever is included, the following named 
representatives are hereby designated by the Contracting Officer to 
administer such clause:

------------------------------------------------------------------------
                                                                Address
 Title                       Office code                      (including
                                                               zip code)
------------------------------------------------------------------------
         New Technology Representative
         Patent Representative
------------------------------------------------------------------------

    (b) Reports of reportable items, and disclosure of subject 
inventions, interim reports, final reports, utilization reports, and 
other reports required by the clause, as well as any correspondence with 
respect to such matters, should be directed to the New Technology 
Representative unless transmitted in response to correspondence or 
request from the Patent Representative. Inquiries or requests regarding 
disposition of rights, election of rights, or related matters should be 
directed to the Patent Representative. This clause shall be included in 
any subcontract hereunder requiring a ``New Technology'' clause or 
``Patent Rights--Retention by the Contractor (Short Form)'' clause, 
unless otherwise authorized or directed by the Contracting Officer. The 
respective responsibilities and authorities of the above-named 
representatives are set forth in 1827.305-370 of the NASA FAR 
Supplement.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 36734, July 9, 1997; 62 
FR 40309, July 28, 1997]



Sec. 1852.227-84  Patent rights clauses.

    The contracting officer shall insert the following provision as 
prescribed in 1827.303-70(e):

                    Patent Rights Clauses (DEC 1989)

    This solicitation contains the patent rights clauses of FAR 52.227-
11 (as modified by the NFS) and NFS 1852.227-70. If the contract 
resulting from this solicitation is awarded to a small business or 
nonprofit organization, the clause at NFS 1852.227-70 shall not apply. 
If the award is to other than a small business or nonprofit 
organization, the clause at FAR 52.227-11 shall not apply.

                           (End of provision)

[54 FR 53631, Dec. 29, 1989, as amended at 62 FR 36735, July 9, 1997]



Sec. 1852.227-85  Invention reporting and rights--Foreign.

    As prescribed in 1827.303-70(f), insert the following clause:

[[Page 298]]

           Invention Reporting and Rights--Foreign (APR 1986)

    (a) As used in this clause, the term ``invention'' means any 
invention, discovery or improvement, and ``made'' means the conception 
or first actual demonstration that the invention is useful and operable.
    (b) The Contractor shall report promptly to the Contracting Officer 
each invention made in the performance of work under this contract. The 
report of each such invention shall:
    (1) Identify the inventor(s) by full name; and
    (2) Include such full and complete technical information concerning 
the invention as is necessary to enable an understanding of the nature 
and operation thereof.
    (c) The Contractor hereby grants to the Government of the United 
States of America as represented by the Administrator of the National 
Aeronautics and Space Administration the full right, title and interest 
in and to each such invention throughout the world, except for the State 
in which this contract is to be performed. As to such State, Contractor 
hereby grants to the Government of the United States of America as 
represented by the Administrator of the National Aeronautics and Space 
Administration only an irrevocable, nontransferable, nonexclusive, 
royalty-free license to practice each such invention by or on behalf of 
the United States of America or any foreign government pursuant to any 
treaty or agreement with the United States of America, provided that 
Contractor within a reasonable time files a patent application in that 
State for each such invention. Where Contractor does not elect to file 
such patent application for any such invention in that State, full 
right, title and interest in and to such invention in that State shall 
reside in the Government of the United States of America as represented 
by the Administrator of the National Aeronautics and Space 
Administration.
    (d) The Contractor agrees to execute or to secure the execution of 
such legal instruments as may be necessary to confirm and to protect the 
rights granted by paragraph (c) of this clause, including papers 
incident to the filing and prosecution of patent applications.
    (e) Upon completion of the contract work, and prior to final 
payment, Contractor shall submit to the Contracting Officer a final 
report listing all inventions reportable under this contract or 
certifying that no such inventions have been made.
    (f) In each subcontract, the Contractor awards under this contract 
where the performance of research, experimental design, engineering, or 
developmental work is contemplated, the Contractor shall include this 
clause and the name and address of the Contracting Officer.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 36735, July 9, 1997]



Sec. 1852.227-86  Commercial computer software--Licensing.

    As prescribed in 1827.409-70, insert the following clause:

           Commercial Computer Software--Licensing (DEC 1987)

    (a) Any delivered commercial computer software (including 
documentation thereof) developed at private expense and claimed as 
proprietary shall be subject to the restricted rights in paragraph (d) 
of this clause. Where the vendor/contractor proposes its standard 
commercial software license, those applicable portions thereof 
consistent with Federal laws, standard industry practices, the Federal 
Acquisition Regulations (FAR) and the NASA FAR Supplement, including the 
restricted rights in paragraph (d) of this clause, are incorporated into 
and made a part of this purchase order/contract.
    (b) Although the vendor/contractor may not propose its standard 
commercial software license until after this purchase order/contract has 
been issued, or at or after the time the computer software is delivered, 
such license shall nevertheless be deemed incorporated into and made a 
part of this purchase order/contract under the same terms and conditions 
as in paragraph (a) of this clause. For purposes of receiving updates, 
correction notices, consultation, and similar activities on the computer 
software, the NASA Contracting Officer or the NASA Contracting Officer's 
Technical Representative/User may sign any agreement, license, or 
registration form or card and return it directly to the vendor/
contractor; however, such signing shall not alter any of the terms and 
conditions of this clause.
    (c) The vendor's/contractor's acceptance is expressly limited to the 
terms and conditions of this purchase order/contract. If the specified 
computer software is shipped or delivered to NASA, it shall be 
understood that the vendor/contractor has unconditionally accepted the 
terms and conditions set forth in this clause, and that such terms and 
conditions (including the incorporated license) constitute the entire 
agreement between the parties concerning rights in the computer 
software.
    (d) The following restricted rights shall apply:
    (1) The commercial computer software may not be used, reproduced, or 
disclosed by the Government except as provided below or

[[Page 299]]

otherwise expressly stated in the purchase order/contract.
    (2) The commercial computer software may be--
    (i) Used, or copied for use, in or with any computer owned or leased 
by, or on behalf of, the Government; provided, the software is not used, 
nor copied for use, in or with more than one computer simultaneously, 
unless otherwise permitted by the license incorporated under paragraph 
(a) or (b) of this clause;
    (ii) Reproduced for safekeeping (archives) or backup purposes;
    (iii) Modified, adapted, or combined with other computer software, 
provided that the modified, combined, or adapted portions of the 
derivative software incorporating restricted computer software shall be 
subject to the same restricted rights; and
    (iv) Disclosed and reproduced for use by Government contractors or 
their subcontractors in accordance with the restricted rights in 
paragraphs (d)(2) (i), (ii), and (iii) of this clause; provided they 
have the Government's permission to use the computer software and have 
also agreed to protect the computer software from unauthorized use and 
disclosure.
    (3) If the incorporated vendor's/contractor's software license 
contains provisions or rights that are less restrictive than the 
restricted rights in paragraph (d)(2) of this clause, then the less 
restrictive provisions or rights shall prevail.
    (4) If the computer software is published, copyrighted computer 
software, it is licensed to the Government, without disclosure 
prohibitions, with the rights in paragraphs (d) (2) and (3) of this 
clause.
    (5) The computer software may be marked with any appropriate 
proprietary notice that is consistent with the rights in paragraphs (d) 
(2), (3), and (4) of this clause.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 55 FR 27090, June 29, 1990; 62 
FR 36735, July 9, 1997]



Sec. 1852.228-70  Aircraft ground and flight risk.

    As prescribed in 1828.370(a), insert the following clause. The 
purpose of this clause is to have the Government assume risks that 
generally entail unusually high insurance premiums and are not covered 
by the contractor's contents, work-in-process, and similar insurance. 
Since the definitions in the clause may not cover every situation that 
should be covered to achieve this purpose, the clause may be modified as 
follows: If the contract covers helicopters, vertical take-off aircraft, 
lighter-than-air airships, or other nonconventional types of aircraft, 
the definition of ``aircraft'' should be modified to specify that the 
aircraft has reached a point of manufacture comparable to that specified 
in the standard definition, which is written for conventional winged 
aircraft. The definition of ``in the open'' may be modified to include 
``hush houses,'' test hangars, comparable structures, and other 
designated areas. In addition, clause paragraph (d)(3) may be modified 
to provide for Government assumption of risk of transportation by 
conveyance on streets or highways if the contracting officer determines 
that this transportation is limited to the vicinity of the contractor's 
premises and is merely incident to work being performed under the 
contract.

               Aircraft Ground and Flight Risk (OCT 1996)

    (a) Notwithstanding any other provisions of this contract, except as 
may be specifically provided in the Schedule as an exception to this 
clause, the Government, subject to the definitions and limitations of 
this clause, assumes the risk of damage to, or loss or destruction of, 
aircraft in the open, during operation, or in flight and agrees that the 
Contractor shall not be liable to the Government for any such damage, 
loss, or destruction.
    (b) For the purposes of this clause, the following definitions 
apply:
    (1) Unless otherwise specifically provided in the Schedule, 
``aircraft'' includes--
    (i) Aircraft (including both complete aircraft and aircraft in the 
course of being manufactured, disassembled, or reassembled; provided 
that an engine, wing, or a portion of a wing is attached to the 
fuselage) to be furnished to the Government under this contract (whether 
before or after Government acceptance); and
    (ii) Aircraft (regardless of whether in a state of disassembly or 
reassembly) furnished by the Government to the Contractor under this 
contract, including all property installed in, being installed in, or 
temporarily removed from them, unless the aircraft and property are 
covered by a separate bailment agreement.
    (2) ``In the open'' means located wholly outside of buildings on the 
Contractor's premises, or at such other places as may be described in 
the Schedule as being in the open for the purposes of this clause, 
except that aircraft furnished by the Government are considered to be in 
the open at all times

[[Page 300]]

while in the Contractor's possession, care, custody, or control.
    (3) ``Flight'' includes any flight demonstration, flight test, taxi 
test, or other flight made in the performance of this contract, or for 
the purpose of safeguarding the aircraft, or previously approved in 
writing by the Contracting Officer.
    (i) With respect to land-based aircraft, flight commences with the 
taxi roll from a flight line on the Contractor's premises and continues 
until the aircraft has completed the taxi roll in returning to a flight 
line on the Contractor's premises.
    (ii) With respect to seaplanes, flight commences with the launching 
from a ramp on the Contractor's premises and continues until the 
aircraft has completed its landing run upon return and is beached at a 
ramp on the Contractor's premises.
    (iii) With respect to helicopters, flight commences upon engagement 
of the rotors for the purpose of take-off from the Contractor's premises 
and continues until the aircraft has returned to the ground on the 
Contractor's premises and the rotors are disengaged.
    (iv) With respect to vertical take-off aircraft, flight commences 
upon disengagement from any launching platform or device on the 
Contractor's premises and continues until the aircraft has been re-
engaged to any launching platform or device on the Contractor's 
premises; provided, however, that aircraft off the Contractor's premises 
shall be deemed to be in flight when on the ground or water only during 
periods of reasonable duration following emergency landing, other 
landings made in the performance of this contract, or landings approved 
by the Contracting Officer in writing.
    (4) ``Contractor's premises'' means those premises designated as 
such in the Schedule or in writing by the Contracting Officer, and any 
other place to which aircraft are moved for the purpose of safeguarding 
the aircraft.
    (5) ``Operation'' means operations and tests, other than on any 
production line, of aircraft not in flight, whether or not the aircraft 
is in the open or in motion. It includes operations and tests of 
equipment, accessories, and power plants only when installed in 
aircraft.
    (6) ``Flight crew members'' means the pilot, copilot, and, unless 
otherwise specifically provided in the Schedule, the flight engineer and 
navigator when requirement or assigned to their respective crew 
positions to conduct any flight on behalf of the Contractor.
    (7) ``Contractor's managerial personnel'' means the Contractor's 
directors, officers, and any managers, superintendents, or equivalent 
representatives who have supervision or direction of all or 
substantially all of the Contractor's business or of the Contractor's 
operations at any one plant, a separate location at which this contract 
is performed, or a separate and complete major industrial operation in 
connection with the performance of this contract.
    (c)(1) The Government's assumption of risk under this clause, as to 
aircraft in the open, shall continue in effect unless terminated 
pursuant to paragraph (c)(3) of this clause. If the Contracting Officer 
finds that an aircraft is in the open under unreasonable conditions, the 
Contracting Officer shall notify the Contractor in writing of the 
conditions found to be unreasonable and require the Contractor to 
correct them within a reasonable time.
    (2) Upon receipt of this notice, the Contractor shall act promptly 
to correct these conditions, regardless of whether it agrees that they 
are in fact unreasonable. To the extent that the Contracting Officer may 
later determine that they were not in fact unreasonable, an equitable 
adjustment shall be made in the contract price to compensate the 
Contractor for any additional costs incurred in correcting them, and the 
contract shall be modified in writing accordingly.
    (3)(i) If the Contracting Officer finds that the Contractor has 
failed to act promptly to correct unreasonable conditions or has failed 
to correct them within a reasonable time, the Contracting Officer may by 
written notice terminate the Government's assumption of risk under this 
clause for any aircraft which is in the open under those conditions. 
This termination shall be effective at 12:01 A.M. on the 15th day 
following the day of receipt by the Contractor of the notice.
    (ii) If the Contracting Officer later determines that the Contractor 
acted promptly to correct the conditions or that the time taken by the 
Contractor was not in fact unreasonable, an equitable adjustment shall, 
notwithstanding paragraph (g) of this clause, be made to compensate the 
Contractor for any additional costs incurred as a result of the 
termination, and the contract shall be modified in writing accordingly.
    (4) If the Government's assumption of risk under this clause is 
terminated in accordance with paragraph (c)(3) of this clause, the risk 
of loss with respect to Government-furnished property shall be 
determined in accordance with the Government property clause of this 
contract, if any, until the Government's assumption of risk is 
reinstated in accordance with paragraph (c)(5) of this clause.
    (5)(i) When unreasonable conditions have been corrected, the 
Contractor shall promptly notify the Government. The Government may or 
may not elect to reassume the risks and relieve the Contractor of 
liabilities as provided in this clause, and the Contracting Officer 
shall notify the Contractor of the Government's election.
    (ii) If, after correction of the conditions, the Government elects 
to reassume the risks and relieve the Contractor of liabilities, the

[[Page 301]]

Contractor shall be entitled to an equitable adjustment for any costs of 
insurance extending from the end of the third working day after the 
Contractor notifies the Government of the correction until the 
Government notifies the Contractor of that election.
    (iii) If the Government elects not to reassume the risks and the 
conditions have in fact been corrected, the Contractor shall be entitled 
to an equitable adjustment for any costs of insurance extending after 
the third working day referred to in paragraph (c)(5)(ii) of this 
clause.
    (d) The Government's assumption of risk shall not extend to damage 
to, or loss or destruction of aircraft--
    (1) Resulting from failure of the Contractor, due to willful 
misconduct or lack of good faith of any of the Contractor's managerial 
personnel, to maintain and administer a program for protecting and 
preserving aircraft in the open and during operation, in accordance with 
sound industrial practice;
    (2) Sustained during flight if the flight crew members conducting 
the flight have not been approved in writing by the Contracting Officer;
    (3) While in the course of transportation by rail or by conveyance 
on public streets, highways, or waterways, except for Government-
furnished property;
    (4) The extent that the damage, loss, or destruction is in fact 
covered by insurance;
    (5) Consisting of wear and tear, deterioration (including rust and 
corrosion), freezing, or mechanical, structural, or electrical breakdown 
or failure, unless this damage is the result of other loss, damage, or 
destruction covered by this clause (except that, in the case of 
Government-furnished property, if the damage consists of reasonable wear 
and tear or deterioration or results from an inherent defect in such 
property, this exclusion shall not apply); or
    (6) Sustained while the aircraft is being worked upon and directly 
resulting from the work, including but not limited to any repairing, 
adjusting, servicing, or maintenance operation, unless the damage, loss, 
or destruction is of a type that would be covered by insurance that 
would customarily have been maintained by the Contractor at the time of 
the damage, loss, or destruction, but for the Government's assumption of 
risk under this clause.
    (e)(1) With the exception of damage to, or loss or destruction of, 
aircraft in flight, the Government's assumption of risk under this 
clause shall not extend to the first $1,000 of loss or damage resulting 
from each separately occurring event. The Contractor assumes the risk of 
and shall be responsible for the first $1,000 of loss of or damage to 
aircraft in the open or during operation resulting from each separately 
occurring event, except for reasonable wear and tear and except to the 
extent the loss or damage is caused by negligence of Government 
personnel.
    (2) If the Government elects to require that the aircraft be 
replaced or restored by the Contractor to its condition immediately 
prior to the damage, the equitable adjustment in the price authorized by 
paragraph (i) of this clause shall not include the dollar amount of the 
risk assumed by the Contractor under this paragraph (e). If the 
Government does not elect repair or replacement, the Contractor agrees 
to credit the contract price or pay the Government $1,000 (or the amount 
of the loss if smaller) as directed by the Contracting Officer.
    (f) No subcontractor may be relieved from liability for damage to, 
or loss or destruction of, aircraft while in its possession or control, 
except to the extent that the subcontract, with the Contracting 
Officer's prior written approval, provides for relief of the 
subcontractor from that liability. In the absence of such approval, the 
subcontract shall require the return of the aircraft in as good 
condition as when received, except for reasonable wear and tear or for 
the utilization of the property in accordance with the provisions of 
this contract. If a subcontractor has not been relieved from liability 
and any damage, loss, or destruction occurs, the Contractor shall 
enforce the liability of the subcontractor for that damage to, or loss 
or destruction of, the aircraft for the benefit of the Government.
    (g) The Contractor warrants that the contract price does not and 
will not include, except as this clause may otherwise authorize, any 
charge or contingency reserve for insurance (including self-insurance 
funds or reserves) covering any damage to, or loss or destruction of, 
aircraft while in the open, during operation, or in flight, the risk of 
which has been assumed by the Government under this clause, whether or 
not such assumption may be terminated as to aircraft in the open.
    (h)(1) In the event of damage to, or loss or destruction of, 
aircraft in the open, during operation, or in flight, the Contractor 
shall take all reasonable steps to protect the aircraft from further 
damage, separate damaged and undamaged aircraft, and put all aircraft in 
the best possible order. Further, except in cases covered by paragraph 
(e) of this clause, the Contractor should furnish to the Contracting 
Officer a statement of--
    (i) The damaged, lost, or destroyed aircraft;
    (ii) The time and origin of the damage, loss, or destruction;
    (iii) All known interests in commingled property of which aircraft 
are a part; and
    (iv) Any insurance covering any part of the interest in the 
commingled property.
    (2) Except in cases covered by paragraph (e) of this clause, an 
equitable adjustment shall be made in the amount due under this

[[Page 302]]

contract for expenditures made by the Contractor in performing its 
obligations under this paragraph (h), and this contract shall be 
modified in writing accordingly.
    (i)(1) If, before delivery and acceptance by the Government, any 
aircraft is damaged, lost, or destroyed and the Government has under 
this clause assumed the risk of that damage, loss, or destruction, the 
Government shall either
    (i) Require that the aircraft be replaced or restored by the 
Contractor to its condition immediately prior to the damage or
    (ii) Terminate this contract with respect to that aircraft.
    (2) If the Government requires that the aircraft be replaced or 
restored, an equitable adjustment shall be made in the amount due under 
this contract and in the time required for its performance, and the 
contract shall be modified in writing accordingly.
    (3) If this contract is terminated under this paragraph (i)(1)(ii) 
with respect to the aircraft, and under this clause the Government has 
assumed the risk of the damage, loss, or destruction, the Contractor 
shall be paid the contract price for the aircraft (or, if applicable, 
any work to be performed on the aircraft) less any amounts the 
Contracting Officer determines (i) that it would have cost the 
Contractor to complete the aircraft (or any work to be performed on it), 
together with any anticipated profit on the uncompleted work and (ii) to 
be the value, if any, of the damaged aircraft or any remaining portion 
of it retained by the Contractor. The Contracting Officer shall have the 
right to prescribe the manner of disposition of the damaged, lost, or 
destroyed aircraft or any remaining parts of it, and, if the Contractor 
incurs additional costs as a result of such disposition, a further 
equitable adjustment shall be made in the amount due to the Contractor.
    (j)(1) If the Contractor is at any time reimbursed or compensated by 
any third person for any damage, loss, or destruction of any aircraft, 
the risk of which has been assumed by the Government under this clause 
and for which the Contractor has been compensated by the Government, it 
shall equitably reimburse the Government.
    (2) The Contractor shall do nothing to prejudice the Government's 
rights to recover against third parties for any such damage, loss, or 
destruction and, upon the request of the Contracting Officer, shall at 
the Government's expense furnish to the Government all reasonable 
assistance and cooperation (including the prosecution of suits and the 
execution of instruments of assignment or subrogation in favor of the 
Government) in obtaining recovery.

[61 FR 55772, Oct. 29, 1996]



Sec. 1852.228-71  Aircraft flight risks.

    (a) As prescribed in 1828.311-2, insert the following clause:

                    Aircraft Flight Risks (DEC 1988)

    (a) Notwithstanding any other provision of this contract 
(particularly paragraph (g) of the Government Property (Cost-
Reimbursement, Time-and-Materials, or Labor-Hour Contracts) clause and 
paragraph (c) of the Insurance--Liability to Third Persons clause), the 
Contractor shall not: (1) Be relieved of liability for damage to, or 
loss or destruction of, aircraft sustained during flight or (2) be 
reimbursed for liabilities to third persons for loss of or damage to 
property or for death or bodily injury caused by aircraft during flight, 
unless the flight crew members have previously been approved in writing 
by the Contracting Officer.
    (b) For the purposes of this clause--
    (1) Unless otherwise specifically provided in the Schedule, 
``aircraft'' includes any aircraft, whether furnished by the Contractor 
under this contract (either before or after Government acceptance) or 
furnished by the Government to the Contractor under this contract, 
including all Government property placed or installed or attached to the 
aircraft, unless the aircraft and property are covered by a separate 
bailment agreement.
    (2) ``Flight'' includes any flight demonstration, flight test, taxi 
test, or other flight made in the performance of this contract, or for 
the purpose of safeguarding the aircraft, or previously approved in 
writing by the Contracting Officer.
    (i) With respect to land-based aircraft, flight commences with the 
taxi roll from a flight line and continues until the aircraft has 
completed the taxi roll to a flight line.
    (ii) With respect to seaplanes, flight commences with the launching 
from a ramp and continues until the aircraft has completed its landing 
run and is beached at a ramp.
    (iii) With respect to helicopters, flight commences upon engagement 
of the rotors for the purpose of take-off and continues until the 
aircraft has returned to the ground and rotors are disengaged.
    (iv) With respect to vertical take-off aircraft, flight commences 
upon disengagement from any launching platform or device and continues 
until the aircraft has been re-engaged to any launching platform or 
device.
    (3) ``Flight crew members'' means the pilot, copilot, and, unless 
otherwise specifically provided in the Schedule, the flight engineer and 
navigator when required or assigned to their respective crew positions 
to conduct any flight on behalf of the Contractor.
    (c) (1) If any aircraft is damaged, lost, or destroyed during flight 
and the amount of the damage, loss, or destruction exceeds $100,000 or 
20 percent of the estimated cost,

[[Page 303]]

exclusive of any fee, of this contract, whichever is less, and if the 
Contractor is not liable for the damage, loss, or destruction under the 
Government Property (Cost-Reimbursement, Time-and-Materials, or Labor-
Hour Contracts) clause of this contract or under paragraph (a) of this 
clause, an equitable adjustment for any resulting repair, restoration, 
or replacement required under this contract shall be made: (i) In the 
estimated cost, the delivery schedule, or both and (ii) in the amount of 
any fee to be paid to the Contractor, and the contract shall be modified 
in writing accordingly.
    (2) In determining the amount of adjustment in the fee that is 
equitable, any fault of the Contractor, its employees, or any 
subcontractor that materially contributed to the damage, loss, or 
destruction shall be taken into consideration.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 61 FR 55774, Oct. 29, 1996]



Sec. 1852.228-73  Bid bond.

    As prescribed in 1828.101-70, insert the following provision:

                           Bid Bond (OCT 1988)

    (a) Each bidder shall submit with its bid a bid bond (Standard Form 
24) with good and sufficient surety or sureties acceptable to the 
Government, or other security as provided in Federal Acquisition 
Regulation clause 52.228-1, in the amount of twenty percent (20%) of the 
bid price, or $3 million, whichever is the lower amount.
    (b) Bid bonds shall be dated the same date as the bid or earlier.

                           (End of provision)



Sec. 1852.228-75  Minimum insurance coverage.

    As prescribed in 1828.372, insert the following clause:

                  Minimum Insurance Coverage (OCT 1988)

    The Contractor shall obtain and maintain insurance coverage as 
follows for the performance of this contract:
    (a) Worker's compensation and employer's liability insurance as 
required by 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 the Contractor's commercial 
operations that it would not be practical. The employer's liability 
coverage shall be at least $100,000, except in States with exclusive or 
monopolistic funds that do not permit workers' compensation to be 
written by private carriers.
    (b) Comprehensive general (bodily injury) liability insurance of at 
least $500,000 per occurrence.
    (c) Motor vehicle liability insurance written on the comprehensive 
form of policy which provides for bodily injury and property damage 
liability covering the operation of all motor vehicles used in 
connection with performing the contract. Policies covering motor 
vehicles operated in the United States shall provide coverage of at 
least $200,000 per person and $500,000 per occurrence for bodily injury 
liability and $20,000 per occurrence for property damage. The amount of 
liability coverage on other policies shall be commensurate with any 
legal requirements of the locality and sufficient to meet normal and 
customary claims.
    (d) Comprehensive general and motor vehicle liability policies shall 
contain a provision worded as follows:
    ``The insurance company waives any right of subrogation against the 
United States of America which may arise by reason of any payment under 
the policy.''
    (e) When aircraft are used in connection with performing the 
contract, aircraft public and passenger liability insurance of at least 
$200,000 per person and $500,000 per occurrence for bodily injury, other 
than passenger liability, and $200,000 per occurrence for property 
damage. Coverage for passenger liability bodily injury shall be at least 
$200,000 multiplied by the number of seats or passengers, whichever is 
greater.

                             (End of clause)



Sec. 1852.228-76  Cross-waiver of liability for international space 
          station activities.

    As prescribed in 1828.371(c) and (d), insert the following clause:

  Cross-waiver of liability for international space station activities 
                               (OCT 2012)

    (a) The Intergovernmental Agreement Among the Government of Canada, 
Governments of Member States of the European Space Agency, the 
Government of Japan, the Government of the Russian Federation, and the 
Government of the United States of America concerning Cooperation on the 
Civil International Space Station (IGA) for the International Space 
Station (ISS) contains a cross-waiver of liability provision to 
encourage participation in the exploration, exploitation, and use of 
outer space through the ISS. The objective of this clause is to extend 
this cross-waiver of liability to NASA contracts in the interest of 
encouraging participation in the exploration, exploitation, and

[[Page 304]]

use of outer space through the International Space Station (ISS). The 
Parties intend that this cross-waiver of liability be broadly construed 
to achieve this objective.
    (b) As used in this clause, the term:
    (1) ``Agreement'' refers to any NASA Space Act agreement that 
contains the cross-waiver of liability provision authorized by 14 CFR 
1266.102.
    (2) ``Damage'' means:
    (i) Bodily injury to, or other impairment of health of, or death of, 
any person;
    (ii) Damage to, loss of, or loss of use of any property;
    (iii) Loss of revenue or profits; or
    (iv) Other direct, indirect, or consequential Damage.
    (3) ``Launch Vehicle'' means an object, or any part thereof, 
intended for launch, launched from Earth, or returning to Earth which 
carries Payloads or persons, or both.
    (4) ``Partner State'' includes each Contracting Party for which the 
IGA has entered into force, pursuant to Article 25 of the IGA or 
pursuant to any successor agreement. A Partner State includes its 
Cooperating Agency. It also includes any entity specified in the 
Memorandum of Understanding (MOU) between NASA and the Government of 
Japan to assist the Government of Japan's Cooperating Agency in the 
implementation of that MOU.
    (5) ``Party'' means a party to a NASA Space Act agreement involving 
activities in connection with the ISS and a party that is neither the 
prime contractor under this contract nor a subcontractor at any tier.
    (6) ``Payload'' means all property to be flown or used on or in a 
Launch Vehicle or the ISS.
    (7) ``Protected Space Operations'' means all Launch or Transfer 
Vehicle activities, ISS activities, and Payload activities on Earth, in 
outer space, or in transit between Earth and outer space in 
implementation of the IGA, MOUs concluded pursuant to the IGA, 
implementing arrangements, and contracts to perform work in support of 
NASA's obligations under these Agreements. It includes, but is not 
limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of Launch or Transfer Vehicles, the ISS, 
Payloads, or instruments, as well as related support equipment and 
facilities and services; and
    (ii) All activities related to ground support, test, training, 
simulation, or guidance and control equipment and related facilities or 
services. ``Protected Space Operations'' also includes all activities 
related to evolution of the ISS, as provided for in Article 14 of the 
IGA. ``Protected Space Operations'' excludes activities on Earth which 
are conducted on return from the ISS to develop further a Payload's 
product or process for use other than for ISS-related activities in 
implementation of the IGA.
    (8) ``Related Entity'' means:
    (i) A contractor or subcontractor of a Party or a Partner State at 
any tier;
    (ii) A user or customer of a Party or a Partner State at any tier; 
or
    (iii) A contractor or subcontractor of a user or customer of a Party 
or a Partner State at any tier. The terms ``contractor'' and 
``subcontractor'' include suppliers of any kind.
    (9) ``Transfer Vehicle'' means any vehicle that operates in space 
and transfers Payloads or persons or both between two different space 
objects, between two different locations on the same space object, or 
between a space object and the surface of a celestial body. A Transfer 
Vehicle also includes a vehicle that departs from and returns to the 
same location on a space object.
    (c) Cross-waiver of liability:
    (1) The Contractor agrees to a cross-waiver of liability pursuant to 
which it waives all claims against any of the entities or persons listed 
in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause based on 
Damage arising out of Protected Space Operations. This cross-waiver 
shall apply only if the person, entity, or property causing the Damage 
is involved in Protected Space Operations and the person, entity, or 
property damaged is damaged by virtue of its involvement in Protected 
Space Operations. The cross-waiver shall apply to any claims for Damage, 
whatever the legal basis for such claims, against:
    (i) A Party as defined in (b)(5) of this clause;
    (ii) A Partner State other than the United States of America;
    (iii) A Related Entity of any entity identified in paragraph 
(c)(1)(i) or (c)(1)(ii) of this clause; or
    (iv) The employees of any of the entities identified in paragraphs 
(c)(1)(i) through (c)(1)(iii) of this clause.
    (2) In addition, the contractor shall, by contract or otherwise, 
extend the cross-waiver of liability set forth in paragraph (c)(1) of 
this clause to its subcontractors at any tier by requiring them, by 
contract or otherwise, to:
    (i) Waive all claims against the entities or persons identified in 
paragraphs (c)(1)(i) through (c)(1)(iv) of this clause; and
    (ii) Require that their subcontractors waive all claims against the 
entities or persons identified in paragraphs (c)(1)(i) through 
(c)(1)(iv) of this clause.
    (3) For avoidance of doubt, this cross-waiver of liability includes 
a cross-waiver of claims arising from the Convention on International 
Liability for Damage Caused by Space Objects, which entered into force 
on September 1, 1972, where the person, entity, or property causing the 
Damage is involved in Protected Space Operations and the person,

[[Page 305]]

entity, or property damaged is damaged by virtue of its involvement in 
Protected Space Operations.
    (4) Notwithstanding the other provisions of this clause, this cross-
waiver of liability shall not be applicable to:
    (i) Claims between the Government and its own contractors or between 
its own contractors and subcontractors;
    (ii) Claims made by a natural person, his/her estate, survivors or 
subrogees (except when a subrogee is a Party to an Agreement or is 
otherwise bound by the terms of this cross-waiver) for bodily injury to, 
or other impairment of health of, or death of, such person;
    (iii) Claims for Damage caused by willful misconduct;
    (iv) Intellectual property claims;
    (v) Claims for Damage resulting from a failure of the contractor to 
extend the cross-waiver of liability to its subcontractors and related 
entities, pursuant to paragraph (c)(2) of this clause;
    (vi) Claims by the Government arising out of or relating to the 
contractor's failure to perform its obligations under this contract.
    (5) Nothing in this clause shall be construed to create the basis 
for a claim or suit where none would otherwise exist.
    (6) This cross-waiver shall not be applicable when 49 U.S.C. 
Subtitle IX, Chapter 701 is applicable.

                             (End of clause)

[77 FR 59342, Sept. 27, 2012]



Sec. 1852.228-78  Cross-waiver of liability for science or space 
          exploration activities unrelated to the International Space 
          Station.

    As prescribed in 1828.371(b) and (d), insert the following clause:

 Cross-waiver of Liability for Science or Space Exploration Activities 
         Unrelated to the International Space Station (OCT 2012)

    (a) The purpose of this clause is to extend a cross-waiver of 
liability to NASA contracts for work done in support of Agreements 
between Parties involving Science or Space Exploration activities that 
are not related to the International Space Station (ISS) but involve a 
launch. This cross-waiver of liability shall be broadly construed to 
achieve the objective of furthering participation in space exploration, 
use, and investment.
    (b) As used in this clause, the term:
    (1) ``Agreement'' refers to any NASA Space Act agreement that 
contains the cross-waiver of liability provision authorized in 14 CFR 
1266.104.
    (2) ``Damage'' means:
    (i) Bodily injury to, or other impairment of health of, or death of, 
any person;
    (ii) Damage to, loss of, or loss of use of any property;
    (iii) Loss of revenue or profits; or
    (iv) Other direct, indirect, or consequential Damage;
    (3) ``Launch Vehicle'' means an object, or any part thereof, 
intended for launch, launched from Earth, or returning to Earth which 
carries Payloads or persons, or both.
    (4) ``Party'' means a party to a NASA Space Act agreement for 
Science or Space Exploration activities unrelated to the ISS that 
involve a launch and a party that is neither the prime contractor under 
this contract nor a subcontractor at any tier hereof.
    (5) ``Payload'' means all property to be flown or used on or in a 
Launch Vehicle.
    (6) ``Protected Space Operations'' means all Launch or Transfer 
Vehicle activities and Payload activities on Earth, in outer space, or 
in transit between Earth and outer space in implementation of an 
Agreement for Science or Space Exploration activities unrelated to the 
ISS that involve a launch. Protected Space Operations begins at the 
signature of the Agreement and ends when all activities done in 
implementation of the Agreement are completed. It includes, but is not 
limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of Launch or Transfer Vehicles, Payloads, 
or instruments, as well as related support equipment and facilities and 
services; and
    (ii) All activities related to ground support, test, training, 
simulation, or guidance and control equipment, and related facilities or 
services.
    Protected Space Operations excludes activities on Earth which are 
conducted on return from space to develop further a payload's product or 
process other than for the activities within the scope of an Agreement.
    (7) ``Related entity'' means:
    (i) A contractor or subcontractor of a Party at any tier;
    (ii) A user or customer of a Party at any tier; or
    (iii) A contractor or subcontractor of a user or customer of a Party 
at any tier.
     Note to paragraph (a)(7): The terms ``contractors'' and 
``subcontractors'' include suppliers of any kind.
    (8) ``Transfer Vehicle'' means any vehicle that operates in space 
and transfers Payloads or persons or both between two different space 
objects, between two different locations on the same space object, or 
between a space object and the surface of a celestial body. A Transfer 
Vehicle also includes a vehicle that departs from and returns to the 
same location on a space object.
    (c) Cross-waiver of liability:

[[Page 306]]

    (1) The Contractor agrees to a waiver of liability pursuant to which 
it waives all claims against any of the entities or persons listed in 
paragraphs (c)(1)(i) through (c)(1)(iv) of this clause based on Damage 
arising out of Protected Space Operations. This cross-waiver shall apply 
only if the person, entity, or property causing the Damage is involved 
in Protected Space Operations and the person, entity, or property 
damaged is damaged by virtue of its involvement in Protected Space 
Operations. The waiver shall apply to any claims for Damage, whatever 
the legal basis for such claims, against:
    (i) A Party;
    (ii) A Party to another NASA Agreement or contract that includes 
flight on the same Launch Vehicle;
    (iii) A Related Entity of any entity identified in paragraphs 
(c)(1)(i) or (c)(1)(ii) of this clause; or
    (iv) The employees of any of the entities identified in (c)(1)(i) 
through (iii) of this clause.
    (2) The Contractor agrees to extend the cross-waiver of liability as 
set forth in paragraph (c)(1) of this clause to its own subcontractors 
at all tiers by requiring them, by contract or otherwise, to:
    (i) Waive all claims against the entities or persons identified in 
paragraphs (c)(1)(i) through (c)(1)(iv) of this clause; and
    (ii) Require that their Related Entities waive all claims against 
the entities or persons identified in paragraphs (c)(1)(i) through 
(c)(1)(iv) of this clause.
    (3) For avoidance of doubt, this cross-waiver of liability includes 
a cross-waiver of claims arising from the Convention on International 
Liability for Damage Caused by Space Objects, entered into force on 1 
September 1972, in which the person, entity, or property causing the 
Damage is involved in Protected Space Operations and the person, entity, 
or property damaged is damaged by virtue of its involvement in Protected 
Space Operations.
    (4) Notwithstanding the other provisions of this clause, this cross-
waiver of liability shall not be applicable to:
    (i) Claims between the Government and its own contractors or between 
its own contractors and subcontractors;
    (ii) Claims made by a natural person, his/her estate, survivors, or 
subrogees (except when a subrogee is a Party to an Agreement or is 
otherwise bound by the terms of this cross-waiver) for bodily injury to, 
or other impairment of health, or death of such person;
    (iii) Claims for Damage caused by willful misconduct;
    (iv) Intellectual property claims;
    (v) Claims for damages resulting from a failure of the contractor to 
extend the cross-waiver of liability to its subcontractors and related 
entities, pursuant to paragraph (c)(2) of this clause; or
    (vi) Claims by the Government arising out of or relating to a 
contractor's failure to perform its obligations under this contract.
    (5) Nothing in this clause shall be construed to create the basis 
for a claim or suit where none would otherwise exist.
    (6) This cross-waiver shall not be applicable when 49 U.S.C. 
Subtitle IX, Chapter 701 is applicable.

[77 FR 59342, Sept. 27, 2012]



Sec. 1852.228-80  Insurance--Immunity From Tort Liability.

    As prescribed in 1828.311-270(b), insert the following provision:

           Insurance--Immunity From Tort Liability (SEP 2000)

    If the offeror is partially or totally immune from tort liability to 
third persons as a State agency or as a charitable institution, the 
offeror will include in its offer a representation to that effect. When 
the successful offeror represented in its offer that it is immune from 
tort liability, the following clause(s) will be included in the 
resulting contract:
    (a) When the offeror represents that it is partially immune from 
tort liability to third persons as a State agency or as a charitable 
institution, the clause at FAR 52.228-7, Insurance--Liability to Third 
Persons, and the associated NFS clause 1852.228-81, Insurance--Partial 
Immunity From Tort Liability, will be included in the contract.
    (b) When the offeror represents that it is totally immune from tort 
liability to third persons as a State agency or as a charitable 
institution. the clause at NFS 1852.228-82 Insurance--Total Immunity 
From Tort Liability, will be included in the contract.

                           (End of provision)

[65 FR 54440, Sept. 8, 2000]



Sec. 1852.228-81  Insurance--Partial Immunity From Tort Liability.

    As prescribed in 1828.311-270(c), insert the following clause:

       Insurance--Partial Immunity From Tort Liability (SEP 2000)

    (a) Except as provided for in paragraph (b) of this clause, 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; and
    (b) The contractor need not provide or maintain insurance coverage 
as required by

[[Page 307]]

paragraph (a) of FAR clause 52.228-7, Insurance--Liability to Third 
Persons, 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 
FAR clause 52.228-7, for liabilities to third person for which the 
contractor has obtained insurance coverage as provided in this 
paragraph, but for which such coverage is insufficient in amount.

                             (End of clause)

[65 FR 54440, Sept. 8, 2000]



Sec. 1852.228-82  Insurance--Total Immunity From Tort Liability.

    As prescribed in 1828.311-270(d), insert the following clause:

        Insurance--Total Immunity From Tort Liability (SEP 2000)

    (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 will immediately notify 
the contracting officer and promptly furnish copies of all pertinent 
papers received by the contractor. The Contractor will, if required by 
the Government, authorize Government representatives to settle or defend 
the claim and to represent the contractor in or take charge of any 
litigation. The Contractor may, at its own expense, be associated with 
the Government representatives in any such claim or litigation.

                             (End of clause)

[65 FR 54440, Sept. 8, 2000]



Sec. 1852.231-70  Precontract costs.

    As prescribed in 1831.205-70, insert the following clause:

                      Precontract Costs (JUN 1995)

    The contractor shall be entitled to reimbursement for costs incurred 
on or after ---------------- in an amount not to exceed $-------- that, 
if incurred after this contract had been entered into, would have been 
reimbursable under this contract.

                             (End of clause)

[60 FR 29505, June 5, 1995]



Sec. 1852.231-71  Determination of compensation reasonableness.

    As prescribed at 1831.205-671, insert the following provision.

         Determination of Compensation Reasonableness (MAR 1994)

    (a) The proposal shall include a total compensation plan. This plan 
shall address all proposed labor categories, including those personnel 
subject to union agreements, the Service Contract Act, and those exempt 
from both of the above. The total compensation plan shall include the 
salaries/wages, fringe benefits and leave programs proposed for each of 
these categories of labor. The plan also shall include a discussion of 
the consistency of the plan among the categories of labor being 
proposed. Differences between benefits offered professional and non-
professional employees shall be highlighted. The requirements of this 
plan may be combined with that required by the clause at FAR 52.222-46, 
``Evaluation of Compensation for Professional Employees.''
    (b) The offeror shall provide written support to demonstrate that 
its proposed compensation is reasonable.
    (c) The offeror shall include the rationale for any conformance 
procedures used or those Service Contract Act employees proposed that do 
not fail within the scope of any classification listed in the applicable 
wage determination.
    (d) The offeror shall require all service subcontractors (1) with 
proposed cost reimbursement or non-competitive fixed-price type 
subcontracts having a total potential value in excess of $500,000 and 
(2) the cumulative value of all their service subcontracts under the 
proposed prime contract in excess of 10 percent of the prime contract's 
total potential value, provide as part of their proposals the 
information identified in (a) through (c) of this provision.

                           (End of provision)

[62 FR 4474, Jan. 30, 1997]



Sec. 1852.232-70  NASA modification of FAR 52.232-12.

    As prescribed at 1832.412-70, make the following modifications:

             NASA Modification of FAR 52.232-12, (MAR 1998)

    (a) Basic Clause. (1) In paragraph (e), Maximum Payment, in the 
sentence that begins ``When the sum of,'' change the word ``When''

[[Page 308]]

to lower case and insert before it: ``Unliquidated advance payments 
shall not exceed $---- at any time outstanding. In addition. * * *.''
    (2) In paragraph (m)(1), delete ``in the form prescribed by the 
administering office'' and substitute ``and Standard Form 272, Federal 
Cash Transactions Report, and, if appropriate, Standard Form 272-A, 
Federal Cash Transactions Report Continuation.''
    (b) Alternate II (if incorporated in the contract). In paragraph 
(e), Maximum Payment, in the sentence that begins ``When the sum of,'' 
change the word ``When'' to lower case and insert before it: 
``Unliquidated advance payments shall not exceed $---- at any time 
outstanding. In addition. * * *.''
    (c) Alternate V (if incorporated in the contract). (1) Substitute 
the following for paragraph (b): ``(b) Use of funds. The Contractor may 
use advance payment funds only to pay for properly allocable, allowable, 
and reasonable costs for direct materials, direct labor, indirect costs, 
or such other costs approved in writing by the administering contracting 
office. Payments are subject to any restrictions in other clauses of 
this contract. Determinations of whether costs are properly allocable, 
allowable, and reasonable shall be in accordance with generally accepted 
accounting principles, subject to any applicable subparts of part 31 of 
the Federal Acquisition Regulation, other applicable regulations 
referenced in part 31, or subpart 1831.2.''
    (2) In paragraph (d), Maximum Payment, in the sentence that begins 
``When the sum of,'' change the word ``When'' to lower case and insert 
before it: ``Unliquidated advance payments shall not exceed $---- at any 
time outstanding. In addition. * * *.''
    (3) In paragraph (j)(1), insert between ``statements,'' and ``and'' 
``together with Standard Form 272, Federal Cash Transactions Report, 
and, if appropriate, Standard Form 272-A, Federal Cash Transactions 
Report Continuation''
    (4) If this is a Phase I contract awarded under the SBIR or STTR 
programs, delete paragraph (a) and substitute the following: ``(a) 
Requirements for payment. Advance payments will be made under this 
contract upon receipt of invoices from the Contractor. Invoices should 
be clearly marked ``Small Business Innovation Research Contract'' or 
``Small Business Technology Transfer Contract,'' as appropriate, to 
expedite payment processing. One-third of the total contract price will 
be available to be advanced to the contractor immediately after award, 
another one-third will be advanced three months after award, and the 
final one-third will be paid upon acceptance by NASA of the Contractor's 
final report. By law, full payment must be made no later than 12 months 
after the date that contract requirements are completed. The Contractor 
shall flow down the terms of this clause to any subcontractor requiring 
advance payments.''

                             (End of clause)

[63 FR 14040, Mar. 24, 1998]



Sec. 1852.232-77  Limitation of funds (fixed-price contract).

    As prescribed in 1832.705-270(a), insert the following clause. 
Contracting officers are authorized, in appropriate cases, to revise 
clause paragraphs (a), (b), and (g) to specify the work required under 
the contract, in lieu of using contract item numbers. The 60-day period 
may be varied from 30 to 90 days, and the 75 percent from 75 to 85 
percent:

          Limitation of Funds (Fixed-Price Contract) (MAR 1989)

    (a) Of the total price of items ---- through ----, the sum of $---- 
is presently available for payment and allotted to this contract. It is 
anticipated that from time to time additional funds will be allocated to 
the contract in accordance with the following schedule, until the total 
price of said items is allotted:

                     Schedule for Allotment of Funds

Date Amounts

    (b) The Contractor agrees to perform or have performed work on the 
items specified in paragraph (a) of this clause up to the point at 
which, if this contract is terminated pursuant to the Termination for 
Convenience of the Government clause of this contract, the total amount 
payable by the Government (including amounts payable for subcontracts 
and settlement costs) pursuant to paragraphs (f) and (g) of that clause 
would, in the exercise of reasonable judgment by the Contractor, 
approximate the total amount at the time allotted to the contract. The 
Contractor is not obligated to continue performance of the work beyond 
that point. The Government is not obligated in any event to pay or 
reimburse the Contractor more than the amount from time to time allotted 
to the contract, anything to the contrary in the Termination for 
Convenience of the Government clause notwithstanding.
    (c) (1) It is contemplated that funds presently allotted to this 
contract will cover the work to be performed until ----.
    (2) If funds allotted are considered by the Contractor to be 
inadequate to cover the work to be performed until that date, or an 
agreed date substituted for it, the Contractor shall notify the 
Contracting Officer in writing when within the next 60 days the

[[Page 309]]

work will reach a point at which, if the contract is terminated pursuant 
to the Termination for Convenience of the Government clause of this 
contract, the total amount payable by the Government (including amounts 
payable for subcontracts and settlement costs) pursuant to paragraphs 
(f) and (g) of that clause will approximate 75 percent of the total 
amount then allotted to the contract.
    (3) (i) The notice shall state the estimated date when the point 
referred to in paragraph (c)(2) of this clause will be reached and the 
estimated amount of additional funds required to continue performance to 
the date specified in paragraph (c)(1) of this clause, or an agreed date 
substituted for it.
    (ii) The Contractor shall, 60 days in advance of the date specified 
in paragraph (c)(1) of this clause, or an agreed date substituted for 
it, advise the Contracting Officer in writing as to the estimated amount 
of additional funds required for the timely performance of the contract 
for a further period as may be specified in the contract or otherwise 
agreed to by the parties.
    (4) If, after the notification referred to in paragraph (c)(3)(ii) 
of this clause, additional funds are not allotted by the date specified 
in paragraph (c)(1) of this clause, or an agreed date substituted for 
it, the Contracting Officer shall, upon the Contractor's written 
request, terminate this contract on that date or on the date set forth 
in the request, whichever is later, pursuant to the Termination for 
Convenience of the Government clause.
    (d) When additional funds are allotted from time to time for 
continued performance of the work under this contract, the parties shall 
agree on the applicable period of contract performance to be covered by 
these funds. The provisions of paragraphs (b) and (c) of this clause 
shall apply to these additional allotted funds and the substituted date 
pertaining to them, and the contract shall be modified accordingly.
    (e) If, solely by reason of the Government's failure to allot 
additional funds in amounts sufficient for the timely performance of 
this contract, the Contractor incurs additional costs or is delayed in 
the performance of the work under this contract, and if additional funds 
are allotted, an equitable adjustment shall be made in the price or 
prices (including appropriate target, billing, and ceiling prices where 
applicable) of the items to be delivered, or in the time of delivery, or 
both.
    (f) The Government may at any time before termination, and, with the 
consent of the Contractor, after notice of termination, allot additional 
funds for this contract.
    (g) The provisions of this clause with respect to termination shall 
in no way be deemed to limit the rights of the Government under the 
default clause of this contract. The provisions of this Limitation of 
Funds clause are limited to the work on and allotment of funds for the 
items set forth in paragraph (a). This clause shall become inoperative 
upon the allotment of funds for the total price of said work except for 
rights and obligations then existing under this clause.
    (h) Nothing in this clause shall affect the right of the Government 
to terminate this contract pursuant to the Termination for Convenience 
of the Government clause of this contract.

                             (End of clause)



Sec. 1852.232-79  Payment for on-site preparatory costs.

    As prescribed in 1832.111-70, insert the following clause:

            Payment for On-Site Preparatory Costs (SEP 1987)

    Costs associated with on-site preparatory work (start-up or set-up 
costs) will be prorated over all work activities of a Critical Path 
Method (CPM) network or Progress Chart against which progress payments 
will be sought. Separate payment for on-site preparatory costs will not 
be made by the Government.

                             (End of clause)



Sec. 1852.232-81  Contract funding.

    As prescribed in 1832.705-270(b), insert the following clause:

                       Contract Funding (JUN 1990)

    (a) For purposes of payment of cost, exclusive of fee, in accordance 
with the Limitation of Funds clause, the total amount allotted by the 
Government to this contract is $------------. This allotment is for 
[Insert applicable item number(s), task(s), or work description] ------
---- and covers the following estimated period of performance: --------
--.
    (b) An additional amount of $------------ is obligated under this 
contract for payment of fee.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 55 FR 27090, June 29, 1990; 57 
FR 40856, Sept. 8, 1992]



Sec. 1852.232-82  Submission of requests for progress payments.

    As prescribed in 1832.502-470, insert the following clause:

[[Page 310]]

         Submission of Requests for Progress Payments (MAR 1989)

    The Contractor shall request progress payments in accordance with 
the Progress Payments clause by submitting to the Contracting Officer an 
original and two copies of Standard Form (SF) 1443, Contractor's Request 
for Progress Payment, and the contractor's invoice (if applicable). The 
Contracting Officer's office is the designated billing office for 
progress payments for purposes of the Prompt Payment clause.

                             (End of clause)



Sec. 1852.233-70  Protests to NASA.

    As prescribed in 1833.106-70, insert the following provision:

                       Protests to NASA (OCT 2002)

    Potential bidders or offerors may submit a protest under 48 CFR part 
33 (FAR part 33) directly to the Contracting Officer. As an alternative 
to the Contracting Officer's consideration of a protest, a potential 
bidder or offeror may submit the protest to the Assistant Administrator 
for Procurement, who will serve as or designate the official responsible 
for conducting an independent review. Protests requesting an independent 
review shall be addressed to Assistant Administrator for Procurement, 
NASA Code H, Washington, DC 20546-0001.

[62 FR 11108, Mar. 11, 1997, as amended at 67 FR 61519, Oct. 1, 2002]



Sec. 1852.234-1  Notice of Earned Value Management System.

    As prescribed in 1834.203-70(a), insert the following provision:

           Notice of Earned Value Management System (NOV 2006)

    (a) The offeror shall provide documentation that its proposed Earned 
Value Management System (EVMS) complies with the EVMS guidelines in the 
American National Standards Institute (ANSI)/Electronic Industries 
Alliance (EIA)-748 Standard, Earned Value Management Systems.
    (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 its comprehensive plan for compliance with the EVMS 
guidelines to the Government for approval.
    (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 EVMS guidelines in ANSI/EIA-748;
    (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) Describe how the offeror will ensure EVMS compliance for each 
subcontractor subject to the flowdown requirement in paragraph (c) whose 
EVMS has not been recognized by the Cognizant Federal Agency as 
compliant according to paragraph (a);
    (vi) Provide documentation describing the process and results, 
including Government participation, of any third-party or self-
evaluation of the system's compliance with the EVMS guidelines; and
    (vii) If the value of the offeror's proposal, including options, is 
$50 million or more, provide a schedule of events leading up to formal 
validation and Government acceptance of the Contractor's EVMS. This 
schedule should include progress assistance visits, the first visit 
occurring no later than 30 days after contract award, and a compliance 
review as soon as practicable. The Department of Defense Earned Value 
Management Implementation Guide (https://acc.dau.mil/
CommunityBrowser.aspx?id=19557) outlines the requirements for conducting 
a progress assistance visit and validation compliance review.
    (2) The offeror shall provide information and assistance as required 
by the Contracting Officer to support review of the plan.
    (3) The Government will review the offeror's EVMS implementation 
plan prior to contract award.
    (c) The offeror shall identify in its offer the major 
subcontractors, or major subcontracted effort if major subcontractors 
have not been selected, planned for application of the EVMS requirement. 
Prior to contract award, the offeror and NASA shall agree on the 
subcontractors, or subcontracted effort, subject to the EVMS 
requirement.
    (d) The offeror shall incorporate its compliance evaluation factors 
for subcontractors into the plan required by paragraph (b) of this 
provision.

                           (End of provision)

[71 FR 66121, Nov. 13, 2006]



Sec. 1852.234-2  Earned Value Management System.

    As prescribed in 1834.203-70(b) insert the following clause:

                Earned Value Management System (NOV 2006)

    (a) In the performance of this contract, the Contractor shall use--

[[Page 311]]

    (1) An Earned Value Management System (EVMS) that has been 
determined by the Cognizant Federal Agency to be compliant with the EVMS 
guidelines specified in the American National Standards Institute 
(ANSI)/Electronic Industries Alliance (EIA)--748 Standard, Industry 
Guidelines for Earned Value Management Systems (current version at the 
time of award) to manage this contract; and
    (2) Earned Value Management procedures that provide for generation 
of timely, accurate, reliable, and traceable information for the 
Contract Performance Report (CPR) required by the contract.
    (b) If, at the time of award, the Contractor's EVMS has not been 
determined by the Cognizant Federal Agency to be compliant with the EVMS 
guidelines, or the Contractor does not have an existing cost/schedule 
control system that is compliant with the guidelines in the ANSI/EIA-748 
Standard (current version at the time of award), the Contractor shall 
apply the system to the contract and shall take timely action to 
implement its plan to obtain compliance/validation. The Contractor shall 
follow and implement the approved compliance/validation plan in a timely 
fashion. The Government will conduct a Compliance Review to assess the 
contactor's compliance with its plan, and if the Contractor does not 
follow the approved implementation schedule or correct all resulting 
system deficiencies identified as a result of the compliance review 
within a reasonable time, the Contracting Officer may take remedial 
action, that may include, but is not limited to, a reduction in fee.
    (c) The Government will conduct Integrated Baseline Reviews (IBRs). 
Such reviews shall be scheduled and conducted as early as practicable, 
and if a pre-award IBR has not been conducted, a post-award IBR should 
be conducted within 180 calendar days after contract award, or the 
exercise of significant contract options, or within 60 calendar days 
after distribution of a supplemental agreement that implements a 
significant funding realignment or effects a significant change in 
contractual requirements (e.g., incorporation of major modifications). 
The objective of IBRs is for the Government and the Contractor to 
jointly assess the Contractor's baseline to be used for performance 
measurement to ensure complete coverage of the statement of work, 
logical scheduling of the work activities, adequate resourcing, and 
identification of inherent risks.
    (d) Unless a waiver is granted by the Cognizant Federal Agency, 
Contractor proposed EVMS changes require approval of the Cognizant 
Federal Agency prior to implementation. The Cognizant Federal Agency 
shall 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 
Cognizant Federal Agency, the Contractor shall disclose EVMS changes to 
the Cognizant Federal Agency at least 14 calendar days prior to the 
effective date of implementation.
    (e) The Contractor agrees to provide access to all pertinent records 
and data requested by the Contracting Officer or a duly authorized 
representative. Access is to permit Government surveillance to ensure 
that the Contractor's EVMS complies, and continues to comply, with the 
EVMS guidelines referenced in paragraph (a) of this clause, and to 
demonstrate--
    (1) Proper implementation of the procedures generating the cost and 
schedule information being used to satisfy the contract data 
requirements;
    (2) Continuing application of the accepted company procedures in 
satisfying the CPR required by the contract through recurring program/
project and contract surveillance; and
    (3) Implementation of any corrective actions identified during the 
surveillance process.
    (f) The Contractor shall be responsible for ensuring that its 
subcontractors, identified below, comply with the EVMS requirements of 
this clause as follows:
    (1) For subcontracts with an estimated dollar value of $50M or more, 
the following subcontractors shall comply with the requirements of this 
clause.
    (Contracting Officer to insert names of subcontractors or 
subcontracted effort).
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (2) For subcontracts with an estimated dollar value of less than 
$50M, the following subcontractors shall comply with the requirements of 
this clause except for the requirement in paragraph (b), if applicable, 
to obtain compliance/validation.
    (Contracting Officer to insert names of subcontractors or 
subcontracted effort.)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (g) If the contractor identifies a need to deviate from the agreed 
baseline by working against an Over Target Baseline (OTB) or Over Target 
Schedule (OTS), the contractor shall submit to the Contracting Officer a 
request for approval to begin implementation of an OTB or OTS. This 
request shall include a top-level projection of cost and/or schedule 
growth, whether or not performance variances will be retained, and a 
schedule of implementation for the reprogramming adjustment. The 
Government will approve or deny the request within 30 calendar days 
after receipt of the request. Failure of the Government to respond 
within this 30-day

[[Page 312]]

period constitutes approval of the request. Approval of the deviation 
request does not constitute a change, or the basis for a change, to the 
negotiated cost or price of this contract, or the estimated cost of any 
undefinitized contract actions.

                             (End of clause)

    Alternate I (NOV 2006). As prescribed in 1834.203-70(b), substitute 
the following paragraph (b) for paragraph (b) of the basic clause:

    (b) If, at the time of award, the Contractor's EVMS has not been 
determined by the Cognizant Federal Agency to be compliant with the EVMS 
guidelines, or the Contractor does not have an existing cost/schedule 
control system that is compliant with the guidelines in the ANSI/EIA-748 
Standard (current version at the time of ward), the Contractor shall 
apply the system to the contract and shall take timely action to 
implement its plan to be compliant with the guidelines. The Government 
will not formally validate/accept the Contractor's EVMS with respect to 
this contract. The use of the Contractor's EVMS for this contract does 
not imply Government acceptance of the Contractor's EVMS for application 
to future contracts. The Government will monitor compliance through 
routine surveillance.

[71 FR 66121, Nov. 13, 2006]



Sec. 1852.235-70  Center for AeroSpace Information.

    As prescribed in 1835.070(a), insert the following clause:

               Center for Aerospace Information (DEC 2006)

    (a) The Contractor should register with and avail itself of the 
services provided by the NASA Center for AeroSpace Information (CASI) 
(http://www.sti.nasa.gov) for the conduct of research or research and 
development required under this contract. CASI provides a variety of 
services and products as a NASA repository and database of research 
information, which may enhance contract performance.
    (b) Should the CASI information or service requested by the 
Contractor be unavailable or not in the exact form necessary by the 
Contractor, neither CASI nor NASA is obligated to search for or change 
the format of the information. A failure to furnish information shall 
not entitle the Contractor to an equitable adjustment under the terms 
and conditions of this contract.
    (c) Information regarding CASI and the services available can be 
obtained at the Internet address contained in paragraph (a) of this 
clause.

                             (End of clause)

[68 FR 5232, Feb. 3, 2003, as amended at 71 FR 71073, Dec. 8, 2006]



Sec. 1852.235-71  Key personnel and facilities.

    As prescribed in 1835.070(b), insert the following clause:

                 Key Personnel and Facilities (MAR 1989)

    (a) The personnel and/or facilities listed below (or specified in 
the contract Schedule) are considered essential to the work being 
performed under this contract. Before removing, replacing, or diverting 
any of the listed or specified personnel or facilities, the Contractor 
shall (1) notify the Contracting Officer reasonably in advance and (2) 
submit justification (including proposed substitutions) in sufficient 
detail to permit evaluation of the impact on this contract.
    (b) The Contractor shall make no diversion without the Contracting 
Officer's written consent; provided, that the Contracting Officer may 
ratify in writing the proposed change, and that ratification shall 
constitute the Contracting Officer's consent required by this clause.
    (c) The list of personnel and/or facilities (shown below or as 
specified in the contract Schedule) may, with the consent of the 
contracting parties, be amended from time to time during the course of 
the contract to add or delete personnel and/or facilities.

[List here the personnel and/or facilities considered essential, unless 
they are specified in the contract Schedule.]

                             (End of clause)



Sec. 1852.235-72  Instructions for responding to NASA Research 
          Announcements.

    As prescribed in 1835.070(c), insert the following provision:

  Instructions for Responding to NASA Research Announcements (DEC 2005)

    (a) General. (1) Proposals received in response to a NASA Research 
Announcement (NRA) will be used only for evaluation purposes. NASA does 
not allow a proposal, the contents of which are not available without 
restriction from another source, or any unique ideas submitted in 
response to an NRA to be used as the basis of a solicitation or in 
negotiation with other organizations, nor is a pre-award synopsis 
published for individual proposals.
    (2) A solicited proposal that results in a NASA award becomes part 
of the record of that transaction and may be available to the

[[Page 313]]

public on specific request; however, information or material that NASA 
and the awardee mutually agree to be of a privileged nature will be held 
in confidence to the extent permitted by law, including the Freedom of 
Information Act.
    (3) NRAs contain programmatic information and certain requirements 
which apply only to proposals prepared in response to that particular 
announcement. These instructions contain the general proposal 
preparation information which applies to responses to all NRAs.
    (4) A contract, grant, cooperative agreement, or other agreement may 
be used to accomplish an effort funded in response to an NRA. NASA will 
determine the appropriate award instrument. Contracts resulting from 
NRAs are subject to the Federal Acquisition Regulation and the NASA FAR 
Supplement. Any proposal from a large business concern that may result 
in the award of a contract, which exceeds $5,000,000 and has 
subcontracting possibilities should include a small business 
subcontracting plan in accordance with the clause at FAR 52.219-9, Small 
Business Subcontracting Plan. (Subcontract plans for contract awards 
below $5,000,000, will be negotiated after selection.) Any resultant 
grants or cooperative agreements will be awarded and administered in 
accordance with the NASA Grant and Cooperative Agreement Handbook (NPR 
5800.1).
    (5) NASA does not have mandatory forms or formats for responses to 
NRAs; however, it is requested that proposals conform to the guidelines 
in these instructions. NASA may accept proposals without discussion; 
hence, proposals should initially be as complete as possible and be 
submitted on the proposers' most favorable terms.
    (6) To be considered for award, a submission must, at a minimum, 
present a specific project within the areas delineated by the NRA; 
contain sufficient technical and cost information to permit a meaningful 
evaluation; be signed by an official authorized to legally bind the 
submitting organization; not merely offer to perform standard services 
or to just provide computer facilities or services; and not 
significantly duplicate a more specific current or pending NASA 
solicitation.
    (b) NRA-Specific Items. Several proposal submission items appear in 
the NRA itself: the unique NRA identifier; when to submit proposals; 
where to send proposals; number of copies required; and sources for more 
information. Items included in these instructions may be supplemented by 
the NRA.
    (c) The following information is needed to permit consideration in 
an objective manner. NRAs will generally specify topics for which 
additional information or greater detail is desirable. Each proposal 
copy shall contain all submitted material, including a copy of the 
transmittal letter if it contains substantive information.
    (1) Transmittal letter or prefatory material.
    (i) The legal name and address of the organization and specific 
division or campus identification if part of a larger organization;
    (ii) A brief, scientifically valid project title intelligible to a 
scientifically literate reader and suitable for use in the public press;
    (iii) Type of organization: e.g., profit, nonprofit, educational, 
small business, minority, women-owned, etc;
    (iv) Name and telephone number of the principal investigator and 
business personnel who may be contacted during evaluation or 
negotiation;
    (v) Identification of other organizations that are currently 
evaluating a proposal for the same efforts;
    (vi) Identification of the NRA, by number and title, to which the 
proposal is responding;
    (vii) Dollar amount requested, desired starting date, and duration 
of project;
    (viii) Date of submission; and
    (ix) Signature of a responsible official or authorized 
representative of the organization, or any other person authorized to 
legally bind the organization (unless the signature appears on the 
proposal itself).
    (2) Restriction on use and disclosure of roposal information. 
Information contained in proposals is used for evaluation purposes only. 
Offerors or quoters should, in order to maximize protection of trade 
secrets or other information that is confidential or privileged, place 
the following notice on the title page of the proposal and specify the 
information subject to the notice by inserting an appropriate 
identification in the notice. In any event, information contained in 
proposals will be protected to the extent permitted by law, but NASA 
assumes no liability for use and disclosure of information not made 
subject to the notice.

    Notice--Restriction on Use and Disclosure of Proposal Information

    The information (data) contained in [insert page numbers or other 
identification] of this proposal constitutes a trade secret and/or 
information that is commercial or financial and confidential or 
privileged. It is furnished to the Government in confidence with the 
understanding that it will not, without permission of the offeror, be 
used or disclosed other than for evaluation purposes; provided, however, 
that in the event a contract (or other agreement) is awarded on the 
basis of this proposal the Government shall have the right to use and 
disclose this information (data) to the extent provided in the contract 
(or other agreement). This restriction does not limit the Government's 
right to use or disclose this information (data) if obtained from 
another source without restriction.

[[Page 314]]

    (3) Abstract. Include a concise (200-300 word if not otherwise 
specified in the NRA) abstract describing the objective and the method 
of approach.
    (4) Project description. (i) The main body of the proposal shall be 
a detailed statement of the work to be undertaken and should include 
objectives and expected significance; relation to the present state of 
knowledge; and relation to previous work done on the project and to 
related work in progress elsewhere. The statement should outline the 
plan of work, including the broad design of experiments to be undertaken 
and a description of experimental methods and procedures. The project 
description should address the evaluation factors in these instructions 
and any specific factors in the NRA. Any substantial collaboration with 
individuals not referred to in the budget or use of consultants should 
be described. Subcontracting significant portions of a research project 
is discouraged.
    (ii) When it is expected that the effort will require more than one 
year, the proposal should cover the complete project to the extent that 
it can be reasonably anticipated. Principal emphasis should be on the 
first year of work, and the description should distinguish clearly 
between the first year's work and work planned for subsequent years.
    (5) Management approach. For large or complex efforts involving 
interactions among numerous individuals or other organizations, plans 
for distribution of responsibilities and arrangements for ensuring a 
coordinated effort should be described.
    (6) Personnel. The principal investigator is responsible for 
supervision of the work and participates in the conduct of the research 
regardless of whether or not compensated under the award. A short 
biographical sketch of the principal investigator, a list of principal 
publications and any exceptional qualifications should be included. Omit 
social security number and other personal items which do not merit 
consideration in evaluation of the proposal. Give similar biographical 
information on other senior professional personnel who will be directly 
associated with the project. Give the names and titles of any other 
scientists and technical personnel associated substantially with the 
project in an advisory capacity. Universities should list the 
approximate number of students or other assistants, together with 
information as to their level of academic attainment. Any special 
industry-university cooperative arrangements should be described.
    (7) Facilities and equipment. (i) Describe available facilities and 
major items of equipment especially adapted or suited to the proposed 
project, and any additional major equipment that will be required. 
Identify any Government-owned facilities, industrial plant equipment, or 
special tooling that are proposed for use. Include evidence of its 
availability and the cognizant Government points of contact.
    (ii) Before requesting a major item of capital equipment, the 
proposer should determine if sharing or loan of equipment already within 
the organization is a feasible alternative. Where such arrangements 
cannot be made, the proposal should so state. The need for items that 
typically can be used for research and non-research purposes should be 
explained.
    (8) Proposed costs (U.S. proposals only). (i) Proposals should 
contain cost and technical parts in one volume: do not use separate 
``confidential'' salary pages. As applicable, include separate cost 
estimates for salaries and wages; fringe benefits; equipment; expendable 
materials and supplies; services; domestic and foreign travel; ADP 
expenses; publication or page charges; consultants; subcontracts; other 
miscellaneous identifiable direct costs; and indirect costs. List 
salaries and wages in appropriate organizational categories (e.g., 
principal investigator, other scientific and engineering professionals, 
graduate students, research assistants, and technicians and other non-
professional personnel). Estimate all staffing data in terms of staff-
months or fractions of full-time.
    (ii) Explanatory notes should accompany the cost proposal to provide 
identification and estimated cost of major capital equipment items to be 
acquired; purpose and estimated number and lengths of trips planned; 
basis for indirect cost computation (including date of most recent 
negotiation and cognizant agency); and clarification of other items in 
the cost proposal that are not self-evident. List estimated expenses as 
yearly requirements by major work phases.
    (iii) Allowable costs are governed by FAR part 31 and the NASA FAR 
Supplement Part 1831 (and OMB Circulars A-21 for educational 
institutions and A-122 for nonprofit organizations).
    (iv) Use of NASA funds--NASA funding may not be used for foreign 
research efforts at any level, whether as a collaborator or a 
subcontract. The direct purchase of supplies and/or services, which do 
not constitute research, from non-U.S. sources by U.S award recipients 
is permitted. Additionally, in accordance with the National Space 
Transportation Policy, use of a non-U.S. manufactured launch vehicle is 
permitted only on a no-exchange-of-funds basis.
    (9) Security. Proposals should not contain security classified 
material. If the research requires access to or may generate security 
classified information, the submitter will be required to comply with 
Government security regulations.

[[Page 315]]

    (10) Current support. For other current projects being conducted by 
the principal investigator, provide title of project, sponsoring agency, 
and ending date.
    (11) Special matters. (i) Include any required statements of 
environmental impact of the research, human subject or animal care 
provisions, conflict of interest, or on such other topics as may be 
required by the nature of the effort and current statutes, executive 
orders, or other current Government-wide guidelines.
    (ii) Identify and discuss risk factors and issues throughout the 
proposal where they are relevant, and your approach to managing these 
risks.
    (iii) Proposers should include a brief description of the 
organization, its facilities, and previous work experience in the field 
of the proposal. Identify the cognizant Government audit agency, 
inspection agency, and administrative contracting officer, when 
applicable.
    (d) Renewal proposals. (1) Renewal proposals for existing awards 
will be considered in the same manner as proposals for new endeavors. A 
renewal proposal should not repeat all of the information that was in 
the original proposal. The renewal proposal should refer to its 
predecessor, update the parts that are no longer current, and indicate 
what elements of the research are expected to be covered during the 
period for which support is desired. A description of any significant 
findings since the most recent progress report should be included. The 
renewal proposal should treat, in reasonable detail, the plans for the 
next period, contain a cost estimate, and otherwise adhere to these 
instructions.
    (2) NASA may renew an effort either through amendment of an existing 
contract or by a new award.
    (e) Length. Unless otherwise specified in the NRA, effort should be 
made to keep proposals as brief as possible, concentrating on 
substantive material. Few proposals need exceed 15-20 pages. Necessary 
detailed information, such as reprints, should be included as 
attachments. A complete set of attachments is necessary for each copy of 
the proposal. As proposals are not returned, avoid use of ``one-of-a-
kind'' attachments.
    (f) Joint proposals. (1) Where multiple organizations are involved, 
the proposal may be submitted by only one of them. It should clearly 
describe the role to be played by the other organizations and indicate 
the legal and managerial arrangements contemplated. In other instances, 
simultaneous submission of related proposals from each organization 
might be appropriate, in which case parallel awards would be made.
    (2) Where a project of a cooperative nature with NASA is 
contemplated, describe the contributions expected from any participating 
NASA investigator and agency facilities or equipment which may be 
required. The proposal must be confined only to that which the proposing 
organization can commit itself. ``Joint'' proposals which specify the 
internal arrangements NASA will actually make are not acceptable as a 
means of establishing an agency commitment.
    (g) Late proposals. Proposals or proposal modifications received 
after the latest date specified for receipt may be considered if a 
significant reduction in cost to the Government is probable or if there 
are significant technical advantages, as compared with proposals 
previously received.
    (h) Withdrawal. Proposals may be withdrawn by the proposer at any 
time before award. Offerors are requested to notify NASA if the proposal 
is funded by another organization or of other changed circumstances 
which dictate termination of evaluation.
    (i) Evaluation factors. (1) Unless otherwise specified in the NRA, 
the principal elements (of approximately equal weight) considered in 
evaluating a proposal are its relevance to NASA's objectives, intrinsic 
merit, and cost.
    (2) Evaluation of a proposal's relevance to NASA's objectives 
includes the consideration of the potential contribution of the effort 
to NASA's mission.
    (3) Evaluation of its intrinsic merit includes the consideration of 
the following factors of equal importance:
    (i) Overall scientific or technical merit of the proposal or unique 
and innovative methods, approaches, or concepts demonstrated by the 
proposal.
    (ii) Offeror's capabilities, related experience, facilities, 
techniques, or unique combinations of these which are integral factors 
for achieving the proposal objectives.
    (iii) The qualifications, capabilities, and experience of the 
proposed principal investigator, team leader, or key personnel critical 
in achieving the proposal objectives.
    (iv) Overall standing among similar proposals and/or evaluation 
against the state-of-the-art.
    (4) Evaluation of the cost of a proposed effort may include the 
realism and reasonableness of the proposed cost and available funds.
    (j) Evaluation techniques. Selection decisions will be made 
following peer and/or scientific review of the proposals. Several 
evaluation techniques are regularly used within NASA. In all cases 
proposals are subject to scientific review by discipline specialists in 
the area of the proposal. Some proposals are reviewed entirely in-house, 
others are evaluated by a combination of in-house and selected external 
reviewers, while yet others are subject to the full external peer review 
technique (with due regard for conflict-of-interest and protection of 
proposal information), such as by mail or through assembled panels. The 
final decisions are made by a NASA selecting official. A proposal which 
is

[[Page 316]]

scientifically and programmatically meritorious, but not selected for 
award during its initial review, may be included in subsequent reviews 
unless the proposer requests otherwise.
    (k) Selection for award. (1) When a proposal is not selected for 
award, the proposer will be notified. NASA will explain generally why 
the proposal was not selected. Proposers desiring additional information 
may contact the selecting official who will arrange a debriefing.
    (2) When a proposal is selected for award, negotiation and award 
will be handled by the procurement office in the funding installation. 
The proposal is used as the basis for negotiation. The contracting 
officer may request certain business data and may forward a model award 
instrument and other information pertinent to negotiation.
    (l) Additional guidelines applicable to foreign proposals and 
proposals including foreign participation. (1) NASA welcomes proposals 
from outside the U.S. However, foreign entities are generally not 
eligible for funding from NASA. Therefore, unless otherwise noted in the 
NRA, proposals from foreign entities should not include a cost plan 
unless the proposal involves collaboration with a U.S. institution, in 
which case a cost plan for only the participation of the U.S. entity 
must be included. Proposals from foreign entities and proposals from 
U.S. entities that include foreign participation must be endorsed by the 
respective government agency or funding/sponsoring institution in the 
country from which the foreign entity is proposing. Such endorsement 
should indicate that the proposal merits careful consideration by NASA, 
and if the proposal is selected, sufficient funds will be made available 
to undertake the activity as proposed.
    (2) All foreign proposals must be typewritten in English and comply 
with all other submission requirements stated in the NRA. All foreign 
proposals will undergo the same evaluation and selection process as 
those originating in the U.S. All proposals must be received before the 
established closing date. Those received after the closing date will be 
treated in accordance with paragraph (g) of this provision. Sponsoring 
foreign government agencies or funding institutions may, in exceptional 
situations, forward a proposal without endorsement if endorsement is not 
possible before the announced closing date. In such cases, the NASA 
sponsoring office should be advised when a decision on endorsement can 
be expected.
    (3) Successful and unsuccessful foreign entities will be contacted 
directly by the NASA sponsoring office. Copies of these letters will be 
sent to the foreign sponsor. Should a foreign proposal or a U.S. 
proposal with foreign participation be selected, NASA's Office of 
External Relations will arrange with the foreign sponsor for the 
proposed participation on a no-exchange-of-funds basis, in which NASA 
and the non-U.S. sponsoring agency or funding institution will each bear 
the cost of discharging their respective responsibilities.
    (4) Depending on the nature and extent of the proposed cooperation, 
these arrangements may entail:
    (i) An exchange of letters between NASA and the foreign sponsor; or
    (ii) A formal Agency-to-Agency Memorandum of Understanding (MOU).
    (m) Cancellation of NRA. NASA reserves the right to make no awards 
under this NRA and to cancel this NRA. NASA assumes no liability for 
canceling the NRA or for anyone's failure to receive actual notice of 
cancellation.

[62 FR 4475, Jan. 30, 1997, as amended at 64 FR 48561, Sept. 7, 1999; 65 
FR 3153, Jan. 20, 2000; 67 FR 30604, May 7, 2002; 67 FR 61520, Oct. 1, 
2002; 69 FR 63460, Nov. 2, 2004; 70 FR 74207, Dec. 15, 2005]



Sec. 1852.235-73  Final Scientific and Technical Reports.

    As prescribed in 1835.070(d) insert the following clause:

            Final Scientific and Technical Reports (DEC 2006)

    (a) The Contractor shall submit to the Contracting Officer a final 
report that summarizes the results of the entire contract, including 
recommendations and conclusions based on the experience and results 
obtained. The final report should include tables, graphs, diagrams, 
curves, sketches, photographs, and drawings in sufficient detail to 
explain comprehensively the results achieved under the contract.
    (b) The final report shall be of a quality suitable for publication 
and shall follow the formatting and stylistic guidelines contained in 
NPR 2200.2, Guidelines for Documentation, Approval, and Dissemination of 
NASA Scientific and Technical Information. Electronic formats for 
submission of reports should be used to the maximum extent practical. 
Before electronically submitting reports containing scientific and 
technical information (STI) that is export-controlled or limited or 
restricted, contact the Contracting Officer to determine the 
requirements to electronically transmit these forms of STI. If 
appropriate electronic safeguards are not available at the time of 
submission, a paper copy or a CD-ROM of the report shall be required. 
Information regarding appropriate electronic formats for final reports 
is available at http://www.sti.nasa.gov under ``Publish STI--Electronic 
File Formats.''
    (c) The last page of the final report shall be a completed Standard 
Form (SF) 298, Report Documentation Page.

[[Page 317]]

    (d) In addition to the final report submitted to the Contracting 
Officer, the Contractor shall concurrently provide to the Center STI/
Publication Manager and the NASA Center for AeroSpace Information (CASI) 
a copy of the letter transmitting the final report to the Contracting 
Officer. The copy of the letter shall be submitted to CASI at the 
address listed at http://www.sti.nasa.gov under the ``Get Help'' link.
    (e) In accordance with paragraph (d) of the Rights in Data--General 
clause (52.227-14) of this contract, the Contractor may publish, or 
otherwise disseminate, data produced during the reports required by 
1852.235-74 when included in the contract, without prior review by NASA. 
The Contractor is responsible for reviewing publication or dissemination 
of the data for conformance with laws and regulations governing its 
distribution, including intellectual property rights, export control, 
national security and other requirements, and to the extent the 
contractor receives or is given access to data necessary for the 
performance of the contract which contain restrictive markings, for 
complying with such restrictive markings. Should the Contractor seek to 
publish or otherwise disseminate the final report, or any additional 
reports required by 1852.235-74 if applicable, as delivered to NASA 
under this contract, the Contractor may do so once NASA has completed 
its document availability authorization review, and availability of the 
report has been determined.

    Alternate I (FEB 2003) As prescribed by 1835.070(d)(1), insert the 
following as paragraph (e) of the basic clause:

    (e) The data resulting from this research activity is ``fundamental 
research'' which will be broadly shared within the scientific community. 
No foreign national access or dissemination restrictions apply to this 
research activity. The Contractor may publish, release, or otherwise 
disseminate data produced during the performance of this contract, 
including the final report, without prior review by NASA for export 
control or national security purposes. However, NASA retains the right 
to review the final report to ensure that proprietary information, which 
may have been provided to the Contractor, is not released without 
authorization and for consistency with NASA publication standards. 
Additionally, the Contractor is responsible for reviewing any 
publication, release, or dissemination of the data for conformance with 
other restrictions expressly set forth in this contract, and to the 
extent it receives or is given access to data necessary for the 
performance of the contract which contain restrictive markings, for 
compliance with such restrictive markings.

    Alternate II (DEC 2005) As prescribed by 1835.070(d)(2), insert the 
following as paragraph (e) of the basic clause:

    (e) Data resulting from this research activity may be subject to 
export control, national security restrictions or other restrictions 
designated by NASA; or, to the extent the Contractor receives or is 
given access to data necessary for the performance of the contract which 
contain restrictive markings, may include proprietary information of 
others. Therefore, the Contractor shall not publish, release, or 
otherwise disseminate, except to NASA, data produced during the 
performance of this contract, including data contained in the final 
report and any additional reports required by 1852.235-74 when included 
in the contract, without prior review by NASA. Should the Contractor 
seek to publish, release, or otherwise disseminate data produced during 
the performance of this contract, the Contractor may do so once NASA has 
completed its document availability authorization review and the 
availability of the data has been determined.
    (f) All publications of any material based on or developed under 
NASA sponsored projects shall include an acknowledgement similar to the 
following:

    ``The material is based upon work supported by the National 
Aeronautics and Space Administration under Contract Number XXXX.''

    Except for articles or papers published in scientific, technical or 
professional journals, the exposition of results from NASA supported 
research shall also include the following disclaimer:

    ``Any opinions, findings, and conclusions or recommendations 
expressed in this material are those of the author(s) and do not 
necessarily reflect the views of the National Aeronautics and Space 
Administration.''

    Alternate III (JAN 2005) As prescribed by 1835.070(d)(3), insert the 
following as paragraph (e) of the basic clause:

    (e) The Contractor's rights in data are defined in FAR 52.227-20, 
Rights In Data--SBIR Program. The Contractor may publish, or otherwise 
disseminate, such data without prior review by NASA. The Contractor is 
responsible for reviewing publication or dissemination of the data for 
conformance with laws and regulations governing its distribution, 
including intellectual property rights, export control, national 
security and other requirements, and to the extent the Contractor 
receives or is given access to data necessary for the performance of the 
contract which contain restrictive markings, for complying with such 
restrictive markings. In the event the Contractor has established its 
claim to copyright data produced under

[[Page 318]]

this contract and has affixed a copyright notice and acknowledgement of 
Government sponsorship, or has affixed the SBIR Rights Notice contained 
in paragraph (d) of FAR 52.227-20, the Government shall comply with such 
Notices.

                             (End of clause)

[68 FR 5232, Feb. 3, 2003, as amended at 70 FR 2022, Jan. 12, 2005; 70 
FR 74207, Dec. 15, 2005; 71 FR 71073, Dec. 8, 2006]



Sec. 1852.235-74  Additional Reports of Work--Research and Development.

    As prescribed in 1835.070(e), insert a clause substantially the same 
as the following:

     Additional Reports of Work--Research and Development (FEB 2003)

    In addition to the final report required under this contract, the 
Contractor shall submit the following report(s) to the Contracting 
Officer:
    (a) Monthly progress reports. The Contractor shall submit separate 
monthly reports of all work accomplished during each month of contract 
performance. Reports shall be in narrative form, brief, and informal. 
They shall include a quantitative description of progress, an indication 
of any current problems that may impede performance, proposed corrective 
action, and a discussion of the work to be performed during the next 
monthly reporting period.
    (b) Quarterly progress reports. The Contractor shall submit separate 
quarterly reports of all work accomplished during each three-month 
period of contract performance. In addition to factual data, these 
reports should include a separate analysis section interpreting the 
results obtained, recommending further action, and relating occurrences 
to the ultimate objectives of the contract. Sufficient diagrams, 
sketches, curves, photographs, and drawings should be included to convey 
the intended meaning.
    (c) Submission dates. Monthly and quarterly reports shall be 
submitted by the 15th day of the month following the month or quarter 
being reported. If the contract is awarded beyond the middle of a month, 
the first monthly report shall cover the period from award until the end 
of the following month. No monthly report need be submitted for the 
third month of contract effort for which a quarterly report is required. 
No quarterly report need be submitted for the final three months of 
contract effort since that period will be covered in the final report. 
The final report shall be submitted within ---- days after the 
completion of the effort under the contract.

                             (End of clause)

[68 FR 5232, Feb. 3, 2003]



Sec. 1852.236-71  Additive or deductive items.

    As prescribed in 1836.570(a), insert the following provision:

                 Additive or Deductive Items (MAR 1989)

    (a) 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 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 those funds for all 
bidders, it shall be skipped and the next subsequent additive bid item 
in a lower amount shall be added for each bid if award on it can be made 
within the funds.
    (b) An example for one bid is an amount available of $100,000, a 
bidder's base bid of $85,000, and four successive additives of $10,000, 
$8,000, $6,000, and $4,000. In this example, 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 either of them would cause the aggregate bid to exceed $100,000.
    (c) All bids shall be evaluated on the basis of the same additive or 
deductive bid items. The listed order of priority must be followed only 
for determining the low bidder. After determination of the low bidder, 
award in the best interests of the Government may be made to that bidder 
on its base bid and any combination of its additive or deductive bid 
items for which funds are determined to be available at the time of the 
award, provided that award of the 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 provision)

[54 FR 28340, July 5, 1989, as amended at 62 FR 4476, Jan. 30, 1997]



Sec. 1852.236-72  Bids with unit prices.

    As prescribed in 1836.570(b), insert the following provision:

                    Bids With Unit Prices (MAR 1989)

    (a) All extensions of the unit prices bid will be subject to 
verification by the Government. If there is variation between the unit

[[Page 319]]

price and any extended amounts, the unit price will be considered to be 
the bid.
    (b) If a modification to a bid based on unit prices that provides 
for a lump-sum adjustment to the total estimated cost is submitted, the 
application of the lump sum adjustment to each unit price in the bid 
must be stated. If it is not stated, the lump-sum adjustment shall be 
applied on a pro rata basis to every unit price in the bid.

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 62 FR 4476, Jan. 30, 1997]



Sec. 1852.236-73  Hurricane plan.

    As prescribed in 1836.570(c), insert the following clause:

                        Hurricane Plan (DEC 1988)

    In the event of a hurricane warning, the Contractor shall--
    (a) Inspect the area and place all materials possible in a protected 
location;
    (b) Tie down, or identify and store, all outside equipment and 
materials;
    (c) Clear all surrounding areas and roofs of buildings, or tie down 
loose material, equipment, debris, and any other objects that could 
otherwise be blown away or blown against existing buildings; and
    (d) Ensure that temporary erosion controls are adequate.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 4476, Jan. 30, 1997]



Sec. 1852.236-74  Magnitude of requirement.

    As prescribed in 1836.570(d), insert the following provision:

                   Magnitude of Requirement (DEC 1988)

    The Government estimated price range of this project is between $--
------ and $--------. [Insert the estimated dollar range.]

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 62 FR 4476, Jan. 30, 1997]



Sec. 1852.236-75  Partnering for construction contracts.

    As prescribed in 1836.7004, insert the following clause:

            Partnering for Construction Contracts (AUG 1998)

    (a) The terms ``partnering'' and ``partnership'' used herein shall 
mean a relationship of open communication and close cooperation that 
involves both Government and Contractor personnel working together for 
the purpose of establishing a mutually beneficial, proactive, 
cooperative environment within which to achieve contract objectives and 
resolve issues and implementing actions as required.
    (b) Partnering will be a voluntary commitment mutually agreed upon 
by at least NASA and the prime contractor, and preferably the 
subcontractors and the A&E design contractor, if applicable. Sustained 
commitment to the process is essential to assure success of the 
relationship.
    (c) NASA intends to facilitate contract management by encouraging 
the foundation of a cohesive partnership with the Contractor, its 
subcontractors, the A&E design contractor, and NASA's contract 
management staff. This partnership will be structured to draw on the 
strengths of each organization to identify and achieve mutual 
objectives. The objectives are intended to complete the contract 
requirements within budget, on schedule, and in accordance with the 
plans and specifications.
    (d) To implement the partnership, it is anticipated that within 30 
days of the Notice to Proceed the prime Contractor's key personnel, its 
subcontractors, the A&E design contractor, and NASA personnel will 
attend a partnership development and team building workshop. Follow-up 
team building workshops will be held periodically throughout the 
duration of the contract as agreed to by the Government and the 
Contractor.
    (e) Any cost with effectuating the partnership will be agreed to in 
advance by both parties and will be shared with no change in the 
contract price. The contractor's share of the costs are not recoverable 
under any other Government award.

                             (End of clause)

[63 FR 44171, Aug. 18, 1998]



Sec. 1852.237-70  Emergency evacuation procedures.

    As prescribed at 1837.110-70(a), insert the following clause:

               Emergency Evacuation Procedures (DEC 1988)

    The contractor shall assure that its personnel at Government 
facilities are familiar with the functions of the Government's

[[Page 320]]

emergency evacuation procedures. If requested by the Contracting 
Officer, the Contractor shall designate an individual or individuals as 
contact points to provide for efficient and rapid evacuation of the 
facility if and when required.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 54 FR 39376, Sept. 26, 1989; 
62 FR 4476, Jan. 30, 1997]



Sec. 1852.237-71  Pension portability.

    As prescribed at 1837.110-70(b), insert the following clause:

                     Pension Portability (JAN 1997)

    (a) In order for pension costs attributable to employees assigned to 
this contract to be allowable costs under this contract, the plans 
covering such employees must:
    (1) Comply with all applicable Government laws and regulations;
    (2) Be a defined contribution plan, or a multiparty defined benefit 
plan operated under a collective bargaining agreement. In either case, 
the plan must be portable, i.e., the plan follows the employee, not the 
employer;
    (3) Provide for 100 percent employee vesting at the earlier of one 
year of continuous employee service or contract termination; and
    (4) Not be modified, terminated, or a new plan adopted without the 
prior written approval of the cognizant NASA Contracting Officer.
    (b) The Contractor shall include paragraph (a) of this clause in 
subcontracts for continuing services under a service contract if:
    (1) The prime contract requires pension portability;
    (2) The subcontracted labor dollars (excluding any burdens or 
profit/fee) exceed $2,500,000 and ten percent of the total prime 
contract labor dollars (excluding any burdens or profit/fee); and
    (3) Either of the following conditions exists:
    (i) There is a continuing need for the same or similar subcontract 
services for a minimum of five years (inclusive of options), and if the 
subcontractor changes, a high percentage of the predecessor 
subcontractor's employees are expected to remain with the program; or
    (ii) The employees under a predecessor subcontract were covered by a 
portable pension plan, a follow-on subcontract or a subcontract 
consolidating existing services is awarded, and the total subcontract 
period covered by the plan covers a minimum of five years (including 
both the predecessor and successor subcontracts).

                             (End of clause)

[62 FR 4477, Jan. 30, 1997]



Sec. 1852.237-72  Access to Sensitive Information.

    As prescribed in 1837.203-72(a), insert the following clause:

               Access to Sensitive Information (JUN 2005)

    (a) As used in this clause, ``sensitive information'' refers to 
information that a contractor has developed at private expense, or that 
the Government has generated that qualifies for an exception to the 
Freedom of Information Act, which is not currently in the public domain, 
and which may embody trade secrets or commercial or financial 
information, and which may be sensitive or privileged.
    (b) To assist NASA in accomplishing management activities and 
administrative functions, the Contractor shall provide the services 
specified elsewhere in this contract.
    (c) If performing this contract entails access to sensitive 
information, as defined above, the Contractor agrees to--
    (1) Utilize any sensitive information coming into its possession 
only for the purposes of performing the services specified in this 
contract, and not to improve its own competitive position in another 
procurement.
    (2) Safeguard sensitive information coming into its possession from 
unauthorized use and disclosure.
    (3) Allow access to sensitive information only to those employees 
that need it to perform services under this contract.
    (4) Preclude access and disclosure of sensitive information to 
persons and entities outside of the Contractor's organization.
    (5) Train employees who may require access to sensitive information 
about their obligations to utilize it only to perform the services 
specified in this contract and to safeguard it from unauthorized use and 
disclosure.
    (6) Obtain a written affirmation from each employee that he/she has 
received and will comply with training on the authorized uses and 
mandatory protections of sensitive information needed in performing this 
contract.
    (7) Administer a monitoring process to ensure that employees comply 
with all reasonable security procedures, report any breaches to the 
Contracting Officer, and implement any necessary corrective actions.
    (d) The Contractor will comply with all procedures and obligations 
specified in its Organizational Conflicts of Interest Avoidance Plan, 
which this contract incorporates as a compliance document.

[[Page 321]]

    (e) The nature of the work on this contract may subject the 
Contractor and its employees to a variety of laws and regulations 
relating to ethics, conflicts of interest, corruption, and other 
criminal or civil matters relating to the award and administration of 
government contracts. Recognizing that this contract establishes a high 
standard of accountability and trust, the Government will carefully 
review the Contractor's performance in relation to the mandates and 
restrictions found in these laws and regulations. Unauthorized uses or 
disclosures of sensitive information may result in termination of this 
contract for default, or in debarment of the Contractor for serious 
misconduct affecting present responsibility as a government contractor.
    (f) The Contractor shall include the substance of this clause, 
including this paragraph (f), suitably modified to reflect the 
relationship of the parties, in all subcontracts that may involve access 
to sensitive information

                             (End of clause)

[70 FR 35555, June 21, 2005]



Sec. 1852.237-73  Release of sensitive information.

    As prescribed in 1837.203-72(b), insert the following clause:

               Release of Sensitive Information (JUN 2005)

    (a) As used in this clause, ``sensitive information'' refers to 
information, not currently in the public domain, that the Contractor has 
developed at private expense, that may embody trade secrets or 
commercial or financial information, and that may be sensitive or 
privileged.
    (b) In accomplishing management activities and administrative 
functions, NASA relies heavily on the support of various service 
providers. To support NASA activities and functions, these service 
providers, as well as their subcontractors and their individual 
employees, may need access to sensitive information submitted by the 
Contractor under this contract. By submitting this proposal or 
performing this contract, the Contractor agrees that NASA may release to 
its service providers, their subcontractors, and their individual 
employees, sensitive information submitted during the course of this 
procurement, subject to the enumerated protections mandated by the 
clause at 1852.237-72, Access to Sensitive Information.
    (c)(1) The Contractor shall identify any sensitive information 
submitted in support of this proposal or in performing this contract. 
For purposes of identifying sensitive information, the Contractor may, 
in addition to any other notice or legend otherwise required, use a 
notice similar to the following:
    Mark the title page with the following legend:
    This proposal or document includes sensitive information that NASA 
shall not disclose outside the Agency and its service providers that 
support management activities and administrative functions. To gain 
access to this sensitive information, a service provider's contract must 
contain the clause at NFS 1852.237-72, Access to Sensitive Information. 
Consistent with this clause, the service provider shall not duplicate, 
use, or disclose the information in whole or in part for any purpose 
other than to perform the services specified in its contract. This 
restriction does not limit the Government's right to use this 
information if it is obtained from another source without restriction. 
The information subject to this restriction is contained in pages 
[insert page numbers or other identification of pages].
    Mark each page of sensitive information the Contractor wishes to 
restrict with the following legend:
    Use or disclosure of sensitive information contained on this page is 
subject to the restriction on the title page of this proposal or 
document.
    (2) The Contracting Officer shall evaluate the facts supporting any 
claim that particular information is ``sensitive.'' This evaluation 
shall consider the time and resources necessary to protect the 
information in accordance with the detailed safeguards mandated by the 
clause at 1852.237-72, Access to Sensitive Information. However, unless 
the Contracting Officer decides, with the advice of Center counsel, that 
reasonable grounds exist to challenge the Contractor's claim that 
particular information is sensitive, NASA and its service providers and 
their employees shall comply with all of the safeguards contained in 
paragraph (d) of this clause.
    (d) To receive access to sensitive information needed to assist NASA 
in accomplishing management activities and administrative functions, the 
service provider must be operating under a contract that contains the 
clause at 1852.237-72, Access to Sensitive Information. This clause 
obligates the service provider to do the following:
    (1) Comply with all specified procedures and obligations, including 
the Organizational Conflicts of Interest Avoidance Plan, which the 
contract has incorporated as a compliance document.
    (2) Utilize any sensitive information coming into its possession 
only for the purpose of performing the services specified in its 
contract.
    (3) Safeguard sensitive information coming into its possession from 
unauthorized use and disclosure.

[[Page 322]]

    (4) Allow access to sensitive information only to those employees 
that need it to perform services under its contract.
    (5) Preclude access and disclosure of sensitive information to 
persons and entities outside of the service provider's organization.
    (6) Train employees who may require access to sensitive information 
about their obligations to utilize it only to perform the services 
specified in its contract and to safeguard it from unauthorized use and 
disclosure.
    (7) Obtain a written affirmation from each employee that he/she has 
received and will comply with training on the authorized uses and 
mandatory protections of sensitive information needed in performing this 
contract.
    (8) Administer a monitoring process to ensure that employees comply 
with all reasonable security procedures, report any breaches to the 
Contracting Officer, and implement any necessary corrective actions.
    (e) When the service provider will have primary responsibility for 
operating an information technology system for NASA that contains 
sensitive information, the service provider's contract shall include the 
clause at 1852.204-76, Security Requirements for Unclassified 
Information Technology Resources. The Security Requirements clause 
requires the service provider to implement an Information Technology 
Security Plan to protect information processed, stored, or transmitted 
from unauthorized access, alteration, disclosure, or use. Service 
provider personnel requiring privileged access or limited privileged 
access to these information technology systems are subject to screening 
using the standard National Agency Check (NAC) forms appropriate to the 
level of risk for adverse impact to NASA missions. The Contracting 
Officer may allow the service provider to conduct its own screening, 
provided the service provider employs substantially equivalent screening 
procedures.
    (f) This clause does not affect NASA's responsibilities under the 
Freedom of Information Act.
    (g) The Contractor shall insert this clause, including this 
paragraph (g), suitably modified to reflect the relationship of the 
parties, in all subcontracts that may require the furnishing of 
sensitive information.

                             (End of clause)

[70 FR 35555, June 21, 2005]



Sec. 1852.239-70  Alternate delivery points.

    As prescribed in 1839.106-70(a)(1), insert the following clause:

                  Alternate Delivery Points (NOV 1993)

    (a) The first priority of this contract is to satisfy the 
anticipated requirements of ---- (identify contracting activity). 
However, should the actual requirements of ---- (contracting activity) 
be less than the maximum quantities/values specified in section B of 
this contract, ---- (contracting activity) may order the remaining 
available quantities/values to satisfy the requirements of other 
installations. The other installations at which delivery may be required 
are:

(List installations and their locations)

    (b) The prices of the deliverables in section B are F.O.B. 
destination to ---- (contracting activity). If delivery to an alternate 
location is ordered, an equitable adjustment may be negotiated to 
recognize any variances in transportation costs associated with delivery 
to that alternate location.

                             (End of clause)

    Alternate I (NOV 1993). As prescribed in 1839.7008(b), delete 
paragraph (b) and substitute the following:

    (b) The prices of the deliverables in section B are F.O.B. origin 
with delivery to NASA via Government bill of lading (GBL). If delivery 
to an alternate location is ordered, the same delivery procedures will 
be used and no equitable adjustment to any price, term, or condition of 
this contract will be made as a result of such order.

                             (End of clause)

[58 FR 59189, Nov. 8, 1993; 58 FR 62556, Nov. 29, 1993, as amended at 62 
FR 4477, Jan. 30, 1997; 62 FR 36735, July 9, 1997]



Sec. 1852.241-70  Renewal of contract.

    As prescribed in 48 CFR 1841.501-70, insert the following clause:

                     Renewal of Contract (DEC 1988)

    This contract is renewable on an annual basis at the option of the 
Government, by the Contracting Officer giving written notice of renewal 
to the Contractor at least ---- days before expiration. If the 
Government exercises this option for renewal, the contract as renewed 
shall be deemed to include this option provision. However, the total 
duration of this contract, including the exercise of any options under 
this clause, shall not exceed ---- years.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 56 FR 12460, Mar. 26, 1991. 
Redesignated and amended at 60 FR 16063, Mar. 29, 1995; 62 FR 4477, Jan. 
30, 1997]

[[Page 323]]



Sec. 1852.242-70  Technical direction.

    As prescribed in 1842.271, insert the following clause:

                     Technical Direction (SEP 1993)

    (a) Performance of the work under this contract is subject to the 
written technical direction of the Contracting Officer Technical 
Representative (COTR), who shall be specifically appointed by the 
Contracting Officer in writing in accordance with NASA FAR Supplement 
1842.270. ``Technical direction'' means a directive to the Contractor 
that approves approaches, solutions, designs, or refinements; fills in 
details or otherwise completes the general description of work or 
documentation items; shifts emphasis among work areas or tasks; or 
furnishes similar instruction to the Contractor. Technical direction 
includes requiring studies and pursuit of certain lines of inquiry 
regarding matters within the general tasks and requirements in Section C 
of this contract.
    (b) The COTR does not have the authority to, and shall not, issue 
any instruction purporting to be technical direction that--
    (1) Constitutes an assignment of additional work outside the 
statement of work;
    (2) Constitutes a change as defined in the changes clause;
    (3) Constitutes a basis for any increase or decrease in the total 
estimated contract cost, the fixed fee (if any), or the time required 
for contract performance;
    (4) Changes any of the expressed terms, conditions, or 
specifications of the contract; or
    (5) Interferes with the contractor's rights to perform the terms and 
conditions of the contract.
    (c) All technical direction shall be issued in writing by the COTR.
    (d) The Contractor shall proceed promptly with the performance of 
technical direction duly issued by the COTR in the manner prescribed by 
this clause and within the COTR's authority. If, in the Contractor's 
opinion, any instruction or direction by the COTR falls within any of 
the categories defined in paragraph (b) of this clause, the Contractor 
shall not proceed but shall notify the Contracting Officer in writing 
within 5 working days after receiving it and shall request the 
Contracting Officer to take action as described in this clause. Upon 
receiving this notification, the Contracting Officer shall either issue 
an appropriate contract modification within a reasonable time or advise 
the Contractor in writing within 30 days that the instruction or 
direction is--
    (1) Rescinded in its entirety; or
    (2) Within the requirements of the contract and does not constitute 
a change under the Changes clause of the contract, and that the 
Contractor should proceed promptly with its performance.
    (e) A failure of the Contractor and the Contracting Officer to agree 
that the instruction or direction is both within the requirements of the 
contract and does not constitute a change under the Changes clause, or a 
failure to agree upon the contract action to be taken with respect to 
the instruction or direction, shall be subject to the Disputes clause of 
this contract.
    (f) Any action(s) taken by the contractor in response to any 
direction given by any person other than the Contracting Officer or the 
COTR shall be at the Contractor's risk.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 56 FR 32119, July 15, 1991; 59 
FR 21668, Apr. 26, 1994; 62 FR 36735, July 9, 1997]



Sec. 1852.242-71  Travel outside of the United States.

    As prescribed in 1842.7002, insert the following clause:

             Travel Outside of the United States (DEC 1988)

    (a) The Contracting Officer must authorize in advance and in writing 
travel to locations outside of the United States by Contractor employees 
that is to be charged as a cost to this contract. This approval may be 
granted when the travel is necessary to the efforts required under the 
contract and it is otherwise in the best interest of NASA.
    (b) The Contractor shall submit requests to the Contracting Officer 
at least 30 days in advance of the start of the travel.
    (c) The Contractor shall submit a travel report at the conclusion of 
the travel. The Contracting Officer's approval of the travel will 
specify the required contents and distribution of the travel report.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 55 FR 27090, June 29, 1990; 56 
FR 12460, Mar. 26, 1991]



Sec. 1852.242-72  Observance of legal holidays.

    As prescribed in 1842.7001(a), insert the following clause:

                 Observance of Legal Holidays (AUG 1992)

    (a) The on-site Government personnel observe the following holidays:

New Year's Day
Labor Day
Martin Luther King, Jr.'s Birthday
Columbus Day
President's Birthday
Veterans Day

[[Page 324]]

Memorial Day
Thanksgiving Day
Independence Day
Christmas Day

    Any other day designated by Federal statute, Executive Order, or the 
President's proclamation.
    (b) When any holiday falls on a Saturday, the preceding Friday is 
observed. When any holiday falls on a Sunday, the following Monday is 
observed. Observance of such days by Government personnel shall not by 
itself be cause for an additional period of performance or entitlement 
of compensation except as set forth within the contract.

                             (End of clause)

    Alternate I (SEP 1989). As prescribed in 1842.7001(b), add the 
following paragraphs (c) and (d) as Alternate I to the clause.

    (c) On-site personnel assigned to this contract shall not be granted 
access to the installation during the holidays in paragraph (a) of the 
clause, except as follows: the Contractor shall provide sufficient on-
site personnel to perform round-the-clock requirements of critical work 
already in process, unless otherwise instructed by the Contracting 
Officer or authorized representative. If the Contractor's on-site 
personnel work during a holiday other than those in paragraph (a) of the 
clause, no form of holiday or other premium compensation shall be 
reimbursed as either a direct or indirect cost. However, this does not 
preclude reimbursement for authorized overtime work that would have been 
overtime regardless of the status of the day as a holiday.
    (d) The Contractor shall place identical requirements, including 
this paragraph, in all subcontracts that require performance of work on-
site, unless otherwise instructed by the Contracting Officer.

    Alternate II (OCT 2000). As prescribed in 1842.7001(c), add the 
following as paragraphs (e) and (f) if Alternate I is used, or as 
paragraphs (c) and (d) if Alternate I is not used. If added as 
paragraphs (c) and (d), amend the first sentence of paragraph (d) by 
deleting ``(e)'' and adding ``(c)'' in its place.

    (e) When the NASA installation grants administrative leave to its 
Government employees (e.g., as a result of inclement weather, 
potentially hazardous conditions, or other special circumstances), 
Contractor personnel working on-site should also be dismissed. However, 
the contractor shall provide sufficient onsite personnel to perform 
round-the-clock requirements of critical work already in process, unless 
otherwise instructed by the Contracting Officer or authorized 
representative.
    (f) Whenever administrative leave is granted to Contractor personnel 
pursuant to paragraph (e) of this clause, it shall 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 cost 
under this contract for employees in accordance with the Contractor's 
established accounting policy.

[54 FR 39376, Sept. 26, 1989, as amended at 57 FR 40856, Sept. 8, 1992; 
62 FR 36735, July 9, 1997; 63 FR 32764, June 16, 1998; 65 FR 58932, Oct. 
3, 2000]



Sec. 1852.242-73  NASA contractor financial management reporting.

    As prescribed in 1842.7202, insert the following clause:

        NASA Contractor Financial Management Reporting (NOV 2004)

    (a) The Contractor shall submit NASA Contractor Financial Management 
Reports on NASA Forms 533 in accordance with the instructions in NASA 
Procedures and Guidelines (NPR) 9501.2, NASA Contractor Financial 
Management Reporting, and on the reverse side of the forms, as 
supplemented in the Schedule of this contract. The detailed reporting 
categories to be used, which shall correlate with technical and schedule 
reporting, shall be set forth in the Schedule. Contractor implementation 
of reporting requirements under this clause shall include NASA approval 
of the definitions of the content of each reporting category and give 
due regard to the Contractor's established financial management 
information system.
    (b) Lower level detail used by the Contractor for its own management 
purposes to validate information provided to NASA shall be compatible 
with NASA requirements.
    (c) Reports shall be submitted in the number of copies, at the time, 
and in the manner set forth in the Schedule or as designated in writing 
by the Contractor Officer. Upon completion and acceptance by NASA of all 
contract line items, the Contracting Officer may direct the Contractor 
to submit Form 533 reports on a quarterly basis only, report only when 
changes in actual cost incur, or suspend reporting altogether.
    (d) The Contractor shall ensure that its Form 533 reports include 
accurate subcontractor cost data, in the proper reporting categories, 
for the reporting period.
    (e) If during the performance of this contract NASA requires a 
change in the information or reporting requirements specified in the 
Schedule, or as provided for in paragraph (a) or (c) of this clause, the 
Contracting Officer shall effect that change in

[[Page 325]]

accordance with the Changes clause of this contract.

                             (End of clause)

[62 FR 36735, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 65 
FR 46628, July 31, 2000; 69 FR 63460, Nov. 2, 2004]



Sec. 1852.242-78  Emergency Medical Services and Evacuation.

    As prescribed in 1842.7003, insert the following clause:

          Emergency Medical Services and Evacuation--April 2001

    The Contractor shall, at its own expense, be responsible for making 
all arrangements for emergency medical services and evacuation, if 
required, for its employees while performing work under this contract 
outside the United States or in remote locations in the United States. 
If necessary to deal with certain emergencies, the Contractor may 
request the Government to provide medical or evacuation services. If the 
Government provides such services, the Contractor shall reimburse the 
Government for the costs incurred.

                             (End of clause)

[66 FR 18054, Apr. 5, 2001]



Sec. 1852.243-70  Engineering change proposals.

    As prescribed in 1843.205-70(a)(1), insert the following clause, 
modified to suit contract type:

                 Engineering Change Proposals (FEB 1998)

    (a) Definitions.
    ``ECP'' means an Engineering Change Proposal (ECP) which is a 
proposed engineering change and the documentation by which the change is 
described, justified, and submitted to the procuring activity for 
approval or disapproval.
    (b) Either party to the contract may originate ECPs. Implementation 
of an approved ECP may occur by either a supplemental agreement or, if 
appropriate, as a written change order to the contract.
    (c) Any ECP submitted to the Contracting Officer shall include a 
``not-to-exceed'' ---- [price or estimated cost] increase or decrease 
adjustment amount, if any, and the required [time of delivery or period 
of performance] adjustment, if any, acceptable to the originator of the 
ECP. If the change is originated within the Government, the Contracting 
Officer shall obtain a written agreement with the Contractor regarding 
the ``not-to-exceed'' ---- [price or estimated cost] and [delivery or 
period of performance] adjustments, if any, prior to issuing an order 
for implementation of the change.
    (d) After submission of a Contractor initiated ECP, the Contracting 
Officer may require the Contractor to submit the following information:
    (1) Cost or pricing data in accordance with FAR 15.403-5 if the 
proposed change meets the criteria for its submission under FAR 15.403-
4; or
    (2) Information other than cost or pricing data adequate for 
Contracting Officer determination of price reasonableness or cost 
realism. The Contracting Officer reserves the right to request 
additional information if that provided by the Contractor is considered 
inadequate for that purpose. If the Contractor claims applicability of 
one of the exceptions to submission of cost or pricing data, it shall 
cite the exception and provide rationale for its applicability.
    (e) If the ECP is initiated by NASA, the Contracting Officer shall 
specify the cost information requirements, if any.

                             (End of clause)

    Alternate I (JUL 1997). As prescribed in 1843.205-70(a)(2), add the 
following paragraph (f), modified to suit contract type, to the basic 
clause:

    (f) If the ---- [price or estimated cost] adjustment proposed for 
any contractor-originated ECP is ---- [insert a percent or dollar amount 
of the contract price or estimated cost] or less, the ECP shall be 
executed with no adjustment to the contract ---- [price or estimated 
cost].

    Alternate II (SEPT 1990). As prescribed in 1843.205-70(a)(3), add 
the following sentence at the end of paragraph (c) of the basic clause:

    An ECP accepted in accordance with the Changes clause of this 
contract shall not be considered an authorization to the Contractor to 
exceed the estimated cost in the contract Schedule, unless the estimated 
cost is increased by the change order or other contract modification.

[62 FR 14033, Mar. 25, 1997, as amended at 62 FR 36735, July 9, 1997; 62 
FR 40309, July 28, 1997; 63 FR 9966, Feb. 27, 1998; 63 FR 11480, Mar. 9, 
1998; 63 FR 17339, Apr. 9, 1998; 67 FR 53549, Oct. 23, 2002]



Sec. 1852.243-71  Shared savings.

    As prescribed in 1843.7102, insert the following clause:

                        Shared Savings (MAR 1997)

    (a) The Contractor is entitled, under the provisions of this clause, 
to share in cost

[[Page 326]]

savings resulting from the implementation of cost reduction projects 
which are presented to the Government in the form of Cost Reduction 
Proposals (CRP) and approved by the Contracting Officer. These cost 
reduction projects may require changes to the terms, conditions or 
statement of work of this contract. Any cost reduction projects must not 
change the essential function of any products to be delivered or the 
essential purpose of services to be provided under the contract.
    (b) Definitions:
    (1) Cost savings, as contemplated by this clause mean savings that 
result from instituting changes to the covered contract, as identified 
in an approved Cost Reduction Proposal.
    (2) Cost Reduction Proposal--For the purposes of this clause, a Cost 
Reduction Proposal means a proposal that recommends alternatives to the 
established procedures and/or organizational support of a contract or 
group of contracts. These alternatives must result in a net reduction of 
contract cost and price to NASA. The proposal will include technical and 
cost information sufficient to enable the Contracting Officer to 
evaluate the CRP and approve or disapprove it.
    (3) Covered contract--As used in this provision, covered contract 
means the contract, including unexercised options but excluding future 
contracts, whether contemplated or not, against which the CRP is 
submitted.
    (4) Contractor implementation costs--As used in this provision, 
Contractor implementation costs, or ``implementation costs'', shall mean 
those costs which the Contractor incurs on covered contracts 
specifically in developing, preparing, submitting, and negotiating a 
CRP, as well as those costs the Contractor will incur on covered 
contracts to make any structural or organizational changes in order to 
implement an approved CRP.
    (5) Government costs--As used in this provision, the term Government 
costs means internal costs of NASA, or any other Government agency, 
which result directly from development and implementation of the CRP. 
These may include, but are not limited to, costs associated with the 
administration of the contract or with such contractually related 
functions such as testing, operations, maintenance and logistics 
support. These costs also include costs associated with other Agency 
contracts (including changes in contract price or cost and fee) that may 
be affected as a result of the implementation of a CRP. They do not 
include the normal administrative costs of reviewing and processing the 
Cost Reduction Proposal.
    (c) General. The Contractor will develop, prepare and submit CRP's 
with supporting information as detailed in paragraph (e) of this clause, 
to the Contracting Officer. The CRP will describe the proposed cost 
reduction activity in sufficient detail to enable the Contracting 
Officer to evaluate it and to approve or disapprove it. The Contractor 
shall share in any net cost savings realized from approved and 
implemented CRPs in accordance with the terms of this clause. The 
Contractor's actual percentage share of the cost savings shall be a 
matter for negotiation with the Contracting Officer, but shall not, in 
any event, exceed 50 percent of the total cost savings recognized by the 
Contracting Officer. The Contractor may propose changes in other 
activities that impact performance on its contract, including Government 
and other Contractor operations, if such changes will optimize cost 
savings. A Contractor shall not be entitled to share, however, in any 
cost savings that are internal to the Government, or which result from 
changes made to any contracts to which it is not a party even if those 
changes were proposed as a part of its CRP. Early communication between 
the Contractor and Government is encouraged. The communication may be in 
the form of a concept paper or preliminary proposal. The Government is 
not committed to accepting any proposal as a result of these early 
discussions.
    (d) Computation of cost savings. The cost savings to be shared 
between the Government and the Contractor will be computed by the 
Contracting Officer by comparing a current estimate to complete (ETC) 
for the covered contract, as structured before implementation of the 
proposed CRP, to a revised ETC which takes into account the 
implementation of that CRP. The cost savings to be shared shall be 
reduced by any cost overrun, whether experienced or projected, that is 
identified on the covered contract before implementation of the CRP. 
Although a CRP may result in cost savings that extend far into the 
future, the period in which the Contractor may share in those savings 
will be limited to no more than five years. Implementation costs of the 
Contractor must be considered and specifically identified in the revised 
ETC. The Contracting Officer shall offset Contractor cost savings by any 
increased costs (whether implementing or recurring) to the Government 
when computing the total cost savings to be shared. The Contractor shall 
not be entitled, under the provisions of this clause, to share in any 
cost reductions to the contract that are the result of changes stemming 
from any action other than an approved CRP. However, this clause does 
not limit recovery of any such reimbursements that are allowed as a 
result of other contract provisions.
    (e) Supporting information. As a minimum, the Contractor shall 
provide the following supporting information with each CRP:
    (1) Identification of the current contract requirements or 
established procedures and/or organizational support which are proposed 
to be changed.

[[Page 327]]

    (2) A description of the difference between the current process or 
procedure and the proposed change. This description shall address how 
proposed changes will meet NASA requirements and discuss the advantages 
and disadvantages of the existing practice and the proposed changes.
    (3) A list of contract requirements which must be revised, if any, 
if the CRP is approved, along with proposed revisions. Any changes to 
NASA or delegated contract management processes should also be 
addressed.
    (4) Detailed cost estimates which reflect the implementation costs 
of the CRP.
    (5) An updated ETC for the covered contract, unchanged, and a 
revised ETC for the covered contract which reflects changes resulting 
from implementing the CRP. If the CRP proposes changes to only a limited 
number of elements of the contract, the ETCs need only address those 
portions of the contract that have been impacted. Each ETC shall depict 
the level of costs incurred or to be incurred by year, or to the level 
of detail required by the Contracting Officer. If other CRPs have been 
proposed or approved on a contract, the impact of these CRPs must be 
addressed in the computation of the cost savings to ensure that the cost 
savings identified are attributable only to the CRP under consideration 
in the instant case.
    (6) Identification of any other previous submissions of the CRP, 
including the dates submitted, the agencies and contracts involved, and 
the disposition of those submittals.
    (f) Administration. (1) The Contractor shall submit proposed CRPs to 
the Contracting Officer who shall be responsible for the review, 
evaluation and approval. Normally, CRP's should not be entertained for 
the first year of performance to allow the Contracting Officer to assess 
performance against the basic requirements. If a cost reduction project 
impacts more than a single contract, the Contractor may, upon 
concurrence of the Contracting Officers responsible for the affected 
contracts, submit a single CRP which addresses fully the cost savings 
projected on all affected contracts that contain this Shared Savings 
Clause. In the case of multiple contracts affected, responsibility for 
the review and approval of the CRP will be a matter to be decided by the 
affected Contracting Officers.
    (2) Within 60 days of receipt, the Contracting Officer shall 
complete an initial evaluation of any proposed cost reduction plan to 
determine its feasibility. Failure of the Contracting Officer to provide 
a response within 60 days shall not be construed as approval of the CRP. 
The Government shall promptly notify the Contractor of the results of 
its initial evaluation and indicate what, if any, further action will be 
taken. If the Government determines that the proposed CRP has merit, it 
will open discussions with the Contractor to establish the cost savings 
to be recognized, the Contractor's share of the cost savings, and a 
payment schedule. The Contractor shall continue to perform in accordance 
with the terms and conditions of the existing contract until a contract 
modification is executed by the Contracting Officer. The modification 
shall constitute approval of the CRP and shall incorporate the changes 
identified by the CRP, adjust the contract cost and/or price, establish 
the Contractor's share of cost savings, and incorporate the agreed to 
payment schedule.
    (3) The Contractor will receive payment by submitting invoices to 
the Contracting Officer for approval. The amount and timing of 
individual payments will be made in accordance with the schedule to be 
established with the Contracting Officer. Notwithstanding the overall 
savings recognized by the Contracting Officer as a result of an approved 
CRP, payment of any portion of the Contractor's share of savings shall 
not be made until NASA begins to realize a net cost savings on the 
contract (i.e., implementation, startup and other increased costs 
resulting from the change have been offset by cumulative cost savings). 
Savings associated with unexercised options will not be paid unless and 
until the contract options are exercised. It shall be the responsibility 
of the Contractor to provide such justification as the Contracting 
Officer deems necessary to substantiate that cost savings are being 
achieved.
    (4) Any future activity, including a merger or acquisition 
undertaken by the Contractor (or to which the Contractor becomes an 
involved party), which has the effect of reducing or reversing the cost 
savings realized from an approved CRP for which the Contractor has 
received payment may be cause for recomputing the net cost savings 
associated with any approved CRP. The Government reserves the right to 
make an adjustment to the Contractor's share of cost savings and to 
receive a refund of moneys paid if necessary. Such adjustment shall not 
be made without notifying the Contractor in advance of the intended 
action and affording the Contractor an opportunity for discussion.
    (g) Limitations. Contract requirements that are imposed by statute 
shall not be targeted for cost reduction exercises. The Contractor is 
precluded from receiving reimbursements under both this clause and other 
incentive provisions of the contract, if any, for the same cost 
reductions.
    (h) Disapproval of, or failure to approve, any proposed cost 
reduction proposal shall not be considered a dispute subject to remedies 
under the Disputes clause.
    (i) Cost savings paid to the Contractor in accordance with the 
provisions of this clause do not constitute profit or fee within the

[[Page 328]]

limitations imposed by 10 U.S.C. 2306(d) and 41 U.S.C. 254(b).

                             (End of clause)

[62 FR 14033, Mar. 25, 1997]



Sec. 1852.243-72  Equitable adjustments.

    As prescribed in 1843.205-70(b), insert the following clause.

                    Equitable Adjustments (APR 1998)

    (a) The provisions of all other clauses contained in this contract 
which provide for an equitable adjustment, including those clauses 
incorporated by reference with the exception of the ``Suspension of 
Work'' clause (FAR 52.242-14), are supplemented as follows:
    Upon written request, the Contractor shall submit a proposal for 
review by the Government. The proposal shall be submitted to the 
contracting officer within the time limit indicated in the request or 
any extension thereto subsequently granted. The proposal shall provide 
an itemized breakdown of all increases and decreases in the contract for 
the Contractor and each subcontractor in at least the following detail: 
material quantities and costs; direct labor hours and rates for each 
trade; the associated FICA, FUTA, SUTA, and Workmen's Compensation 
Insurance; and equipment hours and rates.
    (b) The overhead percentage cited below shall be considered to 
include all indirect costs including, but not limited to, field and 
office supervisors and assistants, incidental job burdens, small tools, 
and general overhead allocations. ``Commission'' is defined as profit on 
work performed by others. The percentages for overhead, profit, and 
commission are negotiable according to the nature, extent, and 
complexity of the work involved, but in no case shall they exceed the 
following ceilings:

----------------------------------------------------------------------------------------------------------------
                                                                             Overhead      Profit
                                                                            (percent)    (percent)    Commission
----------------------------------------------------------------------------------------------------------------
To Contractor on work performed by other than its own forces.............           --           --           10
To first tier subcontractor on work performed by its subcontractors......           --           --           10
To Contractor and/or subcontractors on work performed with their own                10           10           --
 forces..................................................................
----------------------------------------------------------------------------------------------------------------

    (c) Not more than four percentages for overhead, profit, and 
commission shall be allowed regardless of the number of subcontractor 
tiers.
    (d) The Contractor or subcontractor shall not be allowed overhead or 
commission on the overhead, profit, and/or commission received by its 
subcontractors.
    (e) Equitable adjustments for deleted work shall include credits, 
limited to the same percentages for overhead, profit, and commission in 
paragraph (b) of this clause.
    (f) On proposals covering both increases and decreases in the amount 
of the contract, the application of the overhead, profit, and commission 
shall be on the net change in direct costs for the Contractor or the 
subcontractor performing the work.
    (g) After receipt of the Contractor's proposal, the contracting 
officer shall act within a reasonable period, provided that when the 
necessity to proceed with a change does not permit time to properly 
check the proposal, or in the event of a failure to reach an agreement 
on a proposal, the contracting officer may order the Contractor to 
proceed on the basis of the price being determined at the earliest 
practicable date. In such a case, the price shall not be more than the 
increase or less than the decrease proposed.

                             (End of clause)

[63 FR 17339, Apr. 9, 1998]



Sec. 1852.244-70  Geographic participation in the aerospace program.

    As prescribed in 1844.204-70, insert the following clause:

      Geographic Participation in the Aerospace Program (APR 1985)

    (a) It is the policy of the National Aeronautics and Space 
Administration to advance a broad participation by all geographic 
regions in filling the scientific, technical, research and development, 
and other needs of the aerospace program.
    (b) The Contractor agrees to use its best efforts to solicit 
subcontract sources on the broadest feasible geographic basis consistent 
with efficient contract performance and without impairment of program 
effectiveness or increase in program cost.
    (c) The Contractor further agrees to insert this clause in all 
subcontracts of $100,000 and over.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 14034, Mar. 25, 1997]



Sec. 1852.245-70  Contractor requests for Government-provided equipment.

    As prescribed in 1845.107-70(a)(1), insert the following clause:

[[Page 329]]

    Contractor Requests for Government-Provided Equipment (JAN 2011)

    (a) The Contractor shall provide all property required for the 
performance of this contract. The Contractor shall not acquire or 
construct items of property to which the Government will have title 
under the provisions of this contract without the Contracting Officer's 
written authorization. Property which will be acquired as a deliverable 
end item as material or as a component for incorporation into a 
deliverable end item is exempt from this requirement. Property approved 
as part of the contract award or specifically required within the 
statement of work is exempt from this requirement.
    (b)(1) In the event the Contractor is unable to provide the property 
necessary for performance, and the Contractor requests provision of 
property by the Government, the Contractor's request shall--
    (i) Justify the need for the property;
    (ii) Provide the reasons why contractor-owned property cannot be 
used;
    (iii) Describe the property in sufficient detail to enable the 
Government to screen its inventories for available property or to 
otherwise acquire property, including applicable manufacturer, model, 
part, catalog, National Stock Number or other pertinent identifiers;
    (iv) Combine requests for quantities of items with identical 
descriptions and estimated values when the estimated values do not 
exceed $100,000 per unit; and
    (v) Include only a single unit when the acquisition or construction 
value equals or exceeds $100,000.
    (2) Contracting Officer authorization is required for items the 
Contractor intends to manufacture as well as those it intends to 
purchase.
    (3) The Contractor shall submit requests to the Contracting Officer 
no less than 30 days in advance of the date the Contractor would, should 
it receive authorization, acquire or begin fabrication of the item.
    (c) The Contractor shall maintain copies of Contracting Officer 
authorizations, appropriately cross-referenced to the individual 
property record, within its property management system.
    (d) Property furnished from Government excess sources is provided 
as-is, where-is. The Government makes no warranty regarding its 
applicability for performance of the contract or its ability to operate. 
Failure of property obtained from Government excess sources under this 
clause is insufficient reason for submission of requests for equitable 
adjustments discussed in the clause at FAR 52.245-1, Government 
Property, as incorporated in this contract.

                             (End of clause)

    Alternate I (JAN 2011) As prescribed in 1845.107-70(a)(2), add the 
following paragraph (e).
    (e) In the event the Contracting Officer issues written 
authorization to provide property, the Contractor shall screen 
Government sources to determine the availability of property from 
Government inventory or excess property.
    (1) The Contractor shall review NASA inventories and other 
authorized Federal excess sources for availability of items that meet 
the performance requirements of the requested property.
    (i) If the Contractor determines that a suitable item is available 
from NASA supply inventory, it shall request the item using applicable 
Center procedures.
    (ii) If the Contractor determines that an item within NASA or 
Federal excess is suitable, it shall contact the Center Industrial 
Property Officer to arrange for transfer of the item from the identified 
source to the Contractor.
    (2) If the Contractor determines that the required property is not 
available from inventory or excess sources, the Contractor shall note 
the acquisition file with a list of sources reviewed and the findings 
regarding the lack of availability. If the required property is 
available, but unsuitable for use, the contractor shall document the 
rationale for rejection of available property. The Contractor shall 
retain appropriate cross-referenced documentary evidence of the outcome 
of those screening efforts as part of its property records system.

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-71  Installation-accountable Government property.

    As prescribed in 1845.107-70(b)(1), insert the following clause:

         Installation-Accountable Government Property (JAN 2011)

    (a) The Government property described in paragraph (c) of this 
clause may be made available to the Contractor on a no-charge basis for 
use in performance of this contract. This property shall be utilized 
only within the physical confines of the NASA installation that provided 
the property unless authorized by the Contracting Officer under 
(b)(1)(iv). Under this clause, the Government retains accountability 
for, and title to, the property, and the Contractor shall comply with 
the following:
    NASA Procedural Requirements (NPR) 4100.1, NASA Materials Inventory 
Management Manual;

[[Page 330]]

    NASA Procedural Requirements (NPR) 4200.1, NASA Equipment Management 
Procedural Requirements;
    NASA Procedural Requirement (NPR) 4300.1, NASA Personal Property 
Disposal Procedural Requirements;

[Insert any additional property management responsibilities.].

    Property not recorded in NASA property systems must be managed in 
accordance with the requirements of the clause at FAR 52.245-1, as 
incorporated in this contract.
    The Contractor shall establish and adhere to a system of written 
procedures to assure continued, effective management control and 
compliance with these user responsibilities. In accordance with FAR 
52.245-1(h)(1) the contractor shall be liable for property lost, 
damaged, destroyed or stolen by the contractor or their employees when 
determined responsible by a NASA Property Survey Board, in accordance 
with the NASA guidance in this clause.
    (b)(1) The official accountable recordkeeping, financial control, 
and reporting of the property subject to this clause shall be retained 
by the Government and accomplished within NASA management information 
systems prescribed by the installation Supply and Equipment Management 
Officer (SEMO) and Financial Management Officer. If this contract 
provides for the Contractor to acquire property, title to which will 
vest in the Government, the following additional procedures apply:
    (i) The Contractor's purchase order shall require the vendor to 
deliver the property to the installation central receiving area.
    (ii) The Contractor shall furnish a copy of each purchase order, 
prior to delivery by the vendor, to the installation central receiving 
area.
    (iii) The Contractor shall establish a record for Government titled 
property as required by FAR 52.245-1, as incorporated in this contract, 
and shall maintain that record until accountability is accepted by the 
Government.
    (iv) Contractor use of Government property at an off-site location 
and off-site subcontractor use requires advance approval of the 
Contracting Officer and notification of the Industrial Property Officer. 
The property shall be considered Government furnished and the Contractor 
shall assume accountability and financial reporting responsibility. The 
Contractor shall establish records and property control procedures and 
maintain the property in accordance with the requirements of FAR 52.245-
1, Government Property (as incorporated in this contract), until its 
return to the installation. NASA Procedural Requirements related to 
property loans shall not apply to offsite use of property by 
contractors.
    (2) After transfer of accountability to the Government, the 
Contractor shall continue to maintain such internal records as are 
necessary to execute the user responsibilities identified in paragraph 
(a) of this clause and document the acquisition, billing, and 
disposition of the property. These records and supporting documentation 
shall be made available, upon request, to the SEMO and any other 
authorized representatives of the Contracting Officer.
    (c) The following property and services are provided if checked:
    (1) Office space, work area space, and utilities. Government 
telephones are available for official purposes only.
    (2) Office furniture.
    (3) Property listed in [Insert attachment number or ``not 
applicable'' if no equipment is provided].
    (i) If the Contractor acquires property, title to which vests in the 
Government pursuant to other provisions of this contract, this property 
also shall become accountable to the Government upon its entry into 
Government records.
    (ii) The Contractor shall not bring to the installation for use 
under this contract any property owned or leased by the Contractor, or 
other property that the Contractor is accountable for under any other 
Government contract, without the Contracting Officer's prior written 
approval.
    (4) Supplies from stores stock.
    (5) Publications and blank forms stocked by the installation.
    (6) Safety and fire protection for Contractor personnel and 
facilities.
    (7) Installation service facilities: [Insert the name of the 
facilities or ``none''].
    (8) Medical treatment of a first-aid nature for Contractor personnel 
injuries or illnesses sustained during on-site duty.
    (9) Cafeteria privileges for Contractor employees during normal 
operating hours.
    (10) Building maintenance for facilities occupied by Contractor 
personnel.
    (11) Moving and hauling for office moves, movement of large 
equipment, and delivery of supplies. Moving services may be provided on-
site, as approved by the Contracting Officer.

                             (End of clause)

    Alternate I (JAN 2011) As prescribed in 1845.107-70(b)(4), 
substitute the following for paragraph (b)(1)(i) of the basic clause:
    (i) The Contractor shall not utilize the installation's central 
receiving facility for receipt of contractor-acquired property. However, 
the Contractor shall provide listings suitable for establishing 
accountable records

[[Page 331]]

of all such property received, on a monthly basis, to the SEMO.

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-72  Liability for Government property furnished for repair 
          or other services.

    As prescribed in 1845.107-70(c), insert the following clause:

Liability for Government Property Furnished for Repair or Other Services 
                               (JAN 2011)

    (a) This clause shall govern with respect to any Government property 
furnished to the Contractor for repair or other services that is to be 
returned to the Government. Such property, hereinafter referred to as 
``Government property furnished for servicing,'' shall not be subject to 
FAR 52.245-1, Government Property.
    (b) The official accountable recordkeeping and financial control and 
reporting of the property subject to this clause shall be retained by 
the Government. The Contractor shall maintain adequate records and 
procedures to ensure that the Government property furnished for 
servicing can be readily accounted for and identified at all times while 
in its custody or possession or in the custody or possession of any 
subcontractor.
    (c) The Contractor shall be liable for any loss, damage, or 
destruction of the Government property furnished for servicing when 
caused by the Contractor's failure to exercise such care and diligence 
as a reasonable prudent owner of similar property would exercise under 
similar circumstances. The Contractor shall not be liable for loss, 
damage, or destruction of Government property furnished for servicing 
resulting from any other cause except to the extent that the loss, 
damage, or destruction is covered by insurance (including self-insurance 
funds or reserves).
    (d) The Contractor shall hold the Government harmless and shall 
indemnify the Government against all claims for injury to persons or 
damage to property of the Contractor or others arising from the 
Contractor's possession or use of the Government property furnished for 
servicing or arising from the presence of that property on the 
Contractor's premises or property.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-73  Financial reporting of NASA property in the custody of 
          contractors.

    As prescribed in 1845.106-70(d), insert the following clause:

Financial Reporting of NASA Property in the Custody of Contractors (JAN 
                                  2011)

    (a) The Contractor shall submit annually a NASA Form (NF) 1018, NASA 
Property in the Custody of Contractors, in accordance with this clause, 
the instructions on the form and NFS subpart 1845.71, and any 
supplemental instructions for the current reporting period issued by 
NASA.
    (b)(1) Subcontractor use of NF 1018 is not required by this clause; 
however, the Contractor shall include data on property in the possession 
of subcontractors in the annual NF 1018.
    (2) The Contractor shall mail the original signed NF 1018 directly 
to the cognizant NASA Center Deputy Chief Financial Officer, Finance, 
unless the Contractor uses the NF 1018 Electronic Submission System 
(NESS) for report preparation and submission.
    (3) One copy shall be submitted (through the Department of Defense 
(DOD) Property Administrator if contract administration has been 
delegated to DOD) to the following address: [Insert name and address of 
appropriate NASA Center office.], unless the Contractor uses the NF 1018 
Electronic Submission System (NESS) for report preparation and 
submission.
    (c)(1) The annual reporting period shall be from October 1 of each 
year through September 30 of the following year. The report shall be 
submitted in time to be received by October 15. The information 
contained in these reports is entered into the NASA accounting system to 
reflect current asset values for agency financial statement purposes. 
Therefore, it is essential that required reports be received no later 
than October 15. Some activity may be estimated for the month of 
September, if necessary, to ensure the NF 1018 is received when due. 
However, contractors' procedures must document the process for 
developing these estimates based on planned activity such as planned 
purchases or NASA Form 533 (NF 533 Contractor Financial Management 
Report) cost estimates. It should be supported and documented by 
historical experience or other corroborating evidence, and be retained 
in accordance with FAR Subpart 4.7, Contractor Records Retention. 
Contractors shall validate the reasonableness of the estimates and 
associated methodology by comparing them to the actual activity once 
that data is available, and adjust them accordingly. In addition, 
differences between the estimated cost and actual cost must be adjusted 
during the next reporting period. Contractors shall have formal policies 
and procedures, which address the validation of NF 1018 data, including 
data from subcontractors, and the identification and timely reporting of 
errors. The objective of this validation is to ensure that information 
reported is accurate and in

[[Page 332]]

compliance with the NASA FAR Supplement. If errors are discovered on NF 
1018 after submission, the contractor shall contact the cognizant NASA 
Center Industrial Property Officer (IPO) within 30 days after discovery 
of the error to discuss corrective action.
    (2) The Contracting Officer may, in NASA's interest, withhold 
payment until a reserve not exceeding $25,000 or 5 percent of the amount 
of the contract, whichever is less, has been set aside, if the 
Contractor fails to submit annual NF 1018 reports in accordance with NFS 
subpart 1845.71 and any supplemental instructions for the current 
reporting period issued by NASA. Such reserve shall be withheld until 
the Contracting Officer has determined that NASA has received the 
required reports. The withholding of any amount or the subsequent 
payment thereof shall not be construed as a waiver of any Government 
right.
    (d) A final report shall be submitted within 30 days after 
disposition of all property subject to reporting when the contract 
performance period is complete in accordance with paragraph (b)(1) 
through (3) of this clause.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-74  Identification and marking of Government equipment.

    As prescribed by 1845.107-70(e), insert the following clause.

      Identification and Marking of Government Equipment (JAN 2011)

    (a) The Contractor shall identify all equipment to be delivered to 
the Government using NASA Technical Handbook (NASA-HDBK) 6003, 
Application of Data Matrix Identification Symbols to Aerospace Parts 
Using Direct Part Marking Methods/Techniques, and NASA Standard (NASA-
STD) 6002, Applying Data Matrix Identification Symbols on Aerospace 
Parts or through the use of commercial marking techniques that: (1) are 
sufficiently durable to remain intact through the typical lifespan of 
the property: and, (2) contain the data and data format required by the 
standards. This requirement includes deliverable equipment listed in the 
schedule and other equipment when no longer required for contract 
performance and NASA directs physical transfer to NASA or a third party. 
The Contractor shall identify property in both machine and human 
readable form unless the use of a machine readable-only format is 
approved by the NASA Industrial Property Officer.
    (b) Equipment shall be marked in a location that will be human 
readable, without disassembly or movement of the equipment, when the 
items are placed in service unless such placement would have a 
deleterious effect on safety or on the item's operation.
    (c) Concurrent with equipment delivery or transfer, the Contractor 
shall provide the following data in an electronic spreadsheet format:
    (1) Item Description.
    (2) Unique Identification Number (License Tag).
    (3) Unit Price.
    (4) An explanation of the data used to make the unique 
identification number.
    (d) For equipment no longer needed for contract performance and 
physically transferred under paragraph (a) of this clause, the following 
additional data is required:
    (1) Date originally placed in service.
    (2) Item condition.
    (e) The data required in paragraphs (c) and (d) of this clause shall 
be delivered to the NASA center receiving activity listed below:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

    (f) The contractor shall include the substance of this clause, 
including this paragraph (f), in all subcontracts that require delivery 
of equipment.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-75  Property management changes.

    As prescribed in 1845.107-70(f), insert the following clause.

                 Property Management Changes (JAN 2011)

    (a) The Contractor shall submit any changes to standards and 
practices used for management and control of Government property under 
this contract to the assigned property administrator prior to making the 
change whenever the change--
    (1) Employs a standard that allows increase in thresholds or changes 
the timing for reporting loss, damage, or destruction of property;
    (2) Alters physical inventory timing or procedures;
    (3) Alters recordkeeping practices;
    (4) Alters practices for recording the transport or delivery of 
Government property; or
    (5) Alters practices for disposition of Government property.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]

[[Page 333]]



Sec. 1852.245-76  List of Government property furnished pursuant to FAR 
          52.245-1.

    As prescribed in 1845.107-70(g), insert the following clause:

  List of Government Property Furnished Pursuant to FAR 52.245-1 (JAN 
                                  2011)

    For performance of work under this contract, the Government will 
make available Government property identified below or in Attachment 
[Insert attachment number or ``not applicable''] of this contract on a 
no charge-for-use basis pursuant to the clause at FAR 52.245-1, 
Government Property, as incorporated in this contract. The Contractor 
shall use this property in the performance of this contract at [Insert 
applicable site(s) where property will be used] and at other location(s) 
as may be approved by the Contracting Officer. Under FAR 52.245-1, the 
Contractor is accountable for the identified property.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-77  List of Government property furnished pursuant to FAR 
          52.245-2.

    As prescribed in 1845.107-70(h), insert the following clause:

  List of Government Property Furnished Pursuant to FAR 52.245-2 (JAN 
                                  2011)

    For performance of work under this contract, the Government will 
make available Government property identified below or in Attachment --
-- [Insert attachment number or ``not applicable''] of this contract on 
a nocharge-for-use basis pursuant to FAR 52.245-2, Government Property 
Installation Operation Services, as incorporated in this contract. The 
Contractor shall use this property in the performance of this contract 
at ---- [Insert applicable site(s) where property will be used] and at 
other location(s) as may be approved by the Contracting Officer.
    [Insert a description of the item(s), acquisition date, quantity, 
acquisition cost, and applicable equipment information]

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-78  Physical inventory of capital personal property.

    As prescribed in 1845.107-70(i), insert the following clause.

       Physical Inventory of Capital Personal Property (JAN 2011)

    (a) In addition to physical inventory requirements under the clause 
at FAR 52.245-1, Government Property, as incorporated in this contract, 
the Contractor shall conduct annual physical inventories for individual 
property items with an acquisition cost exceeding $100,000.
    (1) The Contractor shall inventory--
    (i) Items of property furnished by the Government;
    (ii) Items acquired by the Contractor and titled to the Government 
under the clause at FAR 52.245-1;
    (iii) Items constructed by the Contractor and not included in the 
deliverable, but titled to the Government under the clause at FAR 
52.245-1; and
    (iv) Complete but undelivered deliverables.
    (2) The Contractor shall use the physical inventory results to 
validate the property record data, specifically location and use status, 
and to prepare summary reports of inventory as described in paragraph 
(c) of this clause.
    (b) Unless specifically authorized in writing by the Property 
Administrator, the inventory shall be performed and posted by 
individuals other than those assigned custody of the items, 
responsibility for maintenance, or responsibility for posting to the 
property record. The Contractor may request a waiver from this 
separation of duties requirement from the Property Administrator, when 
all of the conditions in either (1) or (2) of this paragraph are met.
    (1) The Contractor utilizes an electronic system for property 
identification, such as a laser bar-code reader or radio frequency 
identification reader, and
    (i) The programs or software preclude manual data entry of inventory 
identification data by the individual performing the inventory; and
    (ii) The inventory and property management systems contain 
sufficient management controls to prevent tampering and assure proper 
posting of collected inventory data.
    (2) The Contractor has limited quantities of property, limited 
personnel, or limited property systems; and the Contractor provides 
written confirmation that the Government property exists in the recorded 
condition and location;
    (3) The Contractor shall submit the request to the cognizant 
property administrator and obtain approval from the property 
administrator prior to implementation of the practice.
    (c) The Contractor shall report the results of the physical 
inventory to the property administrator within 10 calendar days of 
completion of the physical inventory. The report shall--

[[Page 334]]

    (1) Provide a summary showing number and value of items inventoried; 
and
    (2) Include additional supporting reports of--
    (i) Loss in accordance with the clause at 52.245-1, Government 
Property;
    (ii) Idle property available for reuse or disposition; and
    (iii) A summary of adjustments made to location, condition, status, 
or user as a result of the physical inventory reconciliation.
    (d) The Contractor shall retain auditable physical inventory 
records, including records supporting transactions associated with 
inventory reconciliation. All records shall be subject to Government 
review and/or audit.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-79  Records and disposition reports for Government 
          property with potential historic or significant real value.

    As prescribed in 1845.107-70(j), insert the following clause.

 Records and Disposition Reports for Government Property With Potential 
              Historic or Significant Real Value (JAN 2011)

    (a) In addition to the property record data required by the clause 
at FAR 52.245-1, Government Property as incorporated in this contract, 
Contractor records of all Government property under this contract 
shall--
    (1) Identify the projects or missions that used the items;
    (2) Specifically identify items of flown property;
    (3) When known, associate individual items of property used in space 
flight operations with the using astronaut(s); and
    (4) Identify property used in test activity and, when known, the 
individuals who 0conducted the test.
    (b) The Contractor shall include this information within item 
descriptions--
    (1) On any Standard Form 1428, Inventory Schedule;
    (2) In automated disposition systems;
    (3) In any other disposition related reports; and
    (4) In other requests for disposition instructions.
    (c) The Contractor shall not remove NASA identification or markings 
from Government property prior to or during disposition without the 
advanced written approval of the Plant Clearance Officer.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-80  Government property management information.

    As prescribed in 1845.107-70(k)(1), insert the following provision.

          Government Property Management Information (JAN 2011)

    (a) The offeror shall identify the industry leading or voluntary 
consensus standards, and/or the industry leading practices, that it 
intends to employ for the management of Government property under any 
contract awarded from this solicitation.
    (b) The offeror shall provide the date of its last Government 
property control system analysis along with its overall status, a 
summary of findings and recommendations, the status of any recommended 
corrective actions, the name of the Government activity that performed 
the analysis, and the latest available contact information for that 
activity.
    (c) The offeror shall identify any property it intends to use in 
performance of this contract from the list of available Government 
property in the provision at 1852.245-81, List of Available Government 
Property.
    (d) The offeror shall identify all Government property in its 
possession, provided under other Government contracts that it intends to 
use in the performance of this contract. The offeror shall also 
identify: The contract that provided the property, the responsible 
Contracting Officer, the dates during which the property will be 
available for use (including the first, last, and all intervening 
months), and, for any property that will be used concurrently in 
performing two or more contracts, the amounts of the respective uses in 
sufficient detail to support prorating the rent, the amount of rent that 
would otherwise be charged in accordance with FAR 52.245-9, Use and 
Charges (June 2007), and the contact information for the responsible 
Government Contracting Officer. The offeror shall provide proof that 
such use was authorized by the responsible Contracting Officer.
    (e) The offeror shall disclose cost accounting practices that allow 
for direct charging of commercially available equipment, when 
commercially available equipment is to be used in performance of the 
contract and the equipment is not a deliverable.
    (f) The offeror shall identify, in list form, any equipment that it 
intends to acquire and directly charge to the Government under this 
contract. The list shall include a description, manufacturer, model 
number (when available), quantity required, and estimated unit cost. 
Equipment approved as part of the award need not be requested under NFS 
clause 1852.245-70,
    (g) The offeror shall disclose its intention to acquire any parts, 
supplies, materials or

[[Page 335]]

equipment, to fabricate an item of equipment for use under any contract 
resulting from this solicitation when that item of equipment:
    Will be titled to the government under the provisions of the 
contract; is not included as a contract deliverable; and the Contractor 
intends to charge the costs of materials directly to the contract. The 
disclosure shall identify the end item or system and shall include all 
descriptive information, identification numbers (when available), 
quantities required and estimated costs.
    (h) Existing Government property may be reviewed at the following 
locations, dates, and times: [Enter the appropriate information]

                           (End of provision)

    Alternate 1 (JAN 2011) As prescribed in 1845.107-70(k)(2) add the 
following paragraph (i).
    (i) Existing available Government property listed in the provision 
at 1852.245-81 is provided ``as-is.'' NASA makes no warranty regarding 
its performance or condition. The offeror uses this property at its own 
risk and should make its own assessment of the property's suitability 
for use. The equitable adjustment provisions of the clause at 52.245-1, 
Government Property as included in this solicitation, are not applicable 
to this property. The offeror must obtain the Contracting Officer's 
written approval before acquiring replacement property when it intends 
to charge the cost directly to the contract.

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-81  List of available Government property.

    As prescribed in 1845.107-70(l), insert the following provision.

            List of Available Government Property (JAN 2011)

    (a) The Government will make the following Government property 
available for use in performance of the contract resulting from this 
solicitation, on a no-charge-for-use basis in accordance with FAR 
52.245-1, Government Property, included in this solicitation. The 
offeror shall notify the Government, as part of its proposal, of its 
intention to use or not use the property.
    (b) The Government will make the following Government property 
available for use in performance of the contract resulting from this 
solicitation, on a no-charge-for-use basis in accordance with FAR 
52.245-2, Government Property Installation Operation Services, as 
included in this solicitation. The offeror shall notify the Government 
of its intention to use or not use the property.
    (c) The selected Contractor will be responsible for costs associated 
with transportation, and installation of the property listed in this 
provision.

                           (End of provision)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-82  Occupancy management requirements.

    As prescribed in 1845.106-70(m), insert the following clause:

               Occupany Management Requirements (JAN 2011)

    (a) In addition to the requirements of the clause at FAR 52.245-1, 
Government Property, as included in this contract, the Contractor shall 
comply with the following in performance of work in and around 
Government real property:
    (1) NPD 8800.14, Policy for Real Property Management.
    (2) NPR 8831.2, Facility Maintenance Management.
    [Insert any additional Center occupancy requirements here]
    (b) The Contractor shall obtain the written approval of the 
Contracting Officer before installing or removing Contractor-owned 
property onto or into any Government real property or when movement of 
Contractor-owned property may damage or destroy Government-owned 
property. The Contractor shall restore damaged property to its original 
condition at the Contractor's expense.
    (c) The Contractor shall not acquire, construct or install any fixed 
improvement or structural alterations in Government buildings or other 
real property without the advance, written approval of the Contracting 
Officer. Fixed improvement or structural alterations, as used herein, 
means any alteration or improvement in the nature of the building or 
other real property that, after completion, cannot be removed without 
substantial loss of value or damage to the premises. Title to such 
property shall vest in the Government.
    (d) The Contractor shall report any real property or any portion 
thereof when it is no longer required for performance under the 
contract, as directed by the Contracting Officer.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.245-83  Real property management requirements.

    As prescribed in 1845.106-70(n), insert the following clause:

[[Page 336]]

            Real Property Management Requirements (JAN 2011)

    (a) In addition to the requirements of the FAR Government Property 
Clause incorporated in this contract (FAR 52.245-1), the Contractor 
shall comply with the following in performance of any maintenance, 
construction, modification, demolition, or management activities of any 
Government real property:
    (1) NPD 8800.14, Policy for Real Property Management.
    (2) NPR 8831.2, Facility Maintenance Management.
    [Insert any real property related Center requirements here]
    (b) Within 30 calendar days following award, the Contractor shall 
provide a plan for maintenance of Government real property provided for 
use under this contract. The Contractor's maintenance program shall 
enable the identification, disclosure, and performance of normal and 
routine preventative maintenance and repair. The Contractor shall 
disclose and report to the Contracting Officer the need for replacement 
and/or capital rehabilitation. Upon acceptance by the Contracting 
Officer, the program shall become a requirement under this contract.
    (c) Title to parts replaced by the Contractor in carrying out its 
normal maintenance obligations shall pass to and vest in the Government 
upon completion of their installation in the facilities. The Contractor 
shall keep the property free and clear of all liens and encumbrances.
    (d) The Contractor shall keep records of all work done to real 
property, including plans, drawings, charts, warranties, and manuals. 
Records shall be complete and current. Record of all transactions shall 
be auditable. The Government shall have access to these records at all 
reasonable times, for the purposes of reviewing, inspecting, and 
evaluating the Contractor's real property management effectiveness. When 
real property is disposed of under this contract, the Contractor shall 
deliver the related records to the Government.
    (e) The Contracting Officer may direct the Contractor in writing to 
reduce the work required by the maintenance program authorized in 
paragraph (b) of this clause at any time.

                             (End of clause)

[76 FR 2006, Jan. 12, 2011]



Sec. 1852.246-70  Mission Critical Space System Personnel Reliability 
          Program.

    As prescribed in 1846.370(a), insert the following clause:

 Mission Critical Space System Personnel Reliability Program (MAR 1997)

    (a) In implementation of the Mission Critical Space System Personnel 
Reliability Program, described in 14 CFR 1214.5, the Government shall 
identify personnel positions that are mission critical. Some of the 
positions as identified may now or in the future be held by employees of 
the Contractor. Upon notification by the Contracting Officer that a 
mission-critical position is being or will be filled by one or more of 
the Contractor's employees, the Contractor shall (1) provide the 
affected employees with a clear understanding of the investigative and 
medical requirements and, (2) to the extent permitted by applicable law, 
assist the Government by furnishing personal data and medical records.
    (b) The standard that will be used in certifying individuals for a 
mission-critical position is that they must be determined to be 
suitable, competent, and reliable in the performance of their assigned 
duties in accordance with the screening requirements 14 CFR 1214.5. If 
the Government determines that a Contractor employee occupying or 
nominated to occupy a mission-critical position will not be certified 
for such duty, the Contracting Officer shall (1) furnish to the employee 
the specific reasons for its action; (2) advise the employee that he/she 
may avail himself/herself of the review procedures that are a part of 
the certification system; and (3) furnish him/her a copy of those 
procedures upon request.
    (c) If a Contractor employee who has been nominated for (but has not 
yet filled) a mission-critical position is not certified, the Contractor 
agrees to defer the appointment to the position until the employee has 
had an opportunity to pursue the referenced procedures. If the employee 
is an incumbent to the position, the Contractor agrees, upon the request 
of the Government, to remove him/her from the position temporarily 
pending an appeal of the action under the review procedures. If any 
employee not certified elects not to take action under the procedures, 
or, if having taken action, is not successful in obtaining a reversal of 
the determination, the Contractor agrees not to appoint the employee to 
the position, or if already appointed, to promptly remove the employee.

                             (End of clause)

[62 FR 14034, Mar. 25, 1997]



Sec. 1852.246-71  Government contract quality assurance functions.

    As prescribed in 1846.470, insert the following clause:

[[Page 337]]

       Government Contract Quality Assurance Functions (OCT 1988)

    In accordance with the inspection clause of this contract, the 
Government intends to perform the following functions at the locations 
indicated:

 
                                   Quality Assurance
              Item                     Function            Location
 
 
 

[Insert the items involving quality assurance, the quality assurance 
functions, and where the functions will be performed]

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 55 FR 27090, June 19, 1990; 62 
FR 14035, Mar. 25, 1997]



Sec. 1852.246-72  Material inspection and receiving report.

    As prescribed in 1846.674, insert the following clause:

           Material Inspection and Receiving Report (AUG 2003)

    (a) At the time of each delivery to the Government under this 
contract, the Contractor shall furnish a Material Inspection and 
Receiving Report (DD Form 250 series) prepared in ---- [Insert number of 
copies, including original] copies, an original and ---- copies [Insert 
number of copies].
    (b) The Contractor shall prepare the DD Form 250 in accordance with 
NASA FAR Supplement 1846.6. The Contractor shall enclose the copies of 
the DD Form 250 in the package or seal them in a waterproof envelope, 
which shall be securely attached to the exterior of the package in the 
most protected location.
    (c) When more than one package is involved in a shipment, the 
Contractor shall list on the DD Form 250, as additional information, the 
quantity of packages and the package numbers. The Contractor shall 
forward the DD Form 250 with the lowest numbered package of the shipment 
and print the words ``CONTAINS DD FORM 250'' on the package.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 60 FR 40521, Aug. 9, 1995; 62 
FR 14035, Mar. 25, 1997; 68 FR 45169, Aug. 1, 2003]



Sec. 1852.246-73  Human space flight item.

    As prescribed in 1845.370(b), insert the following clause:

                   Human Space Flight Item (MAR 1997)

    The Contractor shall include the following statement in all 
subcontracts and purchase orders placed by it in support of this 
contract, without exception as to amount or subcontract level:
    ``FOR USE IN HUMAN SPACE FLIGHT; MATERIALS, MANUFACTURING, AND 
WORKMANSHIP OF HIGHEST QUALITY STANDARDS ARE ESSENTIAL TO ASTRONAUT 
SAFETY.
    IF YOU ARE ABLE TO SUPPLY THE DESIRED ITEM WITH A HIGHER QUALITY 
THAN THAT OF THE ITEMS SPECIFIED OR PROPOSED, YOU ARE REQUESTED TO BRING 
THIS FACT TO THE IMMEDIATE ATTENTION OF THE PURCHASER.''

                             (End of clause)

[62 FR 14035, Mar. 25, 1997]



Sec. 1852.247-71  Protection of the Florida manatee.

    As prescribed in 1847.7001, insert the following clause:

              Protection of the Florida Manatee (MAR 1989)

    (a) Pursuant to the Endangered Species Act of 1973 (Pub. L. 93-205), 
as amended, and the Marine Mammals Protection Act of 1972 (Pub. L. 92-
522), the Florida Manatee (Trichechus Manatus) has been designated an 
endangered species, and the Banana and Indian Rivers within and adjacent 
to NASA's Kennedy Space Center (KSC) have been designated as a critical 
habitat of the Florida Manatee.
    (b) Contractor personnel involved in vessel operations, dockside 
work, and selected disassembly functions shall be provided training 
relative to (1) habits and characteristics of the Florida Manatee, (2) 
provisions of the applicable laws, (3) personal liability of workers 
under the laws, and (4) operational restrictions imposed by KSC.
    (c) All vessel operations shall be conducted within the posted speed 
restrictions, and vessels shall be operated at minimum controllable 
speeds in all KSC waters. Shallow-water operations are prohibited.
    (d) Training will be conducted by personnel of the U.S. Fish and 
Wildlife Service (USFWS). The contractor agrees to cooperate with the 
USFWS by allowing access at reasonable times and places (including 
shipboard) to USFWS personnel, and by making available such contractor 
personnel as are required to have the training. Arrangements for 
training will be made as follows:
    (1) For personnel involved in tug, barge, or marine operations, 
through the Lockheed

[[Page 338]]

Space Operations Contractor, Transportation Coordination Center, Kennedy 
Space Center, Florida, telephone (407) 867-5330.
    (2) For all other personnel, through the Systems Training and 
Employee Development Branch, Code PM-TNG, telephone (407) 867-2737.
    (e) The contractor shall incorporate the provisions of this clause 
in applicable subcontracts (including vendor deliveries).

                             (End of clause)



Sec. 1852.247-72  Advance notice of shipment.

    As prescribed in 1847.305-70(a), insert the following clause:

                  Advance Notice of Shipment (OCT 1988)

    ---- [Insert number of work days] work days prior to shipping 
item(s) -------------------------- [Insert items to be shipped], the 
Contractor shall furnish the anticipated shipment date, bill of lading 
number (if applicable), and carrier identity to ------------------------
------ [Insert individual(s) to receive notification] and to the 
Contracting Officer.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 14035, Mar. 25, 1997]



Sec. 1852.247-73  Bills of Lading.

    As prescribed in 1847.305-70(b), insert a clause substantially as 
follows:

                       Bills of Lading (JUN 2002)

    The purpose of this clause is to define when a commercial bill of 
lading or a government bill of lading is to be used when shipments of 
deliverable items under this contract are f.o.b. origin.
    (a) Commercial Bills of Lading. All domestic shipments shall be made 
via commercial bills of lading (CBLs). The Contractor shall prepay 
domestic transportation charges. The Government shall reimburse the 
Contractor for these charges if they are added to the invoice as a 
separate line item supported by the paid freight receipts. If paid 
receipts in support of the invoice are not obtainable, a statement as 
described below must be completed, signed by an authorized company 
representative, and attached to the invoice.

``I certify that the shipments identified below have been made, 
transportation charges have been paid by (company name), and paid 
freight or comparable receipts are not obtainable.
    Contract or Order Number: ----------------------
    Destination: --------------------------------''.

    (b) Government Bills of Lading. (1) International (export) and 
domestic overseas shipments of items deliverable under this contract 
shall be made by Government bills of lading (GBLs). As used in this 
clause, ``domestic overseas'' means non-continental United States, i.e. 
Hawaii, Commonwealth of Puerto Rico, and possessions of the United 
States.
    (2) At least 15 days before shipment, the Contractor shall request 
in writing GBLs from: ------------------------------ [Insert name, 
title, and mailing address of designated transportation officer or other 
official delegated responsibility for GBLs]. If time is limited, 
requests may be by telephone: ------------------------ [Insert 
appropriate telephone number]. Requests for GBLs shall include the 
following information.
    (i) Item identification/ description.
    (ii) Origin and destination.
    (iii) Individual and total weights.
    (iv) Dimensional Weight.
    (v) Dimensions and total cubic footage.
    (vi) Total number of pieces.
    (vii) Total dollar value.
    (viii) Other pertinent data.

                             (End of clause)

[67 FR 38908, June 6, 2002]



Sec. 1852.249-72  Termination (utilities).

    As prescribed in 1849.505-70, insert the following clause. The 
period of 30 days may be varied not to exceed 90 days.

                   Termination (Utilities) (MAR 1989)

    The Government, at its option, may terminate this contract by giving 
written notice not less than 30 days in advance of the termination's 
effective date.

                             (End of clause)

               Subpart 1852.3_Provision and Clause Matrix



Sec. 1852.300  Scope of subpart.

    The matrix in this subpart contains a column for each principal type 
and/or purpose of contract. See the first page of the matrix for the key 
to column headings, the dollar threshold chart, and requirement symbols.

[57 FR 40856, Sept. 8, 1992]



Sec. 1852.301  Solicitation provisions and contract clauses (Matrix).

                          PART 1853 [RESERVED]

[[Page 339]]

              SUBCHAPTER I_AGENCY SUPPLEMENTARY REGULATIONS

                          PART 1872 [RESERVED]

[[Page 341]]



               CHAPTER 19--BROADCASTING BOARD OF GOVERNORS




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


  Editorial Notes: 1. For a waiver document affecting chapter 19, see 56 
FR 22661, May 16, 1991.

  2. For nomenclature changes affecting chapter 19, see 64 FR 54541, 
Oct. 7, 1999.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1901            Broadcasting Board of Governors Acquisition 
                    Regulation System.......................         343
1902            Definitions of words and terms..............         344
1903            Improper business practices and personal 
                    conflicts of interest...................         344
1904            Administrative matters......................         345
                   SUBCHAPTER B--ACQUISITION PLANNING
1909            Contractor qualifications...................         346
1910            Specifications, standards and other purchase 
                    descriptions............................         347
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1913            Small purchases and other simplified 
                    purchase procedures.....................         349
1915            Contracting by negotiation..................         349
1917            Special contracting methods.................         349
                       SUBCHAPTERS D-F [RESERVED]
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1942            Contract administration.....................         350
1946            Quality assurance...........................         350
                     SUBCHAPTER H--CLAUSES AND FORMS
1952            Solicitation provisions and contract clauses         351
1953            Forms.......................................         352

[[Page 343]]

                          SUBCHAPTER A_GENERAL

  PART 1901_THE BROADCASTING BOARD OF GOVERNORS ACQUISITION REGULATION 
                                 SYSTEM

Sec.

Sec. 1901.000 Scope of part.

               Subpart 1901.1_Purpose, Authority, Issuance


Sec. 1901.101 Purpose.

Sec. 1901.102 Authority.

Sec. 1901.103 Applicability.

Sec. 1901.104 Issuance.

Sec. 1901.104-1 Publication and code arrangement.

Sec. 1901.104-2 Arrangement of regulations.

                 Subpart 1901.4_Deviations From the FAR


Sec. 1901.403 Individual deviations.

Sec. 1901.404 Class deviations.

        Subpart 1901.6_Contracting Authority and Responsibilities


Sec. 1901.601 General.

Sec. 1901.602 Contracting officers.

Sec. 1901.602-1 Authority.

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

    Source: 50 FR 13200, Apr. 3, 1985, unless otherwise noted.



Sec. 1901.000  Scope of part.

    This part describes the method by which the Broadcasting Board of 
Governors implements and supplements the Federal Acquisition Regulation 
and contains policies and procedures that implement and supplement 
Chapter 1 of the Federal Acquisition Regulation (48 CFR).

               Subpart 1901.1_Purpose, Authority, Issuance



Sec. 1901.101  Purpose.

    This subpart establishes the Broadcasting Board of Governors 
Acquisition Regulation as Chapter 19 of the Federal Acquisition 
Regulations System (48 CFR chapter 19) and states the relationship of 
the IAAR to the Federal Acquisition Regulation (FAR), 48 CFR chapter 1.



Sec. 1901.102  Authority.

    The the Broadcasting Board of Governors Acquisition Regulation is 
prescribed by the Director of the Broadcasting Board of Governors 
pursuant to the authority of the Reorganization Plan No. 2 of 1977 and 
the Federal Property and Administrative Services Act of 1949, as 
amended, and other applicable law.



Sec. 1901.103  Applicability.

    Except where a deviation is specifically authorized in accordance 
with subpart 1901.4 or otherwise authorized by law, the FAR and the IAAR 
govern all the Broadcasting Board of Governors acquisitions within the 
United States.



Sec. 1901.104  Issuance.



Sec. 1901.104-1  Publication and code arrangement.

    (a) The IAAR is published in the Federal Register and, in cumulative 
form in the Code of Federal Regulations (CFR).
    (b) The IAAR is issued as chapter 19 of title 48, CFR.



Sec. 1901.104-2  Arrangement of regulations.

    The IAAR uses the same numbering system and arrangement used in the 
FAR. Where the IAAR implements the FAR, it is numbered and captioned to 
correspond to the FAR. Where there is no corresponding material in the 
FAR, numbers beginning with 70 or higher are assigned to the IAAR 
supplementing part. Where the subject matter is the FAR requires no 
implementation, the IAAR contains no corresponding part.

                 Subpart 1901.4_Deviations From the FAR



Sec. 1901.403  Individual deviations.

    Deviations from the IAAR or the FAR in individual cases shall be 
authorized by the Board Procurement Executive or a designee unless FAR 
1.405(e) is applicable. The request shall

[[Page 344]]

cite the specific part of the IAAR or FAR from which it is desired to 
deviate; shall set forth the nature of the deviation(s); and shall give 
the reason for the action requested.



Sec. 1901.404  Class deviations.

    Class deviations affecting more than one contracting action shall be 
authorized only by the Board Procurement Executive, unless FAR 1.405(e) 
is applicable, and shall be subject to the limitations set forth in FAR 
1.404. Requests shall include the same information as cited in 1901.403.

        Subpart 1901.6_Contracting Authority and Responsibilities



Sec. 1901.601  General.

    The Director, Office of Contracts, is designated the Board 
Procurement Executive. The Board Procurement Executive is delegated the 
full delegable authority of the Director of this Board with respect to 
the acquisition of goods and services by contract and such other methods 
as may be prescribed in the FAR. The Board Procurement Executive is 
delegated overall responsibility by the Director for the Board's 
contracting activities.



Sec. 1901.602  Contracting officers.



Sec. 1901.602-1  Authority.

    The Broadcasting Board of Governors Contracting Officers designated 
by name on Certificates of Appointment by the Board Procurement 
Executive are authorized to enter into, administer, and terminate 
contracts and make related determinations and findings, subject to all 
requirements and limitations set forth in the Certificate of 
Appointment. A list of the Broadcasting Board of Governors employees who 
have been appointed as Contracting Officers and the limits of their 
authority is available from the Policy and Procedures Staff, Office of 
Contracts.

                PART 1902_DEFINITIONS OF WORDS AND TERMS

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

    Source: 50 FR 13202, Apr. 3, 1985, unless otherwise noted.

                       Subpart 1902.1_Definitions



Sec. 1902.101  Definitions.

    As used throughout this regulation, the following words and terms 
are used as defined in this subpart unless (a) the context in which they 
are used clearly requires a different meaning or (b) a different 
definition is prescribed for a particular part or portion of a part.
    Board means the Broadcasting Board of Governors, acting through any 
of its duty authorized officials.
    Board Procurement Executive means the Director, Office of Contracts.
    AR/CO means Authorized Representative of the Contracting Officer 
(see 1942.202-70).
    Contracting activity means the Office of Contracts, which has the 
responsibility to contract for the acquisition of supplies and services 
(including construction).
    Head of the Board (also called Board head) means the Board Director 
or Deputy Director; and the term authorized representative means any 
person, persons or board (other than the contracting officer) authorized 
to act for the Head of the Board.
    Purchasing Activity means an office with one or more Level I or 
Level II Small Purchases Contracting Officer(s) exercising limited 
redelegations of contracting officer authority.
    BBG means the Broadcating Board of Governors.

PART 1903_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

  Subpart 1903.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them

Sec.

Sec. 1903.602 Exceptions.

Sec. 1903.670 Contracts between the Broadcasting Board of Governors and 
          former employees.

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

    Source: 50 FR 13202, Apr. 3, 1985, unless otherwise noted.

[[Page 345]]

  Subpart 1903.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 1903.602  Exceptions.

    To avoid potential conflicts of interest or the appearance of 
preferential treatment, it is the Broadcasting Board of Governors policy 
not to award contracts, purchase orders, grants or cooperative 
agreements to Government employees or their family members or business 
concerns owned or controlled by Government employees or their family 
members. Exceptions to this policy must be approved by the Board 
Director or Board Procurement Executive and supported by written 
Findings and Determination. A contract with an employee for services may 
result in violation of the dual salary compensation statutes (5 U.S.C. 
5533). Nothing in this paragraph is intended to render inapplicable the 
conflict of interest prohibition set out in 18 U.S.C. 208.



Sec. 1903.670  Contracts between the Broadcasting Board of Governors and 
          former employees.

    To avoid conflicts of interest or the appearance of preferential 
treatment, purchase orders, contracts, grants or cooperative agreements 
with former employees of the Broadcasting Board of Governors, or with 
firms in which former employees or their family members are known to 
have controlling interest, may be entered into within two years 
following separation from employment only with the written approval of 
the Board Director. A written justification shall be made a part of the 
file. The justification must address the issue of conflict of interest 
and conclude that it does not exist; or that in spite of its existence, 
the Board's ability to meet its mission would be seriously harmed 
without the award.

                    PART 1904_ADMINISTRATIVE MATTERS

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

    Source: 50 FR 13203, Apr. 3, 1985, unless otherwise noted.

                  Subpart 1904.70_Procurement Requests



Sec. 1904.7001  General.

    (a) Procurement requests will be prepared and submitted to the 
contracting office in accordance with Board procedures.
    (b) Except in unusual circumstances, the contracting office will not 
issue solicitations until an approved procurement request, containing a 
certification that funds are available, has been received. However, the 
contracting office may take all necessary actions up to the point of 
contract award prior to the receipt of the approved procurement request 
certifying that funds are available when:
    (1) Such action is necessary to meet critical program schedules;
    (2) It has been established that program authority has been issued 
and that funds to cover the acquisition will be available prior to the 
date set for contract award or contract modification;
    (3) A person at a level above the contracting officer authorizes 
such action prior to the issuance of the solicitation, and the contract 
file is properly documented; and
    (4) The solicitation document clearly indicates that the award is 
subject to the availability of funds.
    (c) The procurement request shall be assigned within the contracting 
office to an individual who, if not the contracting officer, will be 
responsible to the contracting officer for conducting the business 
aspects of the transaction. This individual shall review the request to 
ensure that it complies with the FAR and this Regulation and that the 
information contained in the request is in sufficient detail to prepare 
presolicitation and solicitation documents. The contracting officer, or 
other designated individual in the contracting office, shall discuss 
uncertain requirements or inconsistencies in the procurement request 
with the initiator of the request and obtain clarification prior to 
taking any further action.

[[Page 346]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                   PART 1909_CONTRACTOR QUALIFICATIONS

         Subpart 1909.4_Debarment, Suspension, and Ineligibility

Sec.

Sec. 1909.403 Definitions.

Sec. 1909.404 Consolidated list of debarred, suspended, and ineligible 
          contractors.

Sec. 1909.406 Debarment, suspension, and ineligibility.

Sec. 1909.406-3 Procedures.

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

    Source: 50 FR 13203, Apr. 3, 1985, unless otherwise noted.

         Subpart 1909.4_Debarment, Suspension, and Ineligibility



Sec. 1909.403  Definitions.

    The Board Procurement Executive, is designated the ``debarring 
official'' and the ``suspending official'' as defined in FAR 9.403 and 
is designated as the Board official authorized to make the decisions 
required in FAR 9.405(a), 9.405-1(b), 9.405-2, 9.406-1(c), and 9.407-
1(d).



Sec. 1909.404  Consolidated list of debarred, suspended, and ineligible 
          contractors.

    (a) The Policy and Procedures Staff, Office of Contracts, shall be 
responsible for the maintenance and distribution of the GSA Consolidated 
List of Debarred, Suspended, and Ineligible Contractors. It will be 
coordinated with the Solicitation Mailing List and appropriate notations 
will be made on both lists, when additions or deletions are necessary. 
Contracting Officers shall notify the Policy and Procedures Staff, 
Office of Contracts, of their distribution needs and shall ensure the 
list is used effectively.
    (b) The Board Procurement Executive (or designee) is responsible for 
notifying GSA of the information required by FAR 9.404(b).



Sec. 1909.406  Debarment, suspension, and ineligibility.



Sec. 1909.406-3  Procedures.

    (a) Investigation and referral. Any officer of the Board who becomes 
aware of circumstances which may serve as a basis for a debarment, 
suspension, or ineligibility shall report the circumstances by 
memorandum to the Board Procurement Executive for consideration of 
debarment, suspension or ineligibility action.
    (b) Decision-making process. (1) Contractors shall be given the 
opportunity to submit, in person, in writing, or through a 
representative, information and arguments in opposition to a proposed 
debarment or suspension. All rebuttals shall be addressed to the Board 
Procurement Executive. However, if a response to the proposed debarment 
or suspension is not received by the Board Procurement Executive within 
30 calendar days of receipt of the notice, the debarment or suspension 
shall become final.
    (2) If a contractor, or a representative, desires to present 
information and arguments in person to the Board Procurement Executive, 
an oral presentation will be held within 20 calendar days of receipt of 
the request, unless a longer period of time is requested by the 
contractor. Hearings will be held before a three-person fact-finding 
board composed of one member each from the Office of General Counsel and 
Congressional Liaison, the Bureau of Management, and the Office of 
Contracts, other than the initiating officer. The fact-finding board 
shall deliver written findings to the Board Procurement Executive 
(together with a transcription of the proceedings, if made) within 10 
calendar days after the hearing. The findings shall resolve any facts in 
dispute based on a preponderance of the evidence presented and determine 
whether a cause for debarment or suspension exists.
    (c) Debarring/suspending official's decision. The debarring/
suspending official's final decision shall be made in writing in 
accordance with FAR 9.406-3 and notice of the decision will be given

[[Page 347]]

in accordance with FAR 9.406-3. A copy of the notice shall be given to 
the affected agency component.

  PART 1910_SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS

Sec.

Sec. 1910.004-70 Brand name products or equal.

Sec. 1910.004-71 Limits on the use of brand name or equal purchase 
          descriptions.

Sec. 1910.004-72 Solicitations, brand name or equal descriptions.

Sec. 1910.004-73 Offer evaluation and award, brand name or equal 
          descriptions.

Sec. 1910.004-74 Procedure for negotiated procurements and small 
          purchases.

Sec. 1910.011 Solicitation provisions and contract clauses.

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

    Source: 50 FR 13204, Apr. 3, 1985, unless otherwise noted.



Sec. 1910.004-70  Brand name products or equal.

    (a) General. Consistent with the policy stated in FAR 10.004(a)(2), 
the Broadcasting Board of Governors acquisitions will generally not be 
based on a specifically identified product or feature(s) thereof. 
However, under unusual circumstances such an approach may be used as 
described below.
    (b) Citing brand name products. Brand name or equal purchase 
descriptions shall cite all brand name products known to be acceptable 
and of current manufacture. If the use of a brand name or equal purchase 
description results in the purchase of an acceptable brand name product 
which was not listed as an ``equal'' product, a reference to that brand 
name product should be included in the purchase description for later 
acquisitions. If a brand name product is no longer applicable, the 
reference thereto shall be deleted from subsequent purchase description.
    (c) Specifying essential characteristics. (1) It is imperative that 
brand name or equal purchase descriptions specify each physical or 
functional characteristic of the product that is essential to the 
intended use. Failure to do so may result in a defective solicitation 
and the necessity to resolicit the requirements. (See 1910.004-73.) Care 
must be taken to avoid specifying characteristics that cannot be shown 
to materially affect the intended end use and which unnecessarily 
restrict competition.
    (2) When describing essential characteristics, permissible 
tolerances should be indicated. Avoid specifying a characteristic (e.g., 
a specific dimension) of a brand name product unless it is essential to 
the Government's need. The contracting officer must be able to justify 
the requirement.



Sec. 1910.004-71  Limits on the use of brand name or equal purchase 
          descriptions.

    (a) General. The use of brand name or equal purchase descriptions in 
solicitations is intended to promote competition by encouraging the 
offering of products that are equal in all material respects to brand 
name products cited in such descriptions. Identification by brand name 
does not indicate a preference for the products mentioned but indicates 
the quality and characteristics of products that will meet the 
Government's needs. Where a component of an item is described in the 
solicitation by a brand name or equal purchase description and the 
contracting officer determines that application of the provision of 
1952.210-70 would be impracticable, the requirement to include the entry 
described in 1910.004-72(a) shall not apply. If the provision is 
included in the solicitation for other reasons, there also shall be 
included in the solicitation a statement to identify either the 
component parts (described by brand name or equal descriptions) to which 
the provision applies or those to which it does not apply. This also 
applies to accessories related to an end item where a brand name or 
equal purchase description of the accessories is a part of the 
description of an end item. Brand name or equal descriptions shall not 
be used to acquire a particular product under the guise of competitive 
acquisition to the exclusion of other products that would meet the 
actual needs.
    (b) In small purchases within the open market limitations, brand 
name policies and procedures shall be applicable to the extent 
practicable.
    (c) Approval required. A brand name or equal purchase description 
shall not

[[Page 348]]

be used unless it has been approved at one level above the contracting 
officer.



Sec. 1910.004-72  Solicitations, brand name or equal descriptions.

    (a) An entry substantially as follows shall be prominently inserted 
in the item listing after each item or component part of an end item to 
which a brand name or equal purchase description applies.

    Bidding on:

Manufacturer's Name:____________________________________________________
Brand:__________________________________________________________________
No.:____________________________________________________________________

    (b) Because bidders frequently overlook the requirements of the 
clause at 1952.210-70 ``Brand Name or Equal,'' the following note shall 
be inserted in the item listing after each brand name or equal item (or 
component part), or at the bottom of each page, listing several such 
items, or in a manner that may otherwise direct the offeror's attention 
to this clause.

    Offerors offering other than brand name items identified herein 
should furnish with their offers adequate information to ensure that a 
determination can be made as to equality of the product(s) offered (see 
the provision ``Brand Name or Equal'' set forth in 1952.210-70 of the 
solicitation).

    (c) If offeror samples are requested for brand name or equal 
acquisitions, the above notice shall not be included in the 
solicitation.



Sec. 1910.004-73  Offer evaluation and award, brand name or equal 
          descriptions.

    An offer may not be rejected for failure of the offered product to 
equal a characteristic of a brand name product if it was not specified 
in the brand name or equal description. However, if it is clearly 
established that the unspecified characteristic is essential to the 
intended end use, the solicitation is defective and no award may be 
made. In such cases, the contracting officer should resolicit the 
requirements, using a purchase description that sets forth the essential 
characteristics.



Sec. 1910.004-74  Procedure for negotiated procurements and small 
          purchases.

    (a) The policies and procedures prescribed for sealed bid 
procurements shall be generally applicable to negotiated procurements.
    (b) The clause set forth at 1952.210-70 may be adapted for use in 
negotiated procurements. If use of the clause is not practicable (as may 
be the case in unusual and compelling urgency purchases), suppliers 
shall be suitably informed that proposals offering products different 
from the products referenced by brand name will be considered if the 
contracting officer determines that the offered products meet fully the 
salient characteristics requirements of the solicitation.
    (c) In small purchases within open-market limitations, such policies 
and procedures shall be applicable to the extent practicable.



Sec. 1910.011  Solicitation provisions and contract clauses.

    The Contracting Officer shall include the provision at 1952.210-70, 
Brand Name or Equal, in solicitations for which brand name or equal 
purchase is used.

[[Page 349]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

   PART 1913_SMALL PURCHASES AND OTHER SIMPLIFIED PURCHASE PROCEDURES

Sec.

                     Subpart 1913.5_Purchase Orders


Sec. 1913.505 Purchase order and related forms.

Sec. 1913.505-2 Board order forms in lieu of Optional and Standard 
          Forms.

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

                     Subpart 1913.5_Purchase Orders



Sec. 1913.505  Purchase order and related forms.



Sec. 1913.505-2  Board order forms in lieu of Optional and Standard 
          Forms.

    (a) Optional Forms 347 and 348 shall be used as prescribed in FAR 
13.505 unless an equivalent form has been authorized for use by the 
Board Procurement Executive (or Designee). Exceptions may be granted, on 
a case-by-case basis, in order to accommodate computer-generated 
purchase order forms. Exception approval for over printing (FAR 53.104) 
is not needed.
    (b) The Broadcasting Board of Governors Form IA-44 (see 1953.370-44) 
is authorized for use when obtaining nonpersonal services on an 
intermittent basis for such services as script writers, translators, 
narrators, etc.

[50 FR 13205, Apr. 3, 1985]

                  PART 1915_CONTRACTING BY NEGOTIATION

           Subpart 1915.1_General Requirements for Negotiation

Sec.

Sec. 1915.106 Contract clauses.

Sec. 1915.106-70 Key personnel and facilities.

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

    Source: 50 FR 13205, Apr. 3, 1985, unless otherwise noted.

           Subpart 1915.1_General Requirements for Negotiation



Sec. 1915.106  Contract clauses.



Sec. 1915.106-70  Key personnel and facilities.

    Whenever contractor selection has been substantially predicated on 
the contractor's possession of special capabilities (i.e., personnel 
and/or facilities) the contracting officer shall include the clause at 
1952.215-70 in the awarded contract.

                  PART 1917_SPECIAL CONTRACTING METHODS

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

    Source: 50 FR 13205, Apr. 3, 1985, unless otherwise noted.

                  Subpart 1917.1_Multiyear Contracting



Sec. 1917.102  Policy.

    When consistent with 22 U.S.C. 1472(b), the Head of the Board may 
approve multiyear contracts up to five years.

                       SUBCHAPTERS D	F [RESERVED]

[[Page 350]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 1942_CONTRACT ADMINISTRATION

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

    Source: 50 FR 13212, Apr. 3, 1985, unless otherwise noted.

          Subpart 1942.2_Assignment of Contract Administration



Sec. 1942.202-70  Authorized Representative of the Contracting Officer 
          (AR/CO).

    The Contracting Officer may designate an appropriately qualified 
Government employee to act as the Authorized Representative of the 
Contracting Officer (AR/CO). Such designation shall apply to a single 
contract, must be in writing, and shall define the scope and limitations 
of the AR/CO's authority. The instrument designating an AR/CO shall not 
contain authority to sign or agree to any contract or major modification 
to a contract. Contractual commitments shall be made only by a duly 
certified contracting officer. The Contracting Officer shall insert the 
clause at 1952.242-70, Authorized Representative of the Contracting 
Officer, in solicitations and contracts when an individual is to be 
selected and designated by the Contracting Officer to perform 
administration of a given contract(s).

                       PART 1946_QUALITY ASSURANCE

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

    Source: 50 FR 13212, Apr. 3, 1985, unless otherwise noted.

                        Subpart 1946.7_Warranties



Sec. 1946.704  Authority for use of warranties.

    (a) The procurement request initiator is responsible for preparing a 
written recommendation for those purchases deemed to be appropriate for 
application of warranty provisions. The recommendation shall state why a 
warranty is appropriate by specifically addressing the criteria set 
forth in FAR 46.703. The recommendation shall also identify the specific 
parts, subassemblies, assemblies, systems, or contract line items to 
which a warranty should apply.
    (b) Prior to solicitation of the requirement, the contracting 
officer shall make a written determination when a warranty provision is 
to be included.

[[Page 351]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 1952_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 1952.000 Scope of part.

      Subpart 1952.1_Instructions for Using Provisions and Clauses


Sec. 1952.102-2 Incorporation in full text.

Sec. 1952.104 Procedures for modifying and completing provisions and 
          clauses.

             Subpart 1952.2_Texts of Provisions and Clauses


Sec. 1952.215-70 Key personnel and facilities.

Sec. 1952.227-76 Government rights (unlimited).

Sec. 1952.227-77 Rights in shop drawings.

Sec. 1952.227-78 Disposition of prints and videotape recordings.

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

    Source: 50 FR 13212, Apr. 3, 1985, unless otherwise noted.



Sec. 1952.000  Scope of part.

    This part implements and supplements FAR part 52 which sets forth 
solicitation provisions and contract clauses for use in the acquisition 
of personal property and nonpersonal services (including construction).

      Subpart 1952.1_Instructions for Using Provisions and Clauses



Sec. 1952.102-2  Incorporation in full text.

    All IAAR provisions and clauses shall be incorporated in 
solicitations and/or contracts in full text.



Sec. 1952.104  Procedures for modifying and completing provisions and 
          clauses.

    IAAR provisions and clauses shall not be modified (see FAR 
1952.101(a) unless authorized by the Director, Office of Contracts, and 
when so authorized, contracting officers must comply with the procedures 
in FAR 1952.104.

             Subpart 1952.2_Texts of Provisions and Clauses



Sec. 1952.215-70  Key personnel and facilities.

    As prescribed in 1915.106-70 insert the following clause in 
appropriate contracts:

                 Key Personnel and Facilities (FEB 1985)

    The personnel and/or facilities listed below (or as specified in the 
Schedule of this contract) are considered essential to the work being 
performed hereunder. Prior to removing, replacing, or diverting any of 
the specified individuals or facilities, the Contractor shall notify the 
Contracting Officer reasonably in advance and shall submit justification 
(including proposed substitutions) in sufficient detail to permit 
evaluation of the impact on this contract. No diversion shall be made by 
the Contractor without the written consent of the Contracting Officer; 
provided, that the Contracting Officer may ratify in writing the change 
and such ratification shall constitute the consent of the Contracting 
Officer required by this clause. The personnel and/or facilities listed 
below (or as specified in the Schedule of this contract) may, with the 
consent of the contracting parties, be amended from time to time during 
the course of the contract to either add or delete personnel and/or 
facilities, as appropriate.

                             (End of clause)



Sec. 1952.227-76  Government rights (unlimited).

    As prescribed in 1927.405(g), insert the following clause:

                Government Rights (Unlimited) (FEB 1985)

    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 copyrights 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.

[[Page 352]]

                             (End of clause)



Sec. 1952.227-77  Rights in shop drawings.

    As prescribed in 1927.405(h), insert the following clause:

                   Rights in Shop Drawings (FEB 1985)

    (a) Shop drawings for construction means drawings, submitted to the 
Government by the Construction Contractor, subcontractor or any lower 
tier subcontractor pursuant to a construction contract, showing in 
detail (i) the proposed fabrication and assembly of structural elements 
and (ii) the installation (i.e., form, fit, and attachment details) of 
materials or equipment. The Government may duplicate, use, and disclose 
in any manner and for any purpose shop drawings delivered under this 
contract.
    (b) This clause, including this paragraph (b), shall be included in 
all subcontracts hereunder at any tier.

                             (End of clause)



Sec. 1952.227-78  Disposition of prints and videotape recordings.

    As prescribed in 1927.405(j) insert the following clause in License 
Agreements:

        Disposition of Prints and Videotape Recordings (FEB 1985)

    If the Board elects to discontinue distribution and exhibition 
hereunder, or upon expiration of the term of this License Agreement, the 
Board will destroy all prints and erase all videotape recordings of the 
Film. A certificate(s) attesting to such destruction and/or erasure will 
be furnished the Licensor upon its written request.

                             (End of clause)

                             PART 1953_FORMS

    Editorial Note: IAAR forms referenced in this subpart do not appear 
in the Code of Federal Regulations. The list of forms following 1953.370 
is set forth for the convenience of the user. Forms may be obtained by 
writing: Office of Contracts, The Broadcasting Board of Governors, 
Washington, DC 20547.

                  Subpart 1953.3_Illustrations of Forms

Sec.

Sec. 1953.300 Scope of subpart.

Sec. 1953.370 The Broadcasting Board of Governors forms.

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

    Source: 50 FR 13224, Apr. 3, 1985, unless otherwise noted.

                  Subpart 1953.3_Illustrations of Forms



Sec. 1953.300  Scope of subpart.

    This subpart contains illustrations of some forms referenced in this 
IAAR.



Sec. 1953.370  The Broadcasting Board of Governors forms.

    This section contains illustrations of The Broadcasting Board of 
Governors forms references in this IAAR.



                         Sec. List of IAAR Forms

1953.370-21 The Broadcasting Board of Governors Form IA-21, Abstract of 
Quotations.
1953.370-44 The Broadcasting Board of Governors Form IA-44, Requisition-
Purchase--Order-Invoice for Professional Services.

[[Page 353]]



                CHAPTER 20--NUCLEAR REGULATORY COMMISSION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2001            Nuclear Regulatory Commission Acquisition 
                    Regulation System.......................         355
2002            Definitions.................................         359
2003            Improper business practices and personal 
                    conflicts of interest...................         359
2004            Administrative matters......................         360
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
2005            Publicizing contract actions................         361
2009            Contractor qualifications...................         361
2011            Describing agency needs.....................         370
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2013

Simplified acquisition procedures [Reserved]

2014            Sealed bidding..............................         371
2015            Contracting by negotiation..................         371
2016            Types of contracts..........................         374
2017            Special contracting methods.................         374
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2019            Small business programs.....................         376
2022            Application of labor laws to Government 
                    acquisitions............................         376
2024            Protection of privacy and freedom of 
                    information.............................         376
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2027            Patents, data, and copyrights...............         378
2030            Cost accounting standards...................         378
2031            Contract cost principles and procedures.....         378
2032            Contract financing..........................         379

[[Page 354]]

2033            Protests, disputes, and appeals.............         379
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
2035            Research and development contracting........         381
                    SUBCHAPTER G--CONTRACT MANAGEMENT
2042            Contract administration.....................         382
2045            Government property.........................         383
                     SUBCHAPTER H--CLAUSES AND FORMS
2052            Solicitation provisions and contract clauses         385

[[Page 355]]

                          SUBCHAPTER A_GENERAL

  PART 2001_NUCLEAR REGULATORY COMMISSION ACQUISITION REGULATION SYSTEM

               Subpart 2001.1_Purpose, Authority, Issuance

Sec.

Sec. 2001.101 Purpose.

Sec. 2001.102 Authority.

Sec. 2001.103 Applicability.

Sec. 2001.104 Issuance.

Sec. 2001.104-1 Publication and code arrangement.

Sec. 2001.104-2 Arrangement of the regulations.

Sec. 2001.104-3 Copies.

Sec. 2001.105 Information collection requirements: OMB approval.

              Subpart 2001.3_Agency Acquisition Regulations


Sec. 2001.301 Policy.

Sec. 2001.303 Public participation.

          Subpart 2001.4_Deviations from the FAR and the NRCAR


Sec. 2001.402 Policy.

Sec. 2001.403 Individual deviations.

Sec. 2001.404 Class deviations.

        Subpart 2001.6_Contracting Authority and Responsibilities


Sec. 2001.600-70 Scope of subpart.

Sec. 2001.601 General.

Sec. 2001.602-3 Ratification of unauthorized commitments.

Sec. 2001.603 Selection, appointment, and termination of appointment.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49324, Sept. 10, 1999, unless otherwise noted.

               Subpart 2001.1_Purpose, Authority, Issuance



Sec. 2001.101  Purpose.

    This subpart establishes Chapter 20, the Nuclear Regulatory 
Commission Acquisition Regulation (NRCAR), and provides for the 
codification and publication of uniform policies and procedures for 
acquisitions by the NRC. The NRCAR is not, by itself, a complete 
document. It must be used in conjunction with the Federal Acquisition 
Regulation (FAR) (48 CFR chapter 1).



Sec. 2001.102  Authority.

    The NRCAR and the amendments to it are issued by the Senior 
Procurement Executive under a delegation from the Executive Director for 
Operations dated May 16, 1997, in accordance with the authority of the 
Atomic Energy Act of 1954, as amended (42. U.S.C. 161), the Energy 
Reorganization Act of 1974 (42 U.S.C. 5841, 5872), the Federal Property 
and Administrative Services Act of 1949 (40 U.S.C. 486(c)), as amended, 
FAR subpart 1.3, and other applicable law.



Sec. 2001.103  Applicability.

    The FAR and NRCAR apply to all NRC acquisitions of supplies and 
services which obligate appropriated funds, unless exempted by Sections 
31 and 161 of the Atomic Energy Act of 1954 as amended, and Section 205 
of the Energy Reorganization Act of 1974 as amended. For procurements 
made from nonappropriated funds, the Director, Division of Contracts and 
Property Management, shall determine the rules and procedures that 
apply.



Sec. 2001.104  Issuance.



Sec. 2001.104-1  Publication and code arrangement.

    (a) The NRCAR and its subsequent changes are:
    (1) Published in the daily issue of the Federal Register; and
    (2) Codified in the Code of Federal Regulations (CFR).
    (b) The NRCAR is issued as 48 CFR chapter 20.



Sec. 2001.104-2  Arrangement of the regulations.

    (a) General. Chapter 20 is divided into parts, subparts, sections, 
subsections, paragraphs, and further subdivisions as necessary.
    (b) Numbering. The numbering system and part, subpart and section 
titles used in this Chapter conform with those used in the FAR as 
follows:

[[Page 356]]

    (1) Where Chapter 20 implements the FAR or supplements a parallel 
part, subpart, section, subsection, or paragraph of the FAR, that 
implementation or supplementation is numbered and captioned to the FAR 
part, subpart, section, or subsection being implemented or supplemented, 
except that the implementation or supplementation is preceded with a 20 
or 200 so that there will always be four numbers to the left of the 
decimal. For example, NRC's implementation of FAR 1.104-1 is shown as 
2001.104-1 and the NRC's implementation of FAR 24.1 is shown as 2024.1.
    (2) When the NRC supplements material contained in the FAR, it is 
given a unique number containing the numerals ``70'' or higher. The rest 
of the number parallels the FAR part, subpart, section, subsection, or 
paragraph it is supplementing. For example, Section 170A of the Atomic 
Energy Act of 1954, as amended, requires a more comprehensive 
organizational conflict of interest review for NRC than is contemplated 
by FAR 9.5. This supplementary material is identified as 2009.570.
    (3) Where material in the FAR requires no implementation or 
supplementation, there is no corresponding numbering in the NRCAR. 
Therefore, there may be gaps in the NRCAR sequence of numbers where the 
FAR requires no further implementation.
    (c) Citation. The NRCAR will be cited in accordance with Office of 
the Federal Register standards approved for the FAR. Thus, this section 
when referred to in the NRCAR is cited as 2001.104-2(c). When this 
section is referred to formally in official documents, such as legal 
briefs, it should be cited as ``48 CFR 2001.104-2(c).'' Any section of 
the NRCAR may be formally identified by the section number, e.g., 
``NRCAR 2001.104-2.'' In the NRCAR, any reference to the FAR will be 
indicated by ``FAR'' followed by the section number, for example FAR 1-
104.



Sec. 2001.104-3  Copies.

    Copies of the NRCAR in Federal Register and CFR form may be 
purchased from the Superintendent of Documents, Government Printing 
Office, Washington, DC 20402.



Sec. 2001.105  Information collection requirements: OMB approval.

    (a) The Nuclear Regulatory Commission has submitted the information 
collection requirements contained in this part to the Office of 
Management and Budget (OMB) for approval as required by the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. OMB 
has approved the information collection requirements contained in this 
part under control number 3150-0169.
    (b) The information collection requirements contained in this part 
appear in 2009.570-3, 2009.570-5, 2009.570-8, 2014.201-670, 2027.305-3, 
2042.570-1, 2042.803, 2045.371, 2052.204-70, 2052.204-71, 2052.209-70, 
2052.209-71, 2052.209-72, 2052.211-70, 2052.211-71, 2052.211-72, 
2052.211-72 Alternate 1, 2052.214-71, 2052.214-72, 2052.214-74, 
2052.215-70, 2052.215-71, 2052.215-74, 2052.215-75, 2052.215-75 
Alternate 1, 2052.215-75 Alternate 2, 2052.215-78, 2052.216-72, 
2052.227-70, 2052.235-70, 2052.235-71, 2052.242-70, and 2052.242-71.
    (c) This part contains information collection requirements in 
addition to those approved under the control number specified in 
paragraph (a) of this section. These information collection requirements 
and control numbers under which they are approved are as follows:
    (1) In 2052.215-77(a) and 2052.215-78(b), NRC Form 445 is approved 
under control number 3150-0193.
    (2) [Reserved]

              Subpart 2001.3_Agency Acquisition Regulations



Sec. 2001.301  Policy.

    Policy, procedures, and guidance of an internal nature will be 
promulgated through internal NRC issuances such as Management Directives 
or Division of Contracts and Property Management Instructions.

[[Page 357]]



Sec. 2001.303  Public participation.

    FAR 1.301 and section 22 of the Office of Federal Procurement Policy 
Act, as amended (41 U.S.C. 418b) require rulemaking for substantive 
acquisition rules, but allow discretion in the matter for other than 
significant issues meeting the stated criteria. Accordingly, the NRCAR 
has been promulgated and may be revised from time to time in accordance 
with FAR 1.301. This procedure for significant subject matter generally 
involves issuing a notice of proposed rulemaking that invites public 
comment, review and analysis of comments received, and publication of a 
final rule. The final rule includes a discussion of the public comments 
received and describes any changes made as a result of the comments.

          Subpart 2001.4_Deviations From the FAR and the NRCAR



Sec. 2001.402  Policy.

    (a) Deviations from the provisions of the FAR or NRCAR may be 
granted as specified in this subpart when necessary to meet the specific 
needs of the requesting office. The development and testing of new 
techniques and methods of acquisition should not be discouraged simply 
because the action would require a FAR or NRCAR deviation.
    (b) Requests for authority to deviate from the provisions of the FAR 
or the NRCAR must be signed by the requesting office and submitted to 
the Director, Division of Contracts and Property Management, in writing, 
as far in advance as possible. Each request for deviation must contain 
the following:
    (1) A statement of the deviation desired, including identification 
of the specific paragraph number(s) of the FAR or NRCAR from which a 
deviation is requested;
    (2) The reason why the deviation is considered necessary or would be 
in the best interest of the Government;
    (3) If applicable, the name of the contractor and identification of 
the contract affected;
    (4) A description of the intended effect of the deviation;
    (5) A statement of the period of time for which the deviation is 
needed; and
    (6) Any pertinent background information which will contribute to a 
full understanding of the desired deviation.



Sec. 2001.403  Individual deviations.

    In individual cases, deviations from either the FAR or the NRCAR 
will be authorized only when essential to effect only one contracting 
action or where special circumstances make the deviations clearly in the 
best interest of the Government. Individual deviations must be 
authorized in advance by the Director, Division of Contracts and 
Property Management.



Sec. 2001.404  Class deviations.

    Class deviations affect more than one contracting action. Where 
deviations from the FAR or NRCAR are considered necessary for classes of 
contracts, requests for authority to deviate must be submitted in 
writing to the Director, Division of Contracts and Property Management, 
who will consider the submission jointly with the Chairperson of the 
Civilian Agency Acquisition Council, as appropriate.

        Subpart 2001.6_Contracting Authority and Responsibilities



Sec. 2001.600-70  Scope of subpart.

    This subpart deals with the placement of contracting authority and 
responsibility within the agency, the selection and designation of 
contracting officers, and the authority of contracting officers.



Sec. 2001.601  General.

    (a) Contracting authority vests in the Chairman. The Chairman has 
delegated this authority to the Executive Director for Operations (EDO). 
The EDO has delegated this authority to the Deputy Executive Director 
for Management Services (DEDM). The DEDM has delegated this authority to 
the Director, Office of Administration (ADM). The Director, ADM, has 
delegated the authority to the Director, Division of Contracts and 
Property Management (DCPM), who, in turn, makes contracting officer 
appointments within Headquarters and Regional Offices. All of these 
delegations

[[Page 358]]

are formal written delegations containing dollar limitations and 
conditions.
    (b) The Director, Division of Contracts Division of Contracts and 
Property Management, establishes contracting policy throughout the 
agency; monitors the overall effectiveness and efficiency of the 
agency's contracting office; establishes controls to assure compliance 
with laws, regulations, and procedures; and delegates contracting 
officer authority.



Sec. 2001.602-3  Ratification of unauthorized commitments.

    (a) The Government is not bound by agreements or contractual 
commitments made to prospective contractors by persons to whom 
contracting authority has not been delegated. Any unauthorized 
commitment may be in violation of the Federal Property and 
Administrative Services Act, other Federal laws, the FAR, the NRCAR, and 
good acquisition practice. Certain requirements of law and regulation 
necessary for the proper establishment of a contractual obligation may 
not be met under an unauthorized commitment; for example, the 
certification of the availability of funds, justification for other than 
full and open competition, competition of sources, determination of 
contractor responsibility, certification of current pricing data, price/
cost analysis, administrative approvals, and negotiation of appropriate 
contract clauses.
    (b) The execution of otherwise proper contracts made by individuals 
without contracting authority, or by contracting officers in excess of 
the limits of their delegated authority, may later be ratified. To be 
effective, the ratification must be in the form of a written procurement 
document clearly stating that ratification of a previously unauthorized 
commitment is intended. All ratifications of procurement actions valued 
at $2,500 or less may be approved by the appropriate regional 
administrator or Headquarters contracting officer. For any such action, 
all other terms of subpart 2001.6 are applicable. All ratification 
actions exceeding $2,500 shall be approved by the Competition Advocate.
    (c) Requests received by contracting officers for ratification of 
commitments made by personnel lacking contracting authority must be 
processed as follows:
    (1) The Designating Official that is responsible for the office 
request shall furnish the contracting officer all records and documents 
concerning the commitment and a complete written statement of facts, 
including, but not limited to:
    (i) A written statement consistent with the complexity and size of 
the action as to why the contracting office was not used including the 
name of the employee who made the commitment;
    (ii) A statement as to why the proposed contractor was selected;
    (iii) A list of other sources considered;
    (iv) A description of work performed, or to be performed, or 
products to be furnished;
    (v) The estimated or agreed upon contract price;
    (vi) A certification of the appropriated funds available;
    (vii) A description of how unauthorized commitments in similar 
circumstances will be avoided in the future.
    (2) The contracting officer shall review the written statement of 
facts for a determination of approval of all actions valued at $2,500 or 
less. For actions greater than $2,500, the contracting officer shall 
forward the written statement of facts to the Competition Advocate 
through the Director, Division of Contracts and Property Management with 
any comments or information that should be considered in evaluating the 
request for ratification.
    (3) The NRC legal advisor may be asked for an opinion, advice, or 
concurrence if there is concern regarding the propriety of the funding 
source, appropriateness of the expense, or when some other legal issue 
is involved.



Sec. 2001.603  Selection, appointment, and termination of appointment.

    The Director, Division of Contracts and Property Management, is 
authorized by the Director, Office of Administration, to select and 
appoint contracting officers and to terminate their appointment as 
prescribed in FAR

[[Page 359]]

1.603. Delegations of contracting officer authority are issued by 
memorandum which includes a clear statement of the delegated authority, 
including responsibilities and limitations in addition to the 
``Certificate of Appointment'', SF 1402. The Director, Division of 
Contracts and Property Management, may delegate micro-purchase authority 
in accordance with agency procedures. This delegation may be 
accomplished by written memorandum. (ref. FAR 1.603-3(b))

                          PART 2002_DEFINITIONS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49326, Sept. 10, 1999, unless otherwise noted.

                       Subpart 2002.1_Definitions



Sec. 2002.100  Definitions.

    Agency means the Nuclear Regulatory Commission (NRC).
    Agency Head or Head of the Agency means the NRC Executive Director 
for Operations, for the purposes specified in the regulations in this 
chapter and the FAR. This delegation does not extend to internal NRC 
requirements such as clearance levels and Commission papers which 
specify higher levels of authority.
    Commission means the NRC Commission of five members, or a quorum 
thereof, sitting as a body, as provided by Section 201 of the Energy 
Reorganization Act of 1974 (42 U.S.C. 5841).
    Competition Advocate means the individual appointed as such by the 
Agency Head as required by Public Law 98-369. The Director, Division of 
Contracts and Property Management, has been appointed the Competition 
Advocate for the NRC.
    Head of the Contracting Activity means the Director, Division of 
Contracts and Property Management.
    Senior Procurement Executive means the individual appointed as such 
by the Agency Head pursuant to Executive Order 12352. The Deputy 
Executive Director for Management Services, has been appointed the NRC 
Senior Procurement Executive.
    Simplified acquisitions means those acquisitions conducted using the 
methods, policies, and procedures of FAR part 13 for making purchases of 
supplies or services.
    Task and Delivery Order Ombudsman means the Director, Division of 
Contracts and Property Management, or designee pursuant to section 
1004(a) of Pub. L. 103-355, the Federal Acquisition Streamlining Act.

PART 2003_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 2003.1_Safeguards

Sec.

Sec. 2003.101-3 Agency regulations.

      Subpart 2003.2_Contractor Gratuities to Government Personnel


Sec. 2003.203 Reporting suspected violations of the gratuities clause.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49326, Sept. 10, 1999, unless otherwise noted.

                        Subpart 2003.1_Safeguards



Sec. 2003.101-3  Agency regulations.

    Standards of conduct for Federal employees are published in 5 CFR 
parts 2635 and 5801. Requirements for financial disclosure are published 
in 5 CFR part 2634.

      Subpart 2003.2_Contractor Gratuities to Government Personnel



Sec. 2003.203  Reporting suspected violations of the gratuities clause.

    (a) Suspected violations of the ``Gratuities'' clause, FAR 52.203.3, 
must be reported orally or in writing directly to the NRC Office of the 
Inspector General. A report must include all facts and circumstances 
related to the case. Refer to 5 CFR part 2635 for an explanation 
regarding what is prohibited and what is permitted.
    (b) When appropriate, discussions with the contracting officer or a 
higher

[[Page 360]]

procurement official, procurement policy staff, and the procurement 
legal advisor before filing a report are encouraged.

                    PART 2004_ADMINISTRATIVE MATTERS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49327, Sept. 10, 1999, unless otherwise noted.



Sec. 2004.404  Contract clauses.

    (a) The contracting officer shall insert the clause at 2052.204-70 
Security, in all solicitations and contracts under which the contractor 
may have access to, or contact with, classified information, including 
National Security information, restricted data, formerly restricted 
data, and other classified data.
    (b) The contracting officer shall insert the clause 2052.204-71 Site 
Access Badge Requirements, in all solicitations and contracts under 
which the contractor will require access to Government facilities. The 
clause may be altered to reflect any special conditions to be applied to 
foreign nationals.

[[Page 361]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                 PART 2005_PUBLICIZING CONTRACT ACTIONS

                   Subpart 2005.5_Paid Advertisements

Sec.

Sec. 2005.502 Authority.

    Authority: (42 U.S.C. 2201); 42 U.S.C. 5841; 41 U.S.C. 401 et seq.

    Source: 64 FR 49327, Sept. 10, 1999, unless otherwise noted.

                   Subpart 2005.5_Paid Advertisements



Sec. 2005.502  Authority.

    Before placing paid advertisements in newspapers and trade journals 
to publicize contract actions, written authority must be obtained from 
the Director, Division of Contracts and Property Management, for 
Headquarters activities, or the Director, Division of Resource 
Management and Administration, within each regional office for a 
regional procurement.

                   PART 2009_CONTRACTOR QUALIFICATIONS

           Subpart 2009.1_Responsible Prospective Contractors

Sec.

Sec. 2009.100 NRC policy.

Sec. 2009.105-70 Contract provisions.

         Subpart 2009.4_Debarment, Suspension, and Ineligibility


Sec. 2009.403 Definitions.

Sec. 2009.404 Consolidated lists of parties excluded from Federal 
          procurement or non-procurement programs.

Sec. 2009.405 Effect of listing.

Sec. 2009.405-1 Continuation of current contracts.

Sec. 2009.405-2 Restrictions on subcontracting.

Sec. 2009.406 Debarment.

Sec. 2009.406-3 Procedures.

Sec. 2009.407 Suspension.

Sec. 2009.407-3 Procedures.

Sec. 2009.470 Appeals.

           Subpart 2009.5_Organizational Conflicts of Interest


Sec. 2009.500 Scope of subpart.

Sec. 2009.570 NRC organizational conflicts of interest.

Sec. 2009.570-1 Scope of policy.

Sec. 2009.570-2 Definitions.

Sec. 2009.570-3 Criteria for recognizing contractor organizational 
          conflicts of interest.

Sec. 2009.570-4 Representation.

Sec. 2009.570-5 Contract clauses.

Sec. 2009.570-6 Evaluation, findings, and contract award.

Sec. 2009.570-7 Conflicts identified after award.

Sec. 2009.570-8 Subcontracts.

Sec. 2009.570-9 Waiver.

Sec. 2009.570-10 Remedies.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C 418(b).

    Source: 64 FR 49327, Sept. 10, 1999, unless otherwise noted.

           Subpart 2009.1_Responsible Prospective Contractors



Sec. 2009.100  NRC policy.

    (a) It is NRC policy that only competitively awarded contracts shall 
be placed with an individual who was employed by the NRC within two 
years from the date of the Request for Procurement Action. This policy 
also applies to:
    (1) The noncompetitive award of contracts to organizations where 
former NRC employees have dominant ownership interests in the 
organization, such as partners or majority stockholders;
    (2) The noncompetitive award of contracts to organizations where 
former NRC employees have dominant management interests, such as 
principal officers, or where the organization is predominantly staffed 
by former NRC employees; and
    (3) The noncompetitive award of contracts, task orders or other NRC 
work assignments where the particular assignment is to be performed by 
designated former NRC employees, including principal investigators, key 
personnel, and others who will perform more than a nominal amount of the 
work in question.

[[Page 362]]

    (b) The following procurement actions are considered noncompetitive 
for the purposes of this policy:
    (1) Contracts awarded noncompetitively under the Small Business 
Administration's 8(a) Program;
    (2) Individual task orders if the former employee was not identified 
as ``key personnel'' in a proposal which was evaluated under competitive 
procedures;
    (3) Unsolicited proposals;
    (4) Subcontracts that require review for the purpose of granting 
consent under NRC prime contracts.
    (c) The term NRC employee includes special Government employees 
performing services for NRC as experts, advisors, consultants, or 
members of advisory committees, if--
    (1) The contract arises directly out of the individual's activity as 
a special employee;
    (2) The individual is in a position to influence the award of the 
contract; or
    (3) The Contracting Officer determines that another conflict of 
interest exists.
    (d) A justification explaining why it is in the best interest of the 
Government to contract with an individual or firm described in 
paragraphs (a) and (b) of this section on a noncompetitive basis may be 
approved by the Senior Procurement Executive after consulting with the 
Executive Director for Operations. This is in addition to any 
justification and approvals which may be required by the FAR for use of 
other than full and open competition.
    (e) Nothing in this policy statement relieves former employees from 
obligations prescribed by law, such as 18 U.S.C. 207, Restrictions on 
Former Officers, Employees, and Elected Officials of the Executive and 
Legislative Branches.



Sec. 2009.105-70  Contract provisions.

    The contracting officer shall insert the following provisions in all 
solicitations:
    (a) Section 2052.209-70 Current/Former Agency Employee Involvement.

         Subpart 2009.4_Debarment, Suspension, and Ineligibility



Sec. 2009.403  Definitions.

    As used in 2009.4:
    Debarring official means the Senior Procurement Executive.
    Suspending official means the Senior Procurement Executive.



Sec. 2009.404  Consolidated list of parties excluded from Federal 
          procurement or non-procurement programs.

    The contracting officer responsible for the contract affected by the 
debarment or suspension shall perform the actions required by FAR 
9.404(c) (1) through (6).



Sec. 2009.405  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 Senior Procurement Executive is authorized to make the 
determinations under FAR 9.405. Requests for these determinations must 
be submitted from the Head of the Contracting Activity, through the 
Director, Office of Administration, to the Senior Procurement Executive.



Sec. 2009.405-1  Continuation of current contracts.

    The Head of the Contracting Activity is authorized to make the 
determination to continue contracts or subcontracts in existence at the 
time the contractor was debarred, suspended, or proposed for debarment 
in accordance with FAR 9.405-1.



Sec. 2009.405-2  Restrictions on subcontracting.

    The Head of the Contracting Activity is authorized to approve 
subcontracts with debarred or suspended subcontractors under FAR 9.405-
2.



Sec. 2009.406  Debarment.



Sec. 2009.406-3  Procedures.

    (a) Investigation and referral. (1) When a contracting officer 
becomes aware of possible irregularities or any information which may be 
sufficient cause for

[[Page 363]]

debarment, the contracting officer must first submit a complete 
statement of facts (including a copy of any criminal indictments, if 
applicable) and a recommendation for action to the Head of the 
Contracting Activity. If the contracting officer's statement of facts 
indicates misconduct on the part of the contractor in regard to an NRC 
contract, the Head of the Contracting Activity will refer the matter of 
misconduct to the Inspector General to determine if an investigation is 
required prior to referring the case to the debarring official.
    (2) To the extent the Head of the Contracting Activity believes that 
sufficient grounds for debarment exist, independent of any pending 
investigation by the Inspector General, the Head of the Contracting 
Activity shall immediately forward the case, without reference to any 
pending investigation, and a recommendation for action to the Senior 
Procurement Executive for review. In such circumstances, the Head of the 
Contracting Activity will take no additional action in regard to a 
specific matter of misconduct referred to the Inspector General prior to 
consulting with the Inspector General.
    (b) Decision-making process. If, after reviewing the recommendations 
and consulting with the Office of the General Counsel and, if 
appropriate, the Office of the Inspector General, 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 
Head of the Contracting Activity of the action taken. If the contractor 
fails to submit a timely written response within 30 days after receipt 
of the notice in accordance with FAR 9.406-3(c)(4), the debarring 
official may notify the contractor in accordance with FAR 9.406-3(d) 
that the contractor is debarred.
    (c) Fact-finding proceedings. 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 and no later than 30 days after 
the contractor received the notice, 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 must 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.



Sec. 2009.407  Suspension.



Sec. 2009.407-3  Procedures.

    (a) Investigation and referral. (1) When a contracting officer 
becomes aware of possible irregularities or any information which may be 
sufficient cause for suspension, the contracting officer must first 
submit a complete statement of facts (including a copy of any criminal 
indictments, if applicable) and a recommendation for action to the Head 
of the Contracting Activity. If the contracting officer's statement of 
facts indicates misconduct on the part of the contractor in regard to an 
NRC contract, the Head of the Contracting Activity will refer the matter 
of misconduct to the Inspector General to determine if an investigation 
is required prior to referring the case to the suspension official.
    (2) To the extent the Head of the Contracting Activity believes that 
sufficient grounds for debarment exist, independent of any pending 
investigation by the Inspector General, the Head of the Contracting 
Activity shall immediately forward the case, without reference to any 
pending investigation, and a recommendation for action to the Senior 
Procurement Executive for review. In such circumstances, the Head of the 
Contracting Activity will take no additional action in regard to a 
specific matter of misconduct referred to the Inspector General prior to 
consulting with the Inspector General.
    (b) Decision-making process. If, after reviewing the recommendations 
and consulting with the Office of the General Counsel, and if 
appropriate, the Office of the Inspector General, the suspending 
official determines suspension is justified, the suspending official 
shall initiate the proposed suspension in accordance with FAR 9.407-
3(b)(2). The contractor shall be given the opportunity to appear at an 
informal

[[Page 364]]

hearing, similar in nature to the hearing for debarments as discussed in 
FAR 9.406-3(b)(2). If the contractor fails to submit a timely written 
response within 30 days after receipt of the notice in accordance with 
FAR 9.407-3(c)(5), the suspending official may notify the contractor in 
accordance with FAR 9.407-3(d) that the contractor is suspended.



Sec. 2009.470  Appeals.

    A debarred or suspended contractor may appeal the debarring/
suspending official's decision by mailing or otherwise furnishing a 
written notice within 90 days from the date of the decision to the 
Executive Director for Operations. A copy of the notice of appeal must 
be furnished to the debarring/suspending official.

           Subpart 2009.5_Organizational Conflicts of Interest



Sec. 2009.500  Scope of subpart.

    In accordance with 42 U.S.C. 2210a., NRC acquisitions are processed 
in accordance with 2009.570, which takes precedence over FAR 9.5 with 
respect to organizational conflicts of interest. Where non-conflicting 
guidance appears in FAR 9.5, that guidance must be followed.



Sec. 2009.570  NRC organizational conflicts of interest.



Sec. 2009.570-1  Scope of policy.

    (a) It is the policy of NRC to avoid, eliminate, or neutralize 
contractor organizational conflicts of interest. The NRC achieves this 
objective by requiring all prospective contractors to submit information 
describing relationships, if any, with organizations or persons 
(including those regulated by the NRC) which may give rise to actual or 
potential conflicts of interest in the event of contract award.
    (b) Contractor conflict of interest determinations cannot be made 
automatically or routinely. The application of sound judgment on 
virtually a case-by-case basis is necessary if the policy is to be 
applied to satisfy the overall public interest. It is not possible to 
prescribe in advance a specific method or set of criteria which would 
serve to identify and resolve all of the contractor conflict of interest 
situations that might arise. However, examples are provided in the 
regulations in this chapter to guide application of this policy 
guidance. The ultimate test is as follows: Might the contractor, if 
awarded the contract, be placed in a position where its judgment may be 
biased, or where it may have an unfair competitive advantage?
    (c) The conflict of interest rule contained in this subpart applies 
to contractors and offerors only. Individuals or firms who have other 
relationships with the NRC (e.g., parties to a licensing proceeding) are 
not covered by the regulations in this chapter. This rule does not apply 
to the acquisition of consulting services through the personnel 
appointment process. NRC agreements with other Govern ment agencies, 
international organizations, or state, local, or foreign Governments. 
Separate procedures for avoiding conflicts of interest will be employed 
in these agreements, as appropriate.



Sec. 2009.570-2  Definitions.

    Affiliates means business concerns which are affiliates of each 
other when either directly or indirectly one concern or individual 
controls or has the power to control another, or when a third party 
controls or has the power to control both.
    Contract means any contractual agreement or other arrangement with 
the NRC except as provided in 2009.570-1(c).
    Contractor means any person, firm, unincorporated association, joint 
venture, co-sponsor, partnership, corporation, affiliates thereof, or 
their successors in interest, including their chief executives, 
directors, key personnel (identified in the contract), proposed 
consultants or subcontractors, which are a party to a contract with the 
NRC.
    Evaluation activities means any effort involving the appraisal of a 
technology, process, product, or policy.
    Offeror or prospective contractor means any person, firm, 
unincorporated association, joint venture, co-sponsor, partnership, 
corporation, or their affiliates or successors in interest, including 
their chief executives, directors, key personnel, proposed consultants, 
or subcontractors, submitting a bid or

[[Page 365]]

proposal, solicited or unsolicited, to the NRC to obtain a contract.
    Organizational conflicts of interest means that a relationship 
exists whereby a contractor or prospective contractor has present or 
planned interests related to the work to be performed under an NRC 
contract which:
    (1) May diminish its capacity to give impartial, technically sound, 
objective assistance and advice, or may otherwise result in a biased 
work product; or
    (2) May result in its being given an unfair competitive advantage.
    Potential conflict of interest means that a factual situation exists 
that suggests that an actual conflict of interest may arise from award 
of a proposed contract. The term potential conflict of interest is used 
to signify those situations that--
    (1) Merit investigation before contract award to ascertain whether 
award would give rise to an actual conflict; or
    (2) Must be reported to the contracting officer for investigation if 
they arise during contract performance.
    Research means any scientific or technical work involving 
theoretical analysis, exploration, or experimentation.
    Subcontractor means any subcontractor of any tier who performs work 
under a contract with the NRC except subcontracts for supplies and 
subcontracts in amounts not exceeding $10,000.
    Technical consulting and management support services means internal 
assistance to a component of the NRC in the formulation or 
administration of its programs, projects, or policies which normally 
require that the contractor be given access to proprietary information 
or to information that has not been made available to the public. These 
services typically include assistance in the preparation of program 
plans, preliminary designs, specifications, or statements of work.



Sec. 2009.570-3  Criteria for recognizing contractor organizational 
          conflicts of interest.

    (a) General. (1) Two questions will be asked in determining whether 
actual or potential organizational conflicts of interest exist:
    (i) Are there conflicting roles which might bias an offeror's or 
contractor's judgment in relation to its work for the NRC?
    (ii) May the offeror or contractor be given an unfair competitive 
advantage based on the performance of the contract?
    (2) NRC's ultimate determination that organizational conflicts of 
interest exist will be made in light of common sense and good business 
judgment based upon the relevant facts. While it is difficult to 
identify and to prescribe in advance a specific method for avoiding all 
of the various situations or relationships that might involve potential 
organizational conflicts of interest, NRC personnel will pay particular 
attention to proposed contractual requirements that call for the 
rendering of advice, consultation or evaluation activities, or similar 
activities that directly lay the groundwork for the NRC's decisions on 
regulatory activities, future procurements, and research programs. Any 
work performed at an applicant or licensee site will also be closely 
scrutinized by the NRC staff.
    (b) Situations or relationships. The following situations or 
relationships may give rise to organizational conflicts of interest:
    (1) The offeror or contractor shall disclose information that may 
give rise to organizational conflicts of interest under the following 
circumstances. The information may include the scope of work or 
specification for the requirement being performed, the period of 
performance, and the name and telephone number for a point of contact at 
the organization knowledgeable about the commercial contract.
    (i) Where the offeror or contractor provides advice and 
recommendations to the NRC in the same technical area where it is also 
providing consulting assistance to any organization regulated by the 
NRC.
    (ii) Where the offeror or contractor provides advice to the NRC on 
the same or similar matter on which it is also providing assistance to 
any organization regulated by the NRC.
    (iii) Where the offeror or contractor evaluates its own products or 
services,

[[Page 366]]

or has been substantially involved in the development or marketing of 
the products or services of another entity.
    (iv) Where the award of a contract would result in placing the 
offeror or contractor in a conflicting role in which its judgment may be 
biased in relation to its work for the NRC, or would result in an unfair 
competitive advantage for the offeror or contractor.
    (v) Where the offeror or contractor solicits or performs work at an 
applicant or licensee site while performing work in the same technical 
area for the NRC at the same site.
    (2) The contracting officer may request specific information from an 
offeror or contractor or may require special contract clauses such as 
provided in 2009.570-5(b) in the following circumstances:
    (i) Where the offeror or contractor prepares specifications that are 
to be used in competitive procurements of products or services covered 
by the specifications.
    (ii) Where the offeror or contractor prepares plans for specific 
approaches or methodologies that are to be incorporated into competitive 
procurements using the approaches or methodologies.
    (iii) Where the offeror or contractor is granted access to 
information not available to the public concerning NRC plans, policies, 
or programs that could form the basis for a later procurement action.
    (iv) Where the offeror or contractor is granted access to 
proprietary information of its competitors.
    (v) Where the award of a contract might result in placing the 
offeror or contractor in a conflicting role in which its judgment may be 
biased in relation to its work for the NRC or might result in an unfair 
competitive advantage for the offeror or contractor.
    (c) Policy application guidance. The following examples are 
illustrative only and are not intended to identify and resolve all 
contractor organizational conflict of interest situations.
    (1)(i) Example. The ABC Corp., in response to a Request For Proposal 
(RFP), proposes to undertake certain analyses of a reactor component as 
called for in the RFP. The ABC Corp. is one of several companies 
considered to be technically well qualified. In response to the inquiry 
in the RFP, the ABC Corp. advises that it is currently performing 
similar analyses for the reactor manufacturer.
    (ii) Guidance. An NRC contract for that particular work normally 
would not be awarded to the ABC Corp. because the company would be 
placed in a position in which its judgment could be biased in 
relationship to its work for the NRC. Because there are other well-
qualified companies available, there would be no reason for considering 
a waiver of the policy.
    (2)(i) Example. The ABC Corp., in response to an RFP, proposes to 
perform certain analyses of a reactor component that is unique to one 
type of advanced reactor. As is the case with other technically 
qualified companies responding to the RFP, the ABC Corp. is performing 
various projects for several different utility clients. None of the ABC 
Corp. projects have any relationship to the work called for in the RFP. 
Based on the NRC evaluation, the ABC Corp. is considered to be the best 
qualified company to perform the work outlined in the RFP.
    (ii) Guidance. An NRC contract normally could be awarded to the ABC 
Corp. because no conflict of interest exists which could motivate bias 
with respect to the work. An appropriate clause would be included in the 
contract to preclude the ABC Corp. from subsequently contracting for 
work with the private sector that could create a conflict during the 
performance of the NRC contract. For example, ABC Corp. would be 
precluded from the performance of similar work for the company 
developing the advanced reactor mentioned in the example.
    (3)(i) Example. The ABC Corp., in response to a competitive RFP, 
submits a proposal to assist the NRC in revising NRC's guidance 
documents on the respiratory protection requirements of 10 CFR part 20. 
ABC Corp. is the only firm determined to be technically acceptable. ABC 
Corp. has performed substantial work for regulated utilities in the past 
and is expected to continue similar efforts in the future. The work has 
and will cover the writing, implementation, and administration of 
compliance respiratory protection programs for nuclear power plants.

[[Page 367]]

    (ii) Guidance. This situation would place the firm in a role where 
its judgment could be biased in relationship to its work for the NRC. 
Because the nature of the required work is vitally important in terms of 
the NRC's responsibilities and no reasonable alternative exists, a 
waiver of the policy, in accordance with 2009.570-9 may be warranted. 
Any waiver must be fully documented in accordance with the waiver 
provisions of this policy with particular attention to the establishment 
of protective mechanisms to guard against bias.
    (4)(i) Example. The ABC Corp. submits a proposal for a new system to 
evaluate a specific reactor component's performance for the purpose of 
developing standards that are important to the NRC program. The ABC 
Corp. has advised the NRC that it intends to sell the new system to 
industry once its practicability has been demonstrated. Other companies 
in this business are using older systems for evaluation of the specific 
reactor component.
    (ii) Guidance. A contract could be awarded to the ABC Corp. if the 
contract stipulates that no information produced under the contract will 
be used in the contractor's private activities unless this information 
has been reported to the NRC. Data on how the reactor component 
performs, which is reported to the NRC by contractors, will normally be 
disseminated by the NRC to others to preclude an unfair competitive 
advantage. When the NRC furnishes information about the reactor 
component to the contractor for the performance of contracted work, the 
information may not be used in the contractor's private activities 
unless the information is generally available to others. Further, the 
contract will stipulate that the contractor will inform the NRC 
contracting officer of all situations in which the information, 
developed about the performance of the reactor component under the 
contract, is proposed to be used.
    (5)(i) Example. The ABC Corp., in response to a RFP, proposes to 
assemble a map showing certain seismological features of the Appalachian 
fold belt. In accordance with the representation in the RFP and 
2009.570-3(b)(1)(i), ABC Corp. informs the NRC that it is presently 
doing seismological studies for several utilities in the eastern United 
States, but none of the sites are within the geographic area 
contemplated by the NRC study.
    (ii) Guidance. The contracting officer would normally conclude that 
award of a contract would not place ABC Corp. in a conflicting role 
where its judgment might be biased. Section 2052.209-72(c) Work for 
Others, would preclude ABC Corp. from accepting work which could create 
a conflict of interest during the term of the NRC contract.
    (6)(i) Example. AD Division of ABC Corp., in response to a RFP, 
submits a proposal to assist the NRC in the safety and environmental 
review of applications for licenses for the construction, operation, and 
decommissioning of fuel cycle facilities. ABC Corp. is divided into two 
separate and distinct divisions, AD and BC. The BC Division performs the 
same or similar services for industry. The BC Division is currently 
providing the same or similar services required under the NRC's contract 
for an applicant or licensee.
    (ii) Guidance. An NRC contract for that particular work would not be 
awarded to the ABC Corp. The AD Division could be placed in a position 
to pass judgment on work performed by the BC Division, which could bias 
its work for NRC. Further, the Conflict of Interest provisions apply to 
ABC Corp. and not to separate or distinct divisions within the company. 
If no reasonable alternative exists, a waiver of the policy could be 
sought in accordance with 2009.570-9.
    (7)(i) Example. The ABC Corp. completes an analysis for NRC of steam 
generator tube leaks at one of a utility's six sites. Three months 
later, ABC Corp. is asked by this utility to perform the same analysis 
at another of its sites.
    (ii) Guidance. Section 2052.290-72(c)(3) would prohibit the 
contractor from beginning this work for the utility until one year after 
completion of the NRC work at the first site.
    (8)(i) Example. ABC Corp. is assisting NRC in a major on-site 
analysis of a utility's redesign of the common areas between its twin 
reactors. The contract is for two years with an estimated

[[Page 368]]

value of $5 million. Near the completion of the NRC work, ABC Corp. 
requests authority to solicit for a $100K contract with the same utility 
to transport spent fuel to a disposal site. ABC Corp. is performing no 
other work for the utility.
    (ii) Guidance. The Contracting Officer would allow the contractor to 
proceed with the solicitation because it is not in the same technical 
area as the NRC work; and the potential for technical bias by the 
contractor because of financial ties to the utility is slight due to the 
relative value of the two contracts.
    (9)(i) Example. The ABC Corp. is constructing a turbine building and 
installing new turbines at a reactor site. The contract with the utility 
is for five years and has a total value of $100 million. ABC Corp. has 
responded to an NRC Request For Proposal requiring the contractor to 
participate in a major team inspection unrelated to the turbine work at 
the same site. The estimated value of the contract is $75K.
    (ii) Guidance. An NRC contract would not normally be awarded to ABC 
Corp. because these factors create the potential for financial loyalty 
to the utility that may bias the technical judgment of the contractor.
    (d) Other considerations. (1) The fact that the NRC can identify and 
later avoid, eliminate, or neutralize any potential organizational 
conflicts arising from the performance of a contract is not relevant to 
a determination of the existence of conflicts prior to the award of a 
contract.
    (2) It is not relevant that the contractor has the professional 
reputation of being able to resist temptations which arise from 
organizational conflicts of interest, or that a follow-on procurement is 
not involved, or that a contract is awarded on a competitive or a sole 
source basis.



Sec. 2009.570-4  Representation.

    (a) The following procedures are designed to assist the NRC 
contracting officer in determining whether situations or relationships 
exist which may constitute organizational conflicts of interest with 
respect to a particular offeror or contractor. The procedures apply to 
small purchases meeting the criteria stated in the following paragraph 
(b) of this section.
    (b) The organizational conflicts of interest representation 
provision at 2052.209-71 must be included in solicitations and contracts 
resulting from unsolicited proposals. The contracting officer must also 
include this provision for task orders and contract modifications for 
new work for:
    (1) Evaluation services or activities;
    (2) Technical consulting and management support services;
    (3) Research; and
    (4) Other contractual situations where special organizational 
conflicts of interest provisions are noted in the solicitation and would 
be included in the resulting contract. This representation requirement 
also applies to all modifications for additional effort under the 
contract except those issued under the ``Changes'' clause. Where, 
however, a statement of the type required by the organizational 
conflicts of interest representation provisions has previously been 
submitted with regard to the contract being modified, only an updating 
of the statement is required.
    (c) The offeror may, because of actual or potential organizational 
conflicts of interest, propose to exclude specific kinds of work 
contained in a RFP unless the RFP specifically prohibits the exclusion. 
Any such proposed exclusion by an offeror will be considered by the NRC 
in the evaluation of proposals. If the NRC considers the proposed 
excluded work to be an essential or integral part of the required work 
and its exclusion would be to the detriment of the competitive posture 
of the other offerors, the NRC shall reject the proposal as 
unacceptable.
    (d) The offeror's failure to execute the representation required by 
paragraph (b) of this section with respect to an invitation for bids is 
considered to be a minor informality. The offeror will be permitted to 
correct the omission.



Sec. 2009.570-5  Contract clauses.

    (a) General contract clause. All contracts and simplified 
acquisitions of the types set forth in 2009.570-4(b) must

[[Page 369]]

include the clause entitled, ``Contractor Organizational Conflicts of 
Interest,'' set forth in 2052.209-72.
    (b) Other special contract clauses. If it is determined from the 
nature of the proposed contract that an organizational conflict of 
interest exists, the contracting officer may determine that the conflict 
can be avoided, or, after obtaining a waiver in accordance with 
2009.570-9, neutralized through the use of an appropriate special 
contract clause. If appropriate, the offeror may negotiate the terms and 
conditions of these clauses, including the extent and time period of any 
restriction. These clauses include but are not limited to:
    (1) Hardware exclusion clauses which prohibit the acceptance of 
production contracts following a related non-production contract 
previously performed by the contractor;
    (2) Software exclusion clauses;
    (3) Clauses which require the contractor (and certain of its key 
personnel) to avoid certain organizational conflicts of interest; and
    (4) Clauses which provide for protection of confidential data and 
guard against its unauthorized use.



Sec. 2009.570-6  Evaluation, findings, and contract award.

    The contracting officer shall evaluate all relevant facts submitted 
by an offeror and other relevant information. After evaluating this 
information against the criteria of 2009.570-3, the contracting officer 
shall make a finding of whether organizational conflicts of interest 
exist with respect to a particular offeror. If it has been determined 
that real or potential conflicts of interest exist, the contracting 
officer shall:
    (a) Disqualify the offeror from award;
    (b) Avoid or eliminate such conflicts by appropriate measures; or
    (c) Award the contract under the waiver provision of 2009.570-9.



Sec. 2009.570-7  Conflicts identified after award.

    If potential organizational conflicts of interest are identified 
after award with respect to a particular contractor and the contracting 
officer determines that conflicts do exist and that it would not be in 
the best interest of the Government to terminate the contract, as 
provided in the clauses required by 2009.570-5, the contracting officer 
shall take every reasonable action to avoid, eliminate, or, after 
obtaining a waiver in accordance with 2009.570-9, neutralize the effects 
of the identified conflict.



Sec. 2009.570-8  Subcontracts.

    The contracting officer shall require offerors and contractors to 
submit a representation statement from all subcontractors (other than a 
supply subcontractor) and consultants performing services in excess of 
$10,000 in accordance with 2009.570-4(b). The contracting officer shall 
require the contractor to include contract clauses in accordance with 
2009.570-5 in consultant agreements or subcontracts involving 
performance of work under a prime contract.



Sec. 2009.570-9  Waiver.

    (a) The contracting officer determines the need to seek a waiver for 
specific contract awards with the advice and concurrence of the program 
office director and legal counsel. Upon the recommendation of the Senior 
Procurement Executive, and after consultation with legal counsel, the 
Executive Director for Operations may waive the policy in specific cases 
if he determines that it is in the best interest of the United States to 
do so.
    (b) Waiver action is strictly limited to those situations in which:
    (1) The work to be performed under contract is vital to the NRC 
program;
    (2) The work cannot be satisfactorily performed except by a 
contractor whose interests give rise to a question of conflict of 
interest.
    (3) Contractual and/or technical review and surveillance methods can 
be employed by the NRC to neutralize the conflict.
    (c) The justification and approval documents for any waivers must be 
placed in the NRC Public Document Room.



Sec. 2009.570-10  Remedies.

    In addition to other remedies permitted by law or contract for a 
breach of the restrictions in this subpart or for any intentional 
misrepresentation

[[Page 370]]

or intentional nondisclosure of any relevant interest required to be 
provided for this section, the NRC may debar the contractor from 
subsequent NRC contracts.

                    PART 2011_DESCRIBING AGENCY NEEDS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49332, Sept. 10, 1999, unless otherwise noted.

    Subpart 2011.4_Delivery or Performance Schedules_Contract Clauses



Sec. 2011.104-70  NRC Clauses.

    (a) The contracting officer shall insert the clause at 2052.211-70 
Preparation of Technical Reports, when deliverables include a technical 
report.
    (b) The contracting officer shall insert the clause at 2052.211-71 
Technical Progress Report, in all solicitations and contracts except--
    (1) Firm fixed price; or
    (2) Indefinite-delivery contracts to be awarded on a time-and-
materials or labor-hour basis, or that provide for issuing delivery 
orders for specific products/services (line items).
    (c) The contracting officer shall insert the clause at 2052.211-72 
Financial Status Report, in applicable cost reimbursement solicitations 
and contracts when detailed assessment of costs is warranted and a 
Contractor Spending Plan is required. The contracting officer shall use 
the clause at 2052.211-72 Financial Status Report--Alternate 1 when no 
Contractor Spending Plan is required.
    (d) The contracting officer may alter clauses at 2052.211-70, 
2052.211-71, 2052.211-72, and 2052.211-72, Alternate 1 before issuing 
the solicitation or during competition by solicitation amendment. 
Reporting requirements should be set at a meaningful and productive 
frequency. Insignificant changes may also be made by the contracting 
officer on a case-by-case basis during negotiations without solicitation 
amendment.

[[Page 371]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

         PART 2013_SIMPLIFIED ACQUISITION PROCEDURES [RESERVED]

                        PART 2014_SEALED BIDDING

                   Subpart 2014.2_Solicitation of Bids

Sec.

Sec. 2014.201 Preparation of invitation for bids.

Sec. 2014.201-670 Solicitation provisions.

          Subpart 2014.4_Opening of Bids and Award of Contract


Sec. 2014.407 Mistakes in bids.

Sec. 2014.407-3 Other mistakes disclosed before award.

Sec. 2014.407-4 Mistakes after award.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49332, Sept. 10, 1999, unless otherwise noted.

                   Subpart 2014.2_Solicitation of Bids



Sec. 2014.201  Preparation of invitation for bids.



Sec. 2014.201-670  Solicitation provisions.

    (a) The contracting officer may insert the provision at 2052.214-70, 
Prebid Conference, in Invitations for Bids (IFB) where there will be a 
prebid conference. This provision may be altered by the contracting 
officer to fit the circumstances of the procurement.
    (b) The contracting officer may insert the provision at 2052.214-71, 
Bidder Qualifications and Past Experience in IFBs on an optional basis 
to fit the circumstances of the requirement;
    (c) The contracting officer shall insert the provision at 2052.214-
72 Bid Evaluation in all IFBs. Paragraph (f) of this provision is 
optional.
    (d) The contracting officer shall insert the provision at 2052.214-
73 Timely Receipt of Bids in all IFBs.
    (e) The contracting officer shall insert the provision at 2052.214-
74 Disposition of Bids in all IFBs.

          Subpart 2014.4_Opening of Bids and Award of Contract



Sec. 2014.407  Mistakes in bids.



Sec. 2014.407-3  Other mistakes disclosed before award.

    The Director, Division of Contracts and Property Management, is 
delegated the authority to make the determinations concerning mistakes 
in bids, including those with obvious clerical errors, discovered prior 
to award. These determinations will be concurred in by legal counsel 
prior to notification of the bidder.



Sec. 2014.407-4  Mistakes after award.

    The cognizant contracting officer is delegated the authority to make 
determinations concerning mistakes disclosed after award in accordance 
with FAR 14.407-4. These determinations will be concurred in by legal 
counsel prior to notification of the contractor.

                  PART 2015_CONTRACTING BY NEGOTIATION

 Subpart 2015.2_Solicitation and Receipt of Proposals and Implementation

Sec.

Sec. 2015.209-70 Solicitation provisions and contract clauses.

        Subpart 2015.3_Source Selection Processes and Techniques


Sec. 2015.300 Scope of subpart.

Sec. 2015.303 Responsibilities.

Sec. 2015.304 Evaluation factors.

Sec. 2015.305 Proposal evaluation.

                  Subpart 2015.6_Unsolicited Proposals


Sec. 2015.606 Agency procedures.

Sec. 2015.606-1 Receipt and initial review.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).

    Source: 64 FR 49332, Sept. 10, 1999, unless otherwise noted.

[[Page 372]]

 Subpart 2015.2_Solicitation and Receipt of Proposals and Implementation



Sec. 2015.209-70  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the following clauses in 
solicitations and contracts that are applicable to the requirement:
    (1) Section 2052.215-70, Key Personnel in applicable solicitations 
and contracts;
    (2)(i) Section 2052.215-71, Project Officer Authority in applicable 
solicitations and contracts for cost-reimbursement, cost-plus-fixed-fee, 
cost-plus-award-fee, cost sharing, labor-hour or time-and-materials, 
including task order contracts. This clause and the following alternate 
clauses are intended for experienced, trained project officers, and may 
be altered to delete duties where appropriate:
    (ii) Section 2052.215-71 Alternate 1. For solicitations for issuance 
of delivery orders for specific products/services;
    (iii) Section 2052.215-71 Alternate 2. For solicitations for firm 
fixed price contracts, with paragraph (b)(1) of Alternate 1 deleted and 
the remainder of the clause renumbered.
    (3) The contracting officer shall insert the provision at 2052.215-
72, Timely Receipt of Proposals in all solicitations;
    (4) The contracting officer shall insert the provision at 2052.215-
73, Award Notification and Commitment of Public Funds in all 
solicitations; and
    (5) The contracting officer shall insert the provision at 2052.215-
74, Disposition of Proposals in all solicitations.
    (b) The contracting officer may insert the following provisions in 
all solicitations as applicable. These provisions may be altered to fit 
the circumstances of the requirement. These provisions shall be tailored 
to assure that all sections of the instructions for the Technical and 
Management Proposal, or Oral Presentation and Supporting Documentation, 
reflect a one-to-one relationship to the evaluation criteria:
    (1) Section 2052.215-75, Proposal Presentation and Format for 
negotiated procurements for cost type contracts;
    (2) Section 2052.215-75 Alternate 1 may be used for all 
solicitations for negotiated task order contracts;
    (3) Section 2015.215-75 Alternate 2 may be used for all 
solicitations for negotiated fixed price, labor hour, or time and 
materials contracts:
    (c) The contracting officer shall insert the provision at 2052.215-
76, PreProposal Conference, in solicitations which include a PreProposal 
conference. This provision may be altered to fit the circumstances of 
the requirement.
    (d) The contracting officer shall insert the following clauses in 
solicitations and contracts as applicable:
    (1) Section 2052.215-77, Travel Approvals and Reimbursement, must be 
inserted in cost reimbursement solicitations and contracts which require 
travel but do not set a specific ceiling amount on that travel. Requests 
for foreign travel must be submitted to the NRC 30 days in advance of 
the travel date.
    (2) Section 2052.215-78, Travel Approvals and Reimbursement--
Alternate 1, shall be inserted in cost reimbursement solicitations and 
contracts which include a ceiling amount on travel. Requests for foreign 
travel must be submitted to the NRC 30 days in advance of the travel.
    (e) The contracting officer shall include the following provisions 
in all solicitations for competitive procurements to describe the 
relationship of technical considerations to cost considerations. The 
contracting officer may make appropriate changes to these provisions to 
accurately reflect other evaluation procedures, such as evaluation of 
proposals against mandatory criteria and bench marking criteria for 
Information Technology (IT) procurements:
    (1) Section 2052.215-79 Contract Award and Evaluation of Proposals, 
shall be included in all solicitations where technical merit is more 
important than cost,
    (2) Section 2052.215-79 Alternate 1 must be included when proposals 
are to be evaluated on a lowest price, technically acceptable basis.

[[Page 373]]

    (3) Section 2052.215-79 Alternate 2 shall be included where cost and 
technical merit are of equal significance.

        Subpart 2015.3_Source Selection Processes and Techniques



Sec. 2015.300  Scope of subpart.

    This subpart applies to all contracts awarded on a competitive basis 
in accordance with FAR part 15. This subpart does not apply to contracts 
awarded on a non-competitive basis to the Small Business Administration 
under Section 8(a) of the Small Business Act.



Sec. 2015.303  Responsibilities.

    (a) The source selection authority is the contracting officer. The 
contracting officer, acting as the source selection authority, shall 
select an offer for award based on review of the Source Evaluation 
Panel's recommendation contained in the reports described in paragraph 
(c) of this section.
    (b) Any cancellation of solicitations and subsequent rejection of 
all proposals must be approved by the Head of the Contracting Activity.
    (c) For all proposed contracts with total estimated values in excess 
of the simplified acquisition threshold and expected to result from 
competitive technical and price/cost negotiations, the cooperative 
review efforts of technical, contracting, and other administrative 
personnel are formalized through establishment of a Source Evaluation 
Panel. A single technical member may be appointed to the Source 
Evaluation Panel to evaluate proposals with the contracting officer's 
approval. In these instances, the Designating Official may appoint 
technical advisors (non-voting members) to assist the single technical 
member. The Source Evaluation Panel should not exceed five members, 
including the Chairperson except in unusual cases. The Source Evaluation 
Panel's proposal evaluation report(s) may include a Competitive Range 
Report and a Final Evaluation Report (to be used when award will be made 
after conducting discussions), or a Recommendation for Award Report (to 
be used when award will be made without discussions).
    (d) The Designating Official (Office Director or designee) is 
responsible for appointing a Source Evaluation Panel to evaluate 
competitive technical proposals in accordance with the solicitation 
technical criteria. The Designating Official is also responsible for 
conducting an independent review and evaluation of the Source Evaluation 
Panel's proposal evaluation report(s) to the contracting officer.



Sec. 2015.304  Evaluation factors.

    The evaluation factors included in the solicitation serve as the 
standard against which all proposals are evaluated and are the basis for 
the development of proposal preparation instructions in accordance with 
FAR 15.304(b). The solicitation may indicate the relative importance of 
evaluation factors and subfactors by assigning a numerical weight to 
each factor. If a solicitation uses numerical weights, those weights 
shall be stated in the solicitation. The relative importance of factors 
that are not numerically weighted will be stated in the solicitation. 
Examples of factors which may not be numerically weighted are conflict 
of interest, estimated cost, and ``go/no go'' evaluation factors.



Sec. 2015.305  Proposal evaluation.

    The contracting officer may provide offerors' cost proposals and 
supporting financial information to members of the Source Evaluation 
Panel at the same time technical proposals are distributed for 
evaluation. The Source Evaluation Panel shall use this information to 
perform an accurate integrated assessment of each offeror's proposal 
based on all the facts presented to them.

                  Subpart 2015.6_Unsolicited Proposals



Sec. 2015.606  Agency procedures.

    (a) The Division of Contracts and Property Management is the point 
of contact for the receipt, acknowledgment, and handling of unsolicited 
proposals.
    (b) An original and two copies of the unsolicited proposal as well 
as requests for additional information regarding their preparation, must 
be submitted

[[Page 374]]

to: U.S. Nuclear Regulatory Commission, Division of Contracts and 
Property Management, Mail Stop T-7-I-2, Washington, DC 20555.
    (c) The Division of Contracts and Property Management shall enter 
each unsolicited proposal into the unsolicited proposal tracking system.



Sec. 2015.606-1  Receipt and initial review.

    (a) The Division of Contracts and Property Management shall 
acknowledge receipt of an unsolicited proposal, complete a preliminary 
review, assign a docket number, and send copies of the unsolicited 
proposal to the appropriate program office Director(s) or designee for 
evaluation.
    (b) The Division of Contracts and Property Management shall be 
responsible for controlling reproduction and distribution of proposal 
material by notifying evaluators of their responsibilities and tracking 
the number of proposals received and forwarded to evaluators.
    (c) An acknowledgment letter will be sent to the proposer by The 
Division of Contracts and Property Management. The letter will provide 
an estimated date for a funding decision or identifying the reasons for 
non-acceptance of the proposal for review in accordance with FAR 15.606-
1(b) and FAR 15.606-1(c).

                      PART 2016_TYPES OF CONTRACTS

               Subpart 2016.3_Cost Reimbursement Contracts

Sec.

Sec. 2016.307-70 Contract provisions and clauses.

              Subpart 2016.5_Indefinite-Delivery Contracts


Sec. 2016.506-70 Contract provisions and clauses.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49334, Sept. 10, 1999, unless otherwise noted.

               Subpart 2016.3_Cost Reimbursement Contracts



Sec. 2016.307-70  Contract provisions and clauses.

    (a) The contracting officer shall insert the provision at 2052.216-
70, Level of Effort, in solicitations for negotiated procurements 
containing labor costs other than maintenance services to be awarded on 
a cost reimbursement, cost sharing, cost-plus-award fee, cost-plus-fixed 
fee, time and materials, or labor hour basis.
    (b) The contracting officer may insert the following provisions and 
clauses in cost reimbursement contracts as applicable:
    (1) Section 2052.216-71, Indirect Cost Rates (where provisional 
rates without ceilings apply).
    (2) Section 2052.216-71, Indirect Cost Rates--Alternate 1 (where 
redetermined rates apply).
    (3) Section 2052.216-71, Indirect Cost Rates (Ceiling)--Alternate 2 
(where provisional rates with ceilings apply).
    (c) The contracting officer may make appropriate changes to these 
clauses to reflect different arrangements.

              Subpart 2016.5_Indefinite-Delivery Contracts



Sec. 2016.506-70  Contract provisions and clauses.

    The contracting officer shall insert the following clauses in all 
solicitations and contracts that contain task order procedures. These 
clauses may be altered by the contracting officer to fit the 
circumstances of the requirement.
    (a) Section 2052.216-72, Task Order Procedures;
    (b) Section 2052.216-73, Accelerated Task Order Procedures.

                  PART 2017_SPECIAL CONTRACTING METHODS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 481(b).

    Source: 64 FR 49334, Sept. 10, 1999, unless otherwise noted.

[[Page 375]]

                         Subpart 2017.2_Options



Sec. 2017.204  Contracts

    (a) The contracting officer may approve non-competitive extensions, 
within the limits of his/her delegation, to five-year contracts up to a 
total of an additional 6 months for the purpose of completing the 
competitive process for a follow-on contract if the request for 
procurement action for a follow-on or replacement contract was received 
in the Division of Contracts and Property Management not less than 6 
months before the end of the fifth year.
    (b) Other extensions beyond five years must be approved by the 
Competition Advocate.

[[Page 376]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 2019_SMALL BUSINESS PROGRAMS

 Subpart 2019.7_Subcontracting With Small Business, Small Disadvantaged 
            Business, and Women-Owned Small Business Concerns

Sec.

Sec. 2019.705 Responsibilities of the contracting officer under the 
          subcontracting assistance program.

Sec. 2019.705-4 Reviewing the subcontracting plan.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49334, Sept. 10, 1999, unless otherwise noted.

 Subpart 2019.7_Subcontracting With Small Business, Small Disadvantaged 
            Business, and Women-Owned Small Business Concerns



Sec. 2019.705  Responsibilities of the contracting officer under the 
          subcontracting assistance program.



Sec. 2019.705-4  Reviewing the subcontracting plan.

    The contracting officer may accept the terms of an overall or 
``master'' company subcontracting plan incorporated by reference into a 
specific subcontracting plan submitted by the apparent successful 
offeror/bid for a specific contract, only upon ensuring that the 
required information, goals, and assurances are included in accordance 
with FAR 19.704.

     PART 2022_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                   Subpart 2022.1_Basic Labor Policies

Sec.

Sec. 2022.101-1 General.

Sec. 2022.103-4 Approvals.

             Subpart 2022.9_Nondiscrimination Because of Age


Sec. 2022.901-70 Contract provisions.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 4186 (b)

    Source: 64 FR 49334, Sept. 10, 1999, unless otherwise noted.

                   Subpart 2022.1_Basic Labor Policies



Sec. 2022.101-1  General.

    The Head of the Contracting Activity shall designate programs or 
requirements for which it is necessary that contractors be required to 
notify the Government of actual or potential labor disputes that are 
delaying or threaten to delay the timely contract performance. 
Contractor notification shall be made in accordance with FAR 52.222-1, 
``Notice to the Government of Labor Disputes.''



Sec. 2022.103-4  Approvals.

    The agency approving official for contractor overtime is the 
contracting officer.

             Subpart 2022.9_Nondiscrimination Because of Age



Sec. 2022.901-70  Contract provisions.

    The contracting officer shall insert the provision found at 
2052.222-70, Nondiscrimination Because of Age, in all solicitations.

       PART 2024_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 2024.1_Protection of Individual Privacy

Sec.

Sec. 2024.103 Procedures.

                Subpart 2024.2_Freedom of Information Act


Sec. 2024.202 Policy.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

[[Page 377]]

             Subpart 2024.1_Protection of Individual Privacy



Sec. 2024.103  Procedures.

    The provisions at 10 CFR part 9, subpart B, Privacy Act Regulations, 
are applicable to the maintenance or disclosure of information for a 
system of records on individuals.

                Subpart 2024.2_Freedom of Information Act



Sec. 2024.202  Policy.

    The provisions at 10 CFR part 9, subpart A, Freedom of Information 
Act Regulations, are applicable to the availability of NRC records to 
the public.

[[Page 378]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 2027_PATENTS, DATA, AND COPYRIGHTS

         Subpart 2027.3_Patent Rights Under Government Contract

Sec.

Sec. 2027.305-3 Follow-up by Government.

Sec. 2027.305-70 Solicitation provisions and contract clauses.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

         Subpart 2027.3_Patent Rights Under Government Contracts



Sec. 2027.305-3  Follow-up by Government.

    (a) The contracting officer shall, as a part of the closeout of a 
contract, require each contractor to report any patents, copyrights, or 
royalties attained using any portion of the contract funds in writing.
    (b) If no activity is to be reported, the contractor shall provide 
the following written determination before final payment and closeout of 
the contract:
    (1) No inventions or discoveries were made,
    (2) No copyrights were secured, produced, or composed,
    (3) No notices or claims of patent or copyright infringement have 
been received by the contractor or its subcontractors; and
    (4) No royalty payments were directly involved in the contract or 
reflected in the contract price to the Government, nor were any 
royalties or other payments paid or owed directly to others.
    (c) The contracting officer may waive any of the requirements in 
paragraphs (b) (1) through (4) of this section, after documenting the 
file to indicate the--
    (1) Impracticality of obtaining the document(s); and
    (2) Steps taken to attempt to obtain them.
    (d) The contracting officer shall notify agency legal counsel 
responsible for patents whenever a contractor reports any patent, 
copyright, or royalty activity. The contract officer shall document the 
official file with the resolution to protect the Government's rights 
before making any final payment and closing out the contract.



Sec. 2027.305-70  Solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at 2052.227-70, 
Drawings, Designs, Specifications, and Data, in all solicitations and 
contracts in which drawings, designs, specifications, or other data will 
be developed and the NRC is required to retain full rights to them 
(except for the contractor's right to retain a copy for its own use). 
When any of the clauses prescribed at FAR 27.409, Solicitation 
Provisions and Contract Clauses, are included in the solicitation/
contract, this clause will not be used.

                   PART 2030_COST ACCOUNTING STANDARDS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

                 Subpart 2030.2_CAS Program Requirements



Sec. 2030.201-5  Waiver.

    Requests to waive Cost Accounting Standards (CAS) requirements must 
be submitted to the Chairman, CAS Board by the Competition Advocate. The 
requests for waiver must be forwarded through the Head of the 
Contracting Activity with supporting documentation and rationale in 
accordance with FAR 30.201-5.

            PART 2031_CONTRACT COST PRINCIPLES AND PROCEDURES

                      Subpart 2031.1_Applicability

Sec.

Sec. 2031.109-70 Contract clauses.


[[Page 379]]


    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

                      Subpart 2031.1_Applicability



Sec. 2031.109-70  Contract clauses.

    The contracting officer shall insert the clause at 2052.231-70, 
Precontract Costs, in all cost type contracts when costs in connection 
with work under the contract will be incurred by the contractor before 
the effective date of the contract. Approval for use of this clause must 
be obtained at one level above the contracting officer.

                      PART 2032_CONTRACT FINANCING

        Subpart 2032.4_Advance Payments for Non-Commercial Items

Sec.

Sec. 2032.402 General.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

        Subpart 2032.4_Advance Payments for Non-Commercial Items



Sec. 2032.402  General.

    (a) The contracting officer has the responsibility and authority for 
making findings and determinations and for approval of contract terms 
concerning advance payments.
    (b) Before authorizing any advance payment agreements, except for 
subscriptions to publications, the contracting officer shall coordinate 
with the Office of the Chief Financial Officer, Division of Accounting 
and Finance, to ensure completeness of contractor submitted 
documentation.

                PART 2033_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 2033.1_Protests

Sec.

Sec. 2033.103 Protests to the agency.

                   Subpart 2033.2_Disputes and Appeals


Sec. 2033.204 Policy.

Sec. 2033.211 Contract Claims--Contracting officer's decision.

Sec. 2033.215 Contract clause.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

                         Subpart 2033.1_Protests



Sec. 2033.103  Protests to the agency.

    Protests to the agency are first considered by the contracting 
officer. In accordance with FAR 33.103(d)(4), the protestor may appeal 
the contracting officer's decision by delivering or providing a written 
request to the agency Director, Division of Contracts or Property 
Management, or designee, to conduct an independent review of the 
Contracting Officer's decision.

                   Subpart 2033.2_Disputes and Appeals



Sec. 2033.204  Policy.

    Final decisions of the NRC contracting officer on contract disputes 
and appeals issued under to the Contracts Disputes Act will be heard by 
the Department of Energy Board of Contract Appeals (EBCA) under an 
interagency agreement between the NRC and the Department of Energy. The 
EBCA rules appear in 10 CFR part 1023.



Sec. 2033.211  Contract Claims--Contracting officer's decision.

    The contracting officer shall alter the paragraph at FAR 
33.211(a)(4)(v) to identify the Energy Board of Contract Appeals and 
include its address: U.S. Department of Energy, Board of Contract 
Appeals, HG-50, Building 950, 1000 Independence Ave., SW., Washington, 
DC 20585, when preparing a written decision.



Sec. 2033.215  Contract clause.

    The contracting officer shall use the clause at FAR 52.233-1, 
Disputes, with its Alternate I, where continued performance is vital to 
national security, the public health and safety, critical and major 
agency programs, or other

[[Page 380]]

essential supplies or services whose timely reprocurement from other 
sources would be impractical.

[[Page 381]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

             PART 2035_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 2035.70 Contract clauses.

Sec. 2035.71 Broad agency announcements.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).

    Source: 64 FR 49336, Sept. 10, 1999, unless otherwise noted.



Sec. 2035.70  Contract clauses.

    (a) The contracting officer shall insert the following clause in all 
solicitations and contracts for research and development by private 
contractors and universities and for other technical services, as 
appropriate:
    (1) Section 2052.235-70, Publication of Research Results;
    (2) Section 2052.235-72 Safety, Health and Fire Protection.



Sec. 2035.71  Broad agency announcements.

    (a) Criteria for selecting contractors may include such factors as:
    (1) Unique and innovative methods, approaches, or concepts 
demonstrated by the proposal.
    (2) Overall scientific, technical, or economic merits of the 
proposal.
    (3) The offeror's capabilities, related experience, facilities, 
techniques, or unique combinations of these which are integral factors 
for achieving the proposal objectives.
    (4) The qualifications, capabilities, and experience of the proposed 
principal investigator, team leader, or key personnel who are critical 
in achieving the proposal objectives.
    (5) Potential contribution of the effort to NRC's mission.
    (6) Overall standing among similar proposals available for 
evaluation and/or evaluation against the known state-of-the-art 
technology.
    (b) Once a proposal is received, communication between the agency's 
scientific or engineering personnel and the principal investigator is 
permitted for clarification purposes only and must be coordinated 
through the Division of Contracts and Property Management.
    (c) After evaluation of the proposals, the Designating Official 
shall submit a comprehensive evaluation report to the contracting 
officer which recommends the source(s) for contract award. The report 
must reflect the basis for the selection or nonselection of each 
proposal received.

[[Page 382]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 2042_CONTRACT ADMINISTRATION

           Subpart 2042.570_Differing Professional Views (DPV)

Sec.

Sec. 2042.570-1 Policy.

Sec. 2042.570-2 Solicitation provisions and contract clauses.

                  Subpart 2042.8_Disallowance of Costs


Sec. 2042.803 Disallowing costs after incurrence.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49336, Sept. 10, 1999, unless otherwise noted.

           Subpart 2042.570_Differing Professional Views (DPV)



Sec. 2042.570-1  Policy.

    The Nuclear Regulatory Commission's (NRC) policy is to support the 
contractor's expression of professional health and safety-related 
concerns associated with the contractor's work for the NRC that may 
differ from a prevailing NRC staff view, disagree with an NRC decision 
or policy position, or take issue with proposed or established agency 
practices. An occasion may arise when an NRC contractor, contractor's 
personnel, or subcontractor personnel believes that a conscientious 
expression of a competent judgement is required to document these 
concerns on matters directly associated with its performance of the 
contract. The procedure described in 2052.242-71, Procedures for 
Resolving NRC Contractor Differing Professional Views, provides for the 
expression and resolution of DPVs of health and safety-related concerns 
associated with the mission of the agency by NRC contractors, contractor 
personnel, or subcontractor personnel on matters directly associated 
with its performance of the contract. The contractor shall provide a 
copy of the NRC DPV procedure to all of its employees performing under 
this contract and to all subcontractors who shall, in turn, provide a 
copy of the procedure to its employees. The prime contractor or 
subcontractor shall submit all DPV's received but need not endorse them.



Sec. 2042.570-2  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 2052.242-70, 
Resolving NRC Contractor Differing Professional Views, in the body of 
cost reimbursement solicitations and contracts for professional 
services, as appropriate. This clause may not be altered by the 
contracting officer.
    (b) The contracting officer shall include the clause at 2052.242-71, 
Procedures for Resolving NRC Contractor Differing Professional Views, as 
an attachment to cost reimbursement solicitations and contracts for 
professional services, as appropriate. This clause may not be altered by 
the contracting officer.

                  Subpart 2042.8_Disallowance of Costs



Sec. 2042.803  Disallowing costs after incurrence.

    (a) Vouchers and invoices submitted to NRC must be submitted to the 
contracting officer or designee for review and approval for payment. If 
the examination of a voucher or invoice raises a question regarding the 
allowability of a cost submitted, the contracting officer or designee 
shall:
    (1) Hold informal discussions with the contractor as appropriate.
    (2) If the discussions do not resolve the matter, the contracting 
officer shall issue a notice advising the contractor of costs 
disallowed. The notice must advise the contractor that it may:
    (i) If in disagreement with the disallowance, submit a written claim 
to the contracting officer for payment of the disallowed cost and 
explain why the cost should be reimbursed; or
    (ii) If the disagreement(s) cannot be settled, file a claim under 
the disputes clause which will be processed in accordance with disputes 
procedures found at FAR subpart 33.2; and

[[Page 383]]

    (3) Process the voucher or invoice for payment and advise the NRC 
Division of Accounting and Finance to deduct the disallowed costs when 
scheduling the voucher for payment.
    (b) When audit reports or other notifications question costs or 
consider them unallowable, the contracting officer shall resolve all 
cost issues through discussions with the contractor and/or auditor 
within six months of receipt of the audit report whenever possible.
    (1) One of the following courses of action must be pursued:
    (i) Accept and implement audit recommendations as submitted;
    (ii) Accept the principle of the audit recommendation but adjust the 
amount of the questioned costs;
    (iii) Reject audit findings and recommendations.
    (2) When implementing the chosen course of action, the contracting 
officer shall:
    (i) Hold discussions with the auditor and contractor, as 
appropriate;
    (ii) If the contracting officer agrees with the auditor concerning 
the questioned costs, attempt to negotiate a mutual settlement of 
questioned costs;
    (iii) Issue a final decision, including any disallowance of 
questioned costs; inform the contractor of his/her right to appeal the 
decision under the disputes procedures found at FAR subpart 33.2; and 
provide a copy of the final decision to the Office of the Inspector 
General; and
    (iv) Initiate immediate recoupment actions for all disallowed costs 
owed the Government by one or more of the following methods:
    (A) Request that the contractor provide a credit adjustment (offset) 
and an adequate description/explanation of the adjustment against 
amounts billed the Government on the next or other future invoice(s) 
submitted under the contract for which the disallowed costs apply;
    (B) Deduct the disallowed costs from the next invoice submitted 
under the contract;
    (C) Deduct the disallowed costs on a schedule determined by the 
contracting officer after discussion with the contractor (if the 
contracting officer determines that an immediate and complete deduction 
is inappropriate); and
    (D) Advise the contractor that a refund is immediately payable to 
the Government (in situations where there are insufficient payments owed 
by the Government to effect recovery from the contract).

                      PART 2045_GOVERNMENT PROPERTY

       Subpart 2045.3_Providing Government Property to Contractors

Sec.

Sec. 2045.370 Providing Government property (in general).

Sec. 2045.371 Property accountability procedures.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49337, Sept. 10, 1999, unless otherwise noted.

       Subpart 2045.3_Providing Government Property to Contractors



Sec. 2045.370  Providing Government property (in general).

    (a) Unless otherwise provided for in FAR 45.302-1(d), applicable to 
Government facilities with a unit cost of less than $10,000, a 
contractor may be provided Government property or allowed to purchase 
the property at Government expense if the contracting officer, with the 
advice of the agency property official determines that:
    (1) No practicable or economical alternative exists; e.g., 
acquisition from other sources, utilization of subcontractors, rental of 
property, or modification of program project requirements;
    (2) Furnishing Government property is likely to result in 
substantially lower costs to the Government for the items produced or 
services rendered when all costs involved (e.g., transportation, 
installation, modification, maintenance, etc.) are compared with the 
costs to the Government of the contractor's use of privately-owned 
property; and
    (3) The Government receives adequate consideration for providing the 
property.

[[Page 384]]



Sec. 2045.371  Property accountability procedures.

    (a) The threshold for detailed reporting of capitalized equipment by 
contractors is $50,000.
    (b) The contractor shall send a copy of each Financial Status Report 
(NRCAR 2052.211-72, and 2052.211-72 Alternate 1), that references the 
acquisition of, or change in status of, contractor-held property 
purchased with government funds valued at the time of purchase at 
$50,000 or more to the Chief, Property and Acquisition Oversight Branch, 
Division of Contracts and Property Management.

[[Page 385]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 2052_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

              Subpart 2052.2_Text of Provisions and Clauses

Sec.

Sec. 2052.200 Authority.

Sec. 2052.204-70 Security.

Sec. 2052.204-71 Site access badge requirements.

Sec. 2052.209-70 Current/former agency employee involvement.

Sec. 2052.209-71 Contractor organizational conflicts of interest 
          (representation).

Sec. 2052.209-72 Contractor organizational conflicts of interest.

Sec. 2052.211-70 Preparation of technical reports.

Sec. 2052.211-71 Technical progress report.

Sec. 2052.211-72 Financial status report.

Sec. 2052.214-70 Prebid conference.

Sec. 2052.214-71 Bidder qualifications and past experiences.

Sec. 2052.214-72 Bid evaluation.

Sec. 2052.214-73 Timely receipt of bids.

Sec. 2052.214-74 Disposition of bids.

Sec. 2052.215-70 Key personnel.

Sec. 2052.215-71 Project officer authority.

Sec. 2052.215-72 Timely receipt of proposals.

Sec. 2052.215-73 Award notification and commitment of public funds.

Sec. 2052.215-74 Disposition of proposals.

Sec. 2052.215-75 Proposal presentation and format.

Sec. 2052.215-76 Preproposal conference.

Sec. 2052.215-77 Travel approvals and reimbursement.

Sec. 2052.215-78 Travel approvals and reimbursement--Alternate 1.

Sec. 2052.215-79 Contract award and evaluation of proposals.

Sec. 2052.216-70 Level of effort.

Sec. 2052.216-71 Indirect cost rates.

Sec. 2052.216-72 Task order procedures.

Sec. 2052.216-73 Accelerated task order procedures.

Sec. 2052.222-70 Nondiscrimination because of age.

Sec. 2052.227-70 Drawings, designs, specifications, and other data

Sec. 2052.231-70 Precontract costs.

Sec. 2052.235-70 Publication of research results.

Sec. 2052.235-71 Safety, health, and fire protection.

Sec. 2052.242-70 Resolving differing professional views.

Sec. 2052.242-71 Procedures for resolving differing professional views.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49337, Sept. 10, 1999, unless otherwise noted.

              Subpart 2052.2_Text of Provisions and Clauses



Sec. 2052.200  Authority.



Sec. 2052.204-70  Security.

    As prescribed at 2004.404(a), the contracting officer shall insert 
the following clause in solicitations and contracts during which the 
contractor may have access to, or contact with classified information, 
including National Security information, restricted data, formerly 
restricted data, and other classified data:

                           Security (OCT 1999)

    (a) Security/Classification Requirements Form. The attached NRC Form 
187 (See List of Attachments) furnishes the basis for providing security 
and classification requirements to prime contractors, subcontractors, or 
others (e.g., bidders) who have or may have an NRC contractual 
relationship that requires access to classified information or matter, 
access on a continuing basis (in excess of 90 or more days) to NRC 
Headquarters controlled buildings, or otherwise requires NRC photo 
identification or card-key badges.
    (b) It is the contractor's duty to safeguard National Security 
Information, Restricted Data, and Formerly Restricted Data. The 
contractor shall, in accordance with the Commission's security 
regulations and requirements, be responsible for safeguarding National 
Security Information, Restricted Data, and Formerly Restricted Data, and 
for protecting against sabotage, espionage, loss, and theft, the 
classified documents and material in the contractor's possession in 
connection with the performance of work under this contract. Except as 
otherwise expressly provided in this contract, the contractor shall 
transmit to the Commission any classified matter in the possession of 
the contractor or any person under the contractor's control in 
connection with performance of this contract upon completion or 
termination of this contract.
    (1) The contractor shall complete a certificate of possession to be 
furnished to the Commission specifying the classified matter to be 
retained if the retention is:
    (i) Required after the completion or termination of the contract; 
and
    (ii) Approved by the contracting officer.

[[Page 386]]

    (2) The certification must identify the items and types or 
categories of matter retained, the conditions governing the retention of 
the matter and their period of retention, if known. If the retention is 
approved by the contracting officer, the security provisions of the 
contract continue to be applicable to the matter retained.
    (c) In connection with the performance of the work under this 
contract, the contractor may be furnished, or may develop or acquire, 
proprietary data (trade secrets) or confidential or privileged 
technical, business, or financial information, including Commission 
plans, policies, reports, financial plans, internal data protected by 
the Privacy Act of 1974 (Pub. L. 93-579), or other information which has 
not been released to the public or has been determined by the Commission 
to be otherwise exempt from disclosure to the public. The contractor 
agrees to hold the information in confidence and not to directly or 
indirectly duplicate, disseminate, or disclose the information, in whole 
or in part, to any other person or organization except as necessary to 
perform the work under this contract. The contractor agrees to return 
the information to the Commission or otherwise dispose of it at the 
direction of the contracting officer. Failure to comply with this clause 
is grounds for termination of this contract.
    (d) Regulations. The contractor agrees to conform to all security 
regulations and requirements of the Commission which are subject to 
change as directed by the NRC Division of Facilities and Security and 
the Contracting Officer. These changes will be under the authority of 
the FAR Changes clause referenced in Section I of this document.
    (e) Definition of national security information. As used in this 
clause, the term national security information means information that 
has been determined pursuant to Executive Order 12958 or any predecessor 
order to require protection against unauthorized disclosure and that is 
so designated.
    (f) Definition of restricted data. As used in this clause, the term 
Restricted Data means all data concerning design, manufacture, or 
utilization of atomic weapons; the production of special nuclear 
material; or the use of special nuclear material in the production of 
energy, but does not include data declassified or removed from the 
Restricted Data category under to Section 142 of the Atomic Energy Act 
of 1954, as amended.
    (g) Definition of formerly restricted data. As used in this clause 
the term Formerly Restricted Data means all data removed from the 
Restricted Data category under Section 142-d of the Atomic Energy Act of 
1954, as amended.
    (h) Security clearance personnel. The contractor may not permit any 
individual to have access to Restricted Data, Formerly Restricted Data, 
or other classified information, except in accordance with the Atomic 
Energy Act of 1954, as amended, and the Commission's regulations or 
requirements applicable to the particular type or category of classified 
information to which access is required. The contractor shall also 
execute a Standard Form 312, Classified Information Nondisclosure 
Agreement, when access to classified information is required.
    (i) Criminal liabilities. Disclosure of National Security 
Information, Restricted Data, and Formerly Restricted Data relating to 
the work or services ordered hereunder to any person not entitled to 
receive it, or failure to safeguard any Restricted Data, Formerly 
Restricted Data, or any other classified matter that may come to the 
contractor or any person under the contractor's control in connection 
with work under this contract, may subject the contractor, its agents, 
employees, or subcontractors to criminal liability under the laws of the 
United States. (See the Atomic Energy Act of 1954, as amended, 42 U.S.C. 
2011 et seq.; 18 U.S.C. 793 and 794; and Executive Order 12958.)
    (j) Subcontracts and purchase orders. Except as otherwise 
authorized, in writing, by the contracting officer, the contractor shall 
insert provisions similar to the foregoing in all subcontracts and 
purchase orders under this contract.
    (k) In performing contract work, the contractor shall classify all 
documents, material, and equipment originated or generated by the 
contractor in accordance with guidance issued by the Commission. Every 
subcontract and purchase order issued under the contract that involves 
originating or generating classified documents, material, and equipment 
must provide that the subcontractor or supplier assign the proper 
classification to all documents, material, and equipment in accordance 
with guidance furnished by the contractor.

                             (End of clause)



Sec. 2052.204-71  Site access badge requirements.

    As prescribed at 2004.404(b), the contracting officer shall insert 
the following clause in all solicitations and contracts under which the 
contractor will require access to Government facilities. The clause may 
be altered to reflect any special conditions to be applied to foreign 
nationals:

                Site Access Badge Requirements (JAN 1993)

    During the life of this contract, the rights of ingress and egress 
for contractor personnel must be made available as required. In this 
regard, all contractor personnel whose duties under this contract 
require

[[Page 387]]

their presence on-site shall be clearly identifiable by a distinctive 
badge furnished by the Government. The Project Officer shall assist the 
contractor in obtaining the badges for contractor personnel. It is the 
sole responsibility of the contractor to ensure that each employee has 
proper identification at all times. All prescribed identification must 
be immediately delivered to the Security Office for cancellation or 
disposition upon the termination of employment of any contractor 
personnel. Contractor personnel shall have this identification in their 
possession during on-site performance under this contract. It is the 
contractor's duty to assure that contractor personnel enter only those 
work areas necessary for performance of contract work and to assure the 
safeguarding of any Government records or data that contractor personnel 
may come into contact with.

                             (End of clause)



Sec. 2052.209-70  Current/former agency employee involvement.

    As prescribed at 2009.105-70, the contracting officer shall insert 
the following provision in all solicitations:

          Current/Former Agency Employee Involvement (OCT 1999)

    (a) The following representation is required by the NRC Acquisition 
Regulation 2009.105-70(b). It is not NRC policy to encourage offerors 
and contractors to propose current/former agency employees to perform 
work under NRC contracts and as set forth in the above cited provision, 
the use of such employees may, under certain conditions, adversely 
affect NRC's consideration of non-competitive proposals and task orders.
    (b) There ( ) are ( ) are no current/former NRC employees (including 
special Government employees performing services as experts, advisors, 
consultants, or members of advisory committees) who have been or will be 
involved, directly or indirectly, in developing the offer, or in 
negotiating on behalf of the offeror, or in managing, administering, or 
performing any contract, consultant agreement, or subcontract resulting 
from this offer. For each individual so identified, the Technical and 
Management proposal must contain, as a separate attachment, the name of 
the individual, the individual's title while employed by the NRC, the 
date individual left NRC, and a brief description of the individual's 
role under this proposal.

                           (End of provision)



Sec. 2052.209-71  Contractor organizational conflicts of interest 
          (representation).

    As prescribed in 2009.570-4(b) and 2009.570-8, the contracting 
officer must insert the following provision in applicable solicitations 
and in contracts resulting from unsolicited proposals. The contracting 
officer must also include the following in task orders and contract 
modifications for new work.

  Contractor Organizational Conflicts of Interest Representation (OCT 
                                  1999)

    I represent to the best of my knowledge and belief that:
    The award to ---------------- of a contract or the modification of 
an existing contract does / / does not / / involve situations or 
relationships of the type set forth in 48 CFR 2009.570-3(b).
    (a) If the representation, as completed, indicates that situations 
or relationships of the type set forth in 48 CFR 2009.570-3(b) are 
involved, or the contracting officer otherwise determines that potential 
organizational conflicts of interest exist, the offeror shall provide a 
statement in writing that describes in a concise manner all relevant 
factors bearing on his representation to the contracting officer. If the 
contracting officer determines that organizational conflicts exist, the 
following actions may be taken:
    (1) Impose appropriate conditions which avoid such conflicts;
    (2) Disqualify the offeror; or
    (3) Determine that it is otherwise in the best interest of the 
United States to seek award of the contract under the waiver provisions 
of 48 CFR 2009-570-9.
    (b) The refusal to provide the representation required by 48 CFR 
2009.570-4(b), or upon request of the contracting officer, the facts 
required by 48 CFR 2009.570-3(b), must result in disqualification of the 
offeror for award.

                           (End of provision)



Sec. 2052.209-72  Contractor organizational conflicts of interest.

    As prescribed at 2009.570-5(a) and 2009.570-8, the contracting 
officer must insert the following clause in all applicable 
solicitations, contracts, and simplified acquisitions of the types 
described; 2009.570-4(b):

       Contractor Organizational Conflicts of Interest (JAN 1993)

    (a) Purpose. The primary purpose of this clause is to aid in 
ensuring that the contractor:

[[Page 388]]

    (1) Is not placed in a conflicting role because of current or 
planned interests (financial, contractual, organizational, or otherwise) 
which relate to the work under this contract; and
    (2) Does not obtain an unfair competitive advantage over other 
parties by virtue of its performance of this contract.
    (b) Scope. The restrictions described apply to performance or 
participation by the contractor, as defined in 48 CFR 2009.570-2 in the 
activities covered by this clause.
    (c) Work for others. (1) Notwithstanding any other provision of this 
contract, during the term of this contract, the contractor agrees to 
forego entering into consulting or other contractual arrangements with 
any firm or organization the result of which may give rise to a conflict 
of interest with respect to the work being performed under this 
contract. The contractor shall ensure that all employees under this 
contract abide by the provision of this clause. If the contractor has 
reason to believe, with respect to itself or any employee, that any 
proposed consultant or other contractual arrangement with any firm or 
organization may involve a potential conflict of interest, the 
contractor shall obtain the written approval of the contracting officer 
before the execution of such contractual arrangement.
    (2) The contractor may not represent, assist, or otherwise support 
an NRC licensee or applicant undergoing an NRC audit, inspection, or 
review where the activities that are the subject of the audit, 
inspection, or review are the same as or substantially similar to the 
services within the scope of this contract (or task order as 
appropriate) except where the NRC licensee or applicant requires the 
contractor's support to explain or defend the contractor's prior work 
for the utility or other entity which NRC questions.
    (3) When the contractor performs work for the NRC under this 
contract at any NRC licensee or applicant site, the contractor shall 
neither solicit nor perform work in the same or similar technical area 
for that licensee or applicant organization for a period commencing with 
the award of the task order or beginning of work on the site (if not a 
task order contract) and ending one year after completion of all work 
under the associated task order, or last time at the site (if not a task 
order contract).
    (4) When the contractor performs work for the NRC under this 
contract at any NRC licensee or applicant site,
    (i) The contractor may not solicit work at that site for that 
licensee or applicant during the period of performance of the task order 
or the contract, as appropriate.
    (ii) The contractor may not perform work at that site for that 
licensee or applicant during the period of performance of the task order 
or the contract, as appropriate, and for one year thereafter.
    (iii) Notwithstanding the foregoing, the contracting officer may 
authorize the contractor to solicit or perform this type of work (except 
work in the same or similar technical area) if the contracting officer 
determines that the situation will not pose a potential for technical 
bias or unfair competitive advantage.
    (d) Disclosure after award. (1) The contractor warrants that to the 
best of its knowledge and belief, and except as otherwise set forth in 
this contract, that it does not have any organizational conflicts of 
interest as defined in 48 CFR 2009.570-2.
    (2) The contractor agrees that if, after award, it discovers 
organizational conflicts of interest with respect to this contract, it 
shall make an immediate and full disclosure in writing to the 
contracting officer. This statement must include a description of the 
action which the contractor has taken or proposes to take to avoid or 
mitigate such conflicts. The NRC may, however, terminate the contract if 
termination is in the best interest of the Government.
    (3) It is recognized that the scope of work of a task-order-type 
contract necessarily encompasses a broad spectrum of activities. 
Consequently, if this is a task-order-type contract, the contractor 
agrees that it will disclose all proposed new work involving NRC 
licensees or applicants which comes within the scope of work of the 
underlying contract. Further, if this contract involves work at a 
licensee or applicant site, the contractor agrees to exercise diligence 
to discover and disclose any new work at that licensee or applicant 
site. This disclosure must be made before the submission of a bid or 
proposal to the utility or other regulated entity and must be received 
by the NRC at least 15 days before the proposed award date in any event, 
unless a written justification demonstrating urgency and due diligence 
to discover and disclose is provided by the contractor and approved by 
the contracting officer. The disclosure must include the statement of 
work, the dollar value of the proposed contract, and any other documents 
that are needed to fully describe the proposed work for the regulated 
utility or other regulated entity. NRC may deny approval of the 
disclosed work only when the NRC has issued a task order which includes 
the technical area and, if site-specific, the site, or has plans to 
issue a task order which includes the technical area and, if site-
specific, the site, or when the work violates paragraphs (c)(2), (c)(3) 
or (c)(4) of this section.
    (e) Access to and use of information. (1) If, in the performance of 
this contract, the contractor obtains access to information, such as NRC 
plans, policies, reports, studies, financial plans, internal data 
protected by the Privacy Act of 1974 (5 U.S.C. Section 552a (1988)), or 
the Freedom of Information Act (5

[[Page 389]]

U.S.C. Section 552 (1986)), the contractor agrees not to:
    (i) Use this information for any private purpose until the 
information has been released to the public;
    (ii) Compete for work for the Commission based on the information 
for a period of six months after either the completion of this contract 
or the release of the information to the public, whichever is first;
    (iii) Submit an unsolicited proposal to the Government based on the 
information until one year after the release of the information to the 
public; or
    (iv) Release the information without prior written approval by the 
contracting officer unless the information has previously been released 
to the public by the NRC.
    (2) In addition, the contractor agrees that, to the extent it 
receives or is given access to proprietary data, data protected by the 
Privacy Act of 1974 (5 U.S.C. Section 552a (1988)), or the Freedom of 
Information Act (5 U.S.C. Section 552 (1986)), or other confidential or 
privileged technical, business, or financial information under this 
contract, the contractor shall treat the information in accordance with 
restrictions placed on use of the information.
    (3) Subject to patent and security provisions of this contract, the 
contractor shall have the right to use technical data it produces under 
this contract for private purposes provided that all requirements of 
this contract have been met.
    (f) Subcontracts. Except as provided in 48 CFR 2009.570-2, the 
contractor shall include this clause, including this paragraph, in 
subcontracts of any tier. The terms contract, contractor, and 
contracting officer, must be appropriately modified to preserve the 
Government's rights.
    (g) Remedies. For breach of any of the above restrictions, or for 
intentional nondisclosure or misrepresentation of any relevant interest 
required to be disclosed concerning this contract or for such erroneous 
representations that necessarily imply bad faith, the Government may 
terminate the contract for default, disqualify the contractor from 
subsequent contractual efforts, and pursue other remedies permitted by 
law or this contract.
    (h) Waiver. A request for waiver under this clause must be directed 
in writing to the contracting officer in accordance with the procedures 
outlined in 48 CFR 2009.570-9.
    (i) Follow-on effort. The contractor shall be ineligible to 
participate in NRC contracts, subcontracts, or proposals therefor 
(solicited or unsolicited) which stem directly from the contractor's 
performance of work under this contract. Furthermore, unless so directed 
in writing by the contracting officer, the contractor may not perform 
any technical consulting or management support services work or 
evaluation activities under this contract on any of its products or 
services or the products or services of another firm if the contractor 
has been substantially involved in the development or marketing of the 
products or services.
    (1) If the contractor under this contract, prepares a complete or 
essentially complete statement of work or specifications, the contractor 
is not eligible to perform or participate in the initial contractual 
effort which is based on the statement of work or specifications. The 
contractor may not incorporate its products or services in the statement 
of work or specifications unless so directed in writing by the 
contracting officer, in which case the restrictions in this paragraph do 
not apply.
    (2) Nothing in this paragraph precludes the contractor from offering 
or selling its standard commercial items to the Government.

                             (End of clause)



Sec. 2052.211-70  Preparation of technical reports.

    As prescribed at 2011.104-70(a), the contracting officer shall 
insert the following clause in solicitations and contracts when 
deliverables include a technical report. The contracting officer may 
alter this clause before issuing the solicitation or during competition 
by solicitation amendment. Insignificant changes may also be made by the 
contracting officer on a case-by-case basis during negotiation without 
amending the solicitation.

               Preparation of Technical Reports (JAN 1993)

    All technical reports required by Section C and all Technical 
Progress Reports required by Section F are to be prepared in accordance 
with the attached Management Directive 3.8, ``Unclassified Contractor 
and Grantee Publications in the NUREG Series.'' Management Directive 3.8 
is not applicable to any Contractor Spending Plan (CSP) and any 
Financial Status Report that may be included in this contract. (See List 
of Attachments).

                             (End of clause)



Sec. 2052.211-71  Technical progress report.

    As prescribed at 2011.104-70(b), the contracting officer shall 
insert the following clause in all solicitations and contracts except 
firm fixed price or indefinite delivery contracts to be awarded on a 
time-and-materials or labor-hour basis, or which provide for issuance of 
delivery orders for specific

[[Page 390]]

products/serviced line items. The contracting officer may alter this 
clause prior to issuance of the solicitation or during competition by 
solicitation amendment. Insignificant changes may also be made by the 
contracting officer on a case-by-case basis during negotiation without 
amending the solicitation.

                  Technical Progress Report (JAN 1993)

    The contractor shall provide a monthly Technical Progress Report to 
the project officer and the contracting officer. The report is due 
within 15 calendar days after the end of the report period and must 
identify the title of the project, the contract number, appropriate 
financial tracking code specified by the NRC Project Officer, project 
manager and/or principal investigator, the contract period of 
performance, and the period covered by the report. Each report must 
include the following for each discrete task/task order:
    (a) A listing of the efforts completed during the period, and 
milestones reached or, if missed, an explanation provided;
    (b) Any problems or delays encountered or anticipated and 
recommendations for resolution. If the recommended resolution involves a 
contract modification, e.g., change in work requirements, level of 
effort (cost) or schedule delay, the contractor shall submit a separate 
letter to the contracting officer identifying the required change and 
estimated cost impact;
    (c) A summary of progress to date; and
    (d) Plans for the next reporting period.

                             (End of clause)



Sec. 2052.211-72  Financial status report.

    As prescribed at 2011.104-70(c), the contracting officer shall 
insert the following clause in applicable cost reimbursement 
solicitations and contracts when a detailed assessment of costs is 
warranted and a contractor spending plan is required. The contracting 
officer may alter this clause and Alternate 1 of this clause before 
issuing the solicitation or during competition by amending the 
solicitation. Insignificant changes may also be made by the contracting 
officer on a case-by-case basis during negotiation, without amending the 
solicitation.

                   Financial Status Report (OCT 1999)

    The contractor shall provide a monthly Financial Status Report (FSR) 
to the project officer and the contracting officer. The FSR shall 
include the acquisition of, or changes in the status of, contractor-held 
property acquired with government funds valued at the time of purchase 
at $50,000 or more. Whenever these types of property changes occur, the 
contractor shall send a copy of the report to the Chief, Property and 
Acquisition Oversight Branch, Office of Administration. The report is 
due within 15 calendar days after the end of the report period and must 
identify the title of the project, the contract number, the appropriate 
financial tracking code (e.g., Job Code Number or JCN) specified by the 
NRC Project Officer, project manager and/or principal investigator, the 
contract period of performance, and the period covered by the report. 
Each report must include the following information for each discrete 
task:
    (a) Total estimated contract amount.
    (b) Total funds obligated to date.
    (c) Total costs incurred this reporting period.
    (d) Total costs incurred to date.
    (e) Detail of all direct and indirect costs incurred during the 
reporting period for the entire contract or each task, if it is a task 
ordering contract.
    (f) Balance of obligations remaining.
    (g) Balance of funds required to complete contract/task order.
    (h) Contractor Spending Plan (CSP) status: A revised CSP is required 
with the Financial Status Report whenever the contractor or the 
contracting officer has reason to believe that the total cost for 
performance of this contract will be either greater or substantially 
less than what had been previously estimated.
    (1) Projected percentage of completion cumulative through the report 
period for the project/task order as reflected in the current CSP.
    (2) Indicate significant changes in the original CSP projection in 
either dollars or percentage of completion. Identify the change, the 
reasons for the change, whether there is any projected overrun, and when 
additional funds would be required. If there have been no changes to the 
original NRC-approved CSP projections, a written statement to that 
effect is sufficient in lieu of submitting a detailed response to item 
``h''.
    (i) Property status:
    (1) List property acquired for the project during the month with an 
acquisition cost between $500 and $49,999. Give the item number for the 
specific piece of equipment.
    (2) Provide a separate list of property acquired for the project 
during the month with an acquisition cost of $50,000 or more. Provide 
the following information for each item of property: item description or 
nomenclature, manufacturer, model number, serial number, acquisition 
cost, and receipt date. If no property was acquired during the month, 
include a statement to that effect. The same

[[Page 391]]

information must be provided for any component or peripheral equipment 
which is part of a ``system or system unit.''
    (3) For multi-year projects, in the September monthly financial 
status report provide a cumulative listing of property with an 
acquisition cost of $50,000 or more showing the information specified in 
paragraph (i)(2) of this clause.
    (4) In the final financial status report provide a closeout property 
report containing the same elements as described above for the monthly 
financial status reports, for all property purchased with NRC funds 
regardless of value unless title has been vested in the contractor. If 
no property was acquired under the contract, provide a statement to that 
effect. The report should note any property requiring special handling 
for security, health, safety, or other reasons as part of the report.
    (j) Travel status. List the starting and ending dates for each trip, 
the starting point and destination, and the traveler(s) for each trip.
    (k) If the data in this report indicates a need for additional 
funding beyond that already obligated, this information may only be used 
as support to the official request for funding required in accordance 
with the Limitation of Cost (LOC) Clause (FAR 52.232-20) or the 
Limitation of Funds (LOF) Clause FAR 52.232-22.

                             (End of clause)

    Alternate 1 (OCT 1999). As prescribed in 2011.104-70(c), the 
contracting officer shall insert the following clause in applicable cost 
reimbursement solicitations and contracts when no contractor spending 
plan is required:

             Financial Status Report--Alternate 1 (OCT 1999)

    The contractor shall provide a monthly Financial Status Report (FSR) 
to the Project Officer and the contracting officer. The FSR shall 
include the acquisition of, or changes in the status of, contractor-held 
property acquired with government funds valued at the time of purchase 
at $50,000 or more. Whenever these types of changes occur, the 
contractor shall send a copy of the report to the Chief, Property and 
Acquisition Oversight Branch, Office of Administration. The report is 
due within 15 calendar days after the end of the report period and shall 
identify the title of the project, the contract number, project manager 
and/or principal investigator, the contract period of performance, and 
the period covered by the report. Each report shall include the 
following information for each discrete task:
    (a) Total estimated contract amount.
    (b) Total funds obligated to date.
    (c) Total costs incurred this reporting period.
    (d) Total costs incurred to date.
    (e) Detail of all direct and indirect costs incurred during the 
reporting period for the entire contract or each task, if it is a task 
ordering contract.
    (f) Balance of obligations remaining.
    (g) Balance of funds required to complete contract/task order.
    (h) Property status:
    (1) List property acquired for the project during the month with an 
acquisition cost between $500 and $49,999. Give the item number for the 
specific piece of equipment.
    (2) Provide a separate list of property acquired for the project 
during the month with an acquisition cost of $50,000 or more. Provide 
the following information for each item of property: item description or 
nomenclature, manufacturer, model number, serial number, acquisition 
cost, and receipt date. If no property was acquired during the month, 
include a statement to that effect. The same information must be 
provided for any component or peripheral equipment which is part of a 
``system or system unit.''
    (3) For multi-year projects, in the September monthly financial 
status report provide a cumulative listing of property with an 
acquisition cost of $50,000 or more showing the information specified in 
paragraph (h)(3) of this clause.
    (4) In the final financial status report provide a closeout property 
report containing the same elements as described above for the monthly 
financial status reports, for all property purchased with NRC funds 
regardless of value unless title has been vested in the contractor. If 
no property was acquired under the contract, provide a statement to that 
effect. The report should note any property requiring special handling 
for security, health, safety, or other reasons as part of the report.
    (i) Travel status: List the starting and ending dates for each trip, 
the starting point and destination, and the traveler(s) for each trip.
    (j) If the data in this report indicates a need for additional 
funding beyond that already obligated, this information may only be used 
as support to the official request for funding required in accordance 
with the Limitation of Cost (LOC) Clause (FAR 52.232-20) or the 
Limitation of Funds (LOF) Clause FAR 52.232-22.

                             (End of clause)



Sec. 2052.214-70  Prebid conference.

    As prescribed at 2014.201-670(a), the contracting officer may insert 
the following provision in invitations for bids which require a prebid 
conference:

[[Page 392]]

                      Prebid Conference (JAN 1993)

    (a) A prebid conference is scheduled for:

Date: *
Location: *
Time: *

    (b) This conference is to afford interested parties an opportunity 
to present questions and clarify uncertainties regarding this 
solicitation. You are requested to mail written questions concerning 
those areas of uncertainty which, in your opinion, require clarification 
or correction. You are encouraged to submit your questions in writing 
not later than * working day(s) before the conference date. Receipt of 
late questions may result in the questions not being answered at the 
conference although they will be considered in preparing any necessary 
amendment to the solicitation. If you plan to attend the conference, 
notify * by letter or telephone * , no later than close of business * . 
Notification of your intention to attend is essential in the event the 
conference is rescheduled or canceled. (Optional statement: Due to space 
limitations, each potential bidder is limited to * representatives at 
the conference.)
    (c) Written questions must be submitted to: U.S. Nuclear Regulatory 
Commission, Division of Contracts and Property Management, Attn: *, Mail 
Stop T-7-I-2, Washington, DC 20555.
    (d) The envelope must be marked ``Solicitation No. * /Prebid 
Conference.''
    (e) A transcript of the conference will be furnished to all 
prospective bidders through the issuance of an amendment to the 
solicitation.
    *To be incorporated into the solicitation.

                           (End of provision)



Sec. 2052.214-71  Bidder qualifications and past experiences.

    As prescribed in 2014.201-670(b), the contracting officer may insert 
the following provision on an optional basis to fit the circumstances of 
the invitation for bid.

          Bidder Qualifications and Past Experience (OCT 1999)

    (a) The bidder shall list previous/current contracts performed 
within the past * years (with no omissions) in which the Bidder was the 
prime or principal subcontractor. This information will assist the 
contracting officer in his/her Determination of Responsibility. Lack of 
previous/current contracts or failure to submit this information will 
not necessarily result in an unfavorable Determination of 
Responsibility.
    (b) The following information shall be provided for each previous/
current contract listed:
    (1) Contract No.:
    (2) Contract performance dates:
    (3) Estimated total value of the contract (base plus all option 
years):
    (4) Brief description of work performed under the contract:
    (5) Contract Standard Industrial Code:
    (6) Name and address of Government agency or commercial entity:
    (7) Technical Point of Contact and current telephone number:
    (8) Contracting Officer name and current telephone number:
    (c) The bidder shall also provide the name, title and full telephone 
number of its technical representative and contracts/business 
representative:

(1) Technical Representative name:
Title:
Telephone No.( )
(2) Contracts/Business Representative name:
Title:
Telephone No. ( )

    *To be incorporated into the solicitation

                           (End of provision)



Sec. 2052.214-72  Bid evaluation.

    As prescribed at 2014.201-670(c), the contracting officer shall 
insert the following provision in applicable invitations for bids 
(paragraph ``(f)'' of this provision is optional):

                        Bid Evaluation (JAN 1993)

    (a) Award will be made to that responsive, responsible bidder within 
the meaning of FAR Subpart 9.1 whose total bid amount, as set forth by 
the bidder in Section B of this Invitation for Bid (IFB), constitutes 
the lowest overall evaluated final contract price to the Government 
based upon the requirements for the schedule. Bids will be evaluated for 
purposes of award by first ascertaining the sum of the total amount for 
each of the items specified in Section B of this solicitation. This will 
constitute the bidder's ``Total Bid Amount.''
    (b) Bidders shall insert a definite price or indicate ``no charge'' 
in the blank space provided for each item and/or sub-item listed in 
Section B. Unless expressly provided for in the bid, no additional 
charge will be allowed for work performed under the contract other than 
the unit prices stipulated for each item and/or sub-item.
    (c) Any bid which is materially unbalanced as to price for the 
separate items specified in Section B of this IFB may be rejected as 
nonresponsive. An unbalanced bid is defined as one which is based on 
prices which, in the opinion of the NRC, are significantly less than 
cost for some work and/or prices that may be significantly overstated 
for other work.

[[Page 393]]

    (d) Separation charges, in any form, are not solicited. Bids 
containing charges for discontinuance, termination, failure to exercise 
an option, or for any other purpose will cause the bid to be rejected as 
nonresponsive.
    (e) A preaward on-site survey of the bidder's facilities, equipment, 
etc., in accordance with FAR 9.105 and 9.106, may be made by 
representatives of the Commission for the purpose of determining whether 
the bidder is responsible within the meaning of FAR 9.1, and whether the 
bidder possesses qualifications that are conducive to the production of 
work that will meet the requirements, specifications, and provisions of 
this contract. If requested by the Commission, the prospective 
contractor may also be required to submit statements within * hours 
after receiving the request:
    (1) Concerning their ability to meet any of the minimum standards 
set forth in FAR 9.104,
    (2) Samples of work, and
    (3) Names and addresses of additional clients, Government agencies, 
and/or commercial firms which the bidder is now doing or had done 
business with.
    (f) Notwithstanding paragraph (b) of this section, the award of any 
contract resulting from this solicitation will be made on an ``all or 
none'' basis. Thus, bids submitted on fewer than the items listed in 
Section B of this IFB, or on fewer than the estimated quantity, will 
cause the bid to be rejected as nonresponsive.
    *To be inserted into solicitation.

                           (End of provision)



Sec. 2052.214-73  Timely receipt of bids.

    As prescribed at 2014.670(b), the contracting officer shall insert 
the following provision in all invitations for bids:

                    Timely Receipt of Bids (OCT 1999)

    Sealed offers for furnishing the services or supplies in the 
schedule are due at the date and time stated in block 9 of Standard Form 
33, Solicitation, Offer and Award. Offers sent through the U.S. Mail 
(including U.S. Postal Service Express Mail Next Day Service--Post 
Office to Addressee) must be addressed to the place specified in the 
solicitation. All hand-carried offers including those made by private 
delivery services (e.g., Federal Express and Airborne Express) must be 
delivered to the NRC loading dock security station located at 11545 
Rockville Pike, Rockville, Maryland 20852 and received in the depository 
located in Room T-7-I-2. All offerors should allow extra time for 
internal mail distribution or for pick up of hand-carried deliveries. 
The NRC is a secure facility with perimeter access-control and NRC 
personnel are only available to receive hand-carried offers during 
normal working hours, 7:30 AM-3:30 PM, Monday through Friday, excluding 
Federal holidays.

                           (End of provision)



Sec. 2052.214-74  Disposition of bids.

    As prescribed at 2014.670(b), the contracting officer shall insert 
the following provision in applicable invitation for bids:

                     Disposition of Bids (JAN 1993)

    After award of the contract, one copy of each unsuccessful bid will 
be retained by the NRC's Division of Contracts and Property Management 
in accordance with the General Records Schedule 3(5)(b). Unless return 
of the additional copies of the bid is requested by the bidder upon 
submission of the bid, all other copies will be destroyed. This request 
should appear in a cover letter accompanying the bid.

                           (End of provision)



Sec. 2052.215-70  Key personnel.

    As prescribed at 2015.209-70(a)(1), the contracting officer shall 
insert in solicitations and contracts the following clause as applicable 
to the requirement:

                        Key Personnel (JAN 1993)

    (a) The following individuals are considered to be essential to the 
successful performance of the work hereunder:

*

The contractor agrees that personnel may not be removed from the 
contract work or replaced without compliance with paragraphs (b) and (c) 
of this section.
    (b) If one or more of the key personnel, for whatever reason, 
becomes, or is expected to become, unavailable for work under this 
contract for a continuous period exceeding 30 work days, or is expected 
to devote substantially less effort to the work than indicated in the 
proposal or initially anticipated, the contractor shall immediately 
notify the contracting officer and shall, subject to the con currence of 
the contracting officer, promptly replace the personnel with personnel 
of at least substantially equal ability and qualifications.
    (c) Each request for approval of substitutions must be in writing 
and contain a detailed explanation of the circumstances necessitating 
the proposed substitutions. The request must also contain a complete 
resume

[[Page 394]]

for the proposed substitute and other information requested or needed by 
the contracting officer to evaluate the proposed substitution. The 
contracting officer and the project officer shall evaluate the 
contractor's request and the contracting officer shall promptly notify 
the contractor of his or her decision in writing.
    (d) If the contracting officer determines that suitable and timely 
replacement of key personnel who have been reassigned, terminated, or 
have otherwise become unavailable for the contract work is not 
reasonably forthcoming, or that the resultant reduction of productive 
effort would be so substantial as to impair the successful completion of 
the contract or the service order, the contract may be terminated by the 
contracting officer for default or for the convenience of the 
Government, as appropriate. If the contracting officer finds the 
contractor at fault for the condition, the contract price or fixed fee 
may be equitably adjusted downward to compensate the Government for any 
resultant delay, loss, or damage.

    *To be incorporated into any resultant contract

                             (End of clause)



Sec. 2052.215-71  Project officer authority.

    As prescribed in 2015.209-70(a)(2)(i), the contracting officer shall 
insert the following clause in applicable solicitations and contracts 
for cost-reimbursement, cost-plus-fixed-fee, cost-plus-award-fee, cost 
sharing, labor-hour or time-and-materials, including task order 
contracts. This clause and the following alternate clauses are intended 
for experienced, trained projects officers, and may be altered to delete 
duties where appropriate:

                  Project Officer Authority (OCT 1999)

    (a) The contracting officer's authorized representative hereinafter 
referred to as the project officer for this contract is:

Name: *
Address: *
Telephone Number: *

    (b) Performance of the work under this contract is subject to the 
technical direction of the NRC project officer. The term technical 
direction is defined to include the following:
    (1) Technical direction to the contractor which shifts work emphasis 
between areas of work or tasks, authorizes travel which was 
unanticipated in the Schedule (i.e., travel not contemplated in the 
Statement of Work or changes to specific travel identified in the 
Statement of Work), fills in details, or otherwise serves to accomplish 
the contractual statement of work.
    (2) Provide advice and guidance to the contractor in the preparation 
of drawings, specifications, or technical portions of the work 
description.
    (3) Review and, where required by the contract, approve technical 
reports, drawings, specifications, and technical information to be 
delivered by the contractor to the Government under the contract.
    (c) Technical direction must be within the general statement of work 
stated in the contract. The project officer does not have the authority 
to and may not issue any technical direction which:
    (1) Constitutes an assignment of work outside the general scope of 
the contract.
    (2) Constitutes a change as defined in the ``Changes'' clause of 
this contract.
    (3) In any way causes an increase or decrease in the total estimated 
contract cost, the fixed fee, if any, or the time required for contract 
performance.
    (4) Changes any of the expressed terms, conditions, or 
specifications of the contract.
    (5) Terminates the contract, settles any claim or dispute arising 
under the contract, or issues any unilateral directive whatever.
    (d) All technical directions must be issued in writing by the 
project officer or must be confirmed by the project officer in writing 
within ten (10) working days after verbal issuance. A copy of the 
written direction must be furnished to the contracting officer. A copy 
of NRC Form 445, Request for Approval of Official Foreign Travel, which 
has received final approval from the NRC must be furnished to the 
contracting officer.
    (e) The contractor shall proceed promptly with the performance of 
technical directions duly issued by the project officer in the manner 
prescribed by this clause and within the project officer's authority 
under the provisions of this clause.
    (f) If, in the opinion of the contractor, any instruction or 
direction issued by the project officer is within one of the categories 
defined in paragraph (c) of this section, the contractor may not proceed 
but shall notify the contracting officer in writing within five (5) 
working days after the receipt of any instruction or direction and shall 
request that contracting officer to modify the contract accordingly. 
Upon receiving the notification from the contractor, the contracting 
officer shall issue an appropriate contract modification or advise the 
contractor in writing that, in the contracting officer's opinion, the 
technical direction is within the scope of this article and does not 
constitute a change under the ``Changes'' clause.
    (g) Any unauthorized commitment or direction issued by the project 
officer may result in an unnecessary delay in the contractor's 
performance and may even result in the

[[Page 395]]

contractor expending funds for unallowable costs under the contract.
    (h) A failure of the parties to agree upon the nature of the 
instruction or direction or upon the contract action to be taken with 
respect to the instruction or direction is subject to 52.233-1--
Disputes.
    (i) In addition to providing technical direction as defined in 
paragraph (b) of the section, the project officer shall:
    (1) Monitor the contractor's technical progress, including 
surveillance and assessment of performance, and recommend to the 
contracting officer changes in requirements.
    (2) Assist the contractor in the resolution of technical problems 
encountered during performance.
    (3) Review all costs requested for reimbursement by the contractor 
and submit to the contracting officer recommendations for approval, 
disapproval, or suspension of payment for supplies and services required 
under this contract.

                             (End of clause)

    Alternate 1 (OCT 1999). As prescribed at 2015.209-70(a)(2)(ii), the 
contracting officer shall insert the following clause in solicitations 
and contracts which require issuance of delivery orders for specific 
products/services.

            Project Officer Authority--Alternate 1 (OCT 1999)

    (a) The contracting officer's authorized representative, hereinafter 
referred to as the project officer, for this contract is:

Name: *
Address: *
Telephone Number: *

    (b) The project officer shall:
    (1) Place delivery orders for items required under this contract up 
to the amount obligated on the contract award document.
    (2) Monitor contractor performance and recommend changes in 
requirements to the contracting officer.
    (3) Inspect and accept products/services provided under the 
contract.
    (4) Review all contractor invoices/vouchers requesting payment for 
products/services provided under the contract and make recommendations 
for approval, disapproval, or suspension.
    (c) The project officer may not make changes to the express terms 
and conditions of this contract.
    *To be incorporated into any resultant contract.

                             (End of clause)

    Alternate 2 (OCT 1999). As prescribed at 2015.209(a)(2)(iii), the 
contracting officer shall insert in solicitations for firm fixed price 
contracts, the clause at 2052.215-71 Project Officer Authority Alternate 
1 which shall be used with paragraph (b)(1) deleted and the remainder of 
the clause renumbered.



Sec. 2052.215-72  Timely receipt of proposals.

    As prescribed in 2015.209-70(a)(3), the contracting officer shall 
insert the following provision in all solicitations:

                 Timely Receipt of Proposals (OCT 1999)

    Sealed offers for furnishing the services or supplies in the 
schedule are due at the date and time stated in block 9 of Standard Form 
33, Solicitation, Offer and Award. Offers sent through the U.S. Mail 
(including U.S. Postal Service Express Mail Next Day Service--Post 
Office to Addressee) must be addressed to the place specified in the 
solicitation. All hand-carried offers including those made by private 
delivery services (e.g., Federal Express and Airborne Express) must be 
delivered to the NRC loading dock security station located at 11545 
Rockville Pike, Rockville, Maryland 20852 and received in the depository 
located in Room T-7-I-2. All offerors should allow extra time for 
internal mail distribution or for pick up of hand-carried deliveries. 
The NRC is a secure facility with perimeter access-control and NRC 
personnel are only available to receive hand-carried offers during 
normal working hours, 7:30 AM--3:30 PM, Monday through Friday, excluding 
Federal holidays.

                           (End of provision)



Sec. 2052.215-73  Award notification and commitment of public funds.

    As prescribed at 2015.209-70 (a)(4), the contracting officer shall 
insert the following clause in applicable solicitations:

      Award Notification and Commitment of Public Funds (OCT 1999)

    (a) All offerors will be notified of their exclusion from the 
competitive range in accordance with FAR 15.503(a)(1). Under the 
requirements of FAR 15.503(a)(2), preliminary notification will be 
provided before award for small business set-aside procurements on 
negotiated procurements. The contracting officer shall provide written 
postaward notice to each unsuccessful offeror in accordance with FAR 
15.503(b).
    (b) The contracting officer is the only individual who can legally 
commit the NRC to the expenditure of public funds in connection

[[Page 396]]

with this procurement. This means that, unless provided in a contract 
document or specifically authorized by the contracting officer, NRC 
technical personnel may not issue contract modifications, give informal 
contractual commitments, or otherwise bind, commit, or obligate the NRC 
contractually. Informal contractual commitments include:
    (1) Encouraging a potential contractor to incur costs before 
receiving a contract;
    (2) Requesting or requiring a contractor to make changes under a 
contract without formal contract modifications;
    (3) Encouraging a contractor to incur costs under a cost-
reimbursable contract in excess of those costs contractually allowable; 
and
    (4) Committing the Government to a course of action with regard to a 
potential contract, contract change, claim, or dispute.

                             (End of clause)



Sec. 2052.215-74  Disposition of proposals.

    As prescribed in 2015.209-70(a)(5), the contracting officer shall 
insert the following provision in all solicitations:

                   Disposition of Proposals (JAN 1993)

    After award of the contract, one copy of each unsuccessful proposal 
is retained by the NRC's Division of Contracts and Property Management 
in accordance with the General Records Schedule 3(5)(b). Unless return 
of the additional copies of the proposals is requested by the offeror 
upon submission of the proposals, all other copies will be destroyed. 
This request should appear in a cover letter accompanying the proposal.

                           (End of provision)



Sec. 2052.215-75  Proposal presentation and format.

    As prescribed at 2015.209-70(b)(1), the contracting officer may 
insert the following provision in applicable negotiated procurements for 
cost type solicitations. This clause may be tailored to each procurement 
and solicitation evaluation criteria by the contracting officer to fit 
the circumstances of the procurement.

               Proposal Presentation and Format (OCT 1999)

    (a) Information submitted in response to this solicitation must be 
typed, printed, or reproduced on letter-size paper and each copy must be 
legible. All information provided, including all resumes, must be 
accurate, truthful, and complete to the best of the offeror's knowledge 
and belief. The Commission will rely upon all representations made by 
the offeror both in the evaluation process and for the performance of 
the work by the offeror selected for award. The Commission may require 
the offeror to substantiate the credentials, education, and employment 
history of its employees, subcontractor personnel, and consultants, 
through submission of copies of transcripts, diplomas, licenses, etc.
    (b) The offeror shall submit the following material which 
constitutes its offer, as defined by FAR 2.101, in two separate and 
distinct parts at the date and time specified in * of the solicitation 
for receipt of sealed offers.
    (1) Part 1--Solicitation Package/Offer. Two (2) original signed 
copies of this solicitation package/offer. All applicable sections must 
be completed by the offeror.
    (2) Part 2--Cost Proposal. One (1) original and * copies of the 
``Cost Proposal.''
    (i) The cost proposal shall be submitted separately from the 
Technical and Management Proposal or Oral Presentation and Supporting 
Documentation (as applicable).
    (ii) The offeror's request for an exception to submitting cost or 
pricing data shall be made in accordance with FAR 52.215-20(a).
    (iii) If the contracting officer does not grant the offeror an 
exception from the requirement to submit cost or pricing data, the 
offeror's cost proposal shall conform with the requirements of FAR 
52.215-20(b). Cost information shall include pertinent details 
sufficient to show the elements of cost upon which the total cost is 
predicted in accordance with the requirement of FAR 52.215-20 (b)(1).
    (iv) When the offeror's estimated cost for the proposed work exceeds 
$100,000 and the duration of the contract period exceeds six months, the 
offeror shall submit a Contractor Spending Plan (CSP) as part of its 
cost proposal. Guidance for completing the CSP is attached.
    (v) For any subcontract discussed under the Technical and Management 
Proposal, or Oral Presentation Material, provide supporting 
documentation on the selection process, i.e., competitive vs. 
noncompetitive, and the cost evaluation.
    (c) ``Written Technical and Management Proposal'' or ``Oral 
Presentation and Supporting Documentation'' (as applicable). One (1) 
original and * copies.
    (1) The written Technical and Management Proposal or Oral 
Presentation and Supporting Documentation may not contain any reference 
to cost. Resource information, such as data concerning labor hours and 
categories, materials, subcontracts, travel, computer time, etc., must 
be included so that the offeror's understanding of the scope of work may 
be evaluated.
    (2) The offeror shall submit in the written Technical and Management 
Proposal or Oral Presentation and Supporting Documentation full and 
complete information as set forth

[[Page 397]]

below to permit the Government to make a thorough evaluation and a sound 
determination that the proposed approach will have a reasonable 
likelihood of meeting the requirements and objectives of this 
procurement.
    (3) The written Technical Proposal or Oral Presentation and 
Supporting Documentation must be tailored to assure that all information 
reflects a one-to-one relationship to the evaluation criteria.
    (4) Statements which paraphrase the statement of work without 
communicating the specific approach proposed by the offeror, or 
statements to the effect that the offeror's understanding can or will 
comply with the statement of work may be construed as an indication of 
the offeror's lack of understanding of the statement of work and 
objectives.
    (d) Written Technical or Oral Presentation and Supporting 
Documentation Requirements--Instructions.

*

    *To be incorporated into the solicitation.

                           (End of provision)

    Alternate 1 (OCT 1999). As prescribed at 2015.209-70(b)(2), this 
Alternate 1 may be used for solicitations for negotiated task orders. 
Include the following paragraph (iv) in place of paragraph (b)(2)(iv) of 
the basic provision:

    (b)(2)(iv) The offeror's cost proposal shall be based on the NRC's 
estimated level of effort. The NRC's estimated level of effort for this 
procurement is approximately * professional and * clerical staff-years 
for the duration of this contract. This information is advisory and is 
not to be considered as the sole basis for the development of the 
staffing plan. For the purposes of the Government estimate, 2000 hours 
constitute a staff year. The total estimated cost proposed by the 
offeror is used for evaluation purposes only. Any resultant contract, 
except a requirements contract, contains an overall cost ceiling whereby 
individual task orders may be issued. The cost and fee, if any, for each 
task order is individually negotiated and also contains a cost ceiling.

    Alternate 2 (OCT 1999). As proposed at 2015.209-70(b)(3), Alternate 
2 may be used for solicitations for negotiated fixed price, labor hour, 
or time and materials contracts. Substitute the following paragraph 
(b)(2)(ii) for the paragraph (b)(2)(ii) of the basic provision, delete 
paragraphs (b)(2)(iii)-(iv) of the basic provision, and renumber the 
remaining paragraphs.

    (ii) Submittal of information other than cost or pricing data shall 
be made in accordance with FAR 52.215-20 Alternate IV.



Sec. 2052.215-76  Preproposal conference.

    As prescribed at 2015.407-70(c), the contracting officer may insert 
the following provision in applicable solicitations which include a 
preproposal conference:

                    Preproposal Conference (JAN 1993)

    (a) A preproposal conference is scheduled for:

Date: *
Location: *
Time: *
    (b) This conference is to afford interested parties an opportunity 
to present questions and clarify uncertainties regarding this 
solicitation. You are requested to mail written questions concerning 
those areas of uncertainty which, in your opinion, require clarification 
or correction. You are encouraged to submit your questions in writing 
not later than * working day(s) before the conference date. Receipt of 
late questions may result in the questions not being answered at the 
conference although they will be considered in preparing any necessary 
amendment to the solicitation. If you plan to attend the conference, 
notify * by letter or telephone * , no later than close of business * . 
Notification of your intention to attend is essential in the event the 
conference is rescheduled or canceled. (Optional statement: Due to space 
limitations, each potential offeror is limited to * representatives at 
the conference.)
    (c) Written questions must be submitted to: U.S. Nuclear Regulatory 
Commission, Division of Contracts and Property Management, Attn: *, Mail 
Stop T-7-I-2, Washington, DC 20555.
    (d) The envelope must be marked ``Solicitation No. */Preproposal 
Conference.''
    *To be incorporated into the solicitation.
    (e) A transcript of the conference will be furnished to all 
prospective offerors through the issuance of an amendment to the 
solicitation.

                           (End of provision)



Sec. 2052.215-77  Travel approvals and reimbursement.

    As prescribed at 2015.209-70(d), the contracting officer shall 
insert the following clause in cost reimbursement solicitations and 
contracts which require travel but do not set a specific ceiling amount 
on that travel. Requests for foreign travel must be submitted to the NRC 
30 days in advance of the travel date.

[[Page 398]]

              Travel Approvals and Reimbursement (OCT 1999)

    (a) All foreign travel must be approved in advance by the NRC on NRC 
Form 445, Request for Approval of Official Foreign Travel, and must be 
in compliance with FAR 52.247-63 Preference for U.S. Flag Air Carriers. 
The contractor shall submit NRC Form 445 to the NRC no later than 30 
days before beginning travel.
    (b) The contractor must receive written approval from the NRC 
Project Officer before taking travel that was unanticipated in the 
Schedule (i.e., travel not contemplated in the Statement of Work, or 
changes to specific travel identified in the Statement of Work).
    (c) The contractor will be reimbursed only for travel costs incurred 
that are directly related to this contract and are allowable subject to 
the limitations prescribed in FAR 31.205-46.
    (d) It is the responsibility of the contractor to notify the 
contracting officer in accordance with the Limitations of Cost clause of 
this contract when, at any time, the contractor learns that travel 
expenses will cause the contractor to exceed the estimated costs 
specified in the Schedule.
    (e) Reasonable travel costs for research and related activities 
performed at State and nonprofit institutions, in accordance with 
Section 12 of Pub. L. 100-679, must be charged in accordance with the 
contractor's institutional policy to the degree that the limitations of 
Office of Management and Budget (OMB) guidance are not exceeded. 
Applicable guidance documents include OMB Circular A-87, Cost Principles 
for State and Local Governments; OMB Circular A-122, Cost Principles for 
Nonprofit Organizations; and OMB Circular A-21, Cost Principles for 
Educational Institutions.

                             (End of clause)



Sec. 2052.215-78  Travel approvals and reimbursement--Alternate 1.

    As prescribed in 2015.209-70(d), the contracting officer shall 
insert the following clause in cost reimbursement solicitations and 
contracts which include a ceiling amount on travel. Requests for foreign 
travel must be submitted to the NRC 30 days in advance of the travel 
date.

       Travel Approvals and Reimbursement--Alternate 1 (OCT 1999)

    (a) Total expenditure for travel may not exceed ---- * ---- without 
the prior approval of the contracting officer.
    (b) All foreign travel must be approved in advance by the NRC on NRC 
Form 445, Request for Approval of Official Foreign Travel, and must be 
in compliance with FAR 52.247-63 Preference for U.S. Flag Air Carriers. 
The contractor shall submit NRC Form 445 to the NRC no later than 30 
days prior to the commencement of travel.
    (c) The contractor will be reimbursed only for travel costs incurred 
that are directly related to this contract and are allowable subject to 
the limitations prescribed in FAR 31.205-46.
    (d) It is the responsibility of the contractor to notify the 
contracting officer in accordance with the FAR Limitations of Cost 
clause of this contract when, at any time, the contractor learns that 
travel expenses will cause the contractor to exceed the travel ceiling 
amount identified in paragraph (a) of this clause.
    (e) Reasonable travel costs for research and related activities 
performed at State and nonprofit institutions, in accordance with 
Section 12 of Pub. L. 100-679, must be charged in accordance with the 
contractor's institutional policy to the degree that the limitations of 
Office of Management and Budget (OMB) guidance are not exceeded. 
Applicable guidance documents include OMB Circular A-87, Cost Principles 
for State and Local Governments; OMB Circular A-122, Cost Principles for 
Nonprofit Organizations; and OMB Circular A-21, Cost Principles for 
Educational Institutions.
    *To be incorporated into any resultant contract.

                             (End of clause)



Sec. 2052.215-79  Contract award and evaluation of proposals.

    As prescribed in 2015.209(a)(1), the contracting officer shall 
insert the following provision in solicitations when technical merit is 
more important than cost:

          Contract Award and Evaluation of Proposals (OCT 1999)

    (a) By use of narrative and numerical (as appropriate) scoring 
techniques, proposals are evaluated against the evaluation factors 
specified in paragraph * below. These factors are listed in their 
relative order of importance.
    (b) The Government intends to award a contract or contracts 
resulting from this solicitation to the responsible offeror(s) whose 
proposal(s) represents the best value, as defined in FAR 2.101, after 
evaluation in accordance with the factors and subfactors in the 
solicitation.
    (c) The Government may:
    (1) Reject any or all proposals if the action is in the Government's 
interest.
    (2) Waive informalities and minor irregularities in proposals 
received.

[[Page 399]]

    (d) The Government intends to evaluate proposals and award a 
contract without discussions with offerors. The Government reserves the 
right to seek proposal clarifications (e.g., capability issues as 
described in FAR 15.306(a) or minor or clerical errors as described in 
FAR 14.407); and hold communications as described in FAR 15.306(b)). 
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.
    (e) The Government reserves the right to make an award on any item 
for a quantity less than the quantity offered, at the unit cost or 
prices offered, unless the offeror specifies otherwise in the proposal.
    (f) The Government reserves the right to make multiple awards if, 
after considering the additional administrative costs, it is in the 
Government's best interest to do so.
    (g) Exchanges with offerors after receipt of a proposal do not 
constitute a rejection or counteroffer by the Government.
    (h) The Government may determine that a proposal is unacceptable if 
the prices proposed are materially unbalanced between line items 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 understated 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.
    (i) If a cost realism analysis is performed, cost realism may be 
considered by the source selection authority in evaluating performance 
or schedule risk.
    (j) A written award or acceptance of proposal mailed or otherwise 
furnished to the successful offeror within the time specified in the 
proposal shall result in a binding contract without further action by 
either party.
    (k) A separate cost analysis is performed on each cost proposal. To 
provide a common base for evaluation of cost proposals, the level of 
effort data must be expressed in staff hours. Where a Contractor 
Spending Plan (CSP) is required by other provisions of this 
solicitation, consideration is given to the Plan for completeness, 
reasonableness, and as a measure of effective management of the effort.
    * To be incorporated into the solicitation.

                           (End of provision)

    Alternate 1 (OCT 1999). As prescribed at 2015.209-70(e)(2), 
Alternate 1 may be used when proposals are to be evaluated on a lowest 
price, technically acceptable basis. Substitute the following paragraph 
for paragraph (b) in the clause at 2052.215-79:

    (b) Although technical merit in the evaluation criteria set forth 
below is a factor in the evaluation of proposals, award will be made on 
the basis of the lowest evaluated price of proposals meeting or 
exceeding the acceptability standards for non-cost factors,

    Alternate 2 (OCT 1999). As prescribed at 2015.209-70(e)(2), 
Alternate 2 may be used when cost and technical merit are of equal 
significance. Substitute the following paragraph for paragraph (b) in 
the clause at 2052.215-79:

    (b) In the selection of a contractor, technical merit in the 
evaluation criteria set forth below and cost bear equal significance. To 
be selected for an award, the proposed cost must be realistic and 
reasonable.



Sec. 2052.216-70  Level of effort.

    As prescribed at 2016.307-70(a) the contracting officer shall insert 
the following provision in solicitations for negotiated procurements 
containing labor costs other than maintenance services, to be awarded on 
a cost reimbursement, cost sharing, cost-plus-award-fee, cost-plus-
fixed-fee, time and materials, or labor hours basis.

                       Level of Effort (JAN 1993)

    The NRC's estimate of the total effort for this project is 
approximately * professional and * clerical staff-years for the duration 
of this contract. This information is advisory and is not to be 
considered as the sole basis for the development of the staffing plan. 
For the purposes of the Government estimate, 2000 hours constitute a 
staff year.
    *To be incorporated into any resultant contract.

                           (End of provision)



Sec. 2052.216-71  Indirect cost rates.

    As prescribed at 2016.307-70(b), the contracting officer may insert 
the following clause in solicitations and contracts where provisional 
rates without ceiling apply.

[[Page 400]]

                     Indirect Cost Rates (JAN 1993)

    (a) Pending the establishment of final indirect rates which must be 
negotiated based on audit of actual costs, the contractor shall be 
reimbursed for allowable indirect costs as follows:
*

    (b) The contracting officer may adjust these rates as appropriate 
during the term of the contract upon acceptance of any revisions 
proposed by the contractor. It is the contractor's responsibility to 
notify the contracting officer in accordance with FAR 52.232-20, 
Limitation of Cost, or FAR 52.232-22, Limitation of Funds, as 
applicable, if these changes affect performance of work within the 
established cost or funding limitations.
    *To be incorporated into any resultant contract.

                             (End of clause)

    Alternate 1. As prescribed at 2016.307-70(b)(2), the contracting 
officer may insert the following clause in applicable solicitations and 
contracts where predetermined rates apply:

               Indirect Cost Rates--Alternate 1 (JAN 1993)

    The contractor is reimbursed for allowable indirect costs in 
accordance with the following predetermined rates:

*

    *To be incorporated into any resultant contract.

                             (End of clause)

    Alternate 2 (OCT 1999). As prescribed at 2016.307-70(b), the 
contracting officer may insert the following clause in applicable 
solicitations and contracts where provisional rates with ceilings apply:

            Indirect Costs (Ceiling)--Alternate 2 (OCT 1999)

    (a) For this contract, the ceiling amount reimbursable for indirect 
costs is as follows:

*

    (b) In the event that indirect rates developed by the cognizant 
audit activity on the basis of actual allowable costs result in a lower 
amount for indirect costs, the lower amount will be paid. The Government 
may not be obligated to pay any additional amounts for indirect costs 
above the ceiling rates set forth above for the applicable period.
    *To be incorporated into any resultant contract.

                             (End of clause)



Sec. 2052.216-72  Task order procedures.

    As prescribed at 2016.506-70(a), the contracting officer may insert 
the following clause in applicable solicitations and contracts that 
contain task order procedures. This clause may be altered to fit the 
circumstances of the requirement.

                    Task Order Procedures (OCT 1999)

    (a) Task order request for proposal. When a requirement within the 
scope of work for this contract is identified, the contracting officer 
shall transmit to the contractor a Task Order Request for Proposal 
(TORFP) which may include the following, as appropriate:
    (1) Scope of work/meetings/travel and deliverables;
    (2) Reporting requirements;
    (3) Period of performance--place of performance;
    (4) Applicable special provisions;
    (5) Technical skills required; and
    (6) Estimated level of effort.
    (b) Task order technical proposal. By the date specified in the 
TORFP, the contractor shall deliver to the contracting officer a written 
or verbal (as specified in the TORFP technical proposal submittal 
instructions) technical proposal that provides the technical information 
required by the TORFP.
    (c) Cost proposal. The contractor's cost proposal for each task 
order must be fully supported by cost and pricing data adequate to 
establish the reasonableness of the proposed amounts. When the 
contractor's estimated cost for the proposed task order exceeds $100,000 
and the period of performance exceeds six months, the contractor may be 
required to submit a Contractor Spending Plan (CSP) as part of its cost 
proposal. The TORP indicates if a CSP is required.
    (d) Task order award. The contractor shall perform all work 
described in definitized task orders issued by the contracting officer. 
Definitized task orders include the following:
    (1) Statement of work/meetings/travel and deliverables;
    (2) Reporting requirements;
    (3) Period of performance;
    (4) Key personnel;
    (5) Applicable special provisions; and
    (6) Total task order amount including any fixed fee.

[[Page 401]]

                             (End of clause)



Sec. 2052.216-73  Accelerated task order procedures.

    As prescribed at 2016.506-70(b), the contracting officer may insert 
the following clause in applicable solicitations and contracts that 
contain task order procedures. This clause may be altered to fit the 
circumstances of the requirement.

              Accelerated Task Order Procedures (JAN 1993)

    (a) The NRC may require the contractor to begin work before 
receiving a definitized task order from the contracting officer. 
Accordingly, when the contracting officer verbally authorizes the work, 
the contractor shall proceed with performance of the task order subject 
to the monetary limitation established for the task order by the 
contracting officer.
    (b) When this accelerated procedure is employed by the NRC, the 
contractor agrees to begin promptly negotiating with the contracting 
officer the terms of the definitive task order and agrees to submit a 
cost proposal with supporting cost or pricing data. If agreement on a 
definitized task order is not reached by the target date mutually agreed 
upon by the contractor and contracting officer, the contracting officer 
may determine a reasonable price and/or fee in accordance with subpart 
15.8 and part 31 of the FAR, subject to contractor appeal as provided in 
52.233-1, Disputes. In any event, the contractor shall proceed with 
completion of the task order subject only to the monetary limitation 
established by the contracting officer and the terms and conditions of 
the basic contract.

                             (End of clause)



Sec. 2052.222-70  Nondiscrimination because of age.

    As prescribed at 2022.901-70, the contracting officer shall insert 
the following clause in all solicitations:

               Nondiscrimination Because of Age (JAN 1993)

    It is the policy of the Executive Branch of the Government that:
    (a) Contractors and subcontractors engaged in the performance of 
Federal contracts may not, in connection with the employment, 
advancement, or discharge of employees or in connection with the terms, 
conditions, or privileges of their employment, discriminate against 
persons because of their age except upon the basis of a bona fide 
occupational qualification, retirement plan, or statutory requirement; 
and
    (b) That contractors and subcontractors, or persons acting on their 
behalf, may not specify, in solicitations or advertisements for 
employees to work on Government contracts, a maximum age limit for 
employment unless the specified maximum age limit is based upon a bona 
fide occupational qualification, retirement plan, or statutory 
requirement.

                           (End of provision)



Sec. 2052.227-70  Drawings, designs, specifications, and other data.

    As prescribed at 2027.305-70, the contracting officer shall insert 
the following clause in all solicitations and contracts in which 
drawings, designs, specifications, and other data will be developed and 
the NRC must retain full rights to them (except for the contractor's 
right to retain a copy for its own use). When any of the clauses 
prescribed at FAR 27.409 are included in the solicitation and contract, 
this clause will not be used.

      Drawings, Designs, Specifications, and Other Data (JAN 1993)

    All drawings, sketches, designs, design data, specifications, 
notebooks, technical and scientific data, and all photographs, 
negatives, reports, findings, recommendations, other data and memoranda 
of every description relating thereto, as well as all copies of the 
foregoing relating to the work or any part thereto, are subject to 
inspection by the Commission at all reasonable times. Inspection of the 
proper facilities must be afforded the Commission by the contractor and 
its subcontractors. These data are the property of the Government and 
may be used by the Government for any purpose whatsoever without any 
claim on the part of the contractor and its subcontractors and vendors 
for additional compensation and must, subject to the right of the 
contractor to retain a copy of the material for its own use, be 
delivered to the Government, or otherwise disposed of by the contractor 
as the contracting officer may direct during the progress of the work or 
upon completion or termination of this contract. The contractor's right 
of retention and use is subject to the security, patent, and use of 
information provisions, if any, of this contract.

[[Page 402]]

                             (End of clause)



Sec. 2052.231-70  Precontract costs.

    As prescribed in 2031.109-70, following clause may be used in all 
cost type contracts when costs in connection with work under the 
contract will be incurred by the contractor before the effective date of 
the contract. Approval for use of this clause must be obtained at one 
level above the contracting officer.

                      Precontract Costs (JAN 1993)

    Allowable costs under this contract include costs incurred by the 
contractor in connection with the work covered by this contract during 
the period from * and including * to the effective date of this contract 
that would have been allowable under the terms of this contract if this 
contract had been in effect during that period. However, the costs may 
not in aggregate exceed * which is included in the estimated cost of 
this contract.
    *To be incorporated into any resultant contract.

                             (End of clause)



Sec. 2052.235-70  Publication of research results.

    As prescribed in 2035.70(a)(1), the contracting officer shall insert 
the following clause in applicable solicitations and contracts for 
research and development by private contractors and universities and for 
other technical services as appropriate.

               Publication of Research Results (OCT 1999)

    (a) The principal investigator(s)/contractor shall comply with the 
provisions of NRC Management Directive 3.8 (Vol. 3, Part 1) and NRC 
Handbook 3.8 (Parts I-IV) regarding publication in refereed scientific 
and engineering journals or dissemination to the public of any 
information, oral or written, concerning the work performed under this 
contract. Failure to comply with this clause shall be grounds for 
termination of this contract.
    (b) The principal investigator(s)/contractor may publish the results 
of this work in refereed scientific and engineering journals or in open 
literature and present papers at public or association meetings at 
interim stages of work, in addition to submitting to NRC the final 
reports and other deliverables required under this contract. However, 
such publication and papers shall focus on advances in science and 
technology and minimize conclusions and/or recommendations which may 
have regulatory implications.
    (c) The principal investigator(s) shall coordinate all such 
publications with, and transmit a copy of the proposed article or paper 
to, the NRC Contracting Officer or Project Officer, prior to 
publication. The NRC agrees to review and provide comments within thirty 
(30) days after receipt of a proposed publication. However, in those 
cases where the information to be published is (1) subject to Commission 
approval, (2) has not been ruled upon, or (3) disapproved by the 
Commission, the NRC reserves the right to disapprove or delay the 
publication. Further, if the NRC disagrees with the proposed publication 
for any reason, it reserves the right to require that any publication 
not identify the NRC's sponsorship of the work and that any associated 
publication costs shall be borne by the contractor.

                             (End of clause)



Sec. 2052.235-71  Safety, health, and fire protection.

    As prescribed in 2035.70(a)(2), the contracting officer shall insert 
the following clause in applicable solicitations and contracts for 
research and development by private contractors and universities and for 
other technical services as appropriate:

             Safety, Health, and Fire Protection (JAN 1993)

    The contractor shall take all reasonable precautions in the 
performance of the work under this contract to protect the health and 
safety of its employees and of members of the public, including NRC 
employees and contractor personnel, and to minimize danger from all 
hazards to life and property. The contractor shall comply with all 
applicable health, safety, and fire protection regulations and 
requirements (including reporting requirements) of the Commission and 
the Department of Labor. If the contractor fails to comply with these 
regulations or requirements, the contracting officer may, without 
prejudice to any other legal or contractual rights of the Commission, 
issue an order stopping all or any part of the work. Thereafter, a start 
work order for resumption of work may be issued at the discretion of the 
contracting officer. The contractor may not make a claim for an 
extension of time or for compensation or damages by reason of, or in 
connection with, this type of work stoppage.

[[Page 403]]

                             (End of clause)



Sec. 2052.242-70  Resolving differing professional views.

    As prescribed in 2042.570-1, the contracting officer shall insert 
the following clause in the body of cost reimbursement solicitations and 
contracts for professional services, as appropriate. This clause may not 
be altered by the contracting officer.

   Resolving NRC Contractor Differing Professional Views (DPVs) (Date)

    (a) The Nuclear Regulatory Commission's (NRC) policy is to support 
the contractor's expression of professional health and safety related 
concerns associated with the contractor's work for NRC that may differ 
from a prevailing NRC staff view, disagree with an NRC decision or 
policy position, or take issue with proposed or established agency 
practices. An occasion may arise when an NRC contractor, contractor's 
personnel, or subcontractor personnel believes that a conscientious 
expression of a competent judgement is required to document such 
concerns on matters directly associated with its performance of the 
contract. The NRC's policy is to support these instances as Differing 
Professional Views (DPVs).
    (b) The procedure that will be used provides for the expression and 
resolution of differing professional views (DPVs) of health and safety 
related concerns associated with the mission of the agency by NRC 
contractors, contractor personnel or subcontractor personnel on matters 
directly associated with its performance of the contract. This procedure 
may be found in Attachments to this document. The contractor shall 
provide a copy of the NRC DPV procedure to all of its employees 
performing under this contract and to all subcontractors who shall, in 
turn, provide a copy of the procedure to its employees. The prime 
contractor or subcontractor shall submit all DPV's received but need not 
endorse them.

                             (End of clause)



Sec. 2052.242-71  Procedures for Resolving Differing Professional Views.

    As prescribed in 2042.570-2(b), the contracting officer shall 
include the following clause as an attachment to cost reimbursement 
solicitations and contracts for professional services, as appropriate. 
This clause may not be altered by the contracting officer.

  Procedures for Resolving NRC Contractor Differing Professional Views 
                            (DPVs) (OCT 1999)

    (a) The following procedure provides for the expression and 
resolution of differing professional views (DPVs) of health and safety 
related concerns of NRC contractors and contractor personnel on matters 
connected to the subject of the contract. Subcontractor DPVs must be 
submitted through the prime contractor. The prime contractor or 
subcontractor shall submit all DPV's received but need not endorse them.
    (b) The NRC may authorize up to eight reimbursable hours for the 
contractor to document, in writing, a DPV by the contractor, the 
contractor's personnel, or subcontractor personnel. The contractor shall 
not be entitled to any compensation for effort on a DPV which exceeds 
the specified eight hour limit.
    (c) Before incurring costs to document a DPV, the contractor shall 
first determine whether there are sufficient funds obligated under the 
contract which are available to cover the costs of writing a DPV. If 
there are insufficient obligated funds under the contract, the 
contractor shall first request the NRC contracting officer for 
additional funding to cover the costs of preparing the DPV and 
authorization to proceed.
    (d) Contract funds shall not be authorized to document an allegation 
where the use of this NRC contractor DPV process is inappropriate. 
Examples of such instances are: allegations of wrongdoing which should 
be addressed directly to the NRC Office of the Inspector General (OIG), 
issues submitted anonymously, or issues raised which have already been 
considered, addressed, or rejected, absent significant new information. 
This procedure does not provide anonymity. Individuals desiring 
anonymity should contact the NRC OIG or submit the information under 
NRC's Allegation Program, as appropriate.
    (e) When required, the contractor shall initiate the DPV process by 
submitting a written statement directly to the NRC Office Director or 
Regional Administrator responsible for the contract, with a copy to the 
Contracting Officer, Division of Contracts and Property Management, 
Office of Administration. Each DPV submitted will be evaluated on its 
own merits.
    (f) The DPV, while being brief, must contain the following as it 
relates to the subject matter of the contract:
    (1) A summary of the prevailing NRC view, existing NRC decision or 
stated position, or the proposed or established NRC practice.
    (2) A description of the submitter's views and how they differ from 
any of the above items.

[[Page 404]]

    (3) The rationale for the submitter's views, including an assessment 
based on risk, safety and cost benefit considerations of the 
consequences should the submitter's position not be adopted by NRC.
    (g) The Office Director or Regional Administrator will immediately 
forward the submittal to the NRC DPV Review Panel and acknowledge 
receipt of the DPV, ordinarily within five (5) calendar days of receipt.
    (h) The panel will normally review the DPV within seven calendar 
days of receipt to determine whether enough information has been 
supplied to undertake a detailed review of the issue. Typically, within 
30 calendar days of receipt of the necessary information to begin a 
review, the panel will provide a written report of its findings to the 
Office Director or Regional Administrator and to the Contracting 
Officer, which includes a recommended course of action.
    (i) The Office Director or Regional Administrator will consider the 
DPV Review Panel's report, make a decision on the DPV and provide a 
written decision to the contractor and the Contracting Officer normally 
within seven calendar days after receipt of the panel's recommendation.
    (j) Subsequent to the decision made regarding the DPV Review Panel's 
report, a summary of the issue and its disposition will be included in 
the NRC Weekly Information Report submitted by the Office Director. The 
DPV file will be retained in the Office or Region for a minimum of one 
year thereafter. For purposes of the contract, the DPV shall be 
considered a deliverable under the contract. Based upon the Office 
Director or Regional Administrator's report, the matter will be closed.

                             (End of clause)

[[Page 405]]



CHAPTER 21--OFFICE OF PERSONNEL MANAGEMENT, FEDERAL EMPLOYEES GROUP LIFE 
                INSURANCE FEDERAL ACQUISITION REGULATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2101            Federal Acquisition Regulations System......         407
2102            Definitions of words and terms..............         408
2103            Improper business practices and personal 
                    conflicts of interest...................         409
2104            Administrative matters......................         410
                   SUBCHAPTER B--ACQUISITION PLANNING
2105            Publicizing contract actions................         411
2106            Competition requirements....................         411
2109            Contractor qualifications...................         411
2110            Specifications, standards, and other 
                    purchase descriptions...................         412
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2114            Sealed bidding..............................         414
2115            Contracting by negotiation..................         414
2116            Types of contracts..........................         417
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2122            Application of labor laws to Government 
                    acquisitions............................         419
2124            Protection of privacy and freedom of 
                    information.............................         419
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2128            Bonds and insurance.........................         420
2129            Taxes.......................................         420
2131            Contract cost principles and procedures.....         421
2132            Contract financing..........................         423

[[Page 406]]

2133            [Reserved]

             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
2137            Service contracting.........................         425
                    SUBCHAPTER G--CONTRACT MANAGEMENT
2143            Contract modifications......................         426
2144            Subcontracting policies and procedures......         426
2146            Quality assurance...........................         426
2149            Termination of contracts....................         427
                     SUBCHAPTER H--CLAUSES AND FORMS
2152            Precontract provisions and contract clauses.         429

[[Page 407]]

                          SUBCHAPTER A_GENERAL

            PART 2101_FEDERAL ACQUISITION REGULATIONS SYSTEM

               Subpart 2101.1_Purpose, Authority, Issuance

Sec.

Sec. 2101.101 Purpose.

Sec. 2101.102 Authority.

Sec. 2101.103 Applicability.

Sec. 2101.104 Issuance.

Sec. 2101.104-1 Publication and code arrangement.

Sec. 2101.104-2 Arrangement of regulations.

              Subpart 2101.3_Agency Acquisition Regulations


Sec. 2101.301 Policy.

Sec. 2101.370 Effective date of LIFAR amendments.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40372, July 28, 1993, unless otherwise noted.

               Subpart 2101.1_Purpose, Authority, Issuance



Sec. 2101.101  Purpose.

    (a) This subpart establishes Chapter 21, Office of Personnel 
Management Federal Employees' Group Life Insurance Federal Acquisition 
Regulation, within title 48, the Federal Acquisition Regulations System, 
of the Code of Federal Regulations. The short title of this regulation 
shall be LIFAR.
    (b) The purpose of the LIFAR is to implement and supplement the 
Federal Acquisition Regulation (FAR) specifically for acquiring and 
administering a contract, or contracts, for life insurance under the 
Federal Employees' Group Life Insurance (FEGLI) Program.



Sec. 2101.102  Authority.

    (a) The LIFAR is issued by the Director of the Office of Personnel 
Management in accordance with the authority of 5 U.S.C. Chapter 87 and 
other applicable laws and regulations.
    (b) The LIFAR does not replace or incorporate regulations found at 5 
CFR part 870, which provide the substantive policy guidance for 
administration of the FEGLI Program under 5 U.S.C. chapter 87. The 
following is the order of precedence in interpreting a contract 
provision under the FEGLI Program:
    (1) 5 U.S.C. chapter 87.
    (2) 5 CFR part 870.
    (3) 48 CFR chapters 1 and 21.
    (4) The FEGLI Program contract.

[58 FR 40372, July 28, 1993, as amended at 70 FR 41149, July 18, 2005]



Sec. 2101.103  Applicability.

    The FAR is generally applicable to contracts negotiated in the FEGLI 
Program pursuant to 5 U.S.C. chapter 87. The LIFAR implements and 
supplements the FAR where necessary to identify basic and significant 
acquisition policies unique to the FEGLI Program.



Sec. 2101.104  Issuance.



Sec. 2101.104-1  Publication and code arrangement.

    (a) The LIFAR and its subsequent changes are published in:
    (1) Daily issues of the Federal Register; and
    (2) The Code of Federal Regulations, in cumulative form.
    (b) The LIFAR is issued as chapter 21 of title 48 of the Code of 
Federal Regulations.



Sec. 2101.104-2  Arrangement of regulations.

    (a) General. The LIFAR conforms with the arrangement and numbering 
system prescribed by FAR 1.104 and 1.303. However, when a FAR part or 
subpart is adequate for use without further OPM implementation or 
supplementation, there will be no corresponding LIFAR part, subpart, 
etc. The LIFAR is to be used in conjunction with the FAR and the order 
for use is:
    (1) FAR;
    (2) LIFAR.
    (b) Citation. (1) In formal documents, such as legal briefs, 
citation of Chapter 21 material that has been published in the Federal 
Register will be to title 48 of the Code of Federal Regulations.

[[Page 408]]

    (2) In informal documents, any section of chapter 21 may be 
identified as ``LIFAR'' followed by the section number.

              Subpart 2101.3_Agency Acquisition Regulations



Sec. 2101.301  Policy.

    (a) Procedures, contract clauses, and other aspects of the 
acquisition process for contracts in the FEGLI Program shall be 
consistent with the principles of the FAR. Changes to the FAR that are 
otherwise authorized by statute or applicable regulation, dictated by 
the practical realities associated with certain unique aspects of life 
insurance, or necessary to satisfy specific needs of the Office of 
Personnel Management, to the extent not otherwise regulated in the FAR, 
shall be implemented as amendments to the LIFAR and published in the 
Federal Register, or as deviations to the FAR in accordance with FAR 
subpart 1.4.
    (b) OPM may issue internal procedures, instructions, directives, and 
guides to clarify or implement the LIFAR within OPM. Clarifying or 
implementing procedures, instructions, directives, and guides issued 
pursuant to this section of the LIFAR must:
    (1) Be consistent with the policies and procedures contained in this 
chapter as implemented and supplemented from time to time; and
    (2) Follow the format, arrangement, and numbering system of this 
chapter to the extent practicable.

[58 FR 40372, July 28, 1993, as amended at 70 FR 41149, July 18, 2005]



Sec. 2101.370  Effective date of LIFAR amendments.

    (a) Except as provided in paragraphs (b) and (c) of this section, an 
amendment to the LIFAR is effective when promulgated or as provided in 
the amendment.
    (b) Except as provided in paragraphs (c) and (d) of this section, if 
the LIFAR is amended in a manner which would increase the 
contractor's(s') costs or liabilities under the contract(s), the 
amendment will be made effective the October 1 subsequent to the 
amendment's promulgation, unless the contractor(s) agree(s) in writing 
to an earlier date.
    (c) Except as provided for in paragraph (d) of this section, if the 
LIFAR is amended between July 31 and October 1 in a manner which would 
increase the contractor's(s') costs or liabilities under the 
contract(s), the amendment will not be effective until the October 1 in 
the year following the amendment's promulgation, unless the 
contractor(s) agree(s) in writing to an earlier date.
    (d) Paragraphs (b) and (c) of this section are not applicable to 
amendments that are necessary to implement new or existing legislation.
    (e) OPM will not initiate any changes to the LIFAR during a 
continuity of services period, as discussed in section 2152.237-70 of 
this chapter.

[58 FR 40372, July 28, 1993, as amended at 70 FR 41149, July 18, 2005]

                PART 2102_DEFINITIONS OF WORDS AND TERMS

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

                       Subpart 2102.1_Definitions



Sec. 2102.101  Definitions.

    In this chapter, unless otherwise indicated, the following terms 
have the meaning set forth in this subpart.
    Contract means a policy or policies of group life and accidental 
death and dismemberment insurance to provide the benefits specified by 5 
U.S.C. chapter 87.
    Contractor means an insurance company contracted to provide the 
benefits specified by 5 U.S.C. chapter 87.
    Contract price means premium.
    Contract year means October 1 through September 30. Also referred to 
as contract term.
    Director means the Director of the Office of Personnel Management.
    Employees' Life Insurance Fund means the trust fund established 
under 5 U.S.C. 8714.
    Enrollee means the insured, or, where applicable, the assignee.
    FEGLI Program means the Federal Employees' Group Life Insurance 
Program.

[[Page 409]]

    Fixed price with limited cost redetermination plus fixed fee 
contract means a contract which provides for:
    (1) A fixed price during the contract year with a cost element that 
is adjusted at the end of the contract term based on costs incurred 
under the contract; and
    (2) A profit or fee that is fixed at the beginning of the contract 
term. The amount of adjustment for costs is limited to the amount in the 
Employees' Life Insurance Fund. The fee will be in the form of either a 
risk charge or a service charge.
    Grace period means 31 days from and including the payment due date 
of the first business day of the month.
    Insurance company, as provided in 5 U.S.C. 8709, means a company 
licensed to transact life and accidental death and dismemberment 
insurance under the laws of all the States and the District of Columbia. 
It must have in effect, on the most recent December 31 for which 
information is available to the Office of Personnel Management, an 
amount of employee group life insurance equal to at least 1 percent of 
the total amount of employee group life insurance in the United States 
in all life insurance companies.
    OPM means the United States Office of Personnel Management.
    Premium means an amount intended to cover the estimated annual 
benefits and administrative costs plus a fixed service or risk charge, 
made available to the Contractor in 12 equal installments. At the end of 
the contract year, a reconciliation of premiums, benefits, and other 
costs is performed as a limited cost redetermination.
    Reinsurer means a company that reinsures portions of the total 
amount of insurance under the contract as specified in 5 U.S.C. 8710 and 
is not an agent or representative of the Contractor.
    Subcontract means a contract entered into by any subcontractor that 
furnishes supplies or services for performance of a prime contract under 
the FEGLI Program. Except for the purpose of FAR subpart 22.8--Equal 
Employment Opportunity, the term subcontract does not include a contract 
with a reinsurer under the FEGLI Program.
    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime Contractor under the 
FEGLI Program contract. Except for the purpose of FAR subpart 22.8--
Equal Employment Opportunity, the term subcontractor does not include 
reinsurers under the FEGLI Program.

[70 FR 41149, July 18, 2005]

PART 2103_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

            Subpart 2103.5_Other Improper Business Practices

Sec.

Sec. 2103.570 Misleading, Deceptive, or Unfair Advertising.

Sec. 2103.571 Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40373, July 28, 1993, unless otherwise noted.

            Subpart 2103.5_Other Improper Business Practices



Sec. 2103.570  Misleading, Deceptive, or Unfair Advertising.

    (a) OPM, or the Contractor with the approval of OPM, makes available 
to Federal employees a booklet describing the provisions of the FEGLI 
Program, which includes information about eligibility, enrollment, and 
general procedures. The booklet, along with valid election documents, 
serves as certification of the employee's coverage under the FEGLI 
Program. Any marketing/advertising directed specifically at Federal 
employees and life insurance contacts with Federal employees for the 
purpose of selling FEGLI Program coverage must be approved by OPM in 
advance.
    (b) The Contractor is prohibited from making incomplete and/or 
incorrect comparisons or using disparaging or minimizing techniques to 
compare its other products or services to those of the FEGLI Program. 
The Contractor agrees that any advertising material authorized and 
released by the Contractor which mentions the FEGLI

[[Page 410]]

Program will be truthful and not misleading and will present an accurate 
statement of FEGLI Program benefits. The Contractor will use reasonable 
efforts to assure that agents selling its other products are aware of 
and abide by this prohibition.
    (c) The contractor's failure to conform to the requirements of this 
subpart shall be considered by OPM in the determination of the service 
charge prenegotiation objective.

[58 FR 40373, July 28, 1993, as amended at 70 FR 41150, July 18, 2005]



Sec. 2103.571  Contract clause.

    The clause at 2152.203-70 shall be inserted in FEGLI Program 
contracts and in subcontracts.

                    PART 2104_ADMINISTRATIVE MATTERS

               Subpart 2104.7_Contractor Records Retention

Sec.

Sec. 2104.703 Policy.

              Subpart 2104.9_Taxpayer Identification Number


Sec. 2104.9001 Contract clause.

           Subpart 2104.70_Designation of Authorized Personnel


Sec. 2104.7001 Designation of authorized personnel.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40373, July 28, 1993, unless otherwise noted.

               Subpart 2104.7_Contractor Records Retention



Sec. 2104.703  Policy.

    In view of the unique payment schedules of FEGLI Program contracts 
and the compelling need for records retention periods sufficient to 
protect the Government's interest, contractors shall be required to 
maintain records for periods determined in accordance with the 
provisions of FAR 4.703(b)(1) and LIFAR 2115.106-270.

              Subpart 2104.9_Taxpayer Identification Number



Sec. 2104.9001  Contract clause.

    The clause at 2152.204-70 of this chapter must be inserted in all 
FEGLI Program contracts.

[70 FR 41150, July 18, 2005]

           Subpart 2104.70_Designation of Authorized Personnel



Sec. 2104.7001  Designation of authorized personnel.

    The contractor shall notify the contracting officer in writing of 
the name(s), title(s), and address(es) of the individual(s) authorized 
to act on behalf of the contractor regarding a LIFAR Program contract. 
The notice shall include any restriction(s) upon the authority of the 
individual(s). Any change to the notice must also be provided to the 
contracting officer in writing.

[[Page 411]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                 PART 2105_PUBLICIZING CONTRACT ACTIONS

    Authority: 5 U.S.C. 8709; 40 U.S.C. 486(c); 48 CFR 1.301.

                      Subpart 2105.70_Applicability



Sec. 2105.7001  Applicability.

    FAR part 5 has no practical application to the FEGLI Program because 
the requirements for eligible contractors (i.e., qualified life 
insurance companies) are stated in 5 U.S.C. 8709.

[70 FR 41150, July 18, 2005]

                   PART 2106_COMPETITION REQUIREMENTS

    Authority: 5 U.S.C. 8709; 40 U.S.C. 486(c); 48 CFR 1.301.

                      Subpart 2106.70_Applicability



Sec. 2106.7001  Applicability.

    FAR part 6 has no practical application to the FEGLI Program because 
5 U.S.C. chapter 87 exempts the FEGLI Program from competitive bidding.

[70 FR 41150, July 18, 2005]

                   PART 2109_CONTRACTOR QUALIFICATIONS

         Subpart 2109.4_Debarment, Suspension, and Ineligibility

Sec.

Sec. 2109.408 Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters.

Sec. 2109.409 Certification and contract clause.

     Subpart 2109.70_Minimum Standards for FEGLI Program Contractors


Sec. 2109.7001 Minimum standards for FEGLI Program contractors.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40374, July 28, 1993, unless otherwise noted.

         Subpart 2109.4_Debarment, Suspension, and Ineligibility



Sec. 2109.408  Certification regarding debarment, suspension, proposed 
          debarment and other responsibility matters.

    FAR subpart 9.4 is implemented by changing the FAR offeror's 
certification at FAR 52.209-5 (which is part of a solicitation) to a 
pre-contract certificate and a contract clause. These provisions reflect 
the FEGLI Program's statutory exemption from competitive bidding (5 
U.S.C. 8709), which obviates the issuance of solicitations.



Sec. 2109.409  Certification and contract clause.

    (a) The contracting officer may require the precontract certificate 
in 2152.209-70 to be filed prior to or during negotiations.
    (b) The contracting officer shall insert the clause at 2152.209-71 
in all FEGLI Program contracts.

     Subpart 2109.70_Minimum Standards for FEGLI Program Contractors



Sec. 2109.7001  Minimum standards for FEGLI Program contractors.

    (a) The Contractor must meet the requirements of chapter 87 of title 
5, United States Code; part 870 of title 5, Code of Federal Regulations; 
chapter 1 of title 48, Code of Federal Regulations; and the standards in 
this subpart. The Contractor must continue to meet these and the 
following statutory and regulatory requirements while under contract 
with OPM. Failure to meet these requirements and standards is cause for 
OPM's termination of the contract in accordance with part 2149 of this 
chapter.
    (b) The contractor must actually be engaged in the life insurance 
business and must be licensed to transact life and accidental death and 
dismemberment insurance under the laws of all the States and the 
District of Columbia at the time of application.

[[Page 412]]

    (c) The contractor must not be a Federal, State, local or 
territorial government entity.
    (d) The contractor must not be debarred, suspended or ineligible to 
participate in Government contracting or subcontracting for any reason.
    (e) The contractor must keep statistical and financial records 
regarding the FEGLI Program separate from that of all its other lines of 
business.
    (f) The Contractor agrees to enter into annual premium rate 
redeterminations with OPM.
    (g) The Contractor must furnish such reasonable reports as OPM 
determines are necessary to administer the FEGLI Program. The cost of 
preparation of such reports will be considered an allowable expense 
within the administrative expense ceiling defined in section 2152.231-70 
of this chapter.
    (h) The contractor must establish and maintain a system of internal 
control that provides reasonable assurance that:
    (1) The payment of claims and other expenses is in compliance with 
legal, regulatory, and contractual guidelines;
    (2) Funds, property, and other FEGLI Program assets are safeguarded 
against waste, loss, unauthorized use, or misappropriation;
    (3) Revenues and expenditures applicable to FEGLI Program operations 
are properly recorded and accounted for to permit the preparation of 
reliable financial reporting and to maintain accountability over assets; 
and,
    (4) Data are accurately and fairly disclosed in all reports required 
by OPM.
    (i) The contractor must permit representatives of OPM and of the 
General Accounting Office to audit and examine records and accounts 
pertaining to the FEGLI Program at such reasonable times and places as 
may be designated by OPM or the General Accounting Office.

[58 FR 40374, July 28, 1993, as amended at 70 FR 41150, July 18, 2005]

  PART 2110_SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS

                 Subpart 2110.70_Contract Specifications

Sec.

Sec. 2110.7000 Scope of subpart.

Sec. 2110.7001 Definitions.

Sec. 2110.7002 Contractor investment of FEGLI Program funds.

Sec. 2110.7003 Significant events.

Sec. 2110.7004 Contract clauses.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40374, July 28, 1993, unless otherwise noted.

                 Subpart 2110.70_Contract Specifications



Sec. 2110.7000  Scope of subpart.

    This subpart prescribes mandatory specifications for performance 
under FEGLI Program contracts.



Sec. 2110.7001  Definitions.

    Investment income, as used in this subpart, means the net amount on 
an investment of FEGLI Program funds earned by the contractor after 
deducting reasonable, necessary, and properly allocated investment 
expenses.
    Significant event, as used in this subpart, means any occurrence or 
anticipated occurrence that might reasonably be expected to have a 
material effect upon the contractor's ability to meet its obligations 
under the LIFAR.



Sec. 2110.7002  Contractor investment of FEGLI Program funds.

    (a) The Contractor is required to invest and reinvest all FEGLI 
Program funds on hand, including any attributable to the special 
contingency reserve (as used in 5 U.S.C. 8712), until needed to 
discharge promptly the obligations incurred under the contract. Within 
the constraints of safety and liquidity of investments, the Contractor 
must seek to maximize investment income. However, the Contractor will 
not be responsible for any actions taken at the direction of OPM.
    (b) The Contractor is required to credit income earned from its 
investment of FEGLI Program funds to the FEGLI Program. Thus, the 
Contractor

[[Page 413]]

must be able to allocate investment income to the FEGLI Program in an 
appropriate manner. If the Contractor fails to invest funds on hand, 
properly allocate investment income, or credit any income due to the 
contract, for whatever reason, it must return or credit any investment 
income lost to OPM or the FEGLI Program, retroactive to the date that 
such funds should have been originally invested, allocated, or credited 
in accordance with the clause at 2152.210-70 of this chapter.

[70 FR 41150, July 18, 2005]



Sec. 2110.7003  Significant events.

    The contractor is required to inform the contracting officer of all 
significant events.



Sec. 2110.7004  Contract clauses.

    (a) The clause at 2152.210-70 shall be inserted in all FEGLI Program 
contracts.
    (b) The clause at 2152.210-71 shall be inserted in all FEGLI Program 
contracts.

[[Page 414]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

                        PART 2114_SEALED BIDDING

    Authority: 5 U.S.C. 8709; 40 U.S.C. 486(c); 48 CFR 1.301.

                      Subpart 2114.70_Applicability



Sec. 2114.7001  Applicability.

    FAR part 14 has no practical application to the FEGLI Program 
because 5 U.S.C. chapter 87 exempts the FEGLI Program from competitive 
bidding.

[70 FR 41151, July 18, 2005]

                  PART 2115_CONTRACTING BY NEGOTIATION

Sec.

Sec. 2115.070 Negotiation authority.

Sec. 2115.071 Specific retention periods: Contract clause.

        Subpart 2115.1_Source Selection Processes and Techniques


Sec. 2115.170 Applicability.

  Subpart 2115.2_Solicitation and Receipt of Proposals and Information


Sec. 2115.270 Applicability.

                     Subpart 2115.3_Source Selection


Sec. 2115.370 Applicability.

                     Subpart 2115.4_Contract Pricing


Sec. 2115.402 Policy.

Sec. 2115.404-70 Profit.

Sec. 2115.404-71 Profit analysis factors.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40375, July 28, 1993, unless otherwise noted.



Sec. 2115.070  Negotiation authority.

    The authority to negotiate FEGLI Program contracts is conferred by 5 
U.S.C. 8709.

[58 FR 40375, July 28, 1993. Redesignated at 70 FR 41151, July 18, 2005]



Sec. 2115.071  Specific retention periods: Contract clause.

    Unless the contracting officer determines that there exists a 
compelling reason to include only the contract clause specified by FAR 
52.215-2, ``Audit--Negotiation,'' the contracting officer shall also 
insert the clause at 2152.215-70 in all FEGLI Program contracts.

[58 FR 40375, July 28, 1993. Redesignated at 70 FR 41151, July 18, 2005]

        Subpart 2115.1_Source Selection Processes and Techniques



Sec. 2115.170  Applicability.

    FAR subpart 15.1 has no practical application to the FEGLI Program 
because prospective contractors (insurance companies) are considered for 
inclusion in the FEGLI Program in accordance with criteria provided in 5 
U.S.C. chapter 87, LIFAR 2109.7001, and LIFAR 2115.370.

[70 FR 41151, July 18, 2005]

   Subpart 2115.2_Solicitation and Receipt of Proposals and Quotations



Sec. 2115.270  Applicability.

    (a) FAR subpart 15.2 has no practical application to the FEGLI 
Program because 5 U.S.C. chapter 87 exempts the FEGLI Program from 
competitive bidding.
    (b) OPM will announce any opportunities to submit applications to 
provide life insurance through the FEGLI Program in insurance industry 
periodicals and other publications as deemed appropriate by OPM. The 
announcement will contain information on the address to which requests 
for application packages should be submitted and on deadline dates for 
submission of completed applications.
    (c) Eligible contractors (i.e., qualified life insurance companies) 
are identified in accordance with 5 U.S.C. 8709. Prospective contractors 
voluntarily come

[[Page 415]]

forth in accordance with procedures provided in section 2115.370.
    (d) OPM may approve one or more life insurance companies that, in 
its judgment, are best qualified to provide life insurance coverage to 
Federal enrollees.

[58 FR 40375, July 28, 1993. Redesignated and amended at 70 FR 41151, 
July 18, 2005]

                     Subpart 2115.3_Source Selection



Sec. 2115.370  Applicability.

    FAR subpart 15.3 has no practical application to the FEGLI Program 
because prospective contractors (insurance companies) are considered for 
inclusion in the FEGLI Program in accordance with criteria provided in 5 
U.S.C. chapter 87, LIFAR 2109.7001, and the following:
    (a) Applications must be signed by an individual with legal 
authority to enter into a contract on behalf of the company for the 
dollar level of claims and expenses anticipated.
    (b) Applications will be reviewed for evidence of substantial 
compliance in the following areas:
    (1) Management: Stable management with experience pertinent to the 
life insurance industry and, in particular, large group management; 
sufficient operating experience to enable OPM to evaluate past and 
expected future performance.
    (2) Marketing: Past ability to attract and retain large group 
contracts; steady or increasing amount of group life insurance in force.
    (3) Legal expertise: Demonstrated competence in researching, 
compiling, and implementing various Federal and State laws that may 
impact payment of benefits; ability to defend legal challenges to 
payment of benefits.
    (4) Financial condition: Establishment of firm budget projections 
and demonstrated success in keeping costs at or below those projections 
on a regular basis; evidence of the ability to sustain operations in the 
future and to meet obligations under the contract OPM might enter into 
with the company; adequate reserve levels; assets exceeding liabilities.
    (5) Establishment of office: Ability to establish an administrative 
office capable of assessing, tracking, and paying claims.
    (6) Internal controls: Ability to establish and maintain a system of 
internal control that provides reasonable assurance that the payment of 
claims and other expenses will be in compliance with legal, regulatory, 
and contractual guidelines; funds, property, and other FEGLI Program 
assets will be safeguarded against waste, loss, unauthorized use, or 
misappropriation; and revenues and expenditures applicable to FEGLI 
Program operations will be properly recorded and accounted for to permit 
the preparation of timely and accurate financial reporting and to 
maintain accountability over assets.

[58 FR 40375, July 28, 1993. Redesignated and amended at 70 FR 41151, 
July 18, 2005]

                     Subpart 2115.4_Contract Pricing



Sec. 2115.402  Policy.

    Pricing of FEGLI Program premium rates is governed by 5 U.S.C. 8707, 
8708, 8711, 8714a, 8714b, and 8714c. FAR subpart 15.4 will be 
implemented by applying cost analysis policies and procedures. To the 
extent that reasonable or good faith actuarial estimates are used for 
pricing, such estimates will be deemed acceptable and, if inaccurate, 
will not constitute defective pricing.

[70 FR 41151, July 18, 2005]



Sec. 2115.404-70  Profit.

    (a) Risk charge. (1) Section 8711(d) of title 5, United States Code, 
provides for payment of a risk charge to FEGLI Program contractors as 
compensation for the risk assumed under the FEGLI Program. It is 
appropriate to pay such a charge when substantial risk is borne by the 
contractor; that is, when the balance in the Employees' Life Insurance 
Fund is no larger than five times annual claims.
    (2) The risk charge is determined by agreement between the 
contractor and OPM. The amount of risk charge shall be specified in the 
contract.
    (b) Waiver of the risk charge. (1) When the Fund balance is greater 
than five times annual claims, OPM and the contractor may agree that the 
contractor will relinquish the risk charge in favor of a profit 
opportunity in the form of a

[[Page 416]]

service charge for the contractor. The service charge so determined 
shall be the total service charge that may be negotiated for the 
contract and shall encompass any service charge (whether entitled 
service charge, profit, fee, contribution to surpluses, etc.) that may 
have been negotiated by the prime contractor with any subcontractor. At 
no time may both a risk charge and a service charge be paid for the same 
portion of a policy year.
    (2) Once agreement to relinquish the risk charge is made, the 
agreement may not be cancelled unless OPM and the Contractor mutually 
agree to reinstitute payment of a risk charge; or unless the Fund 
balance falls below the level defined in 2115.404-70(a) and 30 days' 
notice of cancellation is provided; or unless the Contractor or OPM 
provides notice of cancellation for any reason 1 year prior to the date 
cancellation is sought.
    (c) Any profit prenegotiation objective (service charge) will be 
determined on the basis of a weighted guidelines structured approach.

[58 FR 40375, July 28, 1993. Redesignated and amended at 70 FR 41151, 
July 18, 2005]



Sec. 2115.404-71  Profit analysis factors.

    (a) The OPM Contracting Officer will apply a weighted guidelines 
method when developing the prenegotiation objective (service charge) for 
the FEGLI Program contract. In accordance with the factors defined in 
FAR 15.404-4(d), OPM will apply the appropriate weights derived from the 
ranges specified in paragraph (b) of this section and will determine the 
prenegotiation objective based on the total dollar amount of the 
Contractor's Basic and Option C (family optional insurance) claims paid 
in the previous contract year.
    (1) Contractor performance. OPM will consider such elements as the 
accurate and timely processing of benefit claims, the volume and 
validity of complaints received by OPM, effectiveness of internal 
controls systems in place, the timeliness and adequacy of reports on 
operations, and responsiveness to OPM offices, enrollees, beneficiaries, 
and Congress as measures of economical and efficient contract 
performance. This factor will be judged apart from the Contractor's 
basic responsibility for contract compliance and will be a measure of 
the extent and nature of the Contractor's contribution to the FEGLI 
Program through the application of managerial expertise and effort. 
Evidence of effective contract performance will receive a plus weight, 
and poor performance or failure to comply with contract terms and 
conditions a zero weight. Innovations of benefit to the FEGLI Program 
will generally receive a plus weight; documented inattention or 
indifference to effective operations, a zero weight.
    (2) Contract cost risk. OPM will evaluate the Contractor's risk 
annually in relation to the amount in the Employees' Life Insurance Fund 
and will evaluate this factor accordingly.
    (3) Federal socioeconomic programs. OPM will consider documented 
evidence of successful Contractor-initiated efforts to support such 
Federal socioeconomic programs as drug and substance abuse deterrents 
and other concerns of the type enumerated in FAR 15.404-4(d)(1)(iii) as 
a factor in negotiating profit. This factor will be related to the 
quality of the Contractor's policies and procedures and the extent of 
exceptional effort or achievement demonstrated. Evidence of effective 
support of Federal socioeconomic programs will result in a plus weight; 
indifference to Federal socioeconomic programs will result in a zero 
weight; and only deliberate failure to provide opportunities to persons 
and organizations that would benefit from these programs will result in 
a negative weight.
    (4) Capital investments. This factor is generally not applicable to 
FEGLI Program contracts because facilities capital cost of money may be 
an allowable administrative expense. Generally, this factor will be 
given a weight of zero. However, special purpose facilities or 
investment costs of direct benefit to the FEGLI Program that are not 
recoverable as allowable or allocable administrative expenses may be 
taken into account in assigning a plus weight.
    (5) Cost control. This factor is based on the Contractor's 
previously demonstrated ability to perform effectively and economically. 
In addition, consideration will be given to measures taken

[[Page 417]]

by the Contractor that result in productivity improvements and other 
cost containment accomplishments that will be of future benefit to the 
FEGLI Program. Examples are containment of costs associated with 
processing claims; success at preventing waste, loss, unauthorized use, 
or misappropriation of FEGLI Program assets; and success at limiting and 
recovering erroneous benefit payments.
    (6) Independent development. Consideration will be given to 
independent Contractor-initiated efforts, such as the development of a 
unique and enhanced customer support system, that are of demonstrated 
value to the FEGLI Program and for which developmental costs have not 
been recovered directly or indirectly through allowable or allocable 
administrative expenses. This factor will be used to provide additional 
profit opportunities based upon an assessment of the Contractor's 
investment and risk in developing techniques, methods, practices, etc., 
having viability to the Program at large. Improvements and innovations 
recognized and rewarded under any other profit factor cannot be 
considered.
    (7) Transitional services. This factor is based on the Contractor's 
performance of transitional activities during a continuity of services 
period as described in the clause at 2152.237-70 of this chapter. These 
are any activities apart from the normal servicing of the contract 
during an active contract term. Other than for a transitional period, 
the weight applied to this factor for any active contract term is zero.
    (b) The weight ranges for each factor to be used in the weighted 
guidelines approach are set forth in the following table:

------------------------------------------------------------------------
            Profit factor                        Weight ranges
------------------------------------------------------------------------
1. Contractor performance...........  0 to +.0005.
2. Contract cost risk...............  +.000001 to +.00001.
3. Federal socioeconomic programs...  -.00003 to +.00003.
4. Capital investment...............  0 to +.00001.
5. Cost control.....................  -.0002 to +.0002.
6. Independent development..........  0 to +.00003.
7. Transitional services............  0 to +.0007.
------------------------------------------------------------------------


[70 FR 41151, July 18, 2005]

                      PART 2116_TYPES OF CONTRACTS

                 Subpart 2116.1_Selecting Contract Types

Sec.

Sec. 2116.105 Solicitation provision.

                  Subpart 2116.2_Fixed-Price Contracts


Sec. 2116.270 FEGLI Program contracts.

Sec. 2116.270-1 Contract clauses.

    Authority: 5 U.S.C. 8709; 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 
1.301.

    Source: 58 FR 40376, July 28, 1993, unless otherwise noted.

                 Subpart 2116.1_Selecting Contract Types



Sec. 2116.105  Solicitation provision.

    FAR 16.105 has no practical application because the statutory 
provisions of 5 U.S.C. chapter 87 obviate the issuance of solicitations.

                  Subpart 2116.2_Fixed-Price Contracts



Sec. 2116.270  FEGLI Program contracts.

    FEGLI Program contracts are fixed price with limited cost 
redetermination plus fixed fee. The premium paid to the Contractor is 
mutually agreed upon by OPM and the Contractor and is based on an 
estimate of benefits and administrative costs, plus the fixed service or 
risk charge, and is determined annually. Claims costs, including 
benefits and administrative expenses, in excess of premiums are paid up 
to the amount in the Employees' Life Insurance Fund. Payment for costs 
exceeding the amount in the Fund are the responsibility of the 
Contractor and reinsurers. The fee is fixed at the inception of each 
contract year. The fee does not vary with the actual costs but may be 
adjusted as a result of changes in the work to be performed under the 
contract. The fee is in the

[[Page 418]]

form of either a risk charge or a service charge.
    (a) Risk charge. The risk charge will be determined as prescribed in 
5 U.S.C. 8711(d) and section 2115.404-70 of this chapter. It will 
consist of a negotiated amount which will reflect the risk assumed by 
the Contractor and the reinsurers and may be adjusted as a result of 
increased or decreased risk under the contract. When the applicable fee 
is a risk charge, no service charge will be paid for the same period of 
time.
    (b) Service charge. The amount of the service charge will be 
determined using a weighted guidelines structured approach in accordance 
with section 2115.404-71 of this chapter and negotiated with the 
Contractor at the beginning of the contract term. When the applicable 
fee is a service charge, no risk charge will be paid for the same period 
of time.

[70 FR 41152, July 18, 2005]



Sec. 2116.270-1  Contract clauses.

    (a) The clause at 2152.216-70 shall be inserted in all FEGLI Program 
contracts when a risk charge is negotiated.
    (b) The clause at 2152.216-71 shall be inserted in all FEGLI Program 
contracts when a service charge is negotiated.

[[Page 419]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

     PART 2122_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    Authority: 5 U.S.C. 8709; 40 U.S.C. 486(c); 48 CFR 1.301.

                   Subpart 2122.1_Basic Labor Policies



Sec. 2122.170  Contract clauses.

    The provisions at FAR sections 52.222-21, 52.222-22, 52-222.25 are 
implemented by changing the word ``offeror'' to ``Contractor'' and the 
word ``solicitation'' to ``contract'' wherever they appear in the text 
to reflect the FEGLI Program's statutory exemption from competitive 
bidding (5 U.S.C. 8709), which obviates the issuance of solicitations.

[58 FR 40377, July 28, 1993]

       PART 2124_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

            Subpart 2124.70_Protection of Individual Privacy

Sec.

Sec. 2124.102 General.

Sec. 2124.102-70 Policy.

Sec. 2124.104 Contract clauses.

Sec. 2124.104-70 Contract clause.

    Authority: 5 U.S.C. 8716, 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40377, July 28, 1993, unless otherwise noted.

            Subpart 2124.70_Protection of Individual Privacy



Sec. 2124.102  General.



Sec. 2124.102-70  Policy.

    Records retained by FEGLI Program contractors on Federal insureds 
and members of their families serve the contractors' own commercial 
function of paying FEGLI Program claims and are not maintained to 
accomplish an agency function of OPM. Consequently, the records do not 
fall within the provisions of the Privacy Act. Nevertheless, OPM 
recognizes the need for the contractors to keep certain records 
confidential. The clause at 2152.224-70 addresses this concern.



Sec. 2124.104  Contract clauses.



Sec. 2124.104-70  Contract clause.

    The clause at 2152.224-70 shall be inserted in all FEGLI Program 
contracts.

[[Page 420]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                      PART 2128_BONDS AND INSURANCE

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

                        Subpart 2128.3_Insurance



Sec. 2128.370  Contract clause.

    The contract clause at FAR 52.228-7 is a mandatory clause in FEGLI 
Program contracts, except paragraph (d) is modified as follows:
    (d) The Government's liability under paragraph (c) of this clause is 
limited to the amount available in the Employee's Life Insurance Fund. 
Nothing in this contract shall be construed as implying that the 
Government will make additional funds available later or that Congress 
will appropriate funds later sufficient to meet deficiencies.

[58 FR 40377, July 28, 1993]

                             PART 2129_TAXES

                         Subpart 2129.1_General

Sec.

Sec. 2129.170 Policy.

                  Subpart 2129.3_State and Local Taxes


Sec. 2129.302 Application of State and local taxes to the Government.

Sec. 2129.305 State and local tax exemptions.

                     Subpart 2129.4_Contract Clauses


Sec. 2129.401 Domestic contracts.

Sec. 2129.401-70 FEGLI Program contract clauses.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40377, July 28, 1993, unless otherwise noted.

                         Subpart 2129.1_General



Sec. 2129.170  Policy.

    (a) OPM shall consider taxes as a FEGLI Program cost under 2131.205-
41.
    (b) For purposes of the limited cost redetermination of a FEGLI 
Program contract, taxes are not limited to those in effect as of the 
contract date, but shall include any taxes enacted, modified, or 
repealed, by legislative, judicial, or administrative means, during the 
contract year.

                  Subpart 2129.3_State and Local Taxes



Sec. 2129.302  Application of State and local taxes to the Government.

    (a) 5 U.S.C. 8714(c)(1) prohibits the imposition of taxes, fees, or 
other monetary payment on FEGLI Program premiums by any State, the 
District of Columbia, the Commonwealth of Puerto Rico, or any political 
subdivision or governmental authority of those entities.
    (b) Paragraph (a) of this section shall not be construed to exempt 
the contractor from the imposition, payment, or collection of a tax, 
fee, or other monetary payment on the net income or profit accruing to 
or realized by it from business conducted under the FEGLI Program if the 
tax, fee, or payment is applicable to a broad range of business 
activity.



Sec. 2129.305  State and local tax exemptions.

    (a) FAR 29.305 is modified for the FEGLI Program by substituting 
paragraph (b) of this section in the place of paragraph (b) of FAR 
29.305.
    (b) Furnishing proof of exemption. If a reasonable basis to sustain 
a claimed exemption exists, the seller will be furnished evidence of 
exemption if requested by the contractor and approved by the contracting 
officer or at the discretion of the contracting officer.

                     Subpart 2129.4_Contract Clauses



Sec. 2129.401  Domestic contracts.



Sec. 2129.401-70  FEGLI Program contract clauses.

    The fixed-price contract clauses in FAR subpart 29.4 are 
inappropriate for the FEGLI Program because of the limited cost-
redetermination of FEGLI Program contracts. The clauses at FAR 52.229-1, 
52.229-2, 52.229-3, and

[[Page 421]]

52.229-4 shall not be inserted into FEGLI Program contracts.

            PART 2131_CONTRACT COST PRINCIPLES AND PROCEDURES

                      Subpart 2131.1_Applicability

Sec.

Sec. 2131.103 Contracts with commercial organizations.

Sec. 2131.109 Advance agreements.

         Subpart 2131.2_Contracts With Commercial Organizations


Sec. 2131.201 General.

Sec. 2131.201-5 Credits.

Sec. 2131.203 Indirect costs.

Sec. 2131.205 Selected costs.

Sec. 2131.205-1 Public relations and advertising costs.

Sec. 2131.205-3 Bad debts.

Sec. 2131.205-6 Compensation for personal services.

Sec. 2131.205-32 Precontract costs.

Sec. 2131.205-38 Selling costs.

Sec. 2131.205-41 Taxes.

Sec. 2131.205-43 Trade, business, technical and professional activity 
          costs.

Sec. 2131.205-70 Major subcontractor service charge.

Sec. 2131.205-71 Reinsurer administrative expense costs.

Sec. 2131.270 Contract clauses.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40378, July 28, 1993, unless otherwise noted.

                      Subpart 2131.1_Applicability



Sec. 2131.103  Contracts with commercial organizations.

    The contracting officer shall incorporate the cost principles and 
procedures of FAR subpart 31.2 and this part by reference in all FEGLI 
Program contracts because of the nature of a fixed price with limited 
cost redetermination plus fixed fee contract.



Sec. 2131.109  Advance agreements.

    FAR 31.109 is applicable to FEGLI Program contracts, except that 
precontract costs and nonrecurring costs that exceed $100,000 will not 
be allowed in the absence of an advance agreement between OPM and any 
potential FEGLI Contractor.

[70 FR 41152, July 18, 2005]

         Subpart 2131.2_Contracts With Commercial Organizations



Sec. 2131.201  General.



Sec. 2131.201-5  Credits.

    The provisions of FAR 31.201-5 shall apply to income, rebates and 
other credits resulting from benefit payments that include, but are not 
limited to--
    (a) Uncashed and returned checks.
    (b) Refunds attributable to litigation with regard to payments of 
FEGLI Program life insurance monies.
    (c) Erroneous benefit payment, refunds, overpayment, and duplicate 
payment recoveries.
    (d) Escheatments.



Sec. 2131.203  Indirect costs.

    The provisions of FAR 31.203 apply to the allocation of indirect 
costs.

[70 FR 41152, July 18, 2005]



Sec. 2131.205  Selected costs.



Sec. 2131.205-1  Public relations and advertising costs.

    The provisions of FAR 31.205-1 shall be modified to include the 
following:
    (a) Costs of media messages are allowable if approved by the 
contracting officer and all of the following criteria are met:
    (1) The primary objective of the message is to disseminate 
information on general health and fitness or encouraging healthful 
lifestyles;
    (2) The costs of the contractor's messages are allocated to all 
underwritten and non-underwritten lines of business; and
    (3) The contracting officer approves the total dollar amount of the 
contractor's messages to be charged to the FEGLI Program in advance of 
the policy year.
    (b) Costs of media messages that inform enrollees about the FEGLI 
Program are allowable if approved by the contracting officer.
    (c) In those instances where contracting officer approval of the 
total dollar amount is not solicited in advance, it is incumbent upon 
the contractor to show the contracting officer, for subsequent approval, 
that the costs

[[Page 422]]

are reasonable and do not unduly burden the administrative cost to the 
contract.
    (d) Costs of messages that are intended to, or which have the 
primary effect of, calling favorable attention to the contractor or 
subcontractor for the purpose of enhancing its overall image or selling 
its product or services are not allowable.



Sec. 2131.205-3  Bad debts.

    Erroneous benefit payments. If the contractor or OPM determines that 
a FEGLI Program benefit has been paid in error for any reason, the 
contractor shall make a diligent effort to recover such erroneous 
payment from the recipient. The contracting officer shall allow an 
unrecovered erroneous payment to be charged to the contract provided the 
contractor demonstrates that the recovery of the erroneous payment was 
attempted in accordance with a system that is approved under 2146.270(b) 
and that either a diligent effort was made to recover the erroneous 
overpayment or it would not be cost effective to recover the erroneous 
overpayment. The contractor's compliance with a system that is approved 
under 2146.270(b) will be deemed to be a diligent effort to recover the 
erroneous overpayment.



Sec. 2131.205-6  Compensation for personal services.

    FAR 31.205-6 is supplemented as follows: Overtime on a FEGLI Program 
contract normally would meet the conditions specified in FAR 22.103. 
Advance approval of the contracting officer is not required for 
overtime, extra-pay shifts, and multi-shifts.



Sec. 2131.205-32  Precontract costs.

    Precontract costs will be allowable in accordance with FAR part 31, 
but precontract costs that exceed $100,000 will not be allowable except 
to the extent allowable under an advance agreement negotiated in 
accordance with section 2131.109 of this chapter.

[70 FR 41152, July 18, 2005]



Sec. 2131.205-38  Selling costs.

    Selling costs are not allowable costs to FEGLI contracts except to 
the extent that they are attributable to conducting contract 
negotiations with the Government and for liaison activities involving 
ongoing contract administration, including the conduct of informational 
and enrollment activities as directed or approved by the Contracting 
Officer.

[70 FR 41152, July 18, 2005]



Sec. 2131.205-41  Taxes.

    (a) FAR 31.205-41, as modified in paragraphs (b) through (e), is 
applicable to contracts in the FEGLI Program.
    (b) As long as 5 U.S.C. 8714(c) or other Federal law prohibits the 
imposition of taxes, fees, or other monetary payments on FEGLI Program 
premiums by any State, the District of Columbia, the Commonwealth of 
Puerto Rico, or any other political subdivision or governmental 
authority of those entities, payment of such preempted tax is an 
unallowable expense under FAR 31.205-41(b)(3).
    (c) Paragraph (b)(1) of FAR 31.205-41 is not applicable to the FEGLI 
Program.
    (d) Notwithstanding any other provision in FAR 31.205-41, the 
portion of the contractor's income or excess profits taxes allocated to 
the FEGLI Program, except those allocated to the risk charge or the 
service charge, are allowable costs under the FEGLI Program, including 
any income or excess profit taxes that arise from the operation of this 
paragraph. Income or excess profits taxes allocated to the risk charge 
or the service charge are not allowable costs.
    (e) Notwithstanding any other provision in FAR 31.205-41, an amount 
equal to the ``DAC Tax'' is an allowable tax expense under FAR 31.205-
41. ``DAC Tax'' means an amount equal to: (1) the amount of the 
contractor's Federal, state, and local income tax allocated to payments 
under the FEGLI Program, less (2) the amount of the contractor's 
Federal, state, and local income tax allocated to payments under the 
FEGLI Program computed without regard to the operation of 26 U.S.C. 848, 
which requires that certain policy acquisition expenses be capitalized 
over a 60- or 120-month period, plus (3) the amount of the increase, if 
any,

[[Page 423]]

in the contractor's Federal, state, and local income tax that results 
from the operation of this section 2131.205-41(e).



Sec. 2131.205-43  Trade, business, technical and professional activity 
          costs.

    (a) FEGLI Program contractors shall seek the advance written 
approval of the contracting officer for allowability of all or part of 
the costs associated with trade, business, technical, and professional 
activities when the allocable costs of such participation to the FEGLI 
Program will exceed $2,500 annually and the contractor allocates more 
than 50 percent of the membership cost of a trade, business, technical, 
or professional organization to the FEGLI Program.
    (b) When approval of costs for membership in an organization is 
required, the contractor must demonstrate conclusively that membership 
in such an organization and participation in its activities extend 
beyond the contractual relationship with OPM, have a reasonable 
relationship to providing services to FEGLI Program insureds, and that 
the organization is not engaged in activities such as those cited in FAR 
31.205-22 (lobbying costs) for which costs are not allowable.



Sec. 2131.205-70  Major subcontractor service charge.

    In a subcontract for enrollment and eligibility determinations, 
administration of claims and payment of benefits and any other 
subcontract for which prior approval is necessary, when costs are 
determined on the basis of actual costs incurred, any amount that 
exceeds the allowable cost of a major subcontract (whether entitled 
service charge, incentive fee, profit, fee, surplus, or any other title) 
is not allowable under the contract. Amounts which exceed allowable 
costs may be paid to a major subcontractor only from the risk charge or 
service charge negotiated between OPM and the contractor.



Sec. 2131.205-71  Reinsurer administrative expense costs.

    A charge of $500 per policy year per reinsurer of the FEGLI Program 
as set forth in the contract is an allowable cost when documented 
through an internal accounting entry of the contractor and actually 
paid. This amount is deemed to be sufficient to reimburse reinsurers for 
the minor administrative expenses incurred in reinsuring the FEGLI 
Program.



Sec. 2131.270  Contract clauses.

    The clause at 2152.231-70 shall be inserted in all FEGLI Program 
contracts.

                      PART 2132_CONTRACT FINANCING

                         Subpart 2132.1_General

Sec.

Sec. 2132.170 Recurring premium payments to contractors.

Sec. 2132.171 Contract clause.

                      Subpart 2132.6_Contract Debts


Sec. 2132.607 Tax credit.

Sec. 2132.617 Contract clause.

                     Subpart 2132.7_Contract Funding


Sec. 2132.770 Insurance premium payments and special contingency 
          reserve.

Sec. 2132.771 Non-commingling of FEGLI Program funds.

Sec. 2132.772 Contract clause.

                   Subpart 2132.8_Assignment of Claims


Sec. 2132.806 Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40379, July 28, 1993, unless otherwise noted.

                         Subpart 2132.1_General



Sec. 2132.170  Recurring premium payments to Contractors.

    (a) OPM will make payments on a letter of credit (LOC) basis. OPM 
and the Contractor will concur on an estimate of benefits and 
administrative costs plus the fixed service or risk charge for the 
forthcoming contract year, as specified in the contract. The annual 
premium to the Contractor, based on this estimate, will be credited to 
the Contractor's LOC account in 12 equal monthly installments due on the 
first business day of each month and available for drawdown. OPM will 
credit the Contractor's LOC account for the December payment no later 
than the last business day of each calendar year.

[[Page 424]]

Following the close of the contract year, a reconciliation of premiums, 
benefits, and other costs will be performed as a limited cost 
redetermination. In addition, interest distribution payments will be 
made available for Contractor drawdown from the LOC account. The 
Contractor will use the LOC account in accordance with guidelines issued 
by OPM.
    (b) Withdrawals from the LOC account for benefit costs of $5,000 or 
more will be made on a claims-paid basis. Withdrawals from the LOC 
account for benefit costs of less than $5,000 and other FEGLI Program 
disbursements will be made on a checks-presented basis. Under a checks-
presented basis, drawdown on the LOC is delayed until the checks issued 
for FEGLI Program disbursements are presented to the Contractor's bank 
for payment.
    (c) Nothing in this chapter will affect the ability of the 
Contractor to hold the special contingency reserve established and 
maintained in accordance with the terms of 5 U.S.C. 8712.

[70 FR 41153, July 18, 2005]



Sec. 2132.171  Contract clause.

    The clause at 2152.232-70 shall be inserted in all FEGLI Program 
contracts.

                      Subpart 2132.6_Contract Debts



Sec. 2132.607  Tax credit.

    FAR 32.607 has no practical application to FEGLI Program contracts. 
The statutory provisions at 5 U.S.C. 8707 and 8708 authorize joint 
enrollee and Government contributions to the Employees' Life Insurance 
Fund. Because the Fund is comprised of contributions by enrollees as 
well as the Government, contractors may not offset debts to the Fund by 
a tax credit that is solely a Government obligation.



Sec. 2132.617  Contract clause.

    The clause at FAR 52.232-17 is modified in FEGLI Program contracts 
to exclude the parenthetical phrase ``(net of any applicable tax credit 
under the Internal Revenue Code (26 U.S.C. 1481)).''

                     Subpart 2132.7_Contract Funding



Sec. 2132.770  Insurance premium payments and special contingency 
          reserve.

    Insurance premium payments and a special contingency reserve are 
made available to FEGLI Program contractors in accordance with 5 U.S.C. 
8712 and 8714.



Sec. 2132.771  Non-commingling of FEGLI Program funds.

    (a) FEGLI Program funds must be maintained in such a manner as to be 
separately identifiable from other assets of the Contractor. Cash and 
investment balances reported on the FEGLI Program Annual Financial 
Report must be supported by the Contractor's books and records.
    (b) This requirement may be modified by the Contracting Officer in 
accordance with the clause at 2152.232-71 of this chapter when adequate 
accounting and other controls are in effect. If the requirement is 
modified, such modification will remain in effect until rescinded by 
OPM.

[70 FR 41153, July 18, 2005]



Sec. 2132.772  Contract clause.

    The clause at 2152.232-71 shall be inserted in all FEGLI Program 
contracts.

                   Subpart 2132.8_Assignment of Claims



Sec. 2132.806  Contract clause.

    The clause set forth in 2152.232-72 shall be inserted in all FEGLI 
Program contracts.

                          PART 2133 [RESERVED]

[[Page 425]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                      PART 2137_SERVICE CONTRACTING

                Subpart 2137.1_Service Contracts_General

Sec.

Sec. 2137.102 Policy.

Sec. 2137.110 Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.

                Subpart 2137.1_Service Contracts_General



Sec. 2137.102  Policy.

    (a) The services under this contract are of vital interest to the 
Government and must be continued without interruption in the event the 
contract is terminated, unless the termination occurs as a result of 
OPM's failure to pay premiums on a timely basis.
    (b) The Contractor will be reimbursed for all reasonable phase-in 
and phase-out costs (i.e., costs incurred within the agreed-upon period 
after contract termination that result from phase-in and phase-out 
operations). The Contractor also will receive a risk or service charge 
for the full period after contract termination during which services are 
continued, not to exceed a pro rata portion of the risk or service 
charge for the final contract year. In addition, OPM will pay the 
Contractor an incentive amount, not to exceed the pro rata risk or 
service charge for the continuity of services period (LIFAR 2152.237-
70), based on exceptional performance during the transition period to a 
new Contractor. The Contracting Officer will use the weighted guidelines 
method described in 2115.404-71 of this chapter in determining the 
incentive amount. The amount of the risk or service charge will be based 
upon the accurate and timely processing of benefit claims, the volume 
and validity of customer service complaints, the timeliness and adequacy 
of reports on operations, and responsiveness to OPM offices, insured 
individuals, beneficiaries, and Congress.

[70 FR 41153, July 18, 2005]



Sec. 2137.110  Contract clause.

    The clause at 2152.237-70 shall be inserted in all FEGLI Program 
contracts in lieu of the clause at 52.237-3 that is prescribed by FAR 
37.110(c).

[[Page 426]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 2143_CONTRACT MODIFICATIONS

                         Subpart 2143.1_General

Sec.

Sec. 2143.101 Definitions.

                      Subpart 2143.2_Change Orders


Sec. 2143.205 Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.

                         Subpart 2143.1_General



Sec. 2143.101  Definitions.

    The effective date of a FEGLI contract modification is as defined in 
FAR 43.101, except to the extent that the definition conflicts with 
LIFAR 2101.370.

                      Subpart 2143.2_Change Orders



Sec. 2143.205  Contract clause.

    The clause at 2152.243-70 shall be inserted in all FEGLI Program 
contracts in lieu of the clauses in FAR 52.243-1 that are prescribed by 
FAR 43.205(a).

            PART 2144_SUBCONTRACTING POLICIES AND PROCEDURES

                         Subpart 2144.1_General

Sec.

Sec. 2144.102 Policy.

                 Subpart 2144.2_Consent to Subcontracts


Sec. 2144.204 Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.

                         Subpart 2144.1_General



Sec. 2144.102  Policy.

    For all FEGLI Program contracts, the Contracting Officer's advance 
approval will be required on subcontracts or modifications to 
subcontracts when the cost of that portion of the subcontract that is 
charged the FEGLI Program contract exceeds $550,000 and is at least 25 
percent of the total cost of the subcontract.

[70 FR 41153, July 18, 2005]

                 Subpart 2144.2_Consent to Subcontracts



Sec. 2144.204  Contract clause.

    The clause set forth at 2152.244-70 shall be inserted in all FEGLI 
Program contracts.

                       PART 2146_QUALITY ASSURANCE

              Subpart 2146.2_Contract Quality Requirements

Sec.

Sec. 2146.201 General.

Sec. 2146.270 FEGLI Program quality assurance requirements.

Sec. 2146.270-1 Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.

              Subpart 2146.2_Contract Quality Requirements



Sec. 2146.201  General.

    (a) This part prescribes policies and procedures to ensure that 
services acquired under the FEGLI Program contract conform to the 
contract's quality requirements.
    (b) OPM will make an initial evaluation of the Contractor's system 
of internal controls under the quality assurance program required by 
2146.270 of this chapter and will acknowledge in writing whether or not 
the system is consistent with the requirements set forth in this 
subpart. After the initial review, subsequent periodic reviews may be 
limited to changes in the Contractor's internal control guidelines.

[[Page 427]]

However, a limited review does not diminish the Contractor's obligation 
to apply the full internal control system.

[58 FR 40380, July 28, 1993, as amended at 70 FR 41153, July 18, 2005]



Sec. 2146.270  FEGLI Program quality assurance requirements.

    (a) The contractor shall develop and apply a quality assurance 
program specifying procedures for assuring contract quality, as directed 
by the contracting officer. At a minimum, the program should include 
procedures to address:
    (1) Accuracy of payments and recovery of overpayments;
    (2) Timeliness of payments to beneficiaries;
    (3) Quality of services and responsiveness to beneficiaries;
    (4) Quality of service and responsiveness to OPM; and
    (5) Detection and recovery of fraudulent claims.
    (b) The Contractor must prepare overpayment recovery guidelines to 
include a system of internal controls.
    (c) The contracting officer may order the correction of a deficiency 
or a modification in the contractor's services and/or quality assurance 
program. The contractor shall take the necessary action promptly to 
implement the contracting officer's order. If the contracting officer 
orders the correction of a deficiency or a modification of the 
contractor's services and/or quality assurance program pursuant to this 
paragraph after the contract year has begun, the costs incurred in 
correcting the deficiency or making the modification will not be 
considered to the contractor's detriment in the cost control factor of 
the service charge [if applicable] for the following contract year. 
However, if there is a deficiency, the deficiency itself may be taken 
into consideration.

[58 FR 40380, July 28, 1993, as amended at 70 FR 41153, July 18, 2005]



Sec. 2146.270-1  Contract clause.

    The clause at 2152.246-70 shall be inserted in all FEGLI Program 
contracts.

                   PART 2149_TERMINATION OF CONTRACTS

Sec.

Sec. 2149.002 Applicability.

               Subpart 2149.5_Contract Termination Clauses


Sec. 2149.505 Other termination clauses.

Sec. 2149.505-70 FEGLI Program contract termination clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.



Sec. 2149.002  Applicability.

    (a) Termination. (1) Termination of FEGLI Program contracts is 
controlled by 5 U.S.C. 8709(c) and this chapter. The procedures for 
termination of FEGLI Program contracts are contained in FAR part 49. For 
the purpose of this part, terminate means to discontinue as used in 5 
U.S.C. 8709(c).
    (2) A life insurance contract entered into by OPM may be terminated 
by OPM at any time for default by the Contractor in accordance with the 
provisions of FAR part 49 and FAR 52.249-8. A life insurance contract 
entered into by OPM may be terminated by the Contractor at the end of 
the grace period, after default for nonpayment by OPM. Notwithstanding 
the preceding sentence, the Contractor will allow OPM an additional 5 
days after the end of the grace period to make payment if the failure to 
make payment was inadvertent and/or due to circumstances beyond the 
Government's control.
    (3) A life insurance contract entered into by OPM may be terminated 
for convenience of the Government 60 days after the Contractor's receipt 
of OPM's written notice to terminate.
    (4) The Contractor may terminate its contract with OPM at the end of 
any contract year when notice of intent to terminate is given to OPM in 
writing at least 60 days prior to the end of the contract year (i.e., no 
later than July 31).
    (b) Continuation of services. The services under this contract are 
of vital interest to the Government and must be continued without 
interruption in the event the contract is terminated for

[[Page 428]]

the Contractor's default or OPM's convenience. Consequently, the 
contract termination procedures contained in this paragraph must be used 
in conjunction with section 2137.102 of this chapter, section 2137.110 
of this chapter, and the provisions of the ``Continuity of Services'' 
clause at 2152.237-70 of this chapter. The Contractor is not required to 
continue performance subsequent to OPM's default for failure to pay 
premiums in accordance with the provisions of the clause at 2152.249-
70(b) of this chapter.
    (c) Settlement. The procedures for settlement of contracts after 
they are terminated are those contained in FAR part 49.

[70 FR 41153, July 18, 2005]

               Subpart 2149.5_Contract Termination Clauses



Sec. 2149.505  Other termination clauses.



Sec. 2149.505-70  FEGLI Program contract termination clause.

    The clause in 2152.249-70 shall be inserted in all FEGLI Program 
contracts.

[[Page 429]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 2152_PRECONTRACT PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 2152.070 Applicable clauses.

              Subpart 2152.2_Text of Provisions and Clauses


Sec. 2152.203-70 Misleading, deceptive, or unfair advertising.

Sec. 2152.204-70 Taxpayer Identification Number.

Sec. 2152.209-70 Certification regarding debarment, suspension, proposed 
          debarment and other responsibility matters during 
          negotiations.

Sec. 2152.209-71 Certification regarding debarment, suspension, proposed 
          debarment and other responsibility matters.

Sec. 2152.210-70 Investment income.

Sec. 2152.210-71 Notice of significant events.

Sec. 2152.215-70 Contractor records retention.

Sec. 2152.216-70 Fixed price with limited cost redetermination--risk 
          charge.

Sec. 2152.216-71 Fixed price with limited cost redetermination--service 
          charge.

Sec. 2152.224-70 Confidentiality of records.

Sec. 2152.231-70 Accounting and allowable cost.

Sec. 2152.232-70 Payments.

Sec. 2152.232-71 Non-commingling of FEGLI Program funds.

Sec. 2152.232-72 Approval for assignment of claims.

Sec. 2152.237-70 Continuity of services.

Sec. 2152.243-70 Changes.

Sec. 2152.244-70 Subcontracts.

Sec. 2152.246-70 Quality assurance requirements.

Sec. 2152.249-70 Renewal and termination.

               Subpart 2152.3_Provision and Clause Matrix


Sec. 2152.370 Use of the matrix.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c), 48 CFR 1.301.

    Source: 58 FR 40381, July 28, 1993, unless otherwise noted.



Sec. 2152.070  Applicable clauses.

    The clauses of FAR subpart 52.2 specified below shall be applicable 
to FEGLI Program contracts. The most recent edition of the clause in the 
FAR shall be applied unless otherwise provided in the contract.

                        Section and Clause Title

52.202-1 Definitions
52.203-3 Gratuities
52.203-5 Covenant against Contingent Fees
52.203-6 Restrictions on Subcontractor Sales to the Government
52.203-7 Anti-Kickback Procedures
52.203-12 Limitation on Payments to Influence Certain Federal 
Transactions
52.209-6 Protecting the Government's Interest When Subcontracting with 
Contractors Debarred, Suspended, or Proposed for Debarment
52.215-2 Audit and Records--Negotiation
52.215-10 Price Reduction for Defective Cost or Pricing Data
52.215-12 Subcontractor Cost or Pricing Data
52.215-15 Pension Adjustments and Asset Reversions
52.215-16 Facilities Capital Cost of Money
52.215-17 Waiver of Facilities Capital Cost of Money
52.215-18 Reversion or Adjustment of Plans for Postretirement Benefits 
(PRB) Other Than Pensions
52.219-8 Utilization of Small Business Concerns
52.222-1 Notice to the Government of Labor Disputes
52.222-3 Convict Labor
52.222-4 Contract Work Hours and Safety Standards Act--Overtime 
Compensation
52.222-21 Prohibition of Segregated Facilities
52.222-22 Previous Contracts and Compliance Reports
52.222-25 Affirmative Action Compliance
52.222-26 Equal Opportunity
52.222-29 Notification of Visa Denial
52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of 
the Vietnam Era, and Other Eligible Veterans
52.222-36 Affirmative Action for Workers with Disabilities
52.222-37 Employment Reports on Special Disabled Veterans, Veterans of 
the Vietnam Era, and Other Eligible Veterans
52.223-6 Drug-Free Workplace
52.227-1 Authorization and Consent
52.227-2 Notice and Assistance regarding Patent and Copyright 
Infringement
52.228-7 Insurance--Liability to Third Persons
52.232-9 Limitation on Withholding of Payments
52.232-17 Interest
52.232-23 Assignment of Claims
52.232-33 Payment by Electronic Funds Transfer--Central Contractor 
Registration
52.233-1 Disputes (Alternate I)
52.242-1 Notice of Intent to Disallow Costs
52.242-3 Penalties for Unallowable Costs
52.242-13 Bankruptcy
52.244-5 Competition in Subcontracting

[[Page 430]]

52.245-2 Government Property (Fixed-Price Contracts)
52.246-4 Inspection of Services--Fixed Price
52.246-25 Limitation of Liability--Services
52.247-63 Preference for U.S.-Flag Air Carriers
52.249-2 Termination for Convenience of the Government (Fixed Price)
52.249-8 Default (Fixed Price Supply and Service)
52.249-14 Excusable Delays
52.251-1 Government Supply Sources
52.252-4 Alterations in Contract
52.252-6 Authorized Deviations in Clauses

[58 FR 40381, July 28, 1993, as amended at 70 FR 41154, July 18, 2005]

              Subpart 2152.2_Text of Provisions and Clauses



Sec. 2152.203-70  Misleading, deceptive, or unfair advertising.

    As prescribed in 2103.571, insert the following clause:

         Misleading, Deceptive, or Unfair Advertising (OCT 2005)

    The Contractor agrees that any advertising material authorized and 
released by the Contractor which mentions the FEGLI Program must be 
truthful and not misleading and must present an accurate statement of 
FEGLI Program benefits. The Contractor is prohibited from making 
incomplete and/or incorrect comparisons or using disparaging or 
minimizing techniques to compare its other products or services to those 
of the FEGLI Program. The Contractor agrees to use reasonable efforts to 
assure that agents selling its other products are aware of and abide by 
this provision. The Contractor agrees to incorporate this clause in all 
subcontracts as defined at LIFAR 2102.101.

                             (End of clause)

[70 FR 41154, July 18, 2005]



Sec. 2152.204-70  Taxpayer Identification Number.

    As prescribed in 2104.9001, insert the following clause:

                Taxpayer Identification Number (OCT 2005)

    (a) Definitions.
    Common parent, as used in this provision, means that corporate 
entity that owns or controls an affiliated group of corporations that 
files its Federal income tax returns on a consolidated basis, and of 
which the Contractor is a member.
    Taxpayer Identification Number (TIN), as used in this provision, 
means the number required by the Internal Revenue Service (IRS) to be 
used by the Contractor in reporting income tax and other returns. The 
TIN is the Contractor's Social Security Number.
    (b) The Contractor must submit the information required in 
paragraphs (d) through (f) of this clause to comply with debt collection 
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of 
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by 
the IRS. The Contractor is subject to the payment reporting requirements 
described in FAR 4.904. The Contractor's failure or refusal to furnish 
the information will result in payment being withheld until the TIN is 
provided.
    (c) The Government may use the TIN to collect and report on any 
delinquent amounts arising out of the Contractor's relationship with the 
Government (31 U.S.C. 7701(c)(3)). The TIN provided hereunder may be 
matched with IRS records to verify its accuracy.
    (d) Taxpayer Identification Number (TIN).

 TIN:___________________________________________________________________

    (e) Type of organization.
    [squ] Corporate entity (tax-exempt);

    [squ] Other ------------

    (f) Common parent.
    [squ] Contractor is not owned or controlled by a common parent as 
defined in paragraph (a) of this clause.
    [squ] Name and TIN of common parent:

 Name___________________________________________________________________

 TIN____________________________________________________________________

                             (End of clause)

[70 FR 41154, July 18, 2005]



Sec. 2152.209-70  Certification regarding debarment, suspension, 
          proposed debarment and other responsibility matters during 
          negotiations.

    As prescribed in 2109.409(a), the contracting officer may require a 
potential contractor to provide the following certification:

 Certification Regarding Debarment, Suspension, Proposed Debarment, and 
                 Other Responsibility Matters (OCT 1993)

    (a)(1) The undersigned certifies, to the best of its knowledge and 
belief, that--
    (i) The undersigned and/or any of its Principals--
    (A) Are ( ) are not ( ) presently debarred, suspended, proposed for 
debarment, or declared ineligible for the award of contracts by any 
Federal agency;
    (B) Have ( ) have not ( ), within a 3-year period preceding this 
certification, been convicted of or had a civil judgment rendered 
against them for: Commission of fraud or a

[[Page 431]]

criminal offense in connection with obtaining, attempting to obtain, or 
performing a public (Federal, state, or local) contract or subcontract; 
violation of Federal or state antitrust statutes relating to the 
submission of offers; or commission of embezzlement, theft, forgery, 
bribery, falsification or destruction of records, making false 
statements, or receiving stolen property; and
    (C) Are ( ) are not ( ) presently indicted for, or otherwise 
criminally or civilly charged by a governmental entity with, commission 
of any of the offenses enumerated in subdivision (a)(2) of this clause.
    (ii) The undersigned has ( ) has not ( ), within a 3-year period 
preceding this certification, had one or more contracts terminated for 
default by any Federal agency.
    (2) ``Principals,'' for the purposes of this certification, means 
officers; directors; owners; partners; and persons having primary 
management or supervisory responsibilities within a business entity 
(e.g., general manager; plant manager; head of a subsidiary, division, 
or business segment, and similar positions).
    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the undersigned subject to 
prosecution under section 1001, title 18, United States Code.
    (b) The undersigned shall provide immediate written notice to the 
Contracting Officer if, at any time prior to the contract award, the 
undersigned learns that its certification was erroneous when submitted 
or has become erroneous by reason of changed circumstances.
    (c) A certification that any of the actions mentioned in paragraph 
(a) of this provision exists will not necessarily result in the 
withholding of an award under a contract under the FEGLI Program. 
However, the certification, or the undersigned's failure to provide such 
additional information as requested by the Contracting Officer will be 
considered in connection with a determination of the undersigned's 
responsibility under LIFAR subpart 2109.70, Minimum Standards for FEGLI 
Program Contractors.
    (d) Nothing contained in this certification shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by paragraph (a). The knowledge and 
information of the undersigned is not required to exceed that which is 
normally possessed by a prudent person in the ordinary course of 
business dealings.
    (e) The certification in (a) is a material representation of fact 
upon which reliance is placed during negotiation of a FEGLI Program 
contract. If it is later determined that the undersigned knowingly 
rendered an erroneous certification, in addition to other remedies 
available to the Government, the Contracting Officer may terminate the 
contract resulting from this certification for default.

(Name of Company)

By:_____________________________________________________________________

(Signature)

________________________________________________________________________

(Name and Title of Signatory)

Date signed:____________________________________________________________

                          (End of certificate)



Sec. 2152.209-71  Certification regarding debarment, suspension, 
          proposed debarment, and other responsibility matters.

    As prescribed in 2109.409(b), insert the following clause:

     Certification by FEGLI Program Contractor Regarding Debarment, 
 Suspension, Proposed Debarment, and Other Responsibility Matters (OCT 
                                  1993)

    (a)(1) The Contractor certifies, to the best of its knowledge and 
belief, that--
    (i) The Contractor and/or any of its Principals--
    (A) Are ( ) are not ( ) presently debarred, suspended, proposed for 
debarment, or declared ineligible for the award of contracts by any 
Federal agency;
    (B) Have ( ) have not ( ), within a 3-year period preceding this 
certification, been convicted of or had a civil judgment rendered 
against them for: Commission of fraud or a criminal offense in 
connection with obtaining, attempting to obtain, or performing a public 
(Federal, state, or local) contract or subcontract; violation of Federal 
or state antitrust statutes relating to the submission of offers; or 
commission of embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements, or receiving stolen 
property; and
    (C) Are ( ) are not ( ) presently indicted for, or otherwise 
criminally or civilly charged by a governmental entity with, commission 
of any of the offenses enumerated in subdivision (a)(2) of this clause.
    (ii) The Contractor has ( ) has not ( ), within a 3-year period 
preceding this certification, had one or more contracts terminated for 
default by any Federal agency.
    (2) ``Principals,'' for the purposes of this certification, means 
officers; directors; owners; partners; and persons having primary 
management or supervisory responsibilities within a business entity 
(e.g., general manager; plant manager; head of a subsidiary, division, 
or business segment, and similar positions).
    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious,

[[Page 432]]

or fraudulent certification may render the Contractor subject to 
prosecution under section 1001, title 18, United States Code.
    (b) The Contractor shall provide immediate written notice to the 
Contracting Officer if, at any time, the Contractor learns that its 
certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    (c) A Contractor's certification that any of the actions mentioned 
in the certification exists will not necessarily result in termination 
of the contract. However, the certification, or the Contractor's failure 
to provide such additional information as requested by the Contracting 
Officer will be considered in connection with a determination of the 
Contractor's responsibility under LIFAR subpart 2109.70, Minimum 
Standards for FEGLI Program Contractors.
    (d) Nothing contained in the certification shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by this section. The knowledge and 
information of the Contractor is not required to exceed that which is 
normally possessed by a prudent person in the ordinary course of 
business dealings.
    (e) The certification in this section is a material representation 
of fact upon which reliance is placed by the Contracting Officer in 
making this contract. If it is later determined that the Contractor 
knowingly rendered an erroneous certification, in addition to other 
remedies available to the Government, the Contracting Officer may 
terminate the contract for default.

                             (End of clause)



Sec. 2152.210-70  Investment income.

    As prescribed in 2110.7004(a), insert the following clause:

                      Investment Income (OCT 2005)

    (a) The Contractor must invest and reinvest all FEGLI Program funds 
on hand until needed to discharge promptly the obligations incurred 
under the contract. Within the constraints of safety and liquidity of 
investments, the Contractor must seek to maximize investment income. 
However, the Contractor will not be responsible for any actions taken at 
the direction of OPM.
    (b) All investment income earned on FEGLI Program funds shall be 
credited to the FEGLI Program.
    (c) When the Contracting Officer concludes that the Contractor 
failed to comply with paragraph (a) or (b) of this clause, the 
Contractor must pay to OPM the investment income that would have been 
earned, at the rate(s) specified in paragraph (d) of this clause, had it 
not been for the Contractor's noncompliance. Failed to comply with 
paragraph (a) or (b) of this clause means:
    (1) Making any charges against the contract which are not actual, 
allowable, allocable, or reasonable; or
    (2) Failing to credit any income due the contract and/or failing to 
place funds on hand, including premium payments and payments from OPM 
not needed to discharge promptly the obligations incurred under the 
contract, tax refunds, credits, deposits, investment income earned, 
uncashed checks, or other amounts owed OPM in income-producing 
investments and accounts.
    (d)(1) Investment income lost as a result of unallowable, 
unallocable, or unreasonable charges against the contract shall be paid 
from the 1st day of the contract term following the contract term in 
which the unallowable charge was made and shall end on the earlier of: 
(i) The date the amounts are returned to OPM; (ii) the date specified by 
the Contracting Officer; or, (iii) the date of the Contracting Officer's 
Final Decision.
    (2) Investment income lost by the Contractor as a result of failure 
to credit income due under the contract or failure to place funds on 
hand in income-producing investments and accounts must be paid from the 
date the funds should have been invested or appropriate income was not 
credited and will end on the earlier of:
    (i) The date the amounts are returned to OPM;
    (ii) The date specified by the Contracting Officer; or
    (iii) The date of the Contracting Officer's final decision.
    (3) The Contractor shall credit to the FEGLI Program income that is 
due in accordance with this clause. All amounts payable shall bear lost 
investment income compounded semiannually at the rate established by the 
Secretary of the Treasury as provided in section 12 of the Contract 
Disputes Act of 1978 (Pub. L. 95-563), during the periods specified in 
paragraphs (d)(1) and (d)(2).
    (4) All amounts due and unpaid after the periods specified in 
paragraphs (d)(1) and (d)(2) shall bear simple interest at the rate 
applicable for each 6-month period as fixed by the Secretary of the 
Treasury until the amount is paid [see FAR 32.614-1].

                             (End of clause)

[58 FR 40381, July 28, 1993, as amended at 70 FR 41154, July 18, 2005]



Sec. 2152.210-71  Notice of significant events.

    As prescribed in 2110.7004(b), insert the following clause:

[[Page 433]]

                 Notice of Significant Events (OCT 2005)

    (a) The Contractor agrees to notify OPM of any significant event 
within 10 working days after the Contractor becomes aware of it. As used 
in this section, a ``significant event'' is any occurrence of 
anticipated occurrence that might reasonably be expected to have a 
material effect upon the Contractor's ability to meet its obligations 
under this contract, including, but not limited to, any of the 
following:
    (1) Disposal of 25 percent or more of the Contractor's assets within 
a six-month period;
    (2) Termination or modification of any contract or subcontract if 
such termination or modification might have a material effect on the 
Contractor's obligations under this contract;
    (3) Loss of 20 percent or more of FEGLI Program reinsurers in a 
contract year;
    (4) The imposition of, or notice of the intent to impose, a 
receivership, conservatorship, or special regulatory monitoring;
    (5) The withdrawal of, or notice of intent to withdraw, by any State 
or the District of Columbia, its license to do life insurance business 
or any other change of life insurance status under State law;
    (6) The Contractor's material default on a loan or other financial 
obligation;
    (7) Any actual or potential labor dispute that delays or threatens 
to delay timely performance or substantially impairs the functioning of 
the Contractor's facilities or facilities used by the Contractor in the 
performance of the contract;
    (8) Any change in its charter, constitution, or by-laws which 
affects any provision of this contract or the Contractor's participation 
in the Federal Employees' Group Life Insurance Program;
    (9) Any significant changes in policies and procedures or 
interpretations of the contract which would affect the benefits payable 
under the contract or the costs charged to the contract;
    (10) Any fraud, embezzlement or misappropriation of FEGLI Program 
funds; or
    (11) Any written exceptions, reservations, or qualifications 
expressed by the independent accounting firm (which ascribes to the 
standards of the American Institute of Certified Public Accountants) 
contracted with by the Contractor to provide an audit opinion on the 
annual financial report required by OPM for the FEGLI Program. 
Accounting firm employees must audit the report in accordance with 
Generally Accepted Government Auditing Standards or other requirements 
issued by OPM.
    (b) Upon learning of a significant event, OPM may institute action, 
in proportion to the seriousness of the event, to protect the interest 
of insureds, including, but not limited to--
    (1) Directing the Contractor to take corrective action; or
    (2) Making a downward adjustment to the weight in the ``Contractor 
Performance'' factor of the service charge.
    (c) Prior to taking action as described in paragraph (b) of this 
clause, OPM will notify the Contractor and offer an opportunity to 
respond.
    (d) The Contractor agrees to insert this clause in any subcontract 
or subcontract modification when the amount of the subcontract or 
modification that is charged to the FEGLI Program contract exceeds 
$550,000 and is at least 25 percent of the total cost of the 
subcontract.

                             (End of clause)

[58 FR 40381, July 28, 1993, as amended at 70 FR 41155, July 18, 2005]



Sec. 2152.215-70  Contractor records retention.

    As prescribed in 2115.071, insert the following clause:

                 Contractor Records Retention (OCT 2005)

    Notwithstanding the provisions of FAR 52.215-2(f), ``Audit and 
Records--Negotiation,'' the Contractor must retain and make available 
all records applicable to a contract term that support the annual 
financial report for a period of 5 years after the end of the contract 
term to which the records relate. Claim records must be maintained for 
10 years after the end of the contract term to which the claim records 
relate. If the Contractor chooses to maintain paper documents in 
electronic format, the electronic version must be an exact replica of 
the paper document.

                             (End of clause)

[70 FR 41155, July 18, 2005]



Sec. 2152.216-70  Fixed price with limited cost redetermination--risk 
          charge.

    As prescribed in 2116.270-1(a), insert the following clause when a 
risk charge is negotiated:

 Fixed Price With Limited Cost Redetermination Plus Fixed Fee Contract--
                         Risk Charge (OCT 2005)

    (a) This is a fixed price with limited cost redetermination plus 
fixed fee contract, with the fixed fee in the form of a risk charge. OPM 
will pay the Contractor the risk charge as specified in a letter from 
the Contracting Officer.

[[Page 434]]

    (b) At the Contractor's request, OPM will furnish, during the third 
quarter of the current contract year, an accounting of the funds in the 
Employees' Life Insurance Fund as of the end of the second quarter of 
the contract year.

                             (End of clause)

[70 FR 41155, July 18, 2005]



Sec. 2152.216-71  Fixed price with limited cost redetermination--service 
          charge.

    As prescribed in 2116.270-1(b), insert the following clause when a 
service charge is negotiated:

 Fixed Price With Limited Cost Redetermination Plus Fixed Fee Contract--
                        Service Charge (OCT 2005)

    (a) This is a fixed price with limited cost redetermination plus 
fixed fee contract, with the fixed fee in the form of a service charge. 
OPM will pay the Contractor the service charge as specified in a letter 
from the Contracting Officer.
    (b) At the Contractor's request, OPM will furnish, during the third 
quarter of the current contract year, an accounting of the funds in the 
Employees' Life Insurance Fund as of the end of the second quarter of 
the contract year.

                             (End of clause)

[70 FR 41155, July 18, 2005]



Sec. 2152.224-70  Confidentiality of records.

    As prescribed in 2124.104-70, insert the following clause:

                  Confidentiality of Records (OCT 2005)

    (a) The Contractor will use the personal data on employees and 
annuitants that is provided by agencies and OPM, including social 
security numbers, for only those routine uses stipulated for the data 
and published in the Federal Register as part of OPM's notice of systems 
of records.
    (b) The Contractor shall also hold all medical records, evidence of 
insurability for insurance coverage, designations of beneficiaries, 
amounts of insurance, and information relating thereto, of the insured 
and family members confidential except for disclosure as follows:
    (1) As may be reasonably necessary for the administration of this 
contract;
    (2) As authorized by the insured or his or her estate;
    (3) As necessary to permit Government officials having authority to 
investigate and prosecute alleged civil or criminal actions; and
    (4) As necessary to audit the contract.

                             (End of clause)

[58 FR 40381, July 28, 1993, as amended at 70 FR 41155, July 18, 2005]



Sec. 2152.231-70  Accounting and allowable cost.

    As prescribed in 2131.270, insert the following clause:

                Accounting and Allowable Cost (OCT 2005)

    (a) Annual financial report. (1) The Contractor must prepare 
annually a financial report summarizing the financial operations of the 
FEGLI Program for the previous contract year. This report will be due to 
OPM in accordance with a date established by OPM's requirements.
    (2) The Contractor must have the most recent financial report for 
the FEGLI Program audited by an independent public accounting firm that 
ascribes to the standards of the American Institute of Certified Public 
Accountants. The audit must be performed in accordance with Generally 
Accepted Government Auditing Standards or other requirements issued by 
OPM. The report by the independent accounting firm on its audit must be 
submitted to OPM along with the annual financial report.
    (3) Based on the results of either the independent audit or a 
Government audit, the FEGLI contract may be:
    (i) Adjusted by amounts found not to constitute chargeable costs; or
    (ii) Adjusted for prior overpayments or underpayments.
    (b) Definition of costs. (1) A cost is chargeable to the contract 
for a contract term if it is:
    (i) An actual, allowable, allocable, and reasonable cost;
    (ii) Incurred with proper justification and accounting support;
    (iii) Determined in accordance with subpart 31.2 of the Federal 
Acquisition Regulation (FAR) and subpart 2131.2 of the Federal 
Employees' Group Life Insurance Acquisition Regulation (LIFAR) 
applicable on October 1 of each year; and
    (iv) Determined in accordance with the terms of this contract.
    (2) In the absence of specific contract terms to the contrary, 
contract costs will be classified in accordance with the following 
criteria:
    (i) Benefits. Claims costs consist of payments made and costs 
incurred (including delayed settlement interest) by the Contractor for 
life insurance, accidental death and dismemberment insurance, excess 
mortality charges, post-mortem conversion

[[Page 435]]

charges, and conversion policies on behalf of insured persons, less any 
overpayments recovered (subject to the terms of LIFAR 2131.205-3), 
refunds, or other credits received.
    (ii)(A) Administrative expenses. Administrative expenses consist of 
chargeable costs as defined in paragraph (b)(1) of this clause incurred 
in the adjudication of claims or incurred in the Contractor's overall 
operation of the business. Unless otherwise provided in the contract, 
FAR, or LIFAR, administrative expenses include, but are not limited to, 
taxes, service charges to reinsurers, the cost of investigation and 
settlement of policy claims, the cost of maintaining records regarding 
payment of claims, and legal expenses incurred in the litigation of 
benefit payments. Administrative expenses exclude the expenses related 
to investment income in paragraph (b)(2)(iii) of this clause.
    (B) Administrative expense ceiling. Each year an administrative 
expense ceiling for the following contract year is calculated based on 
the prior contract year's administrative expense ceiling, adjusted by 
the percentage change in the average monthly consumer Price Index for 
All Urban Consumers for the preceding 12 months. Administrative expenses 
are reimbursed up to the administrative expense ceiling or actual costs, 
whichever is less. Both parties will reexamine the base, including the 
prior year's actual expenses, at the request of either OPM or the 
Contractor. Within the administrative expense ceiling is a separately 
negotiated limit for indirect costs that may be charged against the 
ceiling for the contract year. The Contractor agrees to provide annually 
to the Contracting Officer a detailed report of direct and indirect 
administrative costs which form the basis for determining the limit on 
indirect costs for the following contract year. During a continuity of 
services period, OPM and the Contractor will negotiate a one-time 
increase in the administrative expense ceiling to cover phase-in/phase-
out costs. Costs that exceed the revised ceiling must be submitted by 
the Contractor, in writing and in advance of their incurrence, to the 
Contracting Officer for approval.
    (iii) Investment income. Investment income represents the amount 
earned by the Contractor after deducting chargeable investment expenses. 
Investment expenses are those chargeable contract costs, as defined in 
paragraph (b)(1) of this clause, which are attributable to the 
investment of FEGLI funds.
    (c) Certification of Annual Financial Report. (1) The Contractor 
must certify the annual financial report in the form set forth in 
paragraph (c)(2) of this clause. The certificate must be signed by the 
chief executive officer for the Contractor's FEGLI Program operations 
and the chief financial officer for the Contractor's FEGLI Program 
operations and must be returned with the annual financial report.
    (2) The certification required must be in the following form:

                Certification of Annual Financial Report

    This is to certify that I have reviewed this financial report and, 
to the best of my knowledge and belief, attest that:
    1. The report was prepared in conformity with the guidelines issued 
by the Office of Personnel Management and fairly presents the financial 
results of this contract year in conformity with those guidelines;
    2. The costs included in the report are actual, allowable, 
allocable, and reasonable in accordance with the terms of the contract 
and with the cost principles of the Federal Employees' Group Life 
Insurance Program Acquisition Regulation (LIFAR) and the Federal 
Acquisition Regulation (FAR);
    3. Income, overpayments, refunds, and other credits made or owed in 
accordance with the terms of the contract and applicable cost principles 
have been included in the report.

 Contractor Name:_______________________________________________________

(Chief Executive Officer for FEGLI Operations)

 Date signed:___________________________________________________________

(Chief Financial Officer for FEGLI Operations)

 Date signed:___________________________________________________________

(Type or print and sign)

                          (End of certificate)

[70 FR 41155, July 18, 2005]



Sec. 2152.232-70  Payments.

    As prescribed in 2132.171, insert the following clause:

                           Payments (OCT 2005)

    (a) OPM will make available to the Contractor, in full settlement of 
its obligations under this contract, subject to adjustment based on 
actual claims and administrative cost, a fixed premium once per month on 
the first business day of the month. The premium is determined by an 
estimate of costs for the contract year as provided in Section -------- 
and is redetermined annually by mutual agreement of OPM and the 
Contractor. In addition, an annual reconciliation of premiums, benefits, 
and other costs is performed, and additional payment by OPM or 
reimbursement by the Contractor is paid as necessary.
    (b) If OPM fails to fund the Letter of Credit (LOC) account for the 
full amount of premium due by the due date, a grace period of 31 days 
will be granted to OPM for providing

[[Page 436]]

any premium due, unless OPM has previously given written notice to the 
Contractor that the contract is to be discontinued. The contract will 
continue in force during the grace period.
    (c) If OPM fails to fund the LOC account for any premiums within the 
grace period, the contract may be terminated at the end of the 31st day 
of the grace period in accordance with LIFAR 2149.002(a)(2). If during 
the grace period OPM presents written notice to the Contractor that the 
contract is to be terminated before the expiration of the grace period, 
the contract will be terminated the later of the date of receipt of such 
written notice by the Contractor or the date specified by OPM for 
termination. In either event, OPM will be liable to the Contractor for 
all premiums then due and unpaid.
    (d) In accordance with LIFAR 2143.205 and LIFAR 2252.243-70, 
Changes, if a change is made to the contract that increases or decreases 
the cost of performance of the work under this contract, the Contracting 
Officer will make an equitable adjustment to the payments under this 
contract.
    (e) In the event this contract is terminated in accordance with 
LIFAR part 2149, the special contingency reserve held by the Contractor 
will be available to pay the necessary and proper charges against this 
contract after other Program assets held by the Contractor are 
exhausted.

                             (End of clause)

[70 FR 41156, July 18, 2005]



Sec. 2152.232-71  Non-commingling of FEGLI Program funds.

    As prescribed in 2132.772, insert the following clause:

                   Non-commingling of Funds (OCT 2005)

    (a) The Contractor must maintain FEGLI Program funds in such a 
manner as to be separately identifiable from other assets of the 
Contractor.
    (b) The Contractor may request a modification of paragraph (a) of 
this section from the Contracting Officer. The modification must be 
requested, and approved by the Contracting Officer, in advance of any 
change, and the Contractor must demonstrate that accounting techniques 
have been established that clearly measure FEGLI Program cash and 
investment income (i.e., subsidiary ledgers). Reconciliations between 
amounts reported and actual amounts shown in accounting records must be 
provided as supporting schedules to the annual financial report.

                             (End of clause)

[70 FR 41156, July 18, 2005]



Sec. 2152.232-72  Approval for assignment of claims.

    As prescribed in 2132.806, insert the following clause:

              Approval For Assignment of Claims (OCT 1993)

    (a) The Contractor shall not make any assignment of FEGLI Program 
funds under the Assignment of Claims Act without the prior written 
approval of the Contracting Officer.
    (b) Unless a different period is specified in the Contracting 
Officer's written approval, an assignment of FEGLI Program funds shall 
be in force only for a period of 1 year from the date of the Contracting 
Officer's approval. However, assignments may be renewed upon their 
expiration.

                             (End of clause)



Sec. 2152.237-70  Continuity of services.

    As prescribed in 2137.110, insert the following clause:

                    Continuity of Service (OCT 2005)

    (a) The Contractor recognizes that the services under this contract 
are vital to the Government and must be continued without interruption. 
The Contractor further recognizes that upon contract expiration or 
termination, including termination by the Contractor for OPM's failure 
to make timely premium payments, a successor, either the Government or 
another Contractor, may continue them. The Contractor agrees to furnish 
phase-in training and exercise its best efforts and cooperation to 
effect an orderly and efficient transition to a successor.
    (b) The Contractor shall, upon the Contracting Officer's written 
notice, (1) furnish phase-in and phase-out services for up to 10 months 
after this contract expires and (2) negotiate in good faith a plan with 
a successor to determine the nature and extent of phase-in and phase-out 
services required. The plan shall specify a training program and a date 
for transferring responsibilities for each division of work described in 
the plan, and shall be subject to the Contracting Officer's approval. 
The Contractor shall provide sufficient experienced personnel during the 
phase-in and phase-out period to ensure that the services called for by 
this contract are maintained at the required level of proficiency.
    (c) The Contractor must allow as many experienced personnel as 
practicable to remain on the job during the transition period to help 
the successor maintain the continuity and consistency of the services 
required by

[[Page 437]]

this contract. The Contractor also must, except if prohibited by 
applicable law, disclose necessary personnel records and allow the 
successor to conduct onsite interviews with these employees. If selected 
employees are agreeable to the change, the Contractor must release them 
at a mutually agreeable date and negotiate transfer of their earned 
fringe benefits to the successor.
    (d) The Contractor will be reimbursed for all reasonable phase-in, 
phase-out costs (i.e., costs incurred within the agreed period after 
contract termination that result from phase-in and phase-out operations) 
in accordance with the provisions of the administrative expense ceiling 
in the clause at 2152.231-70(b)(2)(ii)(B) and a risk charge or a service 
charge (profit) not to exceed a pro rata portion of the risk or service 
charge under this contract. The amount of profit will be based upon the 
accurate and timely processing of benefit claims, the volume and 
validity of complaints received by OPM, the timeliness and adequacy of 
reports on operations, and responsiveness to OPM offices, enrollees, 
beneficiaries, and Congress. In setting the final profit figure, 
obstacles overcome by the Contractor during the phase-in and phase-out 
period will be taken into consideration. OPM will pay an incentive 
amount to the Contractor not to exceed the pro rata risk or service 
charge for the continuity of services period, if the Contractor has 
performed exceptionally during the transition period to a new 
Contractor. The Contracting Officer uses the weighted guidelines method 
described in LIFAR 2115.404-71 in determining the incentive amount.

                             (End of clause)

[58 FR 40381, July 28, 1993, as amended at 70 FR 41157, July 18, 2005]



Sec. 2152.243-70  Changes.

    As prescribed in 2143.205, insert the following clause:

                           Changes (OCT 2005)

    (a) Except as provided in paragraph (f) of this clause, the 
Contracting Officer may at any time, by written order, and without 
notice to the sureties, if any, make changes within the general scope of 
this contract in any one or more of the following:
    (1) Description of services to be performed;
    (2) Time of performance (i.e., hours of the day, days of the week, 
etc.);
    (3) Place of performance of the services.
    (b) If any such change causes an increase or decrease in the cost 
of, or the time required for, performance of any part of the work under 
this contract, or the Contractor's liability under this contract, 
whether or not changed by the order, the Contracting Officer shall make 
an equitable adjustment in the contract price, the delivery schedule, or 
both, and shall modify the contract.
    (c) The Contractor must assert its right to an adjustment under this 
clause within 30 days from the date of receipt of the written order. 
However, if the Contracting Officer decides that the facts justify it, 
the Contracting Officer may receive and act upon a proposal submitted 
before final payment of the contract.
    (d) If the Contractor's proposal includes the cost of property made 
obsolete or excess by the change, the Contracting Officer shall have the 
right to prescribe the manner of the disposition of the property.
    (e) Failure to agree to any adjustment shall be a dispute under the 
Disputes clause. However, nothing in this clause shall excuse the 
Contractor from proceeding with the contract as changed.
    (f) The Contracting Officer shall not make any changes pursuant to 
paragraph (a) of this clause to conform this contract to any amendment 
in the LIFAR before the effective date of the amendment as provided for 
in LIFAR 2101.370.

                             (End of clause)

[58 FR 40381, July 28, 1993, as amended at 70 FR 41157, July 18, 2005]



Sec. 2152.244-70  Subcontracts.

    As prescribed by 2144.204, insert the following clause:

                         Subcontracts (OCT 2005)

    (a) The Contractor must notify the Contracting Officer reasonably in 
advance of entering into any subcontract or subcontract modification, or 
as otherwise specified by this contract, when the cost of that portion 
of the subcontract that is charged the FEGLI Program contract exceeds 
$550,000 and is at least 25 percent of the total cost of the 
subcontract.
    (b) The advance notification required by paragraph (a) of this 
clause shall include the following information:
    (1) A description of the supplies or services to be subcontracted;
    (2) Identification of the type of subcontract to be used;
    (3) Identification of the proposed subcontract and an explanation of 
why and how the proposed subcontractor was selected, including the 
competition obtained;
    (4) The proposed subcontract price and the Contractor's cost or 
price analysis;
    (5) The subcontractor's current, complete, and accurate cost or 
pricing data and Certificate of Current Cost or Pricing Data, if 
required by other contract provisions.

[[Page 438]]

    (6) The subcontractor's Disclosure Statement or Certificate relating 
to Cost Accounting Standards when such data are required by other 
provisions of this contract; and
    (7) A negotiation memorandum reflecting--
    (i) The principal elements of the subcontract price negotiations;
    (ii) The most significant consideration controlling establishment of 
initial or revised prices;
    (iii) The reason cost or pricing data were or were not required;
    (iv) The extent, if any, to which the Contractor did not rely on the 
subcontractor's cost or pricing data in determining the price objective 
and in negotiating the final price;
    (v) The extent to which it was recognized in the negotiation that 
the subcontractor's cost or pricing data were not accurate, complete, or 
current; the action taken by the Contractor and the subcontractor; and 
the effect of any such defective data on the total price negotiated;
    (vi) The reasons for any significant difference between the 
Contractor's price objective and the price negotiated; and
    (vii) A complete explanation of the incentive fee or profit plan 
when incentives are used. The explanation shall identify each critical 
performance element, management decisions used to quantify each 
incentive element, reasons for the incentives, and a summary of all 
trade-off possibilities considered.
    (c) The Contractor shall obtain the Contracting Officer's written 
consent before placing any subcontract for which advance notification is 
required under paragraph (a) of this clause. However, the Contracting 
Officer may ratify in writing any such subcontract. Ratification shall 
constitute the consent of the Contracting Officer.
    (d) The Contracting Officer may waive the requirement for advance 
notification and consent required by paragraph (a), (b), and (c) of this 
clause where the Contractor and subcontractor submit an application or 
renewal as a contractor team arrangement as defined in FAR subpart 9.6 
and--
    (1) The Contracting Officer evaluated the arrangement during 
negotiation of the contract or contract renewal; and
    (2) The subcontractor's price and/or costs were included in the 
plan's rates that were reviewed and approved by the Contracting Officer 
during negotiations of the contract or contract renewal.
    (e) Unless the consent or approval specifically provides otherwise, 
consent by the Contracting Office to any subcontract shall not 
constitute a determination (1) of the acceptability of any subcontract 
terms or conditions; (2) of the allowability of any cost under this 
contract; or (3) to relieve the Contractor of any responsibility for 
performing this contract.
    (f) No subcontract placed under this contract will provide for 
payment on a cost-plus-a-percentage-of-cost basis. Any fee payable under 
cost reimbursement type subcontracts will not exceed the fee limitations 
in FAR 15.404-4(c)(4)(i). Any profit or fee payable under a subcontract 
will be in accordance with the provisions of Section --------.
    (g) The Contractor shall give the Contracting Officer immediate 
written notice of any action or suit filed and prompt notice of any 
claim made against the Contractor by any subcontractor or vendor that, 
in the opinion of the Contractor, may result in litigation related in 
any way to this contract with respect to which the Contractor may be 
entitled to reimbursement from the Government.

                             (End of clause)

[58 FR 40381, July 28, 1993, as amended at 70 FR 41157, July 18, 2005]



Sec. 2152.246-70  Quality assurance requirements.

    As prescribed by 2146.270-1 insert the following clause:

                Quality Assurance Requirements (OCT 2005)

    (a) The Contractor shall develop and apply a quality assurance 
program as directed by the Contracting Officer pursuant to LIFAR 
2146.270.
    (b) The Contractor must keep complete records of its quality 
assurance procedures and the results of their implementation and make 
them available to an authorized Government entity during contract 
performance and for 5 years after the end of the contract term to which 
the records relate.
    (c) The Contracting Officer or his or her representative has the 
right to inspect and test all services called for by the contract, to 
the extent practicable, at all times and places during the term of the 
contract and for as long afterward as the contract requires. The 
Contracting Officer or his or her representative shall perform any 
inspections and tests in a manner that will not unduly delay the work.

                             (End of clause)

[58 FR 40381, July 28, 1993, as amended at 70 FR 41157, July 18, 2005]



Sec. 2152.249-70  Renewal and termination.

    As prescribed in 2149.505-70, insert the following clause:

[[Page 439]]

                   Renewal and Termination (OCT 2005)

    (a) This contract renews automatically each October 1st, unless 
written notice of termination is given by the Contractor not less than 
60 calendar days before the renewal date.
    (b) This contract may be terminated by OPM at any time in accordance 
with FAR part 49 and FAR 52.249-8 for default by the Contractor. This 
contract terminates at the end of the grace period if the Government 
does not fund the LOC account for any of the premium due to the 
Contractor (see LIFAR 2149.002(a)(2)). However, the Contractor and OPM 
may agree to continue the contract. In addition, the Contractor agrees 
to reinstate the contract if termination (1) arose out of the 
Government's inadvertent failure to fund the LOC account for the amount 
of the premium payment prior to the expiration of the grace period as 
defined in LIFAR 2102.101, and/or (2) was due to circumstances beyond 
the Government's control, provided that the LOC account is funded in the 
amount of the premium payment due to the Contractor within 5 days after 
the expiration of the grace period. In the event of such reinstatement, 
OPM will equitably adjust the payments due under the contract to 
compensate the Contractor for any increased costs of performance that 
result from the Government's failure to fund the LOC account prior to 
the expiration of the grace period and/or such reinstatement.
    (c) This contract may be terminated for convenience of the 
Government 60 days after the Contractor's receipt of OPM's written 
notice of termination.
    (d) Upon termination of the contract for Contractor's default or 
OPM's convenience, the Contractor agrees to assist OPM with an orderly 
and efficient transition to a successor in accordance with LIFAR 
2137.102, LIFAR 2137.110, and the provisions of the ``Continuity of 
Services'' clause at 2152.237-70. The Contractor is not required to 
continue performance subsequent to OPM's failure to fund the LOC account 
for premiums due under paragraph (b) of this clause.
    (e) After receipt of a termination notice, the prime Contractor 
shall, unless directed otherwise by the Contracting Officer, terminate 
all subcontracts to the extent that they relate to the performance of 
the FEGLI Program contract. The failure of the prime Contractor to 
include an appropriate termination clause in any subcontract, or to 
exercise the clause rights, shall not affect the Contracting Officer's 
right to require the termination of the subcontract; or increase the 
obligation of the Government beyond what it would have been if the 
subcontract had contained an appropriate clause.

                             (End of clause)

[58 FR 40381, July 28, 1993, as amended at 70 FR 41157, July 18, 2005]

               Subpart 2152.3_Provision and Clause Matrix



Sec. 2152.370  Use of the matrix.

    (a) The matrix in this section lists the FAR and LIFAR clauses to be 
used with the FEGLI Program contract. The clauses are to be incorporated 
in the contract in full text.
    (b) Certain contract clauses are mandatory for FEGLI Program 
contracts. Other clauses are to be used only when made applicable by 
pertinent sections of the FAR or LIFAR. An ``M'' in the ``Use Status'' 
column indicates that the clause is mandatory. An ``A'' indicates that 
the clause is to be used only when the applicable conditions are met.

                                           FEGLI Program Clause Matrix
----------------------------------------------------------------------------------------------------------------
            Clause No.                   Text reference                   Title                   Use status
----------------------------------------------------------------------------------------------------------------
FAR 52.202-1......................  FAR 2.201...............  Definitions..................  M
FAR 52.203-3......................  FAR 3.202...............  Gratuities...................  M
FAR 52.203-5......................  FAR 3.404...............  Covenant against Contingent    M
                                                               Fees.
FAR 52.203-6......................  FAR 3.503-2.............  Restrictions on Subcontractor  M
                                                               Sales to the Government.
FAR 52.203-7......................  FAR 3.502-3.............  Anti-Kickback Procedures.....  M
FAR 52.203-12.....................  FAR 3.808...............  Limitation on Payments to      M
                                                               Influence Certain Federal
                                                               Transactions.
2152.203-70.......................  2103.571................  Misleading, deceptive, or      M
                                                               unfair advertising.
2152.204-70.......................  2104.9001...............  Taxpayer Identification        M
                                                               Number.
FAR 52.209-6......................  FAR 9.409(b)............  Protecting the Government's    M
                                                               Interest when Subcontracting
                                                               with Contractors Debarred,
                                                               Suspended, or Proposed for
                                                               Debarment.
2152.209-71.......................  2109.409(b).............  Certification regarding        M
                                                               debarment, suspension,
                                                               proposed debarment and other
                                                               responsibility matters.
2152.210-70.......................  2110.7004(a)............  Investment income............  M
2152.210-71.......................  2110.7004(b)............  Notice of significant events.  M

[[Page 440]]

 
FAR 52.215-2......................  FAR 15.209(b)...........  Audit and Records--            M
                                                               Negotiation.
FAR 52.215-10.....................  FAR 15.408(b)...........  Price Reduction for Defective  M
                                                               Cost or Pricing Data.
FAR 52.215-12.....................  FAR 15.408(d)...........  Subcontractor Cost or Pricing  M
                                                               Data.
FAR 52.215-15.....................  FAR 15.408(g)...........  Pension Adjustments and Asset  M
                                                               Reversions.
FAR 52.215-16.....................  FAR 15.408(h)...........  Facilities Capital Cost of     M
                                                               Money.
FAR 52.215-17.....................  FAR 15.408(i)...........  Waiver of Facilities Capital   A
                                                               Cost of Money.
FAR 52.215-18.....................  FAR 15.408(j)...........  Reversion or Adjustment of     A
                                                               Plans for Postretirement
                                                               Benefits (PRB) other than
                                                               Pensions.
2152.215-70.......................  2115.071................  Contractor records retention.  M
2152.216-70.......................  2116.270-1(a)...........  Fixed price with limited cost  A
                                                               redetermination--risk charge.
2152.216-71.......................  2116.270-1(b)...........  Fixed price with limited cost  A
                                                               redetermination--service
                                                               charge.
FAR 52.219-8......................  FAR 19.708(a)...........  Utilization of Small Business  M
                                                               Concerns.
FAR 52.222-1......................  FAR 22.103-5(a).........  Notice to the Government of    M
                                                               Labor Disputes.
FAR 52.222-3......................  FAR 22.202..............  Convict Labor................  M
FAR 52.222-4......................  FAR 22.305..............  Contract Work Hours and        M
                                                               Safety Standards Act--
                                                               Overtime Compensation.
FAR 52.222-21.....................  FAR 22.810(a)(1)........  Prohibition of Segregated      M
                                                               Facilities.
FAR 52.222-22.....................  FAR 22.810(a)(2)........  Previous Contracts and         M
                                                               Compliance Reports.
FAR 52.222-25.....................  FAR 22.810(d)...........  Affirmative Action Compliance  M
FAR 52.222-26.....................  FAR 22.810(e)...........  Equal Opportunity............  M
FAR 52.222-29.....................  FAR 22.810(g)...........  Notification of Visa Denial..  A
FAR 52.222-35.....................  FAR 22.1310(a)(1).......  Equal Opportunity for Special  M
                                                               Disabled Veterans, Veterans
                                                               of the Vietnam Era, and
                                                               Other Eligible Veterans.
FAR 52.222-36.....................  FAR 22.1408(a)..........  Affirmative Action for         M
                                                               Workers with Disabilities.
FAR 52.222-37.....................  FAR 22.1310(b)..........  Employment Reports on Special  M
                                                               Disabled Veterans, Veterans
                                                               of the Vietnam Era, and
                                                               Other Eligible Veterans.
FAR 52.223-6......................  FAR 23.505..............  Drug-Free Workplace..........  M
2152.224-70.......................  2124.104-70.............  Confidentiality of records...  M
FAR 52.227-1......................  FAR 27.201-2(a).........  Authorization and Consent....  M
FAR 52.227-2......................  FAR 27.202-2............  Notice and Assistance          A
                                                               regarding Patent and
                                                               Copyright Infringement.
FAR 52.228-7......................  FAR 28.311-1............  Insurance--Liability to Third  M
                                                               Persons.
2152.231-70.......................  2131.270................  Accounting and allowable cost  M
FAR 52.232-9......................  FAR 32.111(c)(2)........  Limitation on Withholding of   M
                                                               Payments.
FAR 52.232-17.....................  FAR 32.617(a) and (b)...  Interest.....................  M
FAR 52.232-23.....................  FAR 32.806(a)(1)........  Assignment of Claims.........  A
FAR 52.232-33.....................  FAR 32.1110(a)(1).......  Payment by Electronic Funds    M
                                                               Transfer--Central Contractor
                                                               Registration.
2152.232-70.......................  2132.171................  Payments.....................  M
2152.232-71.......................  2132.772................  Non-commingling of FEGLI       M
                                                               Program funds.
2152.232-72.......................  2132.806................  Approval for assignment of     M
                                                               claims.
FAR 52.233-1......................  FAR 33.215..............  Disputes (Alternate I).......  M
2152.237-70.......................  2137.110................  Continuity of services.......  M
FAR 52.242-1......................  FAR 42.802..............  Notice of Intent to Disallow   M
                                                               Costs.
FAR 52.242-3......................  FAR 42.709-6............  Penalties for Unallowable      M
                                                               Costs.
FAR 52.242-13.....................  FAR 42.903..............  Bankruptcy...................  M
2152.243-70.......................  2143.205................  Changes......................  M
FAR 52.244-5......................  FAR 44.204(c)...........  Competition in Subcontracting  M
2152.244-70.......................  2144.204................  Subcontracts.................  M
FAR 52.245-2......................  FAR 45.106(b)(1)........  Government Property (Fixed-    M
                                                               Price Contracts).
FAR 52.246-4......................  FAR 46.304..............  Inspection of Services--Fixed  M
                                                               Price.
FAR 52.246-25.....................  FAR 46.805..............  Limitation of Liability--      M
                                                               Services.
2152.246-70.......................  2146.270-1..............  Quality assurance              M
                                                               requirements.
FAR 52.247-63.....................  FAR 47.405..............  Preference for U.S.-Flag Air   M
                                                               Carriers.
FAR 52.249-2......................  FAR 49.502(b)(1)(i).....  Termination for Convenience    M
                                                               of the Government (Fixed-
                                                               Price).
FAR 52.249-8......................  FAR 49.504(a)(1)........  Default (Fixed Price Supply    M
                                                               and Service).
FAR 52.249-14.....................  FAR 49.505(d)...........  Excusable Delays.............  M
2152.249-70.......................  2149.505-70.............  Renewal and termination......  M
FAR 52.251-1......................  FAR 51.107..............  Government Supply Sources....  A
FAR 52.252-4......................  FAR 52.107(d)...........  Alterations in Contract......  M
FAR 52.252-6......................  FAR 52.107(f)...........  Authorized Deviations in       M
                                                               Clauses.
----------------------------------------------------------------------------------------------------------------


[[Page 441]]


[58 FR 40381, July 28, 1993, as amended at 70 FR 41157, July 18, 2005]

[[Page 443]]



               CHAPTER 23--SOCIAL SECURITY ADMINISTRATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2301            Social Security Acquisition Regulation 
                    System..................................         445

[[Page 445]]

                          SUBCHAPTER A_GENERAL

         PART 2301_SOCIAL SECURITY ACQUISITION REGULATION SYSTEM

               Subpart 2301.1_Purpose, Authority, Issuance

Sec.

Sec. 2301.101 Purpose.

Sec. 2301.103 Authority.

Sec. 2301.104 Applicability.

Sec. 2301.105 Issuance.

Sec. 2301.105-1 Publication and code arrangement.

Sec. 2301.105-2 Arrangement of regulations.

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

    Source: 61 FR 50738, Sept. 27, 1996, unless otherwise noted.

               Subpart 2301.1_Purpose, Authority, Issuance



Sec. 2301.101  Purpose.

    (a) The Social Security Acquisition Regulation (SSAR) is issued to 
establish uniform acquisition policies and procedures for the Social 
Security Administration (SSA) which conform to the Federal Acquisition 
Regulation (FAR) System.
    (b) The SSAR implements and supplements the FAR. (Implementing 
material expands upon or indicates the manner of compliance with related 
FAR material. Supplementing material refers to policies or procedures 
which have no corresponding counterpart in the FAR.)
    (c) The SSAR contains only formal agency policies and procedures 
which have a significant effect beyond SSA's internal operating 
procedures or which have a significant cost or administrative impact on 
contractors or offerors.



Sec. 2301.103  Authority.

    The SSAR is prescribed under the authority of 5 U.S.C. 301 and 
section 205(c) of the Federal Property and Administrative Services Act 
of 1949, as amended (40 U.S.C. 486(c)).



Sec. 2301.104  Applicability.

    The FAR and SSAR apply to all SSA acquisitions as stated in FAR 
1.104. Unless specified otherwise, the FAR and SSAR apply to 
acquisitions within and outside the United States.



Sec. 2301.105  Issuance.



Sec. 2301.105-1  Publication and code arrangement.

    (a) The SSAR is also published in the same forms as indicated in FAR 
1.105-1(a).
    (b) The SSAR is issued in the Code of Federal Regulations (CFR) as 
Chapter 23 of Title 48, Social Security Acquisition Regulation (SSAR). 
It may be referenced as ``48 CFR chapter 23.''



Sec. 2301.105-2  Arrangement of regulations.

    (a) General. The SSAR conforms to the FAR with respect to divisional 
arrangements; i.e., subchapters, parts, subparts, sections, subsections, 
and paragraphs.
    (b) Numbering. The FAR System of numbering permits the keying of the 
same or similar subject matter throughout Chapters 1 (FAR) and 23 (SSAR) 
of Title 48, CFR. However, SSA's system varies somewhat from that of the 
FAR numbering scheme, in the numbering to the left of the decimal point. 
Whereas the FAR only identifies the part number of 48 CFR to the left of 
the decimal point, our corresponding reference identifies the chapter as 
well. For example, the FAR paragraph corresponding to this SSAR 
paragraph is numbered 1.105-2(b) where ``1'' is the part number (may be 
one or two digits and is followed by a decimal point), ``1'' (to the 
right of the decimal point) is the subpart number, ``05'' (always two 
digits) is the section number, ``2'' is the subsection number (always 
hyphenated), and ``(b)'' is the paragraph reference. This SSAR reference 
is 2301.105-2(b) where the ``23'' is the chapter number assigned to SSA 
and the ``01'' represents the part number (part numbers will always be 
two digits for agencies implementing the FAR). The remaining numbers to 
the right of the decimal point are identical to and reflect the same 
divisions as in the FAR numbering scheme.

[[Page 446]]

    (c) References and citations. (1) Unless otherwise stated, 
references indicate parts, subparts, sections, subsections, etc., of 
this regulation, the SSAR.
    (2) This regulation shall be referred to as the Social Security 
Acquisition Regulation (SSAR). Any reference may be cited as ``SSAR'' 
followed by the appropriate number. Within the SSAR, the number alone 
will be used.
    (3) Citations of authority shall be incorporated where necessary. 
All FAR reference numbers shall be preceded by ``FAR.''

[[Page 447]]



         CHAPTER 24--DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2401            Federal Acquisition Regulation System.......         449
2402            Definitions of words and terms..............         452
2403            Improper business practices and personal 
                    conflicts of interest...................         453
2404            Administrative matters......................         454
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
2405            Publicizing contract actions................         456
2406            Competition requirements....................         456
2407            Acquisition planning........................         456
2408            Required sources of supplies and services...         457
2409            Contractor qualifications...................         457
2411            Describing agency needs.....................         458
         SUBCHAPTER C--CONTRACTING METHODS AND CONTRACTING TYPES
2413            Simplified acquisition procedures...........         459
2414            Sealed bidding..............................         459
2415            Contracting by negotiation..................         460
2416            Types of contracts..........................         462
2417            Special contracting methods.................         464
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2419            Small business programs.....................         466
2420            [Reserved]

2422            Application of labor laws to Government 
                    acquisitions............................         469
2424            Protection of privacy and freedom of 
                    information.............................         469
2425            Trade Agreements Act........................         470
2426            Other socioeconomic programs................         470
2427            Patents, data, and copyrights...............         470
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2428            Bonds and insurance.........................         472

[[Page 448]]

2429            Taxes.......................................         472
2432            Contract financing..........................         472
2433            Protests, disputes, and appeals.............         475
2434            Major system acquisitions...................         476
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
2436            Construction and architect-engineer 
                    contracts...............................         477
2437            Service contracting.........................         477
2439            Acquisition of information technology.......         478
                    SUBCHAPTER G--CONTRACT MANAGEMENT
2442            Contract administration and audit services..         479
2446            Quality assurance...........................         479
2448            Value engineering...........................         480
2449            Termination of contracts....................         480
2451            Use of Government sources by contractors....         481
                     SUBCHAPTER H--CLAUSES AND FORMS
2452            Solicitation provisions and contract clauses         482
2453            Forms.......................................         504

[[Page 449]]

                          SUBCHAPTER A_GENERAL

             PART 2401_FEDERAL ACQUISITION REGULATION SYSTEM

Sec.

Sec. 2401.000 Scope of part.

               Subpart 2401.1_Purpose, Authority, Issuance


Sec. 2401.100 Scope of subpart.

Sec. 2401.101 Purpose.

Sec. 2401.103 Authority.

Sec. 2401.104 Applicability.

Sec. 2401.105 Issuance.

Sec. 2401.105-2 Arrangement of regulations.

Sec. 2401.106 OMB approval under the Paperwork Reduction Act.

Sec. 2401.106-70 Contract clause.

              Subpart 2401.3_Agency Acquisition Regulations


Sec. 2401.301 Policy.

Sec. 2401.302 Limitations.

                        Subpart 2401.4_Deviations


Sec. 2401.403 Individual deviations.

Sec. 2401.404 Class deviations.

Sec. 2401.470 Deviations from the HUDAR.

Sec. 2401.471 Requests for deviations--FAR and HUDAR.

     Subpart 2401.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 2401.601 General.

Sec. 2401.601-70 Senior Procurement Executive.

Sec. 2401.602 Contracting Officers.

Sec. 2401.602-3 Ratification of unauthorized commitments.

Sec. 2401.603 Selection, appointment and termination of appointment.

Sec. 2401.603-2 Selection.

Sec. 2401.603-3 Appointment.

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

    Source: 49 FR 7697, Mar. 1, 1984, unless otherwise noted.



Sec. 2401.000  Scope of part.

    This part describes the method by which the Department of Housing 
and Urban Development (HUD) implements, supplements and deviates from 
the Federal Acquisition Regulation (FAR) through the establishment of 
the HUD Acquisition Regulation (HUDAR), which prescribes the 
Department's procurement policies and procedures under the FAR System.

               Subpart 2401.1_Purpose, Authority, Issuance



Sec. 2401.100  Scope of subpart.

    This subpart describes the HUDAR and states its relationship to the 
FAR System. This subpart also provides the explanation of the purpose 
and the authorities under which the HUDAR is issued.



Sec. 2401.101  Purpose.

    The Department of Housing and Urban Development Acquisition 
Regulation is hereby established as chapter 24 of the Federal 
Acquisition Regulation System (48 CFR chapter 24). It is issued to 
provide uniform Departmental policies and procedures for the acquisition 
of supplies, personal property and non-personal services by the 
Department's contracting activities and to make these policies and 
procedures readily available to Departmental personnel and to the 
public.



Sec. 2401.103  Authority.

    The HUDAR is prescribed under section 7(d) of the Department of HUD 
Act (42 U.S.C. 3535(d)), section 205(c) of the Federal Property and 
Administrative Services Act of 1949 (40 U.S.C. 486(c)), the general 
authorization in FAR 1.301, and the Secretary's delegations of 
procurement authority.

[71 FR 2434, Jan. 13, 2006]



Sec. 2401.104  Applicability.

    All acquisition of personal property and non-personal services 
(including construction) by HUD, except as may be otherwise authorized 
by law, must be accomplished in accordance with the HUDAR and the FAR.

[49 FR 7697, Mar. 1, 1984. Redesignated at 61 FR 19470, May 1, 1996]

[[Page 450]]



Sec. 2401.105  Issuance.



Sec. 2401.105-2  Arrangement of regulations.

    (a) General. Chapter 24 is divided into parts, subparts, sections, 
subsections, paragraphs and further subdivisions as necessary.
    (b) Numbering. Generally, the numbering system and part, subpart, 
and section titles used in the HUDAR conform with those used in the FAR 
or as follows:
    (1) When the HUDAR implements or deviates from a parallel part, 
subpart, section, subsection, or paragraph of the FAR, that 
implementation or deviation will be numbered and captioned where 
possible to correspond to the FAR part, subpart, section, subsection, or 
paragraph. For example, FAR subpart 1.4, Deviations, is implemented in 
HUD's acquisition regulations at subpart 2401.4, Deviations. (The ``24'' 
in the number indicates what chapter of title 48 contains the HUDAR.)
    (2) When HUD supplements material contained in the FAR, it is given 
a unique number containing the numerals ``70'' or higher. The rest of 
the number will parallel the FAR part, subpart, section, subsection, or 
paragraph it is supplementing. For example, FAR 14.407, Award, does not 
contain a provision for the steps to be taken when only one bid is 
received. The HUDAR provides this information. Since the subject matter 
supplements what is contained in FAR 14.407, the HUDAR section 
supplementing the FAR is numbered 2414.407-70.
    (3) Where material in the FAR requires no implementation or 
deviation, there is no corresponding numbering in the HUDAR. Therefore, 
there may be gaps in the HUDAR sequence of numbers where the FAR, as 
written, is applicable to the HUDAR and requires no further 
implementation.
    (c) Citation. The HUDAR will be cited in accordance with Federal 
Register standards approved for the FAR. Thus, this section when 
referred to in the HUDAR is cited as 2401.105-2(c). When this section is 
referred to formally in official documents, such as legal briefs, it 
should be cited as ``48 CFR 2401.105-2(c).'' Any section of the HUDAR 
may be formally identified by the section number, e.g., ``HUDAR 
2401.105-2.'' In the HUDAR, any reference to the FAR will be indicated 
by ``FAR'' followed by the section number, for example FAR 37.108.

[49 FR 7697, Mar. 1, 1984, as amended at 58 FR 49437, Sept. 23, 1993. 
Redesignated at 61 FR 19470, May 1, 1996, as amended at 64 FR 46094, 
Aug. 23, 1999]



Sec. 2401.106  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 (OMB) before collecting information from 10 or more persons. HUD 
has received approval from OMB to collect information under the 
provisions of its Acquisition Regulation. The OMB Approval Number is 
2535-0091.

[50 FR 46575, Nov. 8, 1985. Redesignated at 61 FR 19470, May 1, 1996]



Sec. 2401.106-70  Contract clause.

    The contracting officer shall insert the clause at 2452.201-70, 
Coordination of Data Collection Activities, in solicitations and 
contracts where the Contractor is required to collect information from 
ten or more public respondents.

[77 FR 73525, Dec. 10, 2012]

              Subpart 2401.3_Agency Acquisition Regulations



Sec. 2401.301  Policy.

    (a)(1) Implementation. The HUDAR implements and supplements the FAR. 
Implementation material is that which expands upon related FAR material. 
Supplementing material is that for which there is no counterpart in the 
FAR.



Sec. 2401.302  Limitations.

    (c) Exclusions. Certain HUD policies and procedures which come 
within the scope of this chapter are not included in the HUDAR. Not 
included is a policy or procedure of an internal nature or which is 
expected to be effective for a period of less than six months.

[[Page 451]]

                        Subpart 2401.4_Deviations



Sec. 2401.403  Individual deviations.

    The Senior Procurement Executive is the agency head's designee for 
the purposes of FAR 1.403.

[77 FR 73525, Dec. 10, 2012]



Sec. 2401.404  Class deviations.

    (a) The Senior Procurement Executive is the agency head's designee 
for the purposes of FAR 1.404(a).

[77 FR 73525, Dec. 10, 2012]



Sec. 2401.470  Deviations from the HUDAR.

    The Senior Procurement Executive is authorized to approve deviations 
from the HUDAR.

[77 FR 73525, Dec. 10, 2012]



Sec. 2401.471  Requests for deviations--FAR and HUDAR.

    (a) Requests for deviations from the FAR or HUDAR shall be submitted 
in writing to the Chief Procurement Officer.
    (b) Each request for authorization of a deviation from the FAR or 
HUDAR shall:
    (1) Identify the deviation as individual or class;
    (2) Identify the FAR or the HUDAR requirement from which a deviation 
is sought;
    (3) Fully describe the deviation, its intended effect, and the 
circumstances in which it will be used;
    (4) Explain why a deviation is required and include pertinent 
background and supporting information;
    (5) State whether the deviation has been requested previously and if 
so, the circumstances and result of the previous request; and
    (6) Identify the contractor(s) and the contract(s) (including dollar 
values) that would be affected.
    (c) At his or her discretion, the Chief Procurement Officer will 
consider requests for deviations on an expedited basis and, in urgent 
situations, may authorize deviations via telephone or electronic mail. 
Such authorizations will be confirmed in writing.
    (d) The contracting officer shall include a copy of each authorized 
deviation in the contract file(s) to which it pertains.

[77 FR 73525, Dec. 10, 2012]

     Subpart 2401.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 2401.601  General.



Sec. 2401.601-70  Senior Procurement Executive.

    Unless otherwise designated by the Secretary through a delegation of 
authority, the Chief Procurement Officer is the Department's Senior 
Procurement Executive and is responsible for all departmental 
procurement policy, regulations, and procedures, and oversight of all 
HUD procurement operations. The Senior Procurement Executive is also 
responsible for the development of HUD's procurement system standards, 
evaluation of the system in accordance with approved criteria, 
enhancement of career management of the procurement workforce, and 
certification to the Secretary that the Department's procurement system 
meets approved criteria.

[71 FR 2434, Jan. 13, 2006]



Sec. 2401.602  Contracting Officers.



Sec. 2401.602-3  Ratification of unauthorized commitments.

    (b)(1) Requests for ratification of unauthorized commitments shall 
be submitted in writing through the contracting officer to the 
ratification approval officials identified in paragraph (b)(3) of this 
section. The Assistant Secretary or equivalent official for the office 
that created the unauthorized commitment shall sign the request for 
ratification.
    (3) In accordance with FAR 1.602-3(b)(3), the Senior Procurement 
Executive may delegate the authority to approve ratifications of 
individual unauthorized commitments down to, but not below, the level of 
an Assistant Chief Procurement Officer.
    (c)(5) Concurrence by legal counsel in the Contracting Officer's 
recommendation for payment of an unauthorized commitment (see FAR 1.602-
3(c)(5)) shall not be required when the value of

[[Page 452]]

the payment is equal to, or less than, the simplified acquisition 
threshold.

[71 FR 2434, Jan. 13, 2006, as amended at 77 FR 73525, Dec. 10, 2012]



Sec. 2401.603  Selection, appointment and termination of appointment.



Sec. 2401.603-2  Selection.

    (a) In selecting Contracting Officers, appointing authorities shall 
consider the experience, education, training, business acumen, judgment, 
character, reputation, and ethics of the individual to be appointed. 
Appointing authorities shall also consider the size and complexity of 
contracts the individual will be required to execute or administer, and 
any other limitations on the scope of the authority to be exercised.
    (b) Individuals appointed to a position having Contracting Officer 
authority, and whose primary duties are performed as a Contracting 
Officer, other than contracting authority limited to simplified 
acquisition procedures, shall meet the following requirements:
    (1) The education and specialized experience commensurate with the 
grade of the appointee as set forth in the qualification standards for 
the GS-1102 occupational series developed by the Office of Federal 
Procurement Policy under the authority of 41 U.S.C. 433, and two years 
of experience performing contracting, procurement, or purchasing 
operations in a government or commercial procurement office. 
Alternately, where appointment of a Contracting Officer involves a 
specialized procurement field, experience in that field may be 
considered as a criterion for appointment.
    (2) Successful completion of contracting-related training as 
prescribed by the Senior Procurement Executive.
    (c) The Senior Procurement Executive may waive education and 
specialized experience requirements as provided for in the qualification 
standards developed by the Office of Federal Procurement Policy under 
the authority of 41 U.S.C. 433.

[71 FR 2434, Jan. 13, 2006]



Sec. 2401.603-3  Appointment.

    (a) Appointments to officials not expressly delegated procurement 
authority by a published departmental delegation of authority shall be 
made in writing by the Head of the Contracting Activity. The Certificate 
of Appointment (SF 1402) shall constitute the appointing official's 
determination that the appointee meets the selection requirements set 
forth at 2401.603-2.

[64 FR 46094, Aug. 23, 1999]

                PART 2402_DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 2402.000 Scope of part.

                       Subpart 2402.1_Definitions


Sec. 2402.101 Definitions.

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).



Sec. 2402.000  Scope of part.

    This part contains definitions of terms used generally throughout 
the HUDAR, in addition to those set forth in FAR part 2. Additional 
definitions will be found in individual subparts of the FAR and HUDAR 
covering terms used in those subparts only.

[49 FR 7699, Mar. 1, 1984]

                       Subpart 2402.1_Definitions



Sec. 2402.101  Definitions.

    Accounting Office means the Office of Accounting Operations within 
the Office of the Chief Financial Officer and includes that Office's 
field components.
    Chief Procurement Officer means the HUD official having authority 
for all of the Department's procurement activities.
    Contracting activity means the Office of the Chief Procurement
    Department means the Department of Housing and Urban Development, 
which may also be designated as HUD.
    Government Technical Monitor (GTM) means the individual responsible 
for assisting a Government Technical Representative in the latter's 
performance of his/her duties.
    Government Technical Representative (GTR) means the individual 
serving as the Contracting Officer's representative responsible for 
monitoring the technical aspects of a contract, including guidance, 
oversight, and evaluation

[[Page 453]]

of the Contractor's performance and deliverables.
    Head of the contracting activity (HCA) means the Chief Procurement 
Officer. As permitted by the FAR and the HUD Acquisition Regulation, the 
Chief Procurement Officer, acting within his or her authority as the 
Senior Procurement Executive, may delegate HCA authority for specific 
actions or classes of actions down to, but not below, the level of the 
Assistant Chief Procurement Officers. Delegated HCA authority may not be 
further redelegated.
    Legal counsel means HUD's Office of General Counsel and its field-
based components.
    Primary Organization Heads are those officials of the Department who 
are responsible for the major organizational components of HUD and who 
report directly to the Secretary or Deputy Secretary. The Primary 
Organization Heads of HUD include the Assistant Secretaries and 
equivalent Departmental management (e.g., President, GNMA, Inspector 
General, General Counsel, Chief Procurement Officer, etc.).
    Secretary means the Secretary of the Department of Housing and Urban 
Development, or his or her designee.
    Senior Procurement Executive means the Chief Procurement Officer.

[64 FR 46094, Aug. 23, 1999, as amended at 71 FR 2435, Jan. 13, 2006; 77 
FR 73525, Dec. 10, 2012]

PART 2403_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 2403.1_Safeguards

Sec.

Sec. 2403.101 Standards of conduct.

      Subpart 2403.2_Contractor Gratuities to Government Personnel


Sec. 2403.203 Reporting procedures.

Sec. 2403.204 Treatment of violations.

        Subpart 2403.3_Reports of Suspected Antitrust Violations


Sec. 2403.303-70 Reporting requirements.

                     Subpart 2403.4_Contingent Fees


Sec. 2403.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

            Subpart 2403.5_Other Improper Business Practices


Sec. 2403.502-70 Subcontractor kickbacks.

  Subpart 2403.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them


Sec. 2403.602 Policy.

Sec. 2403.670 Solicitation provision and contract clause.

    Authority: 42 U.S.C. 3535(d).

    Source: 49 FR 7700, Mar. 1, 1984, unless otherwise noted.

                        Subpart 2403.1_Safeguards



Sec. 2403.101  Standards of conduct.

    Detailed rules which apply to the conduct of HUD employees are set 
forth in 5 CFR part 2635 and 5 CFR part 7501.

[64 FR 46095, Aug. 23, 1999]

      Subpart 2403.2_Contractor Gratuities to Government Personnel



Sec. 2403.203  Reporting procedures.

    Suspected violations of the gratuities clause (FAR 52.203-3) shall 
be reported to the Head of the Contracting Activity (HCA) in writing. 
The HCA will request the Office of Inspector General (OIG) to conduct 
any necessary investigation. Upon receipt of the OIG report, the HCA 
will evaluate the circumstances to determine if a violation has 
occurred. The HCA will refer violations and recommended corrective 
actions to the Senior Procurement Executive for disposition.

[49 FR 7700, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986]



Sec. 2403.204  Treatment of violations.

    The Senior Procurement Executive will process violations in 
accordance with FAR 3.204.

[49 FR 7700, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986]

[[Page 454]]

        Subpart 2403.3_Reports of Suspected Antitrust Violations



Sec. 2403.303-70  Reporting requirements.

    Potential anti-competitive practices such as described in FAR 
subpart 3.3, evidenced in bids or proposals, shall be reported to the 
Office of General Counsel through the Head of the Contracting Activity 
with a copy to the Senior Procurement Executive and the Inspector 
General. The Office of General Counsel will provide reports to the 
Attorney General as appropriate.

[49 FR 7700, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986]

                     Subpart 2403.4_Contingent Fees



Sec. 2403.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

    (a) Government personnel who suspect or have evidence of attempted 
or actual exercise of improper influence, misrepresentation of a 
contingent fee arrangement, or other violation of the Covenant against 
Contingent Fees shall report the matter promptly to the Head of the 
Contracting Activity.
    (b) When there is specific evidence or other reasonable basis to 
suspect one or more of the violations in paragraph (a) of this section, 
the HCA shall review the facts and, if appropriate, take or direct one 
or more of the actions set forth at FAR 3.405(b). The HCA shall refer 
suspected fraudulent or criminal matters to HUD's Office of the 
Inspector General for possible referral to the Department of Justice.

[49 FR 7700, Mar. 1, 1984. Redesignated at 64 FR 46095, Aug. 23, 1999; 
77 FR 73526, Dec. 10, 2012]

            Subpart 2403.5_Other Improper Business Practices



Sec. 2403.502-70  Subcontractor kickbacks.

    Contracting Officers shall report suspected violations of the Anti-
Kickback Act through the Head of the Contracting Activity to the Office 
of the Inspector General consistent with the procedures for reporting 
any violation of law contained in the current HUD Handbook 2000.3, 
Office of Inspector General Activities.

[64 FR 46095, Aug. 23, 1999]

  Subpart 2403.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 2403.602  Policy.

    The Senior Procurement Executive must approve exceptions to the 
restriction against contracts with Government employees under FAR 
subpart 3.6. In addition, the Contracting Officer shall comply with FAR 
subpart 9.5 before awarding any such contract.

[49 FR 7700, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986. 
Redesignated at 64 FR 46095, Aug. 23, 1999]



Sec. 2403.670  Solicitation provision and contract clause.

    Insert the clause at 48 CFR 2452.203-70 in all solicitations and 
contracts.

[65 FR 3576, Jan. 21, 2000]

                    PART 2404_ADMINISTRATIVE MATTERS

               Subpart 2404.7_Contractor Records Retention


Sec. 2404.7001 Contract clause.

                Subpart 2404.8_Government Contract Files


Sec. 2404.805 Storage, handling and disposal of contract files.

    Authority: 42 U.S.C. 3535(d).

               Subpart 2404.7_Contractor Records Retention



Sec. 2404.7001  Contract clause.

    The contracting officer shall insert the clause at 2452.204-72, 
Preservation of, and Access to, Contract Records (Tangible and 
Electronically Stored Information (ESI) Formats), in all solicitations 
and contracts exceeding the simplified acquisition threshold. The 
contracting officer shall use the basic clause with its Alternate I in 
cost-reimbursement type contracts. The contracting officer shall use the 
basic

[[Page 455]]

clause with its Alternate II in labor-hour and time-and-materials 
contracts.

[77 FR 73526, Dec. 10, 2012]

                Subpart 2404.8_Government Contract Files



Sec. 2404.805  Storage, handling and disposal of contract files.

    (a) Unsuccessful cost and technical proposals shall be retained in 
the contracting activity for a period of two months following the 
contract award as reference material for debriefings. Upon expiration of 
the two month period, the contracting office shall either:
    (1) Retain one copy of each such proposal with the official contract 
file; or,
    (2) Ship one copy of each unsuccessful bid or proposal to the 
Federal Records Center unless a debriefing has been requested but not 
held, or a protest is pending concerning the procurement. In no event 
shall these documents be destroyed before expiration of the retention 
periods in FAR 4.805.
    (b) By the program office. Unsuccessful proposals shall be retained 
on file in the program office which conducted the technical evaluation 
for a period of two months following the contract award. Upon expiration 
of the two month period, the program office shall return one copy of 
each unsuccessful bid or proposal not required for the conduct of 
debriefings to the contracting activity for proper disposition. The 
remaining copies will be destroyed.

[49 FR 7700, Mar. 1, 1984; 49 FR 10930, Mar. 23, 1984. Redesignated and 
amended at 60 FR 46155, Sept. 5, 1995]

[[Page 456]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                 PART 2405_PUBLICIZING CONTRACT ACTIONS

          Subpart 2405.2_Synopses of Proposed Contract Actions

Sec.

Sec. 2405.202 Exceptions.

                   Subpart 2405.5_Paid Advertisements


Sec. 2405.502 Authority.

    Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d); and 
FAR class deviation approved November 15, 1990.

          Subpart 2405.2_Synopses of Proposed Contract Actions



Sec. 2405.202  Exceptions.

    (b) The Senior Procurement Executive shall make the written 
determination in accordance with FAR 5.202(b) that advance notice of 
proposed contract actions is not appropriate or reasonable.

[50 FR 46576, Nov. 8, 1985]

                   Subpart 2405.5_Paid Advertisements



Sec. 2405.502  Authority.

    Use of paid advertisements in newspapers, trade journals, and other 
media are authorized by Delegations or Redelegations of Authority, 
subject to the availability of funds.

[49 FR 7701, Mar. 1, 1984]

                   PART 2406_COMPETITION REQUIREMENTS

   Subpart 2406.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 2406.202 Establishing or maintaining alternative sources.

           Subpart 2406.3_Other Than Full and Open Competition


Sec. 2406.302-2 Unusual and compelling urgency.

Sec. 2406.304 Approval of the justification.

                  Subpart 2406.5_Competition Advocates


Sec. 2406.501 Requirement.

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).

    Source: 50 FR 46576, Nov. 8, 1985, unless otherwise noted.

   Subpart 2406.2_Full and Open Competition After Exclusion of Sources



Sec. 2406.202  Establishing or maintaining alternative sources.

    (b)(1) The HCA shall sign the Determination and Finding (D&F) 
required by FAR 6.202(b)(1).

           Subpart 2406.3_Other Than Full and Open Competition



Sec. 2406.302-2  Unusual and compelling urgency.

    (d)(1)(ii) The HCA is the agency head's designee for the purposes of 
FAR 6.302-2(d)(1)(ii).

[77 FR 73526, Dec. 10, 2012]



Sec. 2406.304  Approval of the justification.

    (c) A class justification for other than full and open competition 
shall be approved in writing by the Senior Procurement Executive.

                  Subpart 2406.5_Competition Advocates



Sec. 2406.501  Requirement.

    The Senior Procurement Executive is the head of the agency for the 
purposes of FAR 6.501 and designates the Departmental competition 
advocate.

[77 FR 73526, Dec. 10, 2012]

                     PART 2407_ACQUISITION PLANNING

    Authority: Sec. 7(d) of the Department of Housing and Urban 
Development Act (42 U.S.C. 3535(d)).

[[Page 457]]

                    Subpart 2407.1_Acquisition Plans



Sec. 2407.102  Policy.

    The Senior Procurement Executive is responsible for establishing and 
maintaining internal procedures that meet the criteria contained in FAR 
subpart 7.1 for acquisition planning and acquisition plan content.

[77 FR 73526, Dec. 10, 2012]

           PART 2408_REQUIRED SOURCES OF SUPPLIES AND SERVICES

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

       Subpart 2408.8_Acquisition of Printing and Related Supplies



Sec. 2408.802-70  Contract clause.

    The Contracting Officer shall insert the clause at 2452.208-71, 
Reproduction of Reports, in solicitations and contracts where the 
contractor is required to produce, as an end product, publications or 
other written materials.

[71 FR 2435, Jan. 13, 2006]

                   PART 2409_CONTRACTOR QUALIFICATIONS

         Subpart 2409.4_Debarment, Suspension, and Ineligibility

Sec.

Sec. 2409.405 Effect of listing.

Sec. 2409.407-1 General.

Sec. 2409.470 HUD regulations on debarment, suspension, and 
          ineligibility.

   Subpart 2409.5_Organizational and Consultant Conflicts of Interest


Sec. 2409.503 Waiver.

Sec. 2409.507 Solicitation provisions and contract clause.

Sec. 2409.507-1 Solicitation provisions.

Sec. 2409.507-2 Contract clauses.

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

    Source: 49 FR 7701, Mar. 1, 1984, unless otherwise noted.

         Subpart 2409.4_Debarment, Suspension, and Ineligibility

    Source: 77 FR 73526, Dec. 10, 2012, unless otherwise noted.



Sec. 2409.405  Effect of listing.

    (3) The Senior Procurement Executive is the agency head's designee 
under FAR 9.405(d)(3).



Sec. 2409.407-1  General.

    (d) The Senior Procurement Executive is the agency head's designee 
under FAR 9.407-1(d).



Sec.Sec. 2409.470  HUD regulations on debarment, suspension, and 
          ineligibility.

    HUD's policies and procedures concerning debarment and suspension 
are contained in 2 CFR part 2424, and, notwithstanding any language to 
the contrary, apply to procurement contracts.

[78 FR 49698, Aug. 15, 2013]

   Subpart 2409.5_Organizational and Consultant Conflicts of Interest



Sec. 2409.503  Waiver.

    The Senior Procurement executive is the agency head's designee under 
FAR 9.503.

[77 FR 73526, Dec. 10, 2012]



Sec. 2409.507  Solicitation provisions and contract clause.



Sec. 2409.507-1  Solicitation provisions.

    The Contracting Officer shall insert a provision substantially the 
same as the provision at 48 CFR 2452.209-70, Potential Organizational 
Conflicts of Interest, in all solicitations over the simplified 
acquisition limitation when the Contracting Officer has reason to 
believe that a potential organizational conflict of interest exists. The 
Contracting Officer shall describe the nature of the potential conflict 
in the provision.

[65 FR 3576, Jan. 21, 2000]



Sec. 2409.507-2  Contract clauses.

    The Contracting Officer shall insert a clause substantially the same 
as the

[[Page 458]]

clause at 2452.209-71, Limitation on Future Contracts, in solicitations 
and contracts for services above the simplified acquisition threshold 
whenever the Contracting Officer has reason to believe that the nature 
of the proposed contract requirements may present an organizational 
conflict of interest as defined at FAR subpart 9.5. The Contracting 
Officer shall describe in the clause the nature of the potential 
conflict and the negotiated terms and duration of the limitation. The 
Contracting Officer shall insert the clause at 2452.209-72, 
Organizational Conflicts of Interest, in all solicitations and 
contracts.

[71 FR 2435, Jan. 13, 2006]

                    PART 2411_DESCRIBING AGENCY NEEDS

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

            Subpart 2411.4_Delivery or Performance Schedules



Sec. 2411.404  Contract clause.

    (a) The Contracting Officer shall insert a clause substantially the 
same as the clause at 2452.211-70, Effective Date and Contract Period, 
in all solicitations and contracts for services, other than indefinite-
delivery contracts.
    (b) If the contract includes options to extend the period of the 
contract, the Contracting Officer shall use the clause with its 
Alternate I.

[71 FR 2435, Jan. 13, 2006]

[[Page 459]]

         SUBCHAPTER C_CONTRACTING METHODS AND CONTRACTING TYPES

               PART 2413_SIMPLIFIED ACQUISITION PROCEDURES

Subpart 2413.1--General [Reserved]

              Subpart 2413.3_Simplified Acquisition Methods

Sec.

Sec. 2413.301 Governmentwide commercial purchase card.

Sec. 2413.305-2 Agency responsibilities.

Sec. 2413.305-3 Conditions for use.

Subpart 2413.4--Imprest Fund [Reserved]

Subpart 2413.5--Purchase Orders [Reserved]


Sec. 2413.505 Purchase order and related forms.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

Subpart 2413.1--General [Reserved]

              Subpart 2413.3_Simplified Acquisition Methods



Sec. 2413.301  Governmentwide commercial purchase card.

    (c) HUD's procedures concerning the use of the government-wide 
commercial purchase card are contained in its Handbook on the 
Government-wide Commercial Credit Card Program.

[60 FR 46155, Sept. 5, 1995. Redesignated at 64 FR 46095, Aug. 23, 1999]



Sec. 2413.305-2  Agency responsibilities.

    (c) Policies and procedures governing the operation of imprest funds 
are established in internal directives issued by HUD's Office of the 
Chief Financial Officer.

[60 FR 46155, Sept. 5, 1995. Redesignated at 64 FR 46095, Aug. 23, 1999]



Sec. 2413.305-3  Conditions for use.

    (a) Transaction limits above that established in FAR 13.305-3 may be 
approved by the Senior Procurement Executive.

[60 FR 46155, Sept. 5, 1995. Redesignated and amended at 64 FR 46095, 
Aug. 23, 1999]

Subpart 2413.4--Imprest Fund [Reserved]

                     Subpart 2413.5_Purchase Orders



Sec. 2413.505  Purchase order and related forms.

                        PART 2414_SEALED BIDDING

          Subpart 2414.4_Opening of bids and Award of Contracts

Sec.

Sec. 2414.404 Rejection of bids.

Sec. 2414.404-1 Cancellation of invitations after opening.

Sec. 2414.407 Mistakes in bid.

Sec. 2414.407-3 Other mistakes disclosed before award.

Sec. 2414.407-4 Mistakes after award.

Sec. 2414.408 Award.

Sec. 2414.408-70 Award when only one bid is received.

    Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).

    Source: 49 FR 7702, Mar. 1, 1984, unless otherwise noted.

          Subpart 2414.4_Opening of Bids and Award of Contracts



Sec. 2414.404  Rejection of bids.



Sec. 2414.404-1  Cancellation of invitations after opening.

    (c) Invitations may be cancelled and all bids rejected before award 
but after opening when the Head of the Contracting Activity, as 
described in subpart 2402.1, determines in writing that cancellation is 
appropriate and consistent with FAR 14.404-1.

[50 FR 46577, Nov. 8, 1985]

[[Page 460]]



Sec. 2414.407  Mistakes in bids.



Sec. 2414.407-3  Other mistakes disclosed before award.

    (e) The determination to allow a bidder to: Correct a mistake in bid 
discovered before award (other than obvious clerical errors); withdraw a 
bid; or, neither correct nor withdraw a bid shall be submitted to the 
Head of the Contracting Activity for approval.

[57 FR 59788, Dec. 15, 1992. Redesignated at 61 FR 19470, May 1, 1996]



Sec. 2414.407-4  Mistakes after award.

    (d) For determinations under FAR 14.407-4(b), the Head of the 
Contracting Activity will obtain the concurrence of legal counsel before 
notification to the Contractor. The Contracting Officer shall be 
notified promptly of action to be taken.

[61 FR 19470, May 1, 1996, as amended at 64 FR 46095, Aug. 23, 1999]



Sec. 2414.408  Award.



Sec. 2414.408-70  Award when only one bid is received.

    When only one bid is received in response to an invitation for bids, 
such bid may be considered and accepted if the Contracting Officer makes 
a written determination that: (a) The specifications were clear and not 
unduly restrictive; (b) adequate competition was solicited and it could 
have been reasonably assumed that more than one bid would have been 
submitted; (c) the price is reasonable; and (d) the bid is otherwise in 
accordance with the invitation for bids. Such a determination shall be 
placed in the file.

[49 FR 7702, Mar. 1, 1984; 51 FR 7948, Mar. 7, 1986, as amended at 58 FR 
49437, Sept. 23, 1993. Redesignated at 61 FR 19471, May 1, 1996]

                  PART 2415_CONTRACTING BY NEGOTIATION

   Subpart 2415.2_Solicitation and Receipt of Proposals and Quotations

Sec.

Sec. 2415.203 Requests for proposals.

Sec. 2415.204 Contract format.

Sec. 2415.209 Solicitation provisions and contract clauses.

                     Subpart 2415.3_Source Selection


Sec. 2415.303 Responsibilities.

Sec. 2415.304 Evaluation factors and significant subfactors.

Sec. 2415.305 Proposal evaluation.

Sec. 2415.308 Source selection decision.

Sec. 2415.370 Solicitation provision.

 Subpart 2415.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes


Sec. 2415.507 Protests against award.

                     Subpart 2415.6_Source Selection


Sec. 2415.605 Content of unsolicited proposals.

Sec. 2415.605-70 Unsolicited research proposals.

Sec. 2415.606 Agency procedures.

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).

    Source: 49 FR 7703, Mar. 1, 1984, unless otherwise noted.

   Subpart 2415.2_Solicitation and Receipt of Proposals and Quotations



Sec. 2415.203  Requests for proposals.

    (a)(3) The contracting officer may limit the size of the technical 
and management portion of offers submitted in response to a request for 
proposals when the contracting officer determines that it is in the 
Government's best interest to do so.

[77 FR 73526, Dec. 10, 2012]



Sec. 2415.204  Contract format.

    (e) The HCA shall be responsible for making exemptions pursuant to 
FAR 15.204(e).

[77 FR 73526, Dec. 10, 2012]



Sec. 2415.209  Solicitation provisions and contract clauses.

    (a)(1) The Contracting Officer shall insert a provision 
substantially the same as the provision at 2452.215-70, Proposal 
Content, in all solicitations for negotiated procurements using the 
tradeoff selection process (see FAR 15.101-1) expected to exceed the 
simplified acquisition limit. The Contracting Officer shall adapt 
paragraph (c) of the provision (i.e., include, delete, revise, or 
further supplement subparagraphs) to address the particular

[[Page 461]]

requirements of the immediate solicitation. The provision may be used in 
simplified acquisitions when it is necessary to obtain technical and 
management information in making the award selection. When award 
selection will be made through the lowest-priced technically acceptable 
source selection process, the provision shall be used with its Alternate 
I. If the proposed contract requires work on, or access to, HUD systems 
or applications (see the clause at 2452.239-70), the provision shall be 
used with its Alternate II. When the contracting officer has determined 
that it is necessary to limit the size of the technical and management 
portion of offers submitted by offerors, the provision shall be used 
with its Alternate III. The contracting officer shall clearly identify 
in the provision any contents of the technical and management portion of 
offers that are excluded from the size limitation (e.g., proposed 
contractor staff resumes).
    (2) The contracting officer shall insert the provision at 2452.215-
71, Relative Importance of Technical Evaluation Factors to Cost or 
Price, in solicitations for contracts to be awarded using the tradeoff 
selection process (see FAR 15.101-1) expected to exceed the simplified 
acquisition limit.

[77 FR 73526, Dec. 10, 2012]

                     Subpart 2415.3_Source Selection



Sec. 2415.303  Responsibilities.

    (a) The Senior Procurement Executive is the agency head for the 
purposes of FAR 15.303(a).
    (b)(1) The technical evaluation requirements related to source 
selection shall be performed by a Technical Evaluation Panel (TEP). The 
TEP may consist of any number of members as appropriate to the 
acquisition, with one member serving as the chairperson. As needed, the 
TEP may include advisors and committees to focus on specific technical 
areas or concerns. The TEP is responsible for fully documenting the 
evaluation of all proposals as appropriate to the source selection 
approach in use and for making the source selection recommendation to 
the source selection authority.

[77 FR 73527, Dec. 10, 2012]



Sec. 2415.304  Evaluation factors and significant subfactors.

    (c)(3)(i) The extent of participation of small businesses in 
performance of the contract, whether as a joint venture, teaming 
arrangement, or subcontractor, shall be addressed in the source 
selection for contracts to be awarded using the tradeoff source 
selection process (see FAR 15.101-1) that require the use of the clause 
at FAR 52.219-9, Small Business Subcontracting Plan.
    (d) The solicitation shall state the basis for the source selection 
decision as either the ``lowest price technically acceptable'' (LPTA) 
process or the dquo;tradeoff'' process (as defined at FAR subpart 15.1).

[77 FR 73527, Dec. 10, 2012]



Sec. 2415.305  Proposal evaluation.

    (a) After receipt of proposals, the Contracting Officer will forward 
copies of the technical portion of each proposal to the TEP Chairperson 
or his or her designee. The cost/price portion of each proposal shall be 
retained by the Contracting Officer pending initial technical evaluation 
by the TEP.
    (3) Technical evaluation. The TEP shall rate each proposal based on 
the evaluation factors specified in the solicitation. The TEP shall 
identify each proposal as being acceptable, unacceptable but capable of 
being made acceptable, or unacceptable. A proposal shall be considered 
unacceptable if it is so clearly deficient that it cannot be corrected 
through written or oral discussions. Under the tradeoff process, 
predetermined threshold levels of technical acceptability for proposals 
shall not be employed. A technical evaluation report, which complies 
with FAR 15.305(a)(3), shall be prepared and signed by the technical 
evaluators, furnished to the contracting officer, and maintained as a 
permanent record in the official procurement file.

[50 FR 46577, Nov. 8, 1985, as amended at 57 FR 59789, Dec. 15, 1992; 60 
FR 46156, Sept. 5, 1995; 61 FR 19471, May 1, 1996. Redesignated and 
amended at 64 FR 46096, Aug. 23, 1999; 77 FR 73527, Dec. 10, 2012]

[[Page 462]]



Sec. 2415.308  Source selection decision.

    After receipt and evaluation of final proposal revisions, the TEP 
shall document its selection recommendation(s) in a final written 
report. The final report shall include sufficient information to support 
the recommendation(s) made, appropriate to the source selection approach 
and type and complexity of the acquisition.

[64 FR 46096, Aug. 23, 1999]



Sec. 2415.370  Solicitation provision.

    The contracting officer shall insert the provision at 2452.215-72, 
Evaluation of Small Business Participation, in solicitations for 
contracts that require the use of the FAR clause in 52.219-9, ``Small 
Business Subcontracting Plan,'' that will be awarded using the tradeoff 
source selection process (see FAR 15.101-1).

[77 FR 73527, Dec. 10, 2012]

 Subpart 2415.5_Preaward, Award, and Postaward notifications, Protests, 
                              and Mistakes



Sec. 2415.507  Protests against award.

    Protests against awards of negotiated procurements shall be 
processed in accordance with FAR subpart 33.1 and HUDAR subpart 2433.1

[50 FR 46578, Nov. 8, 1985. Redesignated at 61 FR 19471, May 1, 1996, 
and further redesignated at 64 FR 46096, Aug. 23, 1999]

                     Subpart 2415.6_Source Selection

    Source: 50 FR 46577, Nov. 8, 1985, unless otherwise noted.



Sec. 2415.605  Content of unsolicited proposals.



Sec. 2415.605-70  Unsolicited research proposals.

    FAR subpart 15.6 outlines the policies and procedures relating to 
unsolicited proposals. In addition to these requirements, the Department 
requires that each award made as the result of an unsolicited proposal 
for research contain a commitment to provide actual cost-sharing. This 
provision will be included in the award whether or not cost-sharing was 
part of the unsolicited proposal.

[49 FR 7703, Mar. 1, 1984. Redesignated and amended at 64 FR 46095, Aug. 
23, 1999]



Sec. 2415.606  Agency procedures.

    (a) The contact points shall ensure that unsolicited proposals are 
controlled, evaluated, safeguarded, and disposed of in accordance with 
FAR subpart 15.6. Proposals, as used in this section, shall mean 
proposals for procurement contracts with the Department and shall not 
include proposals or applications for assistance, including grants or 
cooperative agreements.
    (b) Unless otherwise specified in a Federal Register announcement, 
unsolicited proposals should be submitted to:
    (1) For research: Department of Housing and Urban Development, 
Office of Policy Development and Research, PD&R Correspondence Unit, 451 
Seventh Street, SW., Washington, DC 20410-0001.
    (2) For all others: Department of Housing and Urban Development, 
Office of the Chief Procurement Officer, 451 Seventh Street, SW., 
Washington, DC 20410-0001.
    (c) Individuals or organizations interested in submitting 
unsolicited proposals should contact the appropriate office in paragraph 
(b) of this section for additional information on proposal requirements.

[71 FR 2435, Jan. 13, 2006]

                      PART 2416_TYPES OF CONTRACTS

               Subpart 2416.3_Cost-Reimbursement Contracts

Sec.

Sec. 2416.307 Contract clauses.

                   Subpart 2416.4_Incentive Contracts


Sec. 2416.406 Contract clauses.

              Subpart 2416.5_Indefinite-Delivery Contracts


Sec. 2416.505 Ordering.

Sec. 2416.506 Solicitation provisions and contract clauses.

Sec. 2416.506-70 Unpriced delivery/task orders.

[[Page 463]]

   Subpart 2416.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 2416.603 Letter contracts.

Sec. 2416.603-2 Application.

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).

    Source: 49 FR 7706, Mar. 1, 1984, unless otherwise noted.

               Subpart 2416.3_Cost-Reimbursement Contracts



Sec. 2416.307  Contract clauses.

    (a) The contracting officer shall insert the clause at 2452.216-79, 
Estimated Cost (No Fee), in all cost-reimbursement (no fee) type 
solicitations and contracts.
    (b) The contracting officer shall insert the clause at 2452.216-80, 
Estimated Cost and Fixed-Fee, in all cost-plus-fixed fee type 
solicitations and contracts.

[77 FR 73527, Dec. 10, 2012]

                   Subpart 2416.4_Incentive Contracts



Sec. 2416.406  Contract clauses.

    (e)(1) The Contracting Officer shall insert the clause at 2452.216-
70, Estimated Cost, Base Fee and Award Fee, in all cost-plus-award-fee 
solicitations and contracts.
    (2) The Contracting Officer shall insert the clause at 2452.216-71, 
Award Fee, in all fixed-price-award-fee solicitations and contracts.
    (3) The Contracting Officer shall insert the clauses at 2452.216-72, 
Determination of Award Fee Earned, 2452.216-73, Performance Evaluation 
Plan, and 2452.216-74, Distribution of Award Fee, in all award-fee 
solicitations and contracts. The Contracting Officer may modify the 
clauses to meet individual situations, and any clause or specific 
requirement therein may be deleted when it is not applicable to a given 
contract. When including the clause at 2452.216-74, Distribution of 
Award Fee, in cost-plus-award-fee contracts, the Contracting Officer 
shall use the clause with its Alternate I.
    (4) When including the clauses at 2452.216-70, Estimated Cost, Base 
Fee and Award Fee, and 2452.216-71 Award Fee, in indefinite-delivery 
solicitations and contracts under which all supplies or services will be 
obtained by issuance of task or delivery orders, the Contracting Officer 
shall substitute the word ``order'' for the word ``contract.''

[71 FR 2436, Jan. 13, 2006]

              Subpart 2416.5_Indefinite-Delivery Contracts



Sec. 2416.505  Ordering.

    (a) The contracting officer shall be the ordering official for all 
task orders except as provided for herein. The contracting officer may 
designate an ordering official when orders are to be placed on a firm 
fixed-price basis, the prices of the specific services or supplies to be 
provided under the order are set forth in the contract, and there is no 
negotiation of order terms. The contracting officer shall not designate 
ordering officials:
    (1) For contracts for services where prices are not tied to delivery 
of a completed service;
    (2) For any contracts where discounts need to be negotiated; or
    (3) In any other circumstances where adjustment of contract price or 
any other terms and conditions is necessary.
    (b)(6) The Departmental competition advocate also serves as the 
Departmental task and delivery order ombudsman in accordance with FAR 
16.505(b)(6). In addition to the duties set forth at FAR 16.505(b)(6), 
the ombudsman shall recommend any corrective action regarding affording 
fair opportunity to contractors to compete for orders to the responsible 
contracting officer.

[77 FR 73527, Dec. 10, 2012]



Sec. 2416.506  Solicitation provisions and contract clauses.



Sec. 2416.506-70  Solicitation provisions and contract clauses.

    (a) Unpriced task orders. The Contracting Officer shall insert the 
clause at 2452.216-75, Unpriced Task Orders, in contracts in which task 
orders are individually negotiated and when there may be a need to issue 
unpriced task orders. The Contracting Officer shall

[[Page 464]]

ensure that the cost of the work authorized by any unpriced task order 
is not in excess of the funds available for the order. The Contracting 
Officer shall establish the time period for the definitization of each 
unpriced order and insert the anticipated date of definitization in the 
clause. The HCA shall approve periods that exceed 180 days.
    (b) Minimum and maximum quantities or amounts for order. The 
contracting officer shall insert a clause substantially the same as 
2452.216-76, Minimum and Maximum Quantities or Amounts for Order, in all 
indefinite-quantity and requirements solicitations and contracts. When 
the clause is used for requirements solicitations and contracts, the 
contracting officer may either delete paragraph (a) or insert ``none'' 
for the minimum quantity or amount.
    (c) Estimated quantities--requirements contract. The Contracting 
Officer shall insert the provision at 2452.216-77, Estimated 
Quantities--Requirements Contract, in all solicitations for requirements 
contracts.
    (d) Ordering procedures. The Contracting Officer shall insert the 
clause at 2452.216-78, Ordering Procedures, in all indefinite-delivery 
solicitations and contracts. If the supplies or services to be ordered 
under the contract are pre-priced in the contract, the orders will be 
issued on a fixed-price basis, and no order terms are negotiated before 
issuance, the Contracting Officer shall use the clause with its 
Alternate I. If the contract provides for the issuance of task orders 
for services on a negotiated basis (see also 2416.505), the Contracting 
Officer shall use the clause with its Alternate II.

[71 FR 2436, Jan. 13, 2006, as amended at 77 FR 73527, Dec. 10, 2012]

   Subpart 2416.6_Time-And-Materials, Labor-Hour, and Letter Contracts



Sec. 2416.603  Letter contracts.



Sec. 2416.603-2  Application.

    (c) The HCA shall approve additional time periods for definitization 
of letter contracts authorized by the Contracting Officer pursuant to 
FAR 16.603-2(c).

[64 FR 46096, Aug. 23, 1999]

                  PART 2417_SPECIAL CONTRACTING METHODS

                         Subpart 2417.2_Options

Sec.

Sec. 2417.204 Contracts.

      Subpart 2417.5_Interagency Acquisitions Under the Economy Act


Sec. 2417.504 Ordering procedures.

    Authority: 31 U.S.C. 1535; 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

                         Subpart 2417.2_Options



Sec. 2417.204  Contracts.

    (e)(1) The Senior Procurement Executive (SPE) is authorized to 
approve contract periods for other than information technology contracts 
that exceed the 5-year limit set forth at FAR 17.204(e) that are not 
otherwise limited by statute (e.g., the Service Contract Act). Except as 
provided for in paragraphs (e)(2) and (4) of this section, the SPE shall 
approve any contract period that will exceed 5 years, including all 
option periods, prior to the award of the basic contract.
    (2) With regard to HUD indefinite-delivery contracts, the ``contract 
period'' requiring the SPE's prior approval in paragraph (e)(1) of this 
section shall mean the ordering period of a contract. Unless otherwise 
specified within the contract, the 5-year limit shall not apply to the 
period that any task or delivery order issued within the contract's 
ordering period extends beyond the final end date of the contract's 
ordering period, regardless of whether the performance period of the 
order causes the total period of the contract to exceed 5 years. The 
issuance of any such task or delivery order does not require the SPE's 
approval. Task or delivery orders with end dates extending beyond the 
ordering period of the contract may not exceed the final delivery date 
that the contracting officer has

[[Page 465]]

stated in the applicable indefinite-delivery FAR clause included in the 
contract (i.e., 52.216-20, ``Definite Quantity,'' paragraph (d); 52.216-
21, ``Requirements,'' paragraph (f); or 52.216-22, ``Indefinite 
Quantity,'' paragraph (d)).
    (3) The SPE's authority described in paragraphs (e)(1) and (2) of 
this section shall not be used as the basis to retroactively increase or 
extend the period of any existing contract.
    (4) The SPE is not required to approve any option properly exercised 
pursuant to the FAR clause at 52.217-8, ``Option to Extend Services,'' 
that extends the contract period beyond 5 years; provided that the total 
length of all options exercised pursuant to FAR clause 52.217-8 may not 
exceed 6 months; and provided that exercise of any such options shall be 
in accordance with FAR 37.111. Any proposed extension of a contract 
beyond the 6-month maximum permitted by FAR 52.217-8 shall be considered 
a new requirement and shall be subject to the competition requirements 
of FAR part 6.

[77 FR 73528, Dec. 10, 2012]

      Subpart 2417.5_Interagency Acquisitions Under the Economy Act



Sec. 2417.504  Ordering procedures.

    (b) The Contracting Officer shall use HUD Form 730, Award/
Modification of Interagency Agreement, when placing or modifying an 
order for supplies or services from another Government agency.

[53 FR 46535, Nov. 17, 1988]

[[Page 466]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 2419_SMALL BUSINESS PROGRAMS

                         Subpart 2419.2_Policies

Sec.

Sec. 2419.201 General policy.

              Subpart 2419.5_Set-Asides for Small Business


Sec. 2419.503 [Reserved]

        Subpart 2419.7_The Small Business Subcontracting Program


Sec. 2419.708 Solicitation provisions and contract clauses.

   Subpart 2419.8_Small Business Administration Section (8)(a) Program


Sec. 2419.800 General.

Sec. 2419.803 Selecting acquisitions for the 8(a) Program.

Sec. 2419.803-70 Procedures for simplified acquisitions under the 
          partnership agreement.

Sec. 2419.804 Evaluation, offering, and acceptance.

Sec. 2419.804-2 Agency offering.

Sec. 2419.804-3 SBA acceptance.

Sec. 2419.804-370 SBA acceptance under partnership agreements for 
          acquisitions exceeding the simplified acquisition threshold.

Sec. 2419.805 Competitive 8(a).

Sec. 2419.805-2 Procedures.

Sec. 2419.806 Pricing the 8(a) contract.

Sec. 2419.808 Contract negotiation.

Sec. 2419.808-1 Sole source.

Sec. 2419.811 Preparing the contracts.

Sec. 2419.811-1 Sole source.

Sec. 2419.811-2 Competitive.

Sec. 2419.811-3 Contract clauses.

Sec. 2419.812 Contract administration.

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

                         Subpart 2419.2_Policies



Sec. 2419.201  General policy.

    (d) The Director of HUD's Office of Small and Disadvantaged Business 
Utilization (OSDBU) is responsible for the administration of the HUD 
small business program and for performing all functions and duties 
prescribed in FAR 19.201(d). This includes Department-wide 
responsibility for developing, implementing, executing, and managing 
these programs; providing advice on these programs; and representing HUD 
before other government agencies on matters primarily affecting small, 
small disadvantaged, and women-owned small business; HUBZone small 
business; veteran-owned small business; and service-disabled veteran-
owned small business concerns.
    (e) The Director of OSDBU shall designate small business specialists 
who shall advise and assist HUD's contracting activity and small 
business concerns as described in paragraph (d) on all matters related 
to small business participation in HUD acquisitions. Small business 
specialists shall perform the following functions:
    (1) Maintain a program designed to locate capable small-business 
sources as referenced in paragraph (d) of this section for current and 
future procurements;
    (2) Coordinate inquiries and requests for advice from such 
businesses on procurement matters;
    (3) Review proposed requirements for supplies and services, ensure 
that all such business concerns will be afforded an equitable 
opportunity to compete, and, as appropriate, initiate recommendation for 
small business or Section 8a set-asides (under the Small Business Act);
    (4) Take action to ensure the availability of adequate 
specifications and drawings, when necessary, to obtain participation by 
such businesses in a procurement;
    (5) Review proposed procurements for possible breakout of items 
suitable for procurement from such businesses;
    (6) Advise such businesses with respect to the financial assistance 
available under existing laws and regulations and assist such businesses 
in applying for financial assistance;
    (7) Ensure that adequate records are maintained and accurate reports 
are prepared concerning such businesses participation in the procurement 
program;
    (8) Make available to SBA copies of solicitations, when requested, 
and
    (9) Act as liaison between the Contracting Officer and the 
appropriate SBA office in connection with set-

[[Page 467]]

asides, certificates of competency, size classification, and any other 
matter in which the small business program may be involved.

[49 FR 7706, Mar. 1, 1984, as amended at 50 FR 46578, Nov. 8, 1985; 61 
FR 19471, May 1, 1996; 77 FR 73528, Dec. 10, 2012]

              Subpart 2419.5_Set-Asides for Small Business



Sec. 2419.503  [Reserved]

        Subpart 2419.7_The Small Business Subcontracting Program



Sec. 2419.708  Solicitation provisions and contract clauses.

    (b) The contracting officer shall insert clause at 2452.219-73, 
``Incorporation of Subcontracting Plan,'' in solicitations and contracts 
when a subcontracting plan is required. The contracting officer shall 
insert the provision at 2452.219-74, ``Small Business Subcontracting 
Goals,'' in solicitations for contracts that are required to include the 
FAR clauses at 52.219-8, ``Utilization of Small Business Concerns,'' and 
52.219-9, ``Small Business Subcontracting Plan.''
    (d) The contracting officer shall insert the provision at 2452.219-
70, Small Business Subcontracting Plan Compliance, in solicitations for 
contracts that are expected to exceed the dollar thresholds set forth at 
FAR 19.702 and are required to include the clause at FAR 52.219-9, Small 
Business Subcontracting Plan.

[77 FR 73528, Dec. 10, 2012]

   Subpart 2419.8_Small Business Administration Section (8)(a) Program



Sec. 2419.800  General.

    (f) By Partnership Agreement between the SBA and HUD, the SBA 
delegated to HUD's Senior Procurement Executive its authority under 
paragraph 8(a)(1)(A) of the Small Business Act (5 U.S.C. 637(a)) to 
enter into 8(a) prime contracts, and its authority under 8(a)(1)(B) of 
the Small Business Act to award the performance of those contracts to 
eligible 8(a) Program participants. Under the Partnership Agreement, 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 the 
delegation issued as a result of the Partnership Agreement; however, any 
such withdrawal shall have no effect on contracts already awarded under 
the Partnership Agreement.

[77 FR 73528, Dec. 10, 2012]



Sec. 2419.803  Selecting acquisitions for the 8(a) Program.



Sec. 2419.803-70  Procedures for simplified acquisitions under the 
          partnership agreement.

    (a) HUD contracting officers may use the procedures of FAR part 13 
and HUDAR part 2413 to make purchases not exceeding the simplified 
acquisition threshold from 8(a) Participants. The following apply to 
such acquisitions:
    (1) Neither offering letters to, nor acceptance letters from the SBA 
are required.
    (2) The contracting officer will use the Central Contractor 
Registration (CCR) database on the Internet (http://www.ccr.gov) to 
establish that the selected 8(a) firm is a current program participant.
    (b) Once an 8(a) contractor has been identified, the contracting 
officer will establish the price with the selected 8(a) contractor.
    (c) For acquisitions requiring an award document (e.g., purchase 
order), the contracting officer will:
    (1) Prepare and issue an award document in accordance with the 
applicable provisions of FAR part 13 and HUDAR part 2413. The applicable 
clauses prescribed in 2419.811-3 shall be included in the award 
document. The contracting officer will issue the award document directly 
to the 8(a) firm; and
    (2) Forward to the SBA District Office serving the 8(a) firm a copy 
of the award document within 5 days after the award is issued.

[77 FR 73528, Dec. 10, 2012]

[[Page 468]]



Sec. 2419.804  Evaluation, offering, and acceptance.



Sec. 2419.804-2  Agency offering.

    (d) When applicable, the notification must identify that the 
offering is in accordance with the Partnership Agreement identified in 
2419.800.

[77 FR 73529, Dec. 10, 2012]



Sec. 2419.804-3  SBA acceptance.



Sec. 2419.804-370  SBA acceptance under partnership agreements for 
          acquisitions exceeding the simplified acquisition threshold.

    (a) The following procedures apply to the acceptance of requirements 
covered by the Partnership Agreement for acquisitions that exceed the 
simplified acquisition threshold.
    (1) The SBA's decision whether to accept the requirement will be 
transmitted to HUD in writing within 5 working days of receipt of the 
offer.
    (2) The SBA may request, and HUD may grant, an extension beyond the 
5-day limit.
    (3) SBA's acceptance letters should be faxed or emailed to HUD.
    (4) If HUD has not received an acceptance or rejection of the 
offering from SBA within 5 days of SBA's receipt of the offering letter, 
the contracting officer may assume that the requirement has been 
accepted and proceed with the acquisition.
    (b) The contents of SBA's acceptance letter shall be limited to the 
eligibility of the recommended 8(a) contractor.

[77 FR 73529, Dec. 10, 2012]



Sec. 2419.805  Competitive 8(a).



Sec. 2419.805-2  Procedures.

    (b)(3) For requirements exceeding the simplified acquisition 
threshold that are processed under the Partnership Agreement cited in 
2419.800, the contracting officer shall submit the name, address, and 
telephone number of the low bidder (sealed bid requirements) or the 
apparent successful offeror (negotiated acquisitions) to the SBA 
Business Opportunity Specialist at the field office servicing the 
identified 8(a) firm. The SBA will determine the eligibility of the 
firm(s) and advise the contracting officer within 2 working days of the 
receipt of the request. If the firm is determined to be ineligible, the 
contracting officer will submit information on the next low offeror or 
next apparent successful offeror (as applicable) to the cognizant SBA 
field office.

[77 FR 73529, Dec. 10, 2012]



Sec. 2419.806  Pricing the 8(a) contract.

    (a) For contracts awarded under the Partnership Agreement cited in 
2419.800, when required by FAR subpart 15.4, the contracting officer 
shall obtain certified cost or pricing data directly from the 8(a) 
contractor.

[77 FR 73529, Dec. 10, 2012]



Sec. 2419.808  Contract negotiation.



Sec. 2419.808-1  Sole source.

    (a) If the acquisition is conducted under the Partnership Agreement 
cited in 2419.800, the 8(a) contractor is responsible for negotiating 
with HUD within the time frame established by the contracting officer. 
If the 8(a) contractor does not negotiate within the established time 
frame, and HUD cannot allow additional time, HUD, after notification and 
approval by SBA, may proceed with the acquisition from other sources.
    (b) If the acquisition is conducted under the Partnership Agreement 
cited in 2419.800, HUD 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 negotiations.

[77 FR 73529, Dec. 10, 2012]



Sec. 2419.811  Preparing the contracts.



Sec. 2419.811-1  Sole source.

    (e) If the award is to be made under the Partnership Agreement cited 
in 2419.800, the contracting officer shall prepare the instrument to be 
awarded to the 8(a) firm in accordance with the normal HUD procedures 
for non-8(a) contracts, except for the following:
    (1) The award form shall cite 41 U.S.C. 253(c)(5) and 15 U.S.C. 
637(a) as the authority for use of other than full and open competition.
    (2) The contracting officer shall include appropriate contract 
clauses, as

[[Page 469]]

necessary, to reflect that the acquisition is an 8(a) contract awarded 
under the authority of the Partnership Agreement cited in 2419.800.
    (3) The contracting officer shall include SBA's requirement number 
on the contract unless the acquisition does not exceed the simplified 
acquisition threshold.
    (4) A single award document shall be used between HUD and the 8(a) 
contractor. As such, no signature on the part of the SBA is required; a 
single signature by the HUD contracting officer shall suffice. 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 
forms.

[77 FR 73529, Dec. 10, 2012]



Sec. 2419.811-2  Competitive.

    (a) If the award is to be made under the Partnership Agreement cited 
in 2419.800, competitive contracts for 8(a) firms shall be prepared in 
accordance with the same standards as 8(a) sole-source contracts as set 
forth in 2419.811-1.
    (b) If the acquisition is conducted under the Partnership Agreement 
cited in 2419.800, the process for obtaining signatures shall be as 
specified in 2419.811-1(e).

[77 FR 73529, Dec. 10, 2012]



Sec. 2419.811-3  Contract clauses.

    (d)(3) The contracting officer shall use the clause at FAR 52.219-
18, ``Notification of Competition Limited to Eligible 8(a) Concerns,'' 
with the clause at 2452.219-71, ``Notification of Competition Limited to 
Eligible 8(a) Concerns--Alternate III to FAR 52.219-18,'' for 
competitive 8(a) acquisitions processed under the Partnership Agreement 
cited in 2419.800.
    (f) In contracts and purchase orders awarded under the Partnership 
Agreement cited at 2419.800, the contracting officer shall substitute 
the clause at 2452.219-72, Section 8(a) Direct Award, for the clauses at 
FAR 52.219-11, ``Special 8(a) Contract Conditions;'' FAR 52.219-12, 
``Special 8(a) Subcontract Conditions;'' and FAR 52.219-17, ``Section 
8(a) Award.''

[77 FR 73530, Dec. 10, 2012]



Sec. 2419.812  Contract administration.

    (e) Awards under the Partnership Agreement cited in 2419.800 are 
subject to 15 U.S.C. 637(a)(21). These contracts contain the clause at 
2452.219-71, Section 8(a) Direct Award (Deviation), which requires the 
8(a) contractor to notify the SBA and the HUD contracting officer when 
ownership of the firm is being transferred.

[77 FR 73530, Dec. 10, 2012]

                          PART 2420 [RESERVED]

     PART 2422_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    Authority: 29 U.S.C. 793; 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46535, Nov. 17, 1988, unless otherwise noted.

              Subpart 2422.14_Employment of the Handicapped



Sec. 2422.1408  Contract clause.

    (c) The Contracting Officer shall insert the clause at 2452.222-70, 
Accessibility of Meetings, Conferences, and Seminars to Persons with 
Disabilities, in solicitations and contracts when the contract will 
require the contractor (including contractor employees and 
subcontractors) to hold meetings, conferences or seminars.

[71 FR 2437, Jan. 13, 2006]

       PART 2424_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 2424.1_Protection of Individual Privacy

Sec.

Sec. 2424.103 Procedures.

                Subpart 2424.2_Freedom of Information Act


Sec. 2424.203 Policy.


[[Page 470]]


    Authority: 5 U.S.C. 552, 552a; 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 49 FR 7708, Mar. 1, 1984, unless otherwise noted.

             Subpart 2424.1_Protection of Individual Privacy



Sec. 2424.103  Procedures.

    (b)(2) See 24 CFR part 16 for the HUD regulations which implement 
the Privacy Act.

                Subpart 2424.2_Freedom of Information Act



Sec. 2424.203  Policy.

    See 24 CFR part 15 for the HUD regulations which implement the 
Freedom of Information Act.

[49 FR 7708, Mar. 1, 1984. Redesignated at 64 FR 46097, Aug. 23, 1999]

                     PART 2425_TRADE AGREEMENTS ACT

    Authority: 42 U.S.C. 3535(d).



Sec. 2425.402  Policy.

    (a)(1) It is the Department's policy to determine whether the Trade 
Agreements Act applies based on the total estimated dollar value of the 
proposed acquisition before the solicitation is issued, including all 
line items and options.

[57 FR 59790, Dec. 15, 1992, as amended at 64 FR 46097, Aug. 23, 1999]

                 PART 2426_OTHER SOCIOECONOMIC PROGRAMS

              Subpart 2426.70_Minority Business Enterprises

Sec.

Sec. 2426.7001--2426.7002 [Reserved]

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46536, Nov. 17, 1988, unless otherwise noted.

              Subpart 2426.70_Minority Business Enterprises



Sec. 2426.7001--2426.7002  [Reserved]

                 PART 2427_PATENTS, DATA, AND COPYRIGHTS

         Subpart 2427.3_Patent Rights Under Government Contracts

Sec.

Sec. 2427.305 Administration of patent rights clauses.

Sec. 2427.305-2 Administration by the Government.

              Subpart 2427.4_Rights in Data and Copyrights


Sec. 2427.470 Contract clause.

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46536, Nov. 17, 1988, unless otherwise noted.

         Subpart 2427.3_Patent Rights Under Government Contracts



Sec. 2427.305  Administration of patent rights clauses.



Sec. 2427.305-2  Administration by the Government.

    (b) Contractor reports. Contractors shall complete and submit to the 
Contracting Officer HUD Form 770, Report of Inventions and Subcontracts, 
upon receipt of said form. The Contracting Officer shall send the form 
to those contractors whose contract work may have required the 
development of inventions upon physical completion of the contract.

              Subpart 2427.4_Rights in Data and Copyrights



Sec. 2427.470  Contract clause.

    The contracting officer shall insert the clause 2452.227-70, 
Government Information, in all solicitations and contracts when the 
Government will provide information to the contractor, and/or when the 
contractor will obtain information on the Government's behalf to perform 
work required under the contract. The contracting officer shall describe 
all information to be

[[Page 471]]

provided to the contractor in paragraph (d)(1) of the clause.

[77 FR 73530, Dec. 10, 2012]

[[Page 472]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                      PART 2428_BONDS AND INSURANCE

                          Subpart 2428.1_Bonds

Sec.

Sec. 2428.106 Administration.

Sec. 2428.106-6 Furnishing information.

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

    Source: 50 FR 46578, Nov. 8, 1985, unless otherwise noted.

                          Subpart 2428.1_Bonds



Sec. 2428.106  Administration.



Sec. 2428.106-6  Furnishing information.

    (c) The Contracting Officer shall furnish the certified copy of the 
bond and the contract for which it was given to any person who requests 
them in accordance with FAR 28.106-6.

[64 FR 46097, Aug. 23, 1999]

                             PART 2429_TAXES

    Authority: 42 U.S.C. 3535(d).

                         Subpart 2429.1_General



Sec. 2429.101  Resolving tax problems.

    In order to have uniformity in HUD's treatment of the tax aspects of 
contracting and ensure effective cooperation with other Government 
agencies on tax matters of mutual interest, the Office of General 
Counsel has the responsibility within HUD for handling all those tax 
problems. Therefore, the contracting activity will not engage in 
negotiation with any taxing authority for the purpose of determining the 
validity or applicability of, or obtaining exemptions from or refund of, 
any tax. When a problem exists, the Contracting Officer shall request, 
in writing, the assistance of legal counsel. The request shall detail 
the problem and be accompanied by appropriate backup data. Counsel shall 
report to the Contracting Officer as to the necessary disposition of the 
tax problem. The Contracting Officer will notify the contractor of the 
outcome of the tax problem. Counsel is responsible for communications 
with the Department of Justice for representation or intervention in 
proceedings concerning taxes.

[60 FR 46157, Sept. 5, 1995]

                      PART 2432_CONTRACT FINANCING


Sec. 2432.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 2432.006-1 General.

Sec. 2432.006-2 Definitions.

Sec. 2432.006-3 Responsibilities.

Sec. 2432.006-4 Procedures.

Sec. 2432.007 Contract financing payments.

          Subpart 2432.1_Non-Commercial Item Purchase Financing

Sec.

Sec. 2432.114 Unusual contract financing.

            Subpart 2432.2_Commercial Item Purchase Financing


Sec. 2432.201 Statutory authority.

        Subpart 2432.4_Advance Payments for Non-Commercial Items


Sec. 2432.402 General.

Sec. 2432.407 Interest.

                     Subpart 2432.7_Contract Funding


Sec. 2432.703-1 General.

Sec. 2432.704 Limitation of cost or funds.

Sec. 2432.704-70 Incrementally funded fixed-price contracts.

Sec. 2432.705 Contract clauses.

Sec. 2432.705-70 Clause for limitation of Government's obligation.

                      Subpart 2432.9_Prompt Payment


Sec. 2432.903 Policy.

Sec. 2432.906 Making payments.

Sec. 2432.908 Contract clauses.

    Authority: 31 U.S.C. 3901-3905; 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46536, Nov. 17, 1988, unless otherwise noted.

[[Page 473]]



Sec. 2432.006  Reduction or suspension of contract payments upon finding 
          of fraud.



Sec. 2432.006-1  General.

    The Senior Procurement Executive is the agency head for the purposes 
of FAR 32.006-1. In accordance with FAR 32.006-1(c), the Senior 
Procurement Executive may delegate the remedy coordination official 
duties to personnel in the Office of the Chief Procurement Officer at or 
above the Level IV of the Executive Service.

[77 FR 73530, Dec. 10, 2012]



Sec. 2432.006-2  Definitions.

    ``Remedy coordination official'' means the Senior Procurement 
Executive.

[77 FR 73530, Dec. 10, 2012]



Sec. 2432.006-3  Responsibilities.

    (b) HUD personnel shall report immediately in writing when a 
contractor's request for advance, partial, or progress payments is 
suspected to be fraudulent. The report shall be made to the contracting 
officer and the remedy coordination official. The report shall describe 
the events, acts, and conditions that indicate the apparent or suspected 
violation and include all pertinent documents. The remedy coordination 
official will consult with, and refer cases to, the Office of the 
Inspector General for investigation, as appropriate. If appropriate, the 
Office of the Inspector General will provide a report to the Senior 
Procurement Executive.

[77 FR 73530, Dec. 10, 2012]



Sec. 2432.006-4  Procedures.

    The Senior Procurement Executive is the agency head for the purposes 
of FAR 32.006-4.

[77 FR 73530, Dec. 10, 2012]



Sec. 2432.007  Contract financing payments.

    (a) The Senior Procurement Executive is the agency head for the 
purposes of FAR 32.007(a).

[77 FR 73530, Dec. 10, 2012]

          Subpart 2432.1_Non-Commercial Item Purchase Financing



Sec. 2432.114  Unusual contract financing.

    The Senior Procurement Executive is the agency head for the purpose 
of FAR 32.114.

[65 FR 3573, Jan. 21, 2000; 65 FR 6444, Feb. 9, 2000]

            Subpart 2432.2_Commercial Item Purchase Financing



Sec. 2432.201  Statutory authority.

    The head of the contracting activity is the agency head for the 
purpose of FAR 32.201.

[65 FR 3573, Jan. 21, 2000]

        Subpart 2432.4_Advance Payments for Non-Commercial Items



Sec. 2432.402  General.

    (e)(1) The determination and findings required by FAR 
32.402(c)(1)(iii) shall be made by the HCA.
    (2) Each advance payment situation shall be coordinated with the 
head of the cognizant accounting office, before authorization may be 
given, to ensure that there are controls in place to assure proper 
administration of advance payments.

[60 FR 46157, Sept. 5, 1995, as amended at 64 FR 46097, Aug. 23, 1999]



Sec. 2432.407  Interest.

    (d) The Senior Procurement Executive is the agency head's designee 
for the purposes of FAR 32.407(d).

[65 FR 3573, Jan. 21, 2000]

                     Subpart 2432.7_Contract Funding



Sec. 2432.703-1  General.

    (b)(1) Except as described herein, a fixed-price contract may be 
funded incrementally only if--
    (i) Sufficient funds are not available to the Department at the time 
of contract award or exercise of option to fully fund the contract or 
option;
    (ii) The contract (excluding any options) or any exercised option--
    (A) Is for severable services;

[[Page 474]]

    (B) Does not exceed one year in length; and
    (C) Is incrementally funded using funds available (unexpired) as of 
the date the funds are obligated; or
    (iii) The contract uses funds available from multiple (2 or more) 
fiscal years and Congress has otherwise authorized incremental funding.
    (2) An incrementally funded fixed-price contract shall be fully 
funded as soon as funds are available.

[77 FR 73530, Dec. 10, 2012]



Sec. 2432.703-3  Contracts crossing fiscal years.

    (b) The contracting officer may enter into a contract, exercise an 
option, or place an order under a contract for severable services for a 
period that begins in one fiscal year and ends in the next fiscal year 
if the period of the contract awarded, option exercised, or order placed 
does not exceed one year.

[65 FR 3573, Jan. 21, 2000]



Sec. 2432.704  Limitation of cost or funds.



Sec. 2432.704-70  Incrementally funded fixed-price contracts.

    (a) Upon receipt of the contractor's notice under paragraph (c) of 
the clause at 2452.232-72, Limitation of Government's Obligation, the 
contracting officer shall promptly provide written notice to the 
contractor that the Government is--
    (1) Allotting additional funds for continued performance and 
increasing the Government's limitation of obligation in a specified 
amount;
    (2) Terminating the affected contract line items (CLINs) or 
contract, as applicable; or
    (3) Considering whether to allot additional funds; and
    (i) The contractor is required by the contract terms to stop work 
when the Government's limitation of obligation is reached; and
    (ii) Any costs expended beyond the Government's limitation of 
obligation are at the contractor's risk.
    (b) Upon learning that the contract will receive no further funds, 
the contracting officer shall promptly give the contractor written 
notice of the Government's decision and terminate the affected CLINs or 
contract, as applicable, for the convenience of the Government.
    (c) The contracting officer shall ensure that, in accordance with 
paragraph (b) of the clause at 2452.232-72, ``Limitation of Government's 
obligation,'' sufficient funds are allotted to the contract to cover the 
total amount payable to the contractor in the event of termination for 
the convenience of the Government.

[77 FR 73531, Dec. 10, 2012]



Sec. 2432.705  Contract clauses.



Sec. 2432.705-70  Clause for limitation of Government's obligation.

    The contracting officer shall insert the clause at 2452.232-72, 
``Limitation of Government's Obligation,'' in solicitations and 
resultant incrementally funded fixed-price contracts as authorized by 
2432.703-1. The contracting officer shall insert the information 
required in the table in paragraph (b) and the notification period in 
paragraph (c) of the clause.

[77 FR 73531, Dec. 10, 2012]

                      Subpart 2432.9_Prompt Payment



Sec. 2432.903  Policy.

    (a) The Senior Procurement Executive is the agency head's designee 
for the purposes of FAR 32.903(a).

[77 FR 73531, Dec. 10, 2012]



Sec. 2432.906  Making payments.

    (a) General. The authority to make the determination prescribed in 
FAR 32.906(a) is delegated to the HCA. Before making this determination, 
the HCA shall consult with the appropriate payment office to ensure that 
procedures are in place to permit timely payment.

[77 FR 73531, Dec. 10, 2012]



Sec. 2432.908  Contract clauses.

    (c)(1) The contracting officer shall insert the clause at 2452.232-
73, Constructive Acceptance Period, in solicitations and contracts when 
the contracting officer has determined that an acceptance period longer 
than the 7 days provided for in the FAR clause at 52.232-25, ``Prompt 
Payment,'' is needed.

[[Page 475]]

    (2) The contracting officer shall insert a clause substantially the 
same as provided at 2452.232-70, Payment Schedule and Invoice Submission 
(Fixed-price), in fixed-price contracts other than performance-based 
contracts under which performance-based payments will be used.
    (3) The contracting officer shall insert a clause substantially the 
same as provided at 2452.232-71, Voucher Submission, in all cost-
reimbursement, time-and-materials, and labor-hour type solicitations and 
contracts. The contracting officer shall insert the billing period 
agreed upon with the contractor (see also the FAR clause at 52.216-7, 
``Allowable Cost and Payment'').
    (4) The Contracting Officer may substitute appropriate language for 
the clauses in paragraph (c)(2) and (3) of this clause when payment 
under the contract will be made on the basis of other than the 
submission of an invoice or voucher; e.g., directly from proceeds of 
property sales.

[77 FR 73531, Dec. 10, 2012]

                PART 2433_PROTESTS, DISPUTES, AND APPEALS

Sec.

Sec. 2433.000 Scope of part.

                         Subpart 2433.1_Protests


Sec. 2433.102 General.

Sec. 2433.102-70 Responsibility.

Sec. 2433.103 Protests to the agency.

Sec. 2433.104 Protests to GAO.

Sec. 2433.106 Solicitation provision.

    Authority: 31 U.S.C. 3551-3556; 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 50 FR 46578, Nov. 8, 1985, unless otherwise noted.



Sec. 2433.000  Scope of part.

    This part identifies the responsible agents and sets forth 
procedural requirements for handling protests.

[51 FR 40333, Nov. 6, 1986]

                         Subpart 2433.1_Protests



Sec. 2433.102  General.



Sec. 2433.102-70  Responsibility.

    With the exception of protests filed directly with the Department 
pursuant to FAR 33.103, the Office of General Counsel has responsibility 
for handling matters relating to protests against award of contracts by 
the Department. All written communications from the Department to the 
GAO or other adjudicating body shall be made by the Office of General 
Counsel. The Contracting Officer has responsibility for furnishing the 
Office of General Counsel with all information relating to a protest.

[64 FR 46097, Aug. 23, 1999]



Sec. 2433.103  Protests to the agency.

    (d)(2) Appeals of Contracting Officer protest decisions shall 
include the information required at FAR 33.103(d)(2)(i), (ii), (iii), 
(iv), (v) and (vi).
    (d)(4)(i) Protesters may request an appeal of the Contracting 
Officer's decision on a protest. Such requests shall be made in writing 
to the cognizant HCA not later than 10 days after receipt of the 
Contracting Officer's decision.
    (ii) The HCA, in consultation with the Office of General Counsel, 
shall make all independent reviews of the Contracting Officer's decision 
requested by protesters in accordance with FAR 33.103(d)(4) and provide 
the protester with the HCA's decision on the appeal.
    (f)(1) A determination by the Contracting Officer to award a 
contract pending resolution of a protest as authorized by FAR 33.103 
shall be approved by the HCA in consultation with the Office of General 
Counsel.
    (f)(3) A determination by the Contracting Officer to not suspend 
performance of a contract pending resolution of a protest as authorized 
by FAR 33.103 shall be approved by the HCA in consultation with the 
Office of General Counsel.

[64 FR 46097, Aug. 23, 1999]

[[Page 476]]



Sec. 2433.104  Protests to GAO.

    (a)(1) General. When advised by GAO of the receipt of a protest, the 
Office of General Counsel shall immediately inform the contracting 
activity. The Contracting Officer shall notify the Office of General 
Counsel upon receipt of the copy of the protest from the protestor.
    (2) Upon receipt by the Department of a written request for a formal 
report relating to a protest, the Office of General Counsel, with 
appropriate assistance from the Contracting Officer, shall prepare and 
file the report in accordance with GAO requirements at 4 CFR part 21.
    (c) Protests after award. Protests received after award shall be 
treated in the same manner as those filed with GAO before award in 
accordance with paragraphs (a)(1) and (a)(2) of this section.
    (d) Findings and notice. When the Contracting Officer makes a 
determination to award a contract notwithstanding a protest as 
authorized by FAR 33.104(b)(1)(i-ii), or to continue contractor 
performance as authorized by FAR 33.104(c)(2), that determination of the 
intent to make an award or to continue contract performance shall be 
approved by the HCA after consultation with the Office of General 
Counsel.
    (g) Notice to GAO. If the HCA proposes not to comply with a GAO 
recommendation concerning the resolution of a protest of a procurement 
award, prior to reporting to the Comptroller General concerning that 
decision, the HCA shall obtain the concurrence of the Office of General 
Counsel and the Senior Procurement Executive.

[50 FR 46578, Nov. 8, 1985, as amended at 51 FR 40333, Nov. 6, 1986; 57 
FR 59790, Dec. 15, 1992]



Sec. 2433.106  Solicitation provision.

    The Contracting Officer shall insert the provision at 2452.233-70, 
Review of Contracting Officer Protest Decisions, in all solicitations 
for contracts expected to exceed the simplified acquisition threshold.

[64 FR 46097, Aug. 23, 1999]

                   PART 2434_MAJOR SYSTEM ACQUISITIONS

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).



Sec. 2434.003  Responsibilities.

    (a) The Senior Procurement Executive is responsible for establishing 
written procedures for implementation of A-109. Such procedures have 
been set out in internal Departmental directives.

[53 FR 46537, Nov. 17, 1988]

[[Page 477]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

         PART 2436_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

               Subpart 2436.6_Architect-Engineer Services

Sec.

Sec. 2436.602 Selection of firms for architect-engineer contracts.

Sec. 2436.602-2 Evaluation boards.

Sec. 2436.602-4 Selection authority.

Sec. 2436.602-5 Short selection processes for contracts not to exceed 
          the small purchase limitation.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 49 FR 7708, Mar. 1, 1984, unless otherwise noted.

               Subpart 2436.6_Architect-Engineer Services



Sec. 2436.602  Selection of firms for architect-engineer contracts.



Sec. 2436.602-2  Evaluation boards.

    (a) Each architect-engineer evaluation board, whether permanent or 
ad hoc (which may include preselection boards), shall consist of at 
least three voting members who are Federal employees from the 
appropriate program area or from Federal offices outside the program 
area as appropriate. One member of each board shall be appointed 
chairperson. Non-voting advisors may also be appointed, including 
private practitioners in architecture, engineering and related 
professions. The members of a permanent board shall be appointed for a 
period of two years. Appointment shall be made by the following 
authorities with copies of appointment memoranda furnished to the 
appropriate contracting activity:
    (1) Assistant Secretary or equivalent for boards appointed at the 
Headquarters level;
    (2) The cognizant program office head for boards appointed at the 
field level.
    (c) Conflict of interest. Each board member, whether voting or 
nonvoting, shall be advised of, and presumed to be familiar with the 
regulations at 24 CFR part 0, Standards of Conduct, regarding conflicts 
of interest. If at any time during the selection process a board member 
encounters a situation with one or more of the firms being considered 
that might be or might appear to be a conflict of interest, he or she 
will disqualify him or herself and call it to the attention of the 
chairperson for resolution and proper action. The chairperson will refer 
the matter to legal counsel.
    (d) Confidentiality. The evaluation board is to be insulated from 
outside pressures, to the extent practical. No person having knowledge 
of the activities of the board shall divulge information concerning the 
deliberations of the board to any other persons not having a need to 
know such information.

[49 FR 7708, Mar. 1, 1984, as amended at 57 FR 59790, Dec. 15, 1992; 60 
FR 46157, Sept. 5, 1995; 65 FR 3576, Jan. 21, 2000]



Sec. 2436.602-4  Selection authority.

    (a) The final selection decision shall be made by the cognizant 
Primary Organization Head in headquarters, or field program office head.

[65 FR 3577, Jan. 21, 2000]



Sec. 2436.602-5  Short selection processes for contracts not to exceed 
          the small purchase limitation.

    The short selection process described in FAR 36.602-5(a) is 
authorized for use for contracts not expected to exceed the simplified 
acquisition threshold.

[49 FR 7708, Mar. 1, 1984; 49 FR 10930, Mar. 23, 1984, as amended at 57 
FR 59791, Dec. 15, 1992; 64 FR 46098, Aug. 23, 1999]

                      PART 2437_SERVICE CONTRACTING

                Subpart 2437.1_Service Contracts_General

Sec.

Sec. 2437.110 Solicitation provisions and contract clauses.

             Subpart 2437.2_Advisory and Assistance Services


Sec. 2437.204 Guidelines for determining availability of personnel.


[[Page 478]]


    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

                Subpart 2437.1_Service Contracts_General



Sec. 2437.110  Solicitation provisions and contract clauses.

    (e)(1) The Contracting Officer shall insert the clause at 2452.237-
70, Key Personnel, in solicitations and contracts when it is necessary 
for contract performance to identify Contractor Key personnel.
    (2) The Contracting Officer shall insert the clause at 2452.237-73, 
Conduct of Work and Technical Guidance, in all solicitations contracts 
for services other than commercial services awarded pursuant to FAR part 
12.
    (3) The contracting officer shall insert the clause at 2452.237-75, 
Access to HUD Facilities, in all solicitations and contracts when 
contractor employees, including subcontractors and consultants, will be 
required to regularly work in or have access to any HUD facilities (as 
distinct from nongovernment employee visitors to government facilities).
    (4) The Contracting Officer shall insert the clause at 2452.237-77, 
Temporary Closure of HUD Facilities, in all solicitations and contracts 
where contractor personnel will be working on-site in any HUD office.

[77 FR 73531, Dec. 10, 2012]

             Subpart 2437.2_Advisory and Assistance Services



Sec. 2437.204  Guidelines for determining availability of personnel.

    (a) The Senior Procurement Executive is the agency head for the 
purpose of FAR 37.204.

[71 FR 2437, Jan. 13, 2006]

             PART 2439_ACQUISITION OF INFORMATION TECHNOLOGY

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).



Sec. 2439.107  Contract clauses.

    (a) The contracting officer shall insert the clause at 2452.239-70, 
Access to HUD Systems, in solicitations and contracts when the contract 
will require contractor employees, including subcontractors and 
consultants, to have access to any HUD information system(s) as defined 
in the clause.
    (b) The contracting officer shall insert the clause at 48 CFR 
2452.239-71, Information Technology Virus Security, in solicitations and 
contracts under which the contractor will provide information technology 
hardware, software or data products.

[64 FR 46098, Aug. 23, 1999, as amended at 65 FR 3577, Jan. 21, 2000; 77 
FR 73531, Dec. 10, 2012]

[[Page 479]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

          PART 2442_CONTRACT ADMINISTRATION AND AUDIT SERVICES

         Subpart 2442.3_Contract Administration Office Functions

Sec.

Sec. 2442.302-70 Contract clause.

                   Subpart 2442.7_Indirect Cost Rates


Sec. 2442.705 Final indirect cost rates.

Sec. 2442.705-70 Contract clause.

          Subpart 2442.11_Production Surveillance and Reporting


Sec. 2442.1107 Contract clause.

           Subpart 2442.15_Contractor Performance Information


Sec. 2442.1502 Policy.

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46537, Nov 17, 1988, unless otherwise noted.

         Subpart 2442.3_Contract Administration Office Functions



Sec. 2442.302-70  Contract clause.

    The contracting officer shall include clause 2452.242-72, Post-award 
Orientation Conference, in solicitations and contracts when the 
contractor will be required to attend a post-award orientation 
conference. The contracting officer shall indicate whether the 
contractor must attend the conference in person or via electronic 
communication.

[77 FR 73532, Dec. 10, 2012]

                   Subpart 2442.7_Indirect Cost Rates



Sec. 2442.705  Final indirect cost rates.



Sec. 2442.705-70  Contract clause.

    The Contracting Officer shall insert the clause at 2452.242-70, 
Indirect Costs, in cost-reimbursement type solicitations and contracts 
when it is determined that the Contractor will be compensated for 
negotiated or provisional indirect cost rates pending establishment of 
final indirect cost rates.

          Subpart 2442.11_Production Surveillance and Reporting



Sec. 2442.1107  Contract clause.

    (a) The Contracting Officer shall insert a clause substantially the 
same as the clause at 2452.242-71, Contract Management System, in 
solicitations and contracts when all of the following conditions apply:
    (1) The contract exceeds $500,000, including all options;
    (2) The contract requires services of an analytical nature (e.g., 
applied social science research); and
    (3) The contract requires the delivery of an overall end product 
(e.g., evaluation, study, model).
    (b) The Contracting Officer shall use the basic clause for cost type 
contracts for the services described in paragraph (a) of this section. 
The clause shall be used with its alternate for fixed-price type 
contracts for the services described in paragraph (a) of this section.
    (c) The Contracting Officer may use such a clause in contracts with 
a total value of $500,000 or less.
    (d) The clause shall not be used in contracts for information 
technology services.

[71 FR 2437, Jan. 13, 2006]

           Subpart 2442.15_Contractor Performance Information

    Source: 64 FR 46098, Aug. 23, 1999, unless otherwise noted.



Sec. 2442.1502  Policy.

    The Chief Procurement Officer is responsible for establishing past 
performance evaluation procedures and systems as required by FAR 42.1502 
and 42.1503.

                       PART 2446_QUALITY ASSURANCE

                        Subpart 2446.5_Acceptance

Sec.

Sec. 2446.502 Responsibility for acceptance.

[[Page 480]]


Sec. 2446.502-70 Contract clause.

                        Subpart 2446.7_Warranties


Sec. 2446.710 Contract clauses.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46537, Nov. 17, 1988, unless otherwise noted.

                        Subpart 2446.5_Acceptance



Sec. 2446.502  Responsibility for acceptance.



Sec. 2446.502-70  Contract clause.

    The Contracting Officer shall insert the clause at 2452.246-70, 
Inspection and Acceptance, in all solicitations and contracts.

[71 FR 2437, Jan. 13, 2006]

                        Subpart 2446.7_Warranties



Sec. 2446.710  Contract clauses.

    (c)(1) The contracting officer may include a clause substantially 
the same as FAR 52.246-19, Warranty of Systems and Equipment under 
Performance Specifications or Design Criteria, whenever it is in the 
Government's interest.

[57 FR 59791, Dec. 15, 1992]

                       PART 2448_VALUE ENGINEERING

                 Subpart 2448.1_Policies and Procedures

Sec.

Sec. 2448.102 Policies.

Sec. 2448.103 Processing value engineering change proposals.

Sec. 2448.104-3 Sharing collateral savings.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 71 FR 2437, Jan. 13, 2006, unless otherwise noted.



Sec. 2448.102  Policies.

    (a) The authority of the agency head to exempt contracts from 
including Value Engineering (VE) procedures and processes under 48 CFR 
48.102(a) is delegated to the HCA for individual (case-by-case) 
exemptions and to the Senior Procurement Executive for class exemptions.
    (b) The Senior Procurement Executive is responsible for managing and 
monitoring HUD's VE efforts.



Sec. 2448.103  Processing value engineering change proposals.

    Upon receipt of a Value Engineering Change Proposal (VECP), the 
Contracting Officer shall promptly forward it to the program office 
responsible for the contract, indicating:
    (a) The date the VECP was received;
    (b) The date by which the contractor must be informed of the 
government's acceptance or rejection of the VECP, unless additional time 
is required for evaluation;
    (c) The date by which the Contracting Officer must know of the 
technical officer's decision in order to timely accept or reject the 
VECP;
    (d) The need for information required to inform the contractor if 
the VECP is to be rejected or if additional time is needed to evaluate 
the VECP;
    (e) The potential for awarding concurrent, future, or collateral 
savings to the contractor, if the VECP is accepted;
    (f) That if the VECP is accepted, precise information will be needed 
with regard to the type of savings, and government costs, that can be 
expected from its acceptance;
    (g) The need for a procurement request setting forth the 
specification changes to be used in a contract modification accepting 
the VECP in whole or in part; and
    (h) The need for additional funds, if acceptance of the VECP will 
result in an increase in the cost of contract performance.



Sec. 2448.104-3  Sharing collateral savings.

    (a) The authority of the HCA to determine that the cost of 
calculating and tracking collateral savings will exceed the benefits to 
be derived under 48 CFR 48.104-3(a) is delegated to the Contracting 
Officer.

                   PART 2449_TERMINATION OF CONTRACTS

    Authority: Sec. 7(d) of the Department of Housing and Urban 
Development Act (42 U.S.C. 3535(d)).

[[Page 481]]


    Source: 49 FR 7708, Mar. 1, 1984, unless otherwise noted.

                    Subpart 2449.1_General Principles



Sec. 2449.111  Review of proposed settlements.

    The Head of the Contracting Activity shall establish internal 
procedures to ensure the independent review of proposed termination 
settlements in excess of $100,000.

           PART 2451_USE OF GOVERNMENT SOURCES BY CONTRACTORS

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 64 FR 46098, Aug. 23, 1999, unless otherwise noted.

   Subpart 2451.70_Contractor Use of Government Discount Travel Rates



Sec. 2451.7001  Contract clause.

    The Contracting Officer shall insert the clause at 48 CFR 2452.251-
70, Contractor Employee Travel, in cost-reimbursement solicitations and 
contracts involving contractor travel.

[[Page 482]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 2452_SOLICITATION PROVISIONS AND CONTRACT CLAUSES


Sec. 2452.201-70 Coordination of data collection activities.

             Subpart 2452.2_Texts of Provisions and Clauses

Sec.

Sec. 2452.203-70 Prohibition against the use of government employees.

Sec. 2452.204-70 Preservation of, and access to, contract records 
          (tangible and electronically stored information (ESI) 
          formats).

Sec. 2452.208-71 Reproduction of reports.

Sec. 2452.209-70 Potential organizational conflicts of interest.

Sec. 2452.209-71 Limitation on future contracts.

Sec. 2452.209-72 Organizational conflicts of interest.

Sec. 2452.211-70 Effective date and contract period.

Sec. 2452.215-70 Proposal content.

Sec. 2452.215-71 Relative importance of technical evaluation factors to 
          cost or price.

Sec. 2452.215-72 Evaluation of small business participation.

Sec. 2452.216-70 Estimated cost, base fee, and award fee.

Sec. 2452.216-71 Award fee.

Sec. 2452.216-72 Determination of award fee earned.

Sec. 2452.216-73 Performance evaluation plan.

Sec. 2452.216-74 Distribution of award fee.

Sec. 2452.216-75 Unpriced task orders.

Sec. 2452.216-76 Minimum and maximum quantities and amounts for order.

Sec. 2452.216-77 Estimated quantities--requirements Contract.

Sec. 2452.216-78 Ordering procedures.

Sec. 2452.216-79 Estimated cost (no fee).

Sec. 2452.216-80 Estimated cost and fixed-fee.

Sec. 2452.219-70 Small, small disadvantaged, and women-owned small 
          business subcontracting plan.

Sec. 2452.219-71 Notification of competition limited to eligible 8(a) 
          concerns--Alternate III to FAR 52.219-18.

Sec. 2452.219-72 Section 8(a) direct awards (Deviation).

Sec. 2452.219-73 Incorporation of subcontracting plan.

Sec. 2452.219-74 Small business subcontracting goals.

Sec. 2452.222-70 Accessibility of meetings, conferences, and seminars to 
          persons with disabilities.

Sec. 2452.227-70 Government information.

Sec. 2452.232-70 Payment schedule and invoice submission (Fixed-price).

Sec. 2452.232-71 Voucher submission.

Sec. 2452.232-72 Limitation of Government's obligation.

Sec. 2452.232-73 Constructive acceptance period.

Sec. 2452.233-70 Review of contracting officer protest decisions.

Sec. 2452.237-70 Key personnel.

Sec. 2452.237-73 Conduct of work and technical guidance.

Sec. 2452.237-75 Access to HUD facilities.

Sec. 2452.237-77 Temporary closure of HUD facilities.

Sec. 2452.239-70 Access to HUD systems.

Sec. 2452.239-71 Information Technology Virus Security.

Sec. 2452.242-70 Indirect costs.

Sec. 2452.242-71 Contract management system.

Sec. 2452.246-70 Inspection and acceptance.

Sec. 2452.251-70 Contractor employee travel.

    Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46538, Nov. 17, 1988, unless otherwise noted.



Sec. 2452.201-70  Coordination of data collection activities.

    As prescribed in 2401.106-70, insert the following clause in 
solicitations and contracts where the contractor is required to collect 
identical information from ten or more public respondents:

          Coordination of Data Collection Activities (APR 1984)

    If it is established at award or subsequently becomes a contractual 
requirement to collect identical information from ten or more public 
respondents, the Paperwork Reduction Act (44 U.S.C. 3501-3520) applies. 
In that event, the Contractor shall not take any action to solicit 
information from any of the public respondents until notified in writing 
by the Contracting Officer that the required Office of Management and 
Budget (OMB) final clearance was received.

                             (End of clause)

[53 FR 46538, Nov. 17, 1988. Redesignated and amended at 77 FR 73537, 
Dec. 10, 2012]

             Subpart 2452.2_Texts of Provisions and Clauses



Sec. 2452.203-70  Prohibition against the use of government employees.

    As prescribed in 2403.670, insert the following clause in all 
solicitations and contracts:


[[Page 483]]



     Prohibition Against the Use of Government Employees (FEB 2006)

    In accordance with Federal Acquisition Regulation 3.601, contracts 
are not to be awarded to government employees or a business concern or 
other organization owned or substantially owned or controlled by one or 
more government employees. For the purposes of this contract, this 
prohibition against the use of government employees includes any work 
performed by the contractor or any of its employees, subcontractors, or 
consultants.

                             (End of clause)

[71 FR 2438, Jan. 13, 2006]



Sec. 2452.204-70  Preservation of, and access to, contract records 
          (tangible and electronically stored information (ESI) 
          formats).

    As prescribed in 2404.7001, insert the following clause:

     Preservation of, and Access to, Contract Records (Tangible and 
       Electronically Stored Information (ESI) Formats) (DEC 2012)

    (a) For the purposes of this clause--
    Contract records means information created or maintained by the 
contractor in the performance of the contract. Contract records include 
documents required to be retained in accordance with FAR 4.703 and other 
information generated or maintained by the contractor that is pertinent 
to the contract and its performance including, but not limited to: email 
and attachments, formal and informal correspondence, calendars, notes, 
reports, memoranda, spreadsheets, tables, telephone logs, forms, survey, 
books, papers, photographs, drawings, machine-readable materials, and 
data. Contract records may be maintained as electronically stored 
information or as tangible materials. Contract records may exist in 
either final or any interim version (e.g., drafts that have been 
circulated for official purposes and contain unique information, such as 
notes, edits, comments, or highlighting). Contract records may be 
located or stored on the contractor's premises or at off-site locations.
    Electronically stored information (ESI) means any contract records 
that are stored on, or generated by, an electronic device, or contained 
in electronically accessible media, either owned by the contractor, 
subcontractor(s), or employees of the contractor or subcontractor(s) 
regardless of the physical location of the device or media (e.g., 
offsite servers or data storage).
    ESI devices and media include, but are not be limited to:
    (1) Computers (mainframe, desktop, and laptop);
    (2) Network servers, including shared and personal drives;
    (3) Individual email accounts of the contractor's principals, 
officers, and employees, including all folders contained in each email 
account such as ``inbox,'' ``outbox,'' ``drafts,'' ``sent,'' ``trash,'' 
``archive,'' and any other folders;
    (4) Personal data assistants (PDAs);
    (5) External data storage devices including portable devices (e.g., 
flash drive); and
    (6) Data storage media (magnetic, e.g., tape; optical, e.g., compact 
disc, microfilm, etc.).
    Tangible materials means contract records that exist in a physical 
(i.e., non-electronic) state.
    (b) If during the period of performance of this contract, HUD 
becomes, or anticipates becoming, a party to any litigation concerning 
matters related to records maintained or generated by the Contractor in 
the performance of this contract, the Contracting Officer may provide 
the contractor with a written (either hardcopy or email) preservation 
hold notice and certification of compliance with the preservation hold 
notice. Upon receipt of the hold notice, the Contractor shall 
immediately take the following actions--
    (1) Discontinue any alteration, overwriting, deletion, or 
destruction of all tangible materials and ESI.
    (2) Preserve tangible materials and ESI. The contractor shall 
preserve ESI in its ``native'' form to preserve metadata (i.e., creation 
and modification history of a document).
    (3) Identify all individuals who possess or may possess tangible 
materials and ESI related to this matter, including contractor 
employees, subcontractors, and subcontractor employees. The contractor 
shall provide the names of all such individuals via email to the HUD 
official indicated in the notice.
    (4) Document in writing the contractor's efforts to preserve 
tangible materials and ESI. It may be useful to maintain a log 
documenting preservation efforts.
    (5) Complete the certification of compliance with the preservation 
hold notice upon receipt and return it to the identified contact person; 
and
    (6) Upon the request of the Contracting Officer, provide the 
Contracting Officer or other HUD official designated by the Contracting 
Officer with any of the information described in this clause. The 
contractor shall immediately confirm receipt of such request. The 
contractor shall describe in detail any records that the contractor 
knows or believes to be unavailable and provide a detailed explanation 
of why they are unavailable, and if known, their location.

[[Page 484]]

    (c)(1) If any request for records pursuant to paragraph (b)(6) of 
this clause causes an increase in the estimated cost or price or the 
time required for performance of any part of the work under this 
contract, or otherwise affects any other terms and conditions of this 
contract, the Contracting Officer shall make an equitable adjustment in 
the contract price, the delivery schedule, or both, and shall modify the 
contract.
    (2) The Contractor must assert its right to an adjustment under this 
clause within ---- [Contracting Officer insert period; 30 days if no 
other period inserted] from the date of receipt of the Contracting 
Officer's request made pursuant to paragraph (b)(6) of this clause. 
However, if the Contracting Officer decides that the facts justify it, 
the Contracting Officer may receive and act upon a request submitted 
before final payment of the contract.
    (3) Failure to agree to any adjustment shall be a dispute under the 
``Disputes'' clause of this contract. However, nothing in this clause 
shall excuse the contractor from providing the records requested by the 
Contracting Officer.
    (e) The Contractor shall include this clause in all subcontracts.

                             (End of clause)

    Alternate I (DEC 2012) For cost-reimbursement type contracts, 
substitute the following paragraph (c)(1) for paragraph (c)(1) of the 
basic clause:

    (c)(1) If any request for records pursuant to paragraph (b)(6) of 
this clause causes an increase in the estimated cost or price or the 
time required for performance of any part of the work under this 
contract, or otherwise affects any other terms and conditions of this 
contract, the Contracting Officer shall make an equitable adjustment in 
any one of the following and modify the contract accordingly--
    (i) Estimated cost;
    (ii) Delivery or completion schedule, or both; (ii) Amount of any 
fixed fee; or
    (iii) Other affected terms.

    Alternate II (DEC 2012) For labor-hour or time-and-materials type 
contracts, substitute the following paragraph (c)(1) for paragraph 
(c)(1) of the basic clause:

    (c)(1) If any request for records pursuant to paragraph (b)(6) of 
this clause causes an increase in the estimated cost or price or the 
time required for performance of any part of the work under this 
contract, or otherwise affects any other terms and conditions of this 
contract, the Contracting Officer shall make an equitable adjustment in 
any one or more of the following and will modify the contract 
accordingly:
    (i) Ceiling price;
    (ii) Hourly rates;
    (iii) Delivery schedule; or
    (iv) Other affected terms.

[77 FR 73532, Dec. 10, 2012]



Sec. 2452.208-71  Reproduction of reports.

    As prescribed in 2437.110(b), insert the following clause in 
solicitations and contracts where the Contractor is required to produce, 
as an end product, publications or other written materials.

                   Reproduction of Reports (APR 1984)

    In accordance with Title I of the Government Printing and Binding 
Regulations, printing of reports, data, or other written material, if 
required herein, is authorized provided that the material produced does 
not exceed 5,000 production units of any page and that items consisting 
of multiple pages do not exceed 25,000 production units in aggregate. 
The aggregate number of production units is determined by multiplying 
pages times copies. A production unit is one set, size 8\1/2\ by 11 
inches or less, printed on one side only and in one color. All copy 
preparation to produce camera ready copy for reproduction must be set by 
methods other than hot metal typesetting. The reports should be produced 
by methods employing stencils, masters, and plates which are to be used 
in single unit duplicating equipment no larger than 11 by 17 inches with 
a maximum image of 10\3/4\ by 14\1/4\ inches and are prepared by methods 
or devices that do not utilize reusable contact negatives and/or 
positives prepared with a camera requiring a darkroom. All reproducibles 
(camera ready copies for reproduction by photo offset methods) shall 
become the property of the Government and shall be delivered to the 
Government with the report, data, or other written materials.

                             (End of clause)

[53 FR 46538, Nov. 17, 1988. Redesignated at 71 FR 2440, Jan. 13, 2006]



Sec. 2452.209-70  Potential organizational conflicts of interest.

    As prescribed in 2409.507-1, the Contracting Officer may insert a 
provision substantially the same as follows in solicitations:

        Potential Organizational Conflicts of Interest (FEB 2000)

    (a) The Contracting Officer has determined that the proposed 
contract contains a potential organizational conflict of interest. 
Offerors are directed to FAR subpart 9.5 for

[[Page 485]]

detailed information concerning organizational conflicts of interest.
    (b) The nature of the potential conflict of interest is [Contracting 
Officer insert description]:
    (c) Offerors shall provide a statement which describes concisely all 
relevant facts concerning any past, present or planned interest 
(financial, contractual, organizational, or otherwise) relating to the 
work to be performed under the proposed contract and bearing on whether 
the offeror has a possible organizational conflict of interest with 
respect to:
    (1) Being able to render impartial, technically sound, and objective 
assistance or advice, or
    (2) Being given an unfair competitive advantage. The offeror may 
also provide relevant facts that show how its organizational structure 
and/or management systems limit its knowledge of possible organizational 
conflicts of interest relating to other divisions or sections of the 
organization and how that structure or system would avoid or mitigate 
such organizational conflict.
    (d) No award shall be made until any potential conflict of interest 
has been neutralized or mitigated to the satisfaction of the Contracting 
Officer.
    (e) Refusal to provide the requested information or the willful 
misrepresentation of any relevant information by an offeror shall 
disqualify the offeror from further consideration for award of a 
contract under this solicitation.
    (f) If the Contracting Officer determines that a potential conflict 
can be avoided, effectively mitigated, or otherwise resolved through the 
inclusion of a special contract clause, the terms of the clause will be 
subject to negotiation.

                           (End of provision)

[65 FR 3577, Jan. 21, 2000]



Sec. 2452.209-71  Limitation on future contracts.

    As prescribed in 2409.507-2, the Contracting Officer may insert a 
clause substantially the same as follows in solicitations and contracts 
for services:

                Limitation on Future Contracts (FEB 2000)

    (a) The Contracting Officer has determined that this contract may 
give rise to potential organizational conflicts of interest as defined 
at FAR subpart 9.5.
    (b) The nature of the potential conflict of interest is [Contracting 
Officer insert description]
    (c) If the contractor, under the terms of this contract or through 
the performance of tasks pursuant to this contract, is required to 
develop specifications or statements of work that are to be incorporated 
into a solicitation, the contractor shall be ineligible to perform the 
work described in that solicitation as a prime or first-tier 
subcontractor under any ensuing HUD contract.
    (d) Other restrictions--[Contracting Officer insert description].
    (e) The restrictions imposed by this clause shall remain in effect 
until [Contracting Officer insert period or date].

                             (End of clause)

[65 FR 3577, Jan. 21, 2000]



Sec. 2452.209-72  Organizational conflicts of interest.

    As prescribed in 2409.508-2, insert the following contract clause in 
all contracts.

             Organizational Conflicts of Interest (APR 1984)

    (a) The Contractor warrants that to the best of its knowledge and 
belief and except as otherwise disclosed, he or she does not have any 
organizational conflict of interest which is defined as a situation in 
which the nature of work under a Government contract and a Contractor's 
organizational, financial, contractual or other interests are such that:
    (1) Award of the contract may result in an unfair competitive 
advantage; or
    (2) The Contractor's objectivity in performing the contract work may 
be impaired.
    (b) The Contractor agrees that if after award he or she discovers an 
organizational conflict of interest with respect to this contract, he or 
she shall make an immediate and full disclosure in writing to the 
Contracting Officer which shall include a description of the action 
which the Contractor has taken or intends to take to eliminate or 
neutralize the conflict.
    The Government may, however, terminate the contract for the 
convenience of the Government if it would be in the best interest of the 
Government.
    (c) In the event the Contractor was aware of an organizational 
conflict of interest before the award of this contract and intentionally 
did not disclose the conflict to the Contracting Officer, the Government 
may terminate the contract for default.
    (d) The provisions of this clause shall be included in all 
subcontracts and consulting agreements wherein the work to be performed 
is similar to the service provided by the prime contractor. The 
Contractor shall include in such subcontracts and consulting agreements 
any necessary provisions to eliminate or neutralize conflicts of 
interest.

[[Page 486]]

                             (End of clause)



Sec. 2452.211-70  Effective date and contract period.

    As prescribed in 2411.404(a), insert the following clause:

              Effective Date and Contract Period (FEB 2006)

    (a) This contract shall be effective on -------------------------- 
[Contracting Officer insert date at award].
    (b) The contractor shall complete all work including all deliveries 
by ------------------------ [Contracting Officer insert date at award].
    (c) Delivery dates for specific services and deliverables shall be 
as set forth in the Schedule.

                             (End of clause)

    Alternate I (FEB 2006). As prescribed in 2411.404(b), add the 
following paragraph (d):

    (d) In accordance with the clause at 52.217-9, ``Option to Extend 
the Term of the Contract,'' the contract may be extended for the 
following periods:

------------------------------------------------------------------------
                Option No.                             Period
------------------------------------------------------------------------
[list]....................................  [dates].
------------------------------------------------------------------------

                             (End of clause)

[71 FR 2438, Jan. 13, 2006]



Sec. 2452.215-70  Proposal Content.

    As prescribed in 2415.209(a), insert a provision substantially the 
same as the following:

                       Proposal Content (FEB 2000)

    (a) Proposals shall be submitted in two parts as described in 
paragraphs (b) and (c) below. Each of the parts must be complete in 
itself so that evaluation of each part may be conducted independently, 
and so that the technical and management part may be evaluated strictly 
on its own merit. Proposals shall be submitted in the format, if any, 
prescribed elsewhere in this solicitation. Proposals shall be enclosed 
in sealed packaging and addressed to the office specified in the 
solicitation. The offeror's name and address, the solicitation number 
and the date and time specified in the solicitation for proposal 
submission must appear in writing on the outside of the package.
    (b) Proposals shall be submitted in original and [insert number] 
copies of Part I and [insert number] copies of Part II.
    (c) Part I--Technical and Management.
    (1) Prior experience. The offeror shall provide evidence of the 
offeror's (i.e., firm's or organization's) prior and current experience 
in performing the work and/or providing the deliverables required by the 
solicitation.
    (2) Past Performance. The offeror shall provide evidence of the 
offeror's past performance in accomplishing work--including meeting 
delivery dates and schedules--the same as, or substantially similar to, 
that required by the solicitation. The offeror shall provide references 
as follows [Contracting Officer insert specific instruction for 
reference check information required].
    (3) Personnel qualifications. The offeror shall provide the names, 
position descriptions and information to support the qualifications--
including relevant experience, specialized training and education--of 
all proposed key personnel (see the clause entitled ``Key Personnel'' in 
this solicitation for further definition). The term ``personnel'' shall 
include any proposed consultants and subcontractor employees who will 
perform duties of key personnel.
    (4) Management capability. The offeror shall provide evidence of 
his/her organization's ability to manage the work required under the 
proposed contract. The offeror shall describe how the work will be 
organized, the proposed staffing and the responsibilities and existing 
commitments of proposed staff.
    (5) Technical capability. The offeror shall provide a detailed 
description of how he/she proposes to conduct the work required under 
the proposed contract.
    (6) Mandatory minimum requirements. The offeror shall provide 
evidence, including copies of documents, as appropriate of [contracting 
officer insert description of requirement(s), e.g., licenses, minimum 
experience, etc., or delete this paragraph if not applicable].
    (d) Part II--Business Proposal.
    (1) The Offeror shall complete the Representations and 
Certifications provided in Section K of this solicitation and include 
them in this Part II.
    (2) The offeror shall provide information to support the offeror's 
proposed costs or prices as prescribed elsewhere in this Section L.

                           (End of provision)

    Alternate I (OCT 1999). As prescribed in 2415.209(a), if the award 
selection will be made through the lowest-priced technically acceptable 
proposal method, substitute paragraph (c) with the following:

    (c) Part I--Technical and Management Information.
    (1) Prior experience. The offeror shall provide evidence that the 
offeror's (i.e., firm's or organization's) prior experience meets the 
following minimum standards: [contracting

[[Page 487]]

officer insert specific experience requirements].
    (2) Past performance. The offeror shall provide evidence of the 
offeror's past performance as follows: [contracting officer insert 
specific performance requirements]. The offeror shall provide references 
as follows [contracting Officer insert specific instruction for 
reference check information required].
    (3) Personnel qualifications. The offeror shall provide the names, 
position descriptions and evidence that proposed key personnel (see the 
clause entitled ``Key Personnel'' elsewhere in this solicitation for 
definition) meet the minimum qualifications described below. The term 
``personnel'' includes any proposed consultants and subcontractor 
employees who will perform duties of key personnel. The minimum 
qualifications are: [contracting officer insert descriptions]
    (4) Management capability. The offeror shall provide evidence of 
his/her organization's ability to manage the work required under the 
proposed contract. The offeror shall describe how the work will be 
organized, the proposed staffing and the responsibilities and existing 
commitments of proposed staff.

                           (End of provision)

    Alternate II (OCT 1999). As prescribed in 2415.209(a), if the 
proposed contract requires work on, or access to, sensitive automated 
systems as described in 2452.239-70, add the following subparagraph, 
numbered sequentially, to paragraph (c):

    The offeror shall describe in detail how the offeror will maintain 
the security of automated systems as required by clause at 48 CFR 
2452.239-70 in Section I of this solicitation.
    Alternate III (DEC 2012). As prescribed in 2415.209(a), add the 
following paragraph (e) when the size of Part I, Technical and 
Management, offers will be limited:
    (e) Size limit of Part I, Technical and Management.
    (1) Offerors shall limit Part I, Technical and Management, of their 
initial offers to ---- [Contracting Officer insert number] pages, except 
for the information specifically exempted in paragraph (e)(3) of this 
clause. Offerors are cautioned that if Part I of their offers exceeds 
this limit, the Government will evaluate only the information contained 
in the pages up through the permitted number. Pages beyond that limit 
will not be evaluated.
    (2) A page shall consist of one side of a single sheet of 8\1/
2\ x 11 paper, single spaced, using not smaller 
than 12 point type font, and having margins at the top, bottom, and 
sides of the page of no less than one inch in width.
    (3) The following information is exempt from the limitation set 
forth in paragraph (1): [Contracting Officer list exemptions or enter 
``None''].
    (4) Offerors are encouraged to use recycled paper and to use both 
sides of the paper (see the FAR clause at 52.204-4).

                           (End of provision)

[61 FR 19472, May 1, 1996, as amended at 64 FR 46098, Aug. 23, 1999; 65 
FR 3573, Jan. 21, 2000; 77 FR 73533, Dec. 10, 2012]



Sec. 2452.215-71  Relative importance of technical evaluation factors to 
          cost or price.

    As prescribed in 2415.209(a)(2), insert the following provision:

  Relative Importance Of Technical Evaluation Factors To Cost Or Price 
                               (DEC 2012)

    For the purposes of evaluating offers and the selection of the 
contractor or contractors under this solicitation, the relative merit of 
the offeror's technical proposal as evaluated in accordance with the 
technical evaluation factors listed herein shall be considered 
[Contracting Officer insert one of the following: ``significantly more 
important than,'' ``approximately equal to,'' or ``significantly less 
important than''] cost or price. While the proposed cost or price will 
not be assigned a specific weight, it shall be considered a significant 
criterion in the overall evaluation of proposals.

[77 FR 73533, Dec. 10, 2012]



Sec. 2452.215-72  Evaluation of small business participation.

    As prescribed in 2415.370, insert the following provision:

          Evaluation Of Small Business Participation (DEC 2012)

    (a) In addition to the technical and management evaluation factors 
set forth in this solicitation, the Government will evaluate the extent 
to which all offerors identify and commit to using small businesses in 
the performance of the contract, whether through joint ventures or 
teaming arrangements, or as subcontractors. The evaluation shall 
consider the following:
    (1) The extent to which small businesses are specifically identified 
in proposals;
    (2) The extent of commitment to use small businesses (for example, 
enforceable commitments will be weighted more heavily than non-
enforceable ones);

[[Page 488]]

    (3) The complexity and variety of the work small businesses are to 
perform;
    (4) The realism of the proposal;
    (5) Past performance of the offerors (other than small businesses) 
in complying with requirements of the clauses at FAR 52.219-8, 
Utilization of Small Business Concerns, and 52.219-9, Small Business 
Subcontracting Plan; and
    (6) The extent of participation of small businesses in terms of the 
total value of the contract.
    (b) Offerors that are required to submit a subcontracting plan 
pursuant to the clause at FAR 52.219-9 shall include the small 
businesses proposed as subcontractors for evaluation under this 
provision in their subcontracting plan.

                           (End of Provision)

[77 FR 73533, Dec. 10, 2012]



Sec. 2452.216-70  Estimated cost, base fee and award fee.

    As prescribed in 2416.406(e)(1), insert the following clause in all 
cost-plus-award-fee contracts:

            Estimated Cost, Base Fee and Award Fee (FEB 2006)

    (a) The estimated cost of this contract is $[insert amount].
    (b) A base fee is payable in the amount of $[insert amount]. The 
government will make payment of the base fee in [insert number] 
increments on the schedule set forth in the Performance Evaluation Plan 
established by the government. The amount payable shall be based on the 
progress toward completion of contract tasks as determined by the 
Contracting Officer. Payment of the base fee is subject to any 
withholdings as provided for elsewhere in this contract.
    (c) A maximum award fee available for payment is $[insert amount]. 
The government shall make payments of the award fee in accordance with 
the schedule established in the Performance Evaluation Plan and the 
Evaluation Period(s) set forth in the Distribution of Award Fee clause.

                             (End of clause)

[71 FR 2438, Jan. 13, 2006]



Sec. 2452.216-71  Award fee.

    As prescribed in 2416.406(e)(2), insert the following clause in all 
fixed-price-award-fee contracts:

                          Award Fee (FEB 2006)

    In addition to the fixed-price for this contract set forth in the 
Schedule, a maximum award fee of $[insert amount] is available for 
payment. The government shall make payments of the award fee in 
accordance with the schedule established in the Performance Evaluation 
Plan and the Evaluation Period(s) set forth in the Distribution of Award 
Fee clause.

                             (End of clause)

[71 FR 2438, Jan. 13, 2006]



Sec. 2452.216-72  Determination of award fee earned.

    As prescribed in 2416.406(e)(3), insert the following clause in all 
award fee contracts:

              Determination of Award Fee Earned (FEB 2006)

    (a) At the conclusion of each evaluation period specified in the 
Performance Evaluation Plan, the government shall evaluate the 
contractor's performance and determine the amount, if any, of award fee 
earned by the contractor. The amount of award fee to be paid will be 
determined by the designated Fee Determination Official's (FDO's) 
judgmental evaluation in accordance with the criteria set forth in the 
Performance Evaluation Plan. This decision will be made unilaterally by 
the government. In reaching this decision, the FDO may consider any 
justification of award fee the contractor submits, provided that the 
justification is submitted within [insert number] days after the end of 
an evaluation period. The FDO determination shall be in writing, shall 
set forth the basis of the FDO's decision, and shall be sent to the 
contractor within [insert number] days after the end of the evaluation 
period.
    (b) The FDO may specify in any fee determination that any amount of 
fee not earned during the evaluation period may be accumulated and 
allocated for award during a later evaluation period. The Distribution 
of Award Fee clause shall be amended to reflect the allocation.

                             (End of clause)

[71 FR 2438, Jan. 13, 2006]



Sec. 2452.216-73  Performance evaluation plan.

    As prescribed in 2416.406(e)(3), insert the following clause in all 
award fee contracts:

                 Performance Evaluation Plan (AUG 1987)

    (a) The Government shall unilaterally establish a Performance 
Evaluation Plan that will provide the basis for the determination of the 
amount of award fee awarded under

[[Page 489]]

the contract. The Plan shall set forth evaluation criteria and 
percentage of award fee available for (1) technical functions, including 
schedule requirements if appropriate, (2) management functions; and, (3) 
cost functions. The Government shall furnish a copy of the Plan to the 
Contractor (insert number) days before the start of the first evaluation 
period.
    (b) The Government may unilaterally change the award fee plan prior 
to the beginning of subsequent evaluation periods. The Contracting 
Officer will provide such changes in writing to the Contractor prior to 
the beginning of the applicable evaluation period.

                             (End of clause)

[53 FR 46538, Nov. 17, 1988, as amended at 64 FR 46098, Aug. 23, 1999; 
71 FR 2438, Jan. 13, 2006]



Sec. 2452.216-74  Distribution of award fee.

    As prescribed in 2416.406(e)(3), insert the following clause in all 
award fee contracts:

                  Distribution of Award Fee (FEB 2006)

    (a) The total amount of award fee available under this contract is 
assigned to the following evaluation periods in the following amounts:
    Evaluation Period: [insert time period]
    Available Award Fee: [insert dollar amount]
    (b) In the event of contract termination, either in whole or in 
part, the amount of award fee available shall represent a pro-rata 
distribution associated with evaluation period activities or events as 
determined by the Fee Determination Official as designated in the 
contract.

                             (End of clause)

    Alternate I (FEB 2006). As prescribed in 2416.406(e)(3), add 
paragraph (c):

    (c) The contract clauses required for cost-reimbursement contracts 
shall be modified for use under award fee contracts as cited below:
    (1) The term ``base fee and award fee'' shall be substituted for 
``fixed fee'' where it appears in the clause at FAR 52.243-2, Changes--
Cost Reimbursement.
    (2) The term ``base fee'' shall be substituted for ``fee'' where it 
appears in the clauses at FAR 52.232-20, Limitation of Costs, and FAR 
52.232-22, Limitation of Funds.
    (3) The phrase ``base fee, if any, and such additional fee as may be 
awarded as provided for in the Schedule'' shall be substituted for the 
term ``fee'' whenever it appears in the clause at FAR 52.216-7, 
Allowable Cost and Payment.

                             (End of clause)

[71 FR 2438, Jan. 13, 2006]



Sec. 2452.216-75  Unpriced task orders.

    As prescribed in 2416.506-70(a), insert the following clause:

                     Unpriced Task Orders (FEB 2006)

    (a) Prior to the issuance of a task order under this contract, it is 
anticipated that the government and the contractor will reach agreement 
on the price or total cost and fee (if applicable) for the services to 
be provided under the order. The Contracting Officer may authorize 
commencement of work prior to final agreement on cost or price. In such 
case, the contractor shall immediately commence performance of the 
services specified in the order and shall submit a pricing proposal 
within 15 days of receipt of the task order. Upon completion of 
negotiations, the final negotiated cost or price will be set forth in a 
supplemental agreement that is executed by the contractor and the 
Contracting Officer. Failure to agree upon the cost or price shall be 
considered a dispute subject to the Disputes clause of this contract.
    (b) Unpriced task orders shall indicate a ``not-to-exceed'' amount 
for the order; however, such amount shall not exceed 50 percent of the 
estimated cost of the task order. The task order shall only require the 
Contracting Officer's signature, but shall also comply with all other 
task order requirements. Unpriced task orders shall indicate the date by 
which the government anticipates that the cost or price of the order 
will be definitized.

                             (End of clause)

[71 FR 2439, Jan. 13, 2006]



Sec. 2452.216-76  Minimum and maximum quantities or amounts for order.

    As prescribed in 2416.506-70(b), insert the following clause:

     Minimum and Maximum Quantities or Amounts for Order (DEC 2012)

    (a) The minimum quantity or amount to be ordered under this contract 
shall not be less than [contracting officer insert quantity or amount].
    (b) The maximum quantity or amount to be ordered under this contract 
shall not exceed [contracting officer insert quantity or amount].

[[Page 490]]

                             (End of clause)

[77 FR 73533, Dec. 10, 2012]



Sec. 2452.216-77  Estimated quantities--requirements contract.

    As prescribed in 2416.506-70(c), insert the following provision:

         Estimated Quantities--Requirements Contract (FEB 2006)

    In accordance with FAR 52.216-21(a), the government provides the 
following estimates:
    The estimated quantity or amount of supplies or services the 
government may order during the ordering period of this contract is ----
------------------ [insert description of item(s) or unit(s) and the 
estimated number of units or the dollar value].
    The maximum quantity or amount of supplies or services the 
government may order during the ordering period of this contract is ----
------------------ [insert description of item(s) or unit(s) and the 
estimated number of units or the dollar value].

                           (End of provision)

[71 FR 2439, Jan. 13, 2006]



Sec. 2452.216-78  Ordering procedures.

    As prescribed in 2416.506-70(d), insert the following provision:

                     Ordering Procedures (FEB 2006)

    (a) Orders issued under this contract may be placed in writing or 
via [Contracting Officer to insert authorized ordering methods, e.g., 
telephone, facsimile (fax) machine, electronic mail (e-mail)].

                             (End of clause)

    Alternate I (FEB 2006). As prescribed in 2416.506-70(d), add 
paragraph (b):

    (b) In addition to the Contracting Officer, the following 
individuals are authorized to issue orders under this contract:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
[Continue as necessary]

                             (End of clause)

    Alternate II (FEB 2006). As prescribed in 2416.506-70(d), add 
paragraph (b):

    (b) This contract provides for the issuance of task orders on a 
negotiated basis as follows:
    (1) The Contracting Officer will provide the contractor(s) with a 
statement of work or task description. The contractor(s) shall provide 
pricing and other information requested by the Contracting Officer 
(e.g., proposed staffing, plan for completing the task, etc.) within the 
time period specified by the Contracting Officer. Failure by any 
contractor to provide all the requested information on time may result 
in the contractor not being considered or selected for issuance of the 
order.
    (2) The Contracting Officer may require the contractor(s) to present 
and/or discuss (see (3) below) the proposed task order terms orally. The 
Contracting Officer will provide the contractor(s) with guidance on the 
format, location, and duration of any presentations.
    (3) The Contracting Officer may discuss the proposed task order 
terms with the contractor(s) to ensure mutual understanding of the 
contractor(s)'s technical approach and/or costs or price and/or to reach 
mutually acceptable final terms for the task order. If more than one 
contractor is being considered for the task order, any discussions will 
be held individually with each contractor.
    (4) The task order shall be executed by the contractor and the 
Contracting Officer.

                             (End of clause)

[71 FR 2439, Jan. 13, 2006]



Sec. 2452.216-79  Estimated cost (no fee).

    As prescribed in 2416.307(b), insert the following clause:

                   Estimated Cost (No Fee) (DEC 2012)

    (a) It is estimated that the total reimbursable cost to the 
Government for full performance of this contract will be $---- 
[Contracting Officer insert amount].
    (b) If this contract is incrementally funded, the following shall 
apply:
    (1) Total funds currently available for payment and allotted to this 
contract are $---- [Contracting Officer insert amount] (see also the 
clause at FAR 52.232-22, ``Limitation of Funds'' herein).
    (2) If and when the contract is fully funded, as specified in 
paragraph (a) of this clause, the clause at FAR 52.232-20, Limitation of 
Cost, herein, shall become applicable.
    (3) The Contracting Officer may allot additional funds to the 
contract up to the total specified in paragraph (a) of this clause 
without the concurrence of the contractor.

                             (End of clause)

[77 FR 73533, Dec. 10, 2012]

[[Page 491]]



Sec. 2452.216-80  Estimated cost and fixed-fee.

    As prescribed in 2416.307(b), insert the following clause:

                 Estimated Cost And Fixed-Fee (DEC 2012)

    (a) It is estimated that the total cost to the Government for full 
performance of this contract will be $---- [Contracting Officer insert 
amount], of which $---- [Contracting Officer insert amount] represents 
the estimated reimbursable costs, and $---- [Contracting Officer insert 
amount] represents the fixed fee.
    (b) If this contract is incrementally funded, the following shall 
apply:
    (1) Total funds currently available for payment and allotted to this 
contract are $---- [Contracting Officer insert amount], of which ---- 
[Contracting Officer insert amount] represents the limitation for 
reimbursable costs and $ ---- [Contracting Officer insert amount] 
represents the prorated amount of the fixed fee (see also the clause at 
FAR 52.232-22, ``Limitation of Funds'' herein).
    (2) If and when the contract is fully funded, as specified in 
paragraph (a) of this clause, the clause at FAR 52.232-20, ``Limitation 
of Cost,'' herein, shall become applicable.
    (3) The Contracting Officer may allot additional funds to the 
contract up to the total specified in paragraph (a) of this clause 
without the concurrence of the contractor.

                             (End of clause)

[77 FR 73533, Dec. 10, 2012]



Sec. 2452.219-70  Small business subcontracting plan compliance.

    As prescribed in 2419.708(d), insert the following provision:

        Small Business Subcontracting Plan Compliance (FEB 2006)

    (a) This provision is not applicable to small business concerns.
    (b) Offerors' attention is directed to the provisions in this 
solicitation at FAR 52.219-8, Utilization of Small Business Concerns, 
and the clause at FAR 52.219-9, Small Business Subcontracting Plan.
    (c) The government will consider offerors' prior compliance with 
subcontracting plans in determining their responsibility (see FAR 9.104-
3). Therefore, offerors having previous contracts with subcontracting 
plans shall provide the following information: agency name; agency point 
of contact; contract number; total contract value; a synopsis of the 
work required under the contract; the role(s) of the subcontractor(s) 
involved; and the applicable goals and actual performance (dollars and 
percentages) for subcontracting with the types of small business 
concerns listed in the clause at FAR 52.219-9. This information shall be 
provided for the three most recently completed contracts with such 
subcontracting plans.

                           (End of provision)

[71 FR 2439, Jan. 13, 2006]



Sec. 2452.219-71  Notification of competition limited to eligible 8(a) 
          concerns--Alternate III to FAR 52.219-18.

    As prescribed in 2419.811-3(d)(3), insert the following clause:

Notification of Competition Limited to Eligible 8(a) Concerns--Alternate 
                      III to FAR 5219-18 (DEC 2012)

    The following paragraph (c) replaces paragraph (c) of the clause at 
FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) 
Concerns:
    (c) Any award resulting from this solicitation will be made directly 
by the HUD Contracting Officer to the successful 8(a) offeror selected 
through the evaluation criteria set forth in this solicitation.

[77 FR 73533, Dec. 10, 2012]



Sec. 2452.219-72  Section 8(a) direct awards (Deviation).

    As prescribed in 2419.811-3(f), insert the following clause:

                  Section 8(a) Direct Award (DEC 2012)

    (a) This contract is issued as a direct award between the Department 
of Housing and Urban Development (HUD) and the 8(a) Contractor pursuant 
to a Partnership Agreement (Agreement) between the Small Business 
Administration (SBA) and HUD. The SBA retains responsibility for 8(a) 
certification, 8(a) eligibility determinations and related issues, and 
providing counseling and assistance to the 8(a) contractor under the 
8(a) program. The cognizant SBA district office is: [To be completed by 
Contracting Officer at time of award].
    (b) SBA is the prime contractor and ---- [insert name of 8(a) 
contactor] is the subcontractor under this contract. Under the terms of 
the Agreement, HUD 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 HUD Contracting Officer shall 
give advance notice to the SBA before issuing a final notice terminating 
performance, either in whole or in part, under the contract. The HUD 
Contracting Officer shall also coordinate with SBA prior to processing 
any novation agreement. HUD may assign contract administration functions 
to a contract administration office.

[[Page 492]]

    (c) ---- [insert name of 8(a) contractor] agrees:
    (1) To notify the HUD Contracting Officer, simultaneously 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 or control.
    (2) To adhere to the requirements of FAR 52.219-14, ``Limitations on 
Subcontracting.''

                             (End of Clause)

[77 FR 73534, Dec. 10, 2012]



Sec. 2452.219-73  Incorporation of subcontracting plan.

    As prescribed in 2419.708(b), insert the following clause:

             Incoporation Of Subcontracting Plan (DEC 2012)

    The Contractor's approved subcontracting plan, dated ---- 
[Contracting Officer insert date] is hereby incorporated by reference 
and made a part of this contract.

                             (End of clause)

[77 FR 73534, Dec. 10, 2012]



Sec. 2452.219-74  Small business subcontracting goals.

    As prescribed in 2419.708(b), insert the following provision:

             Small Business Subcontracting Goals (DEC 2012)

    (a) This provision does not apply to offerors that are small 
businesses.
    (b) The offeror's attention is directed to the FAR clause at 52.219-
9, ``Small Business Subcontracting Plan,'' herein. HUD will evaluate 
proposed subcontracting plans using the Departmental small business 
subcontracting goals set forth in paragraph (c) of this clause. Offerors 
that are unable to propose subcontracting that meets HUD's established 
goals must provide the rationale for their proposed level of 
subcontracting.
    (c) HUD's subcontracting goals are as follows:
    (i) Small Business----% [Contracting Officer insert HUD small 
business subcontracting goal percentage]
    (ii) The total Small Business goal shown in paragraph (c)(i) of this 
clause contains the following subordinate goals [Contracting Officer 
insert percentages]:
    (A) Small Disadvantaged Business----%
    (B) Women-Owned Small Business----%
    (C) Service-Disabled Veteran-Owned Small Business----%
    (D) HUBZone Small Business----%

                           (End of Provision)

[77 FR 73534, Dec. 10, 2012]



Sec. 2452.222-70  Accessibility of meetings, conferences, and seminars 
          to persons with disabilities.

    As prescribed in 2422.1408(c), insert the following clause in all 
solicitations and contracts:

  Accessibility of Meetings, Conferences, and Seminars to Persons With 
                         Disabilities (FEB 2006)

    The contractor shall assure that any meeting, conference, or seminar 
held pursuant to the contract meets all applicable standards for 
accessibility to persons with disabilities pursuant to section 504 of 
the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and any 
implementing regulations of the Department. The contractor shall be 
responsible for ascertaining the specific accessibility needs (e.g., 
sign language interpreters) for each meeting, conference, or seminar in 
light of the known or anticipated attendees.

                             (End of clause)

[71 FR 2440, Jan. 13, 2006]



Sec. 2452.227-70  Government information.

    As prescribed in 2427.470, use the following clause:

                    Government Information (DEC 2012)

    (a) Definitions. As used in this clause, ``Government information'' 
includes--
    Contractor-acquired information, which means information acquired or 
otherwise collected by the Contractor on behalf of the Government in the 
context of the Contractor's duties under the contract.
    Government-furnished information (GFI), which means information in 
the possession of, or directly acquired by, the Government and 
subsequently furnished to the Contractor for performance of a contract. 
GFI also includes contractor-acquired information if the contractor-
acquired information is a deliverable under the contract and is for 
continued use under the contract. Otherwise, GFI does not include 
information that is created by the Contractor and delivered to the 
Government in accordance with the requirements of the work statement or 
specifications of the contract. The type, quantity, quality, and 
delivery requirements of such

[[Page 493]]

deliverable information are set forth elsewhere in the contract 
schedule.
    (b) Information Management and Information Security.
    (1) The Contractor shall manage, account for, and secure all 
Government information provided or acquired by the contractor. The 
Contractor shall be responsible for all Government information provided 
to its subcontractors. The Contractor agrees to include a requirement in 
each subcontract under this contract that flows down the protection from 
disclosure requirements.
    (2) The Contractor's responsibility for Government information 
extends from the initial provision or acquisition and receipt of 
information, through stewardship, custody, and use until returned to, or 
otherwise disposed of, as directed by the Contracting Officer. This 
requirement applies to all Government information under the Contractor's 
accountability, stewardship, possession or control, including its 
subcontractors.
    (c) Use of Government information. (1) The Contractor shall not use 
any information provided or acquired under this contract for any purpose 
other than in the performance of this contract.
    (2) The Contractor shall not modify or alter the Government 
information, unless authorized in writing, in advance, by the 
Contracting Officer.
    (d) Government-furnished information. (1) The Government shall 
deliver to the Contractor the information described below--

Description Date to be Provided
[Contracting Officer insert]

    (2) The delivery and/or performance dates specified in this contract 
are based upon the expectation that the Government-furnished information 
will be suitable for contract performance and will be delivered to the 
Contractor by the dates stated in paragraph (d)(1) of this clause.
    (i) The Government does not warrant the validity or accuracy of the 
Government-furnished information unless otherwise noted.
    (ii) In the event that information received by the Contractor is not 
in a condition suitable for its intended use, the Contractor shall 
immediately notify the Contracting Officer in writing. Upon receipt of 
the Contractor's notification, the Contracting Officer shall advise the 
Contractor on a course of action to remedy the problem.
    (iii) If either the failure of the Government to provide information 
to the Contractor by the dates shown in this clause or the remedial 
action taken under this clause to correct defective information causes 
an increase or decrease in the Contractor's cost of, or the time 
required for, the performance of any part of the work under this 
contract, the Contracting Officer shall consider an equitable adjustment 
to the contract. The Contractor shall provide to the Contracting Officer 
its written statement describing the general nature and amount of the 
equitable adjustment proposal within 30 days after the remedial action 
described in paragraph (ii) herein is completed, or within 30 days after 
the date upon which the Government failed to provide information, unless 
the Contracting Officer extends this period.
    (3)(i) The Contracting Officer may, by written notice, at any time--
    (A) Increase or decrease the amount of Government-furnished 
information under this contract;
    (B) Substitute other Government-furnished information for the 
information previously furnished, to be furnished, or to be acquired by 
the Contractor for the Government under this contract; or
    (C) Withdraw authority to use the information.
    (ii) Upon completion of any action(s) under paragraph (d)(3)(i) of 
this clause, and the Contractor's timely written request, the 
Contracting Officer shall consider an equitable adjustment to the 
contract.
    (e) Rights in information. Government information is the property of 
the U.S. Government unless otherwise specifically identified. The 
specific rights in any other information acquired or created by the 
Contractor under this contract shall be as expressed in the ``Rights in 
Data'' clause contained in this contract.
    (f) Government access to information. The Government shall have the 
right to access any Government information maintained by the contractor 
and any subcontractors. The Contractor shall provide the Contracting 
Officer, and other duly authorized Government representatives, with 
access to all Government information, including access to the 
Contractor's facilities, as necessary, promptly upon written 
notification by the Contracting Officer. Such notification may be by 
electronic mail.
    (g) Contractor liability for Government information. (1) Unless 
otherwise provided for in the contract, the Contractor shall not be 
liable for loss, theft, damage, or destruction to the Government 
information furnished or acquired under this contract, except when the 
loss, theft, damage, or destruction is the result of the Contractor's 
failure to properly manage, account for, and safeguard the information 
in accordance with this clause.
    (2) In the event of any loss, theft, damage, or destruction of 
Government information, the Contractor shall immediately take all 
reasonable actions necessary to protect the Government information from 
further loss, theft, damage, or destruction.
    (3) The Contractor shall do nothing to prejudice the Government's 
rights to recover against third parties for any loss, theft, damage, or 
destruction of Government information.

[[Page 494]]

    (h) Information alteration and disposal. Except as otherwise 
provided for in this contract, the Contractor shall not alter, destroy, 
or otherwise dispose of any Government information unless expressly 
directed by the Contracting Officer to do so.
    (i) Return of Government information to the Government. (1) The 
Government may require the Contractor to return Government Information 
to the Government at any time. Upon demand by the Contracting Officer or 
his/her representative, the Contractor shall return all Government 
information to the Government as directed by the Contracting Officer or 
other individual designated by the Contracting Officer.
    (2) The Contractor's failure to return all information as directed, 
including directions regarding the time frames for delivery back to the 
Government and directions prescribing the form in which the data must be 
returned, shall be considered a breach of contract, and the Government 
shall have the right to physically remove the Government information 
from the Contractor, including removal of such information from the 
Contractor's physical premises and from any electronic media (e.g., 
Contractor's computer systems).
    (3) When required to return Government information to the 
Government, the Contractor shall do so at no cost to the Government. The 
Government shall not be responsible for the cost of data format 
conversion and the cost of delivery, if any.
    (4) The Contractor shall ensure that all Government information 
provided to subcontractors is returned to the Government.
    (j) Equitable adjustment. Equitable adjustments under this clause 
shall be made in accordance with the procedures of the Changes clause. 
However, the Government shall not be liable for breach of contract for 
the following:
    (1) Any delay in delivery of Government-furnished information.
    (2) Delivery of Government-furnished information in a condition not 
suitable for its intended use.
    (3) An increase, decrease, or substitution of Government-furnished 
information.
    (4) Failure to correct or replace Government information for which 
the Government is responsible.
    (k) Subcontracts. The Contractor shall ensure that all subcontracts 
under which Government information is provided to a subcontractor 
include the basic terms and conditions set forth in paragraphs (a), (b), 
(c), (f), and (h) of this clause in each subcontract. Subcontracts shall 
clearly describe the Government information provided to the 
subcontractor. The Contractor shall be responsible for all Government 
information provided to subcontractors.
    Alternate I. When the contracting officer determines that the 
failure to return Government information as provided for in paragraph 
(i) of this clause shall result in a monetary damage to the Government, 
the contracting officer shall include the following additional paragraph 
(i)(5) of this clause. The contracting officer shall consult the 
requiring activity to determine an amount or percentage that accurately 
reflects the damages to the Government.
    (5) In the event of Contractor delay in returning the Government 
Information to the Government, for each calendar day late, the 
Contracting Officer has the discretion to deduct ------ [Contracting 
Officer insert dollar amount or percentage] from the total value of the 
contract, and/or withhold payment from the Contractor.

                             (End of clause)

[77 FR 73534, Dec. 10, 2012]



Sec. 2452.232-70  Payment schedule and invoice submission (Fixed-price).

    As prescribed in 2432.908(c)(1), insert the following clause in all 
fixed-price solicitations and contracts:

    Payment Schedule and Invoice Submission (Fixed-Price) (DEC 2012)

    (a) Payment Schedule. Payment of the contract price (see Section B 
of the contract) will be made upon completion and acceptance of all work 
unless a partial payment schedule is included below [Contracting Officer 
insert schedule information]:

----------------------------------------------------------------------------------------------------------------
                                                                    Applicable
                     Partial payment number                          contract      Delivery date  Payment amount
                                                                    deliverable
----------------------------------------------------------------------------------------------------------------
1...............................................................  ..............  ..............
2...............................................................  ..............  ..............
3...............................................................  ..............  ..............
----------------------------------------------------------------------------------------------------------------
[Continue as necessary]
----------------------------------------------------------------------------------------------------------------

    (b) Submission of Invoices. (1) The Contractor shall submit invoices 
as follows: original to the payment office and one copy each to the 
Contracting Officer and a copy to

[[Page 495]]

the Government Technical Representative (GTR) identified in the 
contract. To constitute a proper invoice, the invoice must include all 
items required by the FAR clause at 52.232-25, ``Prompt Payment.''
    (2) To assist the government in making timely payments, the 
contractor is also requested to include on each invoice the 
appropriation number shown on the contract award document (e.g., block 
14 of the Standard Form (SF) 26, block 21 of the SF-33, or block 25 of 
the SF-1449). The contractor is also requested to clearly indicate on 
the mailing envelope that an invoice is enclosed.
    (c) Contractor Remittance Information. The contractor shall provide 
the payment office with all information required by other payment 
clauses or other supplemental information (e.g., contracts for 
commercial services) contained in this contract.
    (d) Final Invoice Payment. The final invoice shall not be paid prior 
to certification by the Contracting Officer that all work has been 
completed and accepted.

                             (End of clause)

[77 FR 73535, Dec. 10, 2012]



Sec. 2452.232-71  Voucher submission.

    As prescribed in 2432.908(c)(3), insert the following clause in all 
cost-reimbursement, time-and-materials, and labor-hour solicitations and 
contracts:

                      Voucher Submission (DEC 2012)

    (a) Voucher Submission.
    (1) The contractor shall submit, ---- [Contracting Officer insert 
billing period, e.g., monthly], an original and two copies of each 
voucher. In addition to the items required by the clause at FAR 52.232-
25, Prompt Payment, the voucher shall show the elements of cost for the 
billing period and the cumulative costs to date. The Contractor shall 
submit all vouchers, except for the final voucher, as follows: original 
to the payment office and one copy each to the Contracting Officer and 
the Government Technical Representative (GTR) identified in the 
contract. The contractor shall submit all copies of the final voucher to 
the Contracting Officer.
    (2) To assist the government in making timely payments, the 
contractor is requested to include on each voucher the applicable 
appropriation number(s) shown on the award or subsequent modification 
document (e.g., block 14 of the Standard Form (SF) 26, or block 21 of 
the SF-33). The contractor is also requested to clearly indicate on the 
mailing envelope that a payment voucher is enclosed.
    (b) Contractor Remittance Information. (1) The Contractor shall 
provide the payment office with all information required by other 
payment clauses contained in this contract.
    (2) For time-and-materials and labor-hour contracts, the Contractor 
shall aggregate vouchered costs by the individual task for which the 
costs were incurred and clearly identify the task or job.
    (c) Final Payment. The final payment shall not be made until the 
Contracting Officer has certified that the contractor has complied with 
all terms of the contract.

                             (End of clause)

[77 FR 73536, Dec. 10, 2012]



Sec. 2452.232-72  Limitation of Government's obligation.

    As prescribed in 2432.705-70, use the following clause:

            Limitation of Government's Obligation (DEC 2012)

    (a) Funds are not available for full funding of all contract line 
items under this contract. The incrementally funded line items and their 
anticipated funding schedule are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                   Amount of current      Anticipated date(s) of
      Contract line item number              Total price                funding               future funding
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

    The contracting officer will revise this table as funds are allotted 
to the contract.
    (b) For the incrementally funded line item(s) in paragraph (a) of 
this clause, the Contractor agrees to perform up to the point at which 
the total amount payable by the Government, including reimbursement in 
the event of termination of those item(s) for

[[Page 496]]

the Government's convenience, approximates the total amount currently 
allotted to the contract for these contract line items. The Contractor 
is not authorized to continue work on the incrementally funded line 
item(s) beyond that point. The Government will in no event be obligated 
to reimburse the Contractor in excess of the amount allotted to the 
contract for the incrementally funded line item(s) regardless of 
anything to the contrary in the clause entitled ``Termination for 
Convenience of the Government.'' As used in this clause, the total 
amount payable by the Government in the event of termination for 
convenience of applicable line item(s) includes costs, profit, and 
estimated termination settlement costs for those line item(s).
    (c) Notwithstanding the dates specified in the allotment schedule in 
paragraph (a) of this clause, the Contractor will notify the Contracting 
Officer in writing at least ---- [90 days unless the Contracting Officer 
inserts a different number] days prior to the date when, in the 
Contractor's best judgment, the work will reach the point at which the 
total amount payable by the Government, including any cost for 
termination for convenience, will approximate 85 percent of the total 
amount then allotted to the contract for performance of the applicable 
line item(s). This notification will state: the estimated date when that 
point will be reached; and an estimate of the amount of additional 
funding, if any, needed to continue performance of the applicable line 
items up to the next scheduled date for allotment of funds identified in 
paragraph (a) of this clause (or to another mutually agreed-upon date). 
The notification will also advise the Contracting Officer of the 
estimated amount of additional funds that will be required for the 
timely performance of the line item(s) funded pursuant to this clause, 
for a subsequent period as may be specified in the allotment schedule in 
paragraph (a) of this clause or otherwise agreed to by the parties. If 
after such notification additional funds are not allotted by the date 
identified in the Contractor's notification, or by an agreed-upon date, 
the Contracting Officer will terminate any line item(s) for which 
additional funds have not been allotted, pursuant to the clause of this 
contract entitled ``Termination for Convenience of the Government.''
    (d) When additional funds are allotted for continued performance of 
the incrementally funded line item(s), the parties will agree to the 
period of contract performance covered by the funds. The provisions of 
paragraphs (b) through (d) of this clause will apply in like manner to 
the additional allotted funds and agreed-upon date(s), and the contract 
will be modified accordingly.
    (e) If the Contractor incurs additional costs or is delayed in the 
performance of the work under this contract solely by reason of the 
failure of the Government to allot additional funds in amounts 
sufficient for timely performance of the incrementally funded line 
item(s), and then additional funds are allotted, an equitable adjustment 
will be made in the line item price(s) or in the time of delivery, or 
both. Failure to agree to any such equitable adjustment hereunder shall 
be considered a dispute subject to the ``Disputes'' clause in this 
contract.
    (f) The Government may allot additional funds for the performance of 
the incrementally-funded line item(s) at any time prior to termination.
    (g) The termination provisions of this clause do not limit the 
rights of the Government under the clause entitled ``Default.'' The 
provisions of this clause are limited to the work and allotment of funds 
for the incrementally funded line item(s) and will no longer apply once 
the contract is fully funded except with regard to the rights or 
obligations of the parties concerning equitable adjustments negotiated 
under paragraphs (d) and (e) of this clause.
    (h) Nothing in this clause affects the right of the Government to 
terminate this contract pursuant to the clause of this contract entitled 
``Termination for Convenience of the Government.''
    (i) Nothing in this clause shall be construed as authorization of 
voluntary services whose acceptance is otherwise prohibited under 31 
U.S.C. 1342.

                             (End of clause)

[77 FR 73536, Dec. 10, 2012]



Sec. 2452.232-73  Constructive acceptance period.

    As prescribed in 2432.908, insert the following clause:

                Constructive Acceptance Period (DEC 2012)

    As authorized by FAR 32.908(c)(1), the constructive acceptance 
period in paragraph (a)(5)(i) of the clause at FAR 52.232-25, ``Prompt 
Payment,'' under this contract is ---- [Contracting Officer insert 
number] calendar days.

                             (End of clause)

[77 FR 73537, Dec. 10, 2012]



Sec. 2452.233-70  Review of contracting officer protest decisions.

    As prescribed in 2433.106, insert the following provision:

       Review of Contracting Officer Protest Decisions (FEB 2006)

    (a) In accordance with FAR 33.103 and HUDAR 2433.103, a protester 
may request an

[[Page 497]]

appeal of the Contracting Officer's decision concerning a protest 
initially made by the protester to the Contracting Officer. The 
protestor must submit a written request for an appeal to [insert name of 
HCA and address] not later than 10 days after the protestor's receipt of 
the Contracting Officer's decision (see FAR 33.101 for the definition of 
``days'').
    (b) The HCA shall make an independent review of the Contracting 
Officer's decision and provide the protester with the HCA's decision on 
the appeal.

                           (End of provision)

[71 FR 2440, Jan. 13, 2006]



Sec. 2452.237-70  Key personnel.

    As prescribed in 2437.110(e)(1), insert the following clause in 
solicitations and contracts when it is necessary for contract 
performance to identify the contractor's key personnel:

                        Key Personnel (FEB 2006)

    (a) Definition. ``Personnel'' means employees of the contractor, or 
any subcontractor(s), affiliates, joint venture partners, or team 
members, and consultants engaged by any of those entities.
    (b) The personnel specified below are considered to be essential to 
the work being performed under this contract. Prior to diverting any of 
the specified individuals to other projects, the contractor shall notify 
the Contracting Officer reasonably in advance and shall submit 
justification (including proposed substitutions) in sufficient detail to 
permit evaluation of the impact on the program. No diversion shall be 
made by the contractor without the written consent of the Contracting 
Officer. Key personnel shall perform as follows: [List Key Personnel 
and/or positions, and tasks, percentage of effort, number of hours, 
etc., for which they are responsible, as applicable.]

                             (End of clause)

[71 FR 2440, Jan. 13, 2006, as amended at 77 FR 73537, Dec. 10, 2012]



Sec. 2452.237-73  Conduct of Work and Technical Guidance.

    As prescribed in 2437.110(e)(2), insert the following clause in all 
contracts for services:

            Conduct of Work and Technical Guidance (DEC 2012)

    (a) The Contracting Officer will provide the contractor with the 
name and contact information of the Government Technical Representative 
(GTR) assigned to this contract. The GTR will serve as the contractor's 
liaison with the Contracting Officer with regard to the conduct of work. 
The Contracting Officer will notify the contractor in writing of any 
change to the current GTR's status or the designation of a successor 
GTR.
    (b) The GTR will provide guidance to the contractor on the technical 
performance of the contract. Such guidance shall not be of a nature 
which:
    (1) Causes the contractor to perform work outside the statement of 
work or specifications of the contract;
    (2) Constitutes a change as defined in FAR 52.243-1;
    (3) Causes an increase or decrease in the cost of the contract;
    (4) Alters the period of performance or delivery dates; or
    (5) Changes any of the other express terms or conditions of the 
contract.
    (c) The GTR will issue technical guidance in writing or, if issued 
orally, he/she will confirm such direction in writing within five 
calendar days after oral issuance. The GTR may issue such guidance via 
telephone, facsimile (fax), or electronic mail.
    (d) Certain of the GTR's duties and responsibilities may be 
delegated to one or more Government Technical Monitors (GTMs) (see HUDAR 
subpart 2402.1). The Contracting Officer will notify the contractor in 
writing of the appointment of any GTMs.
    (e) Other specific limitations [to be inserted by Contracting 
Officer]:
    (f) The contractor shall promptly notify the Contracting Officer 
whenever the contractor believes that guidance provided by any 
government personnel, whether or not specifically provided pursuant to 
this clause, is of a nature described in paragraph (b) above.

                             (End of clause)

[71 FR 2441, Jan. 13, 2006, as amended at 77 FR 73537, Dec. 10, 2012]



Sec. 2452.237-75  Access to HUD Facilities.

    As prescribed in 2437.110(e)(3), insert the following clause in 
solicitations and contracts:

                   Access to HUD Facilities (DEC 2012)

    (a) Definitions. As used in this clause--
    Access means physical entry into and, to the extent authorized, 
mobility within a Government facility.
    Contractor employee means an employee of the prime contractor or of 
any subcontractor, affiliate, partner, joint venture, or team members 
with which the contractor is associated. It also includes consultants 
engaged by any of those entities.
    Facility and Government facility mean buildings, including areas 
within buildings that

[[Page 498]]

are owned, leased, shared, occupied, or otherwise controlled by the 
Federal Government.
    NACI means National Agency Check with Inquiries, the minimum 
background investigation prescribed by the U.S. Office of Personnel 
Management.
    PIV Card means the Personal Identity Verification (PIV) Card, the 
Federal Government-issued identification credential (identification 
badge).
    (b) General. The performance of this contract requires contractor 
employees to have access to HUD facilities. All such employees who do 
not already possess a current PIV Card acceptable to HUD shall be 
required to provide personal background information, undergo a 
background investigation (NACI or other OPM-required or approved 
investigation), including an FBI National Criminal History Fingerprint 
Check, and obtain a PIV Card prior to being permitted access to any such 
facility in performance of this contract. HUD may accept a PIV Card 
issued by another Federal Government agency but shall not be required to 
do so. No contractor employee will be permitted access to a HUD facility 
without a proper PIV Card.
    (c) Background information. (1) For each contractor employee subject 
to the requirements of this clause and not in possession of a current 
PIV Card acceptable to HUD, the contractor shall submit the following 
properly completed forms: Standard Form (SF) 85, ``Questionnaire for 
Non-sensitive Positions,'' FD 258 (Fingerprint Chart), and a partial 
Optional Form (OF) 306 (Items 1, 2, 6, 8-13, 16, and 17). The SF-85 and 
OF-306 are available from the OPM Web site, http://www.opm.gov. The GTR 
will provide all other forms that are not obtainable via the Internet.
    (2) The contractor shall deliver the forms and information required 
in paragraph (c)(1) of this clause to the GTR.
    (3) The information provided in accordance with paragraph (c)(1) of 
this clause will be used to perform a background investigation to 
determine the suitability of the contractor employees to have access to 
Government facilities. After completion of the investigation, the GTR 
will notify the contractor in writing when any contractor employee is 
determined to be unsuitable for access to a Government facility. The 
contractor shall immediately remove such employee(s) from work on this 
contract that requires physical presence in a Government facility.
    (4) Affected contractor employees who have had a federal background 
investigation without a subsequent break in federal employment or 
federal contract service exceeding 2 years may be exempt from the 
investigation requirements of this clause subject to verification of the 
previous investigation. For each such employee, the contractor shall 
submit the following information in lieu of the forms and information 
listed in paragraph (c)(1) of this clause: Employee's full name, Social 
Security Number, and place and date of birth.
    (d) PIV Cards. (1) HUD will issue a PIV Card to each contractor 
employee who is to be given access to HUD facilities and who does not 
already possess a PIV Card acceptable to HUD (see paragraph (b) of this 
clause). HUD will not issue the PIV Card until the contractor employee 
has successfully cleared the FBI National Criminal History Fingerprint 
Check and HUD has initiated the background investigation for the 
contractor employee. Initiation is defined to mean that all background 
information required in paragraph (c)(1) of this clause has been 
delivered to HUD. The employee may not be given access prior to those 
two events. HUD may issue a PIV Card and grant access pending the 
completion of the background investigation. HUD will revoke the PIV Card 
and the employee's access if the background investigation process 
(including adjudication of investigation results) for the employee has 
not been completed within 6 months after the issuance of the PIV Card.
    (2) PIV Cards shall identify individuals as contractor employees. 
Contractor employees shall display their PIV Cards on their persons at 
all times while working in a HUD facility, and shall present cards for 
inspection upon request by HUD officials or HUD security personnel.
    (3) The contractor shall be responsible for all PIV Cards issued to 
the contractor's employees and shall immediately notify the GTR if any 
PIV Card(s) cannot be accounted for. The contractor shall promptly 
return PIV Cards to HUD as required by the FAR clause at 52.204-9. The 
contractor shall notify the GTR immediately whenever any contractor 
employee no longer has a need for his/her HUD-issued PIV Card (e.g., 
employee terminates employment with the contractor, employee's duties no 
longer require access to HUD facilities). The GTR will instruct the 
contractor as to how to return the PIV Card. Upon expiration of this 
contract, the GTR will instruct the contractor as to how to return all 
HUD-issued PIV Cards not previously returned. Unless otherwise directed 
by the Contracting Officer, the contractor shall not return PIV Cards to 
any person other than the GTR.
    (e) Control of access. HUD shall have, and exercise, complete 
control over granting, denying, withholding, and terminating access of 
contractor employees to HUD facilities. The GTR will notify the 
contractor immediately when HUD has determined that an employee is 
unsuitable or unfit to be permitted access to a HUD facility. The 
contractor shall immediately notify such employee that he/she no longer 
has access to any HUD facility, remove the employee from any such 
facility that he/she may be in, and

[[Page 499]]

provide a suitable replacement in accordance with the requirements of 
this clause.
    (f) Access to HUD information systems. If this contract requires 
contractor employees to have access to HUD information system(s), 
application(s), or information contained in such systems, the contractor 
shall comply with all requirements of HUDAR clause 2452.239-70, Access 
to HUD Systems, including providing for each affected employee any 
additional background investigation forms prescribed in that clause.
    (g) Subcontracts. The contractor shall incorporate this clause in 
all subcontracts where the requirements specified in paragraph (b) of 
this section are applicable to performance of the subcontract.

                             (End of clause)

[77 FR 73537, Dec. 10, 2012]



Sec. 2452.237-77  Temporary closure of HUD facilities.

    As prescribed in 2437.110(e)(4), insert the following clause:

             Temporary Closure of HUD Facilities (DEC 2012)

  Observance of Legal Holidays and Closure of HUD Facilities (FEB 2006)

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.
    (2) When any holiday specified in (a)(1) falls on a Saturday, the 
preceding Friday shall be observed. When any such holiday falls on a 
Sunday, the following Monday shall be observed. Observances 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.
    (b)(1) HUD may close a HUD facility for all or a portion of a 
business day as a result of--
    (A) Granting administrative leave to non-essential HUD employees 
(e.g., unanticipated holiday);
    (B) Inclement weather;
    (C) Failure of Congress to appropriate operational funds;
    (D) Or any other reason.
    (2) In such cases, contractor personnel not classified as essential, 
i.e., not performing critical round-the-clock services or tasks, who are 
not already on duty at the facility shall not report to the facility. 
Such contractor personnel already present shall be dismissed and shall 
leave the facility.
    (3) The contractor agrees to continue to provide sufficient 
personnel to perform round-the-clock requirements of critical tasks 
already in operation or scheduled for performance during the period in 
which HUD employees are dismissed, and shall be guided by any specific 
instructions of the Contracting Officer or his/her duly authorized 
representative.
    (c) When contractor personnel services are not required or provided 
due to closure of a HUD facility as described in this clause, the 
contractor shall be compensated as follows--
    (1) For fixed-price contracts, deductions in the contractor's price 
will be computed as follows--
    (A) The deduction rate in dollars per day will be equal to the per 
month contract price divided by 21 days per month.
    (B) The deduction rate in dollars per day will be multiplied by the 
number of days services are not required or provided.
    If services are provided for portions of days, appropriate 
adjustment will be made by the Contracting Officer to ensure that the 
contractor is compensated for services provided.
    (2) For cost-reimbursement, time-and-materials and labor-hour type 
contracts, HUD shall not reimburse as direct costs, the costs of 
salaries or wages of contractor personnel for the period during which 
such personnel are dismissed from, or do not have access to, the 
facility.

                             (End of clause)

[64 FR 46100, Aug. 23, 1999, as amended at 71 FR 2441, Jan. 13, 2006; 77 
FR 73538, Dec. 10, 2012]



Sec. 2452.239-70  Access to HUD systems.

    As prescribed in 2439.107(a), insert the following clause:

                    Access to HUD Systems (DEC 2012)

    (a) Definitions: As used in this clause--
    Access means the ability to obtain, view, read, modify, delete, and/
or otherwise make use of information resources.
    Application means the use of information resources (information and 
information technology) to satisfy a specific set of user requirements 
(see OMB Circular A-130).

[[Page 500]]

    Contractor employee means an employee of the prime contractor or of 
any subcontractor, affiliate, partner, joint venture, or team members 
with which the contractor is associated. It also includes consultants 
engaged by any of those entities.
    Mission-critical system means an information technology or 
telecommunications system used or operated by HUD or by a HUD 
contractor, or organization on behalf of HUD, that processes any 
information, the loss, misuse, disclosure, or unauthorized access to, or 
modification of which would have a debilitating impact on the mission of 
the agency.
    NACI means a National Agency Check with Inquiries, the minimum 
background investigation prescribed by OPM.
    PIV Card means the Personal Identity Verification (PIV) Card, the 
Federal Government-issued identification credential (i.e., 
identification badge).
    Sensitive information means any information of which the loss, 
misuse, or unauthorized access to, or modification of, could adversely 
affect the national interest, the conduct of federal programs, or the 
privacy to which individuals are entitled under section 552a of title 5, 
United States Code (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.
    System means an interconnected set of information resources under 
the same direct management control, which shares common functionality. A 
system normally includes hardware, software, information, data, 
applications, communications, and people (see OMB Circular A-130). 
System includes any system owned by HUD or owned and operated on HUD's 
behalf by another party.
    (b) General. (1) The performance of this contract requires 
contractor employees to have access to a HUD system or systems. All such 
employees who do not already possess a current PIV Card acceptable to 
HUD shall be required to provide personal background information, 
undergo a background investigation (NACI or other OPM-required or 
approved investigation), including an FBI National Criminal History 
Fingerprint Check, and obtain a PIV Card prior to being permitted access 
to any such system in performance of this contract. HUD may accept a PIV 
Card issued by another Federal Government agency but shall not be 
required to do so. No contractor employee will be permitted access to 
any HUD system without a PIV Card.
    (2) All contractor employees who require access to mission-critical 
systems or sensitive information contained within a HUD system or 
application(s) are required to have a more extensive background 
investigation. The investigation shall be commensurate with the risk and 
security controls involved in managing, using, or operating the system 
or applications(s).
    (c) Citizenship-related requirements. Each affected contractor 
employee as described in paragraph (b) of this clause shall be:
    (1) A United States (U.S.) citizen; or,
    (2) A national of the United States (see 8 U.S.C. 1408); or,
    (3) An alien lawfully admitted into, and lawfully permitted to be 
employed in the United States, provided that for any such individual, 
the Government is able to obtain sufficient background information to 
complete the investigation as required by this clause. Failure on the 
part of the contractor to provide sufficient information to perform a 
required investigation or the inability of the Government to verify 
information provided for affected contractor employees will result in 
denial of their access.
    (d) Background investigation process.
    (1) The Government Technical Representative (GTR) shall notify the 
contractor of those contractor employee positions requiring background 
investigations.
    (i) For each contractor employee requiring access to HUD information 
systems, the contractor shall submit the following properly completed 
forms: Standard Form (SF) 85, ``Questionnaire for Non-Sensitive 
Positions,'' FD 258 (Fingerprint Chart), and a partial Optional Form 
(OF) 306 (Items 1, 2, 6, 8-13, 16, and 17).
    (ii) For each contractor employee requiring access to mission-
critical systems and/or sensitive information contained within a HUD 
system and/or application(s), the contractor shall submit the following 
properly completed forms: SF-85P, ``Questionnaire for Public Trust 
Positions;'' FD 258; and a Fair Credit Reporting Act form (authorization 
for the credit-check portion of the investigation). Contractor employees 
shall not complete the Medical Release behind the SF-85P.
    (iii) The SF-85, 85P, and OF-306 are available from OPM's Web site, 
http://www.opm.gov. The GTR will provide all other forms that are not 
obtainable via the Internet.
    (2) The contractor shall deliver the forms and information required 
in paragraph (d)(1) of this clause to the GTR.
    (3) Affected contractor employees who have had a federal background 
investigation without a subsequent break in federal employment or 
federal contract service exceeding 2 years may be exempt from the 
investigation requirements of this clause subject to verification of the 
previous investigation. For each such employee, the contractor shall 
submit the following information in lieu of the forms and information 
listed in paragraph (d)(1) of this clause: Employee's full name, Social 
Security number, and place and date of birth.

[[Page 501]]

    (4) The investigation process shall consist of a range of personal 
background inquiries and contacts (written and personal) and 
verification of the information provided on the investigative forms 
described in paragraph (d)(1) of this clause.
    (5) Upon completion of the investigation process, the GTR will 
notify the contractor if any contractor employee is determined to be 
unsuitable to have access to the system(s), application(s), or 
information. Such an employee may not be given access to those 
resources. If any such employee has already been given access pending 
the results of the background investigation, the contractor shall ensure 
that the employee's access is revoked immediately upon receipt of the 
GTR's notification.
    (6) Failure of the GTR to notify the contractor (see subparagraph 
(d)(1)) of any employee who should be subject to the requirements of 
this clause and is known, or should reasonably be known, by the 
contractor to be subject to the requirements of this clause, shall not 
excuse the contractor from making such employee(s) known to the GTR. Any 
such employee who is identified and is working under the contract, 
without having had the appropriate background investigation or furnished 
the required forms for the investigation, shall cease to perform such 
work immediately and shall not be given access to the system(s)/
application(s) described in paragraph (b) of this clause until the 
contractor has provided the investigative forms required in paragraph 
(d)(1) of this clause for the employee to the GTR
    (7) The contractor shall notify the GTR in writing whenever a 
contractor employee for whom a background investigation package was 
required and submitted to HUD, or for whom a background investigation 
was completed, terminates employment with the contractor or otherwise is 
no longer performing work under this contract that requires access to 
the system(s), application(s), or information. The contractor shall 
provide a copy of the written notice to the Contracting Officer.
    (e) PIV Cards. (1) HUD will issue a PIV Card to each contractor 
employee who is to be given access to HUD systems and does not already 
possess a PIV Card acceptable to HUD (see paragraph (b) of this clause). 
HUD will not issue the PIV Card until the contractor employee has 
successfully cleared an FBI National Criminal History Fingerprint Check, 
and HUD has initiated the background investigation for the contractor 
employee. Initiation is defined to mean that all background information 
required in paragraph (d)(1) of this clause has been delivered to HUD. 
The employee may not be given access prior to those two events. HUD may 
issue a PIV Card and grant access pending the completion of the 
background investigation. HUD will revoke the PIV Card and the 
employee's access if the background investigation process (including 
adjudication of investigation results) for the employee has not been 
completed within 6 months after the issuance of the PIV Card.
    (2) PIV Cards shall identify individuals as contractor employees. 
Contractor employees shall display their PIV Cards on their persons at 
all times while working in a HUD facility, and shall present cards for 
inspection upon request by HUD officials or HUD security personnel.
    (3) The contractor shall be responsible for all PIV Cards issued to 
the contractor's employees and shall immediately notify the GTR if any 
PIV Card(s) cannot be accounted for. The contractor shall promptly 
return PIV Cards to HUD as required by the FAR clause at 52.204-9. The 
contractor shall notify the GTR immediately whenever any contractor 
employee no longer has a need for his/her HUD-issued PIV Card (e.g., the 
employee terminates employment with the contractor, the employee's 
duties no longer require access to HUD systems). The GTR will instruct 
the contractor as to how to return the PIV Card. Upon expiration of this 
contract, the GTR will instruct the contractor as to how to return all 
HUD-issued PIV Cards not previously returned. Unless otherwise directed 
by the Contracting Officer, the contractor shall not return PIV Cards to 
any person other than the GTR.
    (f) Control of access. HUD shall have and exercise full and complete 
control over granting, denying, withholding, and terminating access of 
contractor employees to HUD systems. The GTR will notify the contractor 
immediately when HUD has determined that an employee is unsuitable or 
unfit to be permitted access to a HUD system. The contractor shall 
immediately notify such employee that he/she no longer has access to any 
HUD system, physically retrieve the employee's PIV Card from the 
employee, and provide a suitable replacement employee in accordance with 
the requirements of this clause.
    (g) Incident response notification. An incident is defined as an 
event, either accidental or deliberate, that results in unauthorized 
access, loss, disclosure, modification, or destruction of information 
technology systems, applications, or data. The contractor shall 
immediately notify the GTR and the Contracting Officer of any known or 
suspected incident, or any unauthorized disclosure of the information 
contained in the system(s) to which the contractor has access.
    (h) Nondisclosure of information. (1) Neither the contractor nor any 
of its employees shall divulge or release data or information developed 
or obtained during performance of this contract, except to authorized 
government personnel with an established need to know, or upon written 
approval of the Contracting Officer. Information contained in all source

[[Page 502]]

documents and other media provided by HUD is the sole property of HUD.
    (2) The contractor shall require that all employees who may have 
access to the system(s)/applications(s) identified in paragraph (b) of 
this clause sign a pledge of nondisclosure of information. The employees 
shall sign these pledges before they are permitted to perform work under 
this contract. The contractor shall maintain the signed pledges for a 
period of 3 years after final payment under this contract. The 
contractor shall provide a copy of these pledges to the GTR.
    (i) Security procedures. (1) The Contractor shall comply with 
applicable federal and HUD statutes, regulations, policies, and 
procedures governing the security of the system(s) to which the 
contractor's employees have access including, but not limited to:
    (i) The Federal Information Security Management Act (FISMA) of 2002;
    (ii) OMB Circular A-130, Management of Federal Information 
Resources, Appendix III, Security of Federal Automated Information 
Resources;
    (iii) HUD Handbook 2400.25, Information Technology Security Policy;
    (iv) HUD Handbook 732.3, Personnel Security/Suitability;
    (v) Federal Information Processing Standards 201 (FIPS 201), 
Sections 2.1 and 2.2;
    (vi) Homeland Security Presidential Directive 12 (HSPD-12); and
    (vii) OMB Memorandum M-05-24, Implementing Guidance for HSPD-12.
    The HUD Handbooks are available online at: http://www.hud.gov/
offices/adm/hudclips/ or from the GTR.
    (2) The contractor shall develop and maintain a compliance matrix 
that lists each requirement set forth in paragraphs, (b), (c), (d), (e), 
(f), (g), (h), (i)(1), and (m) of this clause with specific actions 
taken, and/or procedures implemented, to satisfy each requirement. The 
contractor shall identify an accountable person for each requirement, 
the date upon which actions/procedures were initiated/completed, and 
certify that information contained in this compliance matrix is correct. 
The contractor shall ensure that information in this compliance matrix 
is complete, accurate, and up-to-date at all times for the duration of 
this contract. Upon request, the contractor shall provide copies of the 
current matrix to HUD.
    (3) The Contractor shall ensure that its employees, in performance 
of the contract, receive annual training (or once if the contract is for 
less than one year) in HUD information technology security policies, 
procedures, computer ethics, and best practices in accordance with HUD 
Handbook 2400.25.
    (j) Access to contractor's systems. The Contractor shall afford HUD, 
including the Office of Inspector General, access to the Contractor's 
facilities, installations, operations, documentation (including the 
compliance matrix required under paragraph (i)(2) of this clause), 
databases, and personnel used in performance of the contract. Access 
shall be provided to the extent required to carry out, but not limited 
to, any information security program activities, investigation, and 
audit to safeguard against threats and hazards to the integrity, 
availability, and confidentiality of HUD data and systems, or to the 
function of information systems operated on behalf of HUD, and to 
preserve evidence of computer crime.
    (k) Contractor compliance with this clause. Failure on the part of 
the contractor to comply with the terms of this clause may result in 
termination of this contract for default.
    (l) Physical access to Federal Government facilities. The contractor 
and any subcontractor(s) shall also comply with the requirements of 
HUDAR clause 2452.237-75 when the contractor's or subcontractor's 
employees will perform any work under this contract on site in a HUD or 
other Federal Government facility.
    (m) Subcontracts. The contractor shall incorporate this clause in 
all subcontracts where the requirements specified in paragraph (b) of 
this section are applicable to performance of the subcontract.

                             (End of clause)

[77 FR 73538, Dec. 10, 2012]



Sec. 2452.239-71  Information Technology Virus Security.

    As prescribed in 2439.107(b), insert the following clause:

            Information Technology Virus Security (FEB 2006)

    (a) The contractor hereby agrees to make every reasonable effort to 
deliver information technology products to HUD free of known computer 
viruses. The contractor shall be responsible for examining all such 
products prior to their delivery to HUD using software tools and 
processes capable of detecting all known viruses.
    (b) The contractor shall include the following statement on 
deliveries of hardware, software, and data products, including 
diskettes, made under this contract:

[product description, part/catalog number, other identifier, and serial 
number, if any]

    ``This product has been scanned for known viruses using [name of 
virus-screening product, including version number, if any] and is 
certified to be free of known viruses at the time of delivery.''

    (c) The Contracting Officer may assess monetary damages against the 
contractor sufficient to compensate HUD for actual or estimated costs 
resulting from computer virus damage or malicious destruction of

[[Page 503]]

computer information arising from the contractor's failure to take 
adequate precautions to preclude delivery of virus-containing products 
in the delivery of hardware, software, or data on diskettes under this 
contract.
    (d) This clause shall not limit the rights of the government under 
any other clause of this contract.

                             (End of clause)

[65 FR 3577, Jan. 21, 2000, as amended at 71 FR 2441, Jan. 13, 2006]



Sec. 2452.242-70  Indirect costs.

    As prescribed in 2442.705-70, insert the following clause in cost-
reimbursement type solicitations and contracts when it is determined 
that the Contractor will be compensated for negotiated or provisional 
indirect cost rates pending establishment of final indirect cost rates.

                        Indirect Costs (APR 1984)

    (a) Pursuant to the provisions of the clause of this contract 
entitled, ``Allowable Cost and Payment'' the rates listed below are 
established. If the column entitled, ``Ceiling Rate'' has rates listed, 
the ceiling applies for those rates only. If there are no ceiling rates 
listed, ceilings do not apply to this contract and the provisions of 
paragraph (b) of this clause are not applicable.

----------------------------------------------------------------------------------------------------------------
             Period                    Category        Provisional rate      Ceiling rate            Base
----------------------------------------------------------------------------------------------------------------
Effective date until amended:
  (b) For the term of this contract, the final indirect rates shall not exceed the ceiling rates listed above,
   if any. However, in the event the indirect rates developed by the cognizant audit activity on the basis of
   actual allowable costs are less than the ceiling rates agreed to herein, then the rates established by such
   cognizant audits shall apply (downward adjustment only). The Government shall not be obligated to pay any
   additional amounts on indirect rates above the ceiling rates set forth for the applicable period.
----------------------------------------------------------------------------------------------------------------

                             (End of clause)



Sec. 2452.242-71  Contract management system.

    As prescribed in 2442.1107, insert the following clause:

                  Contract Management System (FEB 2006)

    (a) The contractor shall use contract management baseline planning 
and progress reporting as described herein.
    (b) The contract management system shall consist of two parts:
    (1) Baseline plan. The baseline plan shall consist of:
    (i) A narrative portion that:
    (A) Identifies each task and significant activity required for 
completing the contract work, critical path activities, task 
dependencies, task milestones, and related deliverables;
    (B) Describes the contract schedule, including the period of time 
needed to accomplish each task and activity (see paragraph (ii)(B) of 
this section below);
    (C) Describes staff (e.g., hours per individual), financial, and 
other resources allocated to each task and significant activity; and,
    (D) Provides the rationale for contract work organization and 
resource allocation.
    (ii) A graphic portion showing:
    (A) Cumulative planned or budgeted costs of work scheduled for each 
reporting period over the life of the contract (i.e., the budgeted 
baseline); and
    (B) The planned start and completion dates of all planned and 
budgeted tasks and activities.
    (2) Progress reports. Progress reports shall consist of:
    (i) A narrative portion that:
    (A) Provides a brief, concise summary of technical progress made and 
the costs incurred for each task during the reporting period; and
    (B) Identifies problems, or potential problems, that will affect the 
contract's cost or schedule, the causes of the problems, and the 
contractor's proposed corrective actions.
    (ii) A graphic portion showing:
    (A) The original time-phased, budgeted baseline.
    (B) The schedule status and degree of completion of the tasks, 
activities, and deliverables shown in the baseline plan for the 
reporting period, including actual start and completion dates for all 
tasks and activities in the baseline plan; and
    (C) The costs incurred during the reporting period, the current 
total amount of costs incurred through the end date of the reporting 
period for budgeted work, and the projected costs required to complete 
the work under the contract.
    (3) Reporting frequency. The reports described in (b)(2) shall be 
submitted [insert period, e.g., monthly, quarterly, or schedule based on 
when payments will be made under the contract].
    (c) The formats, forms, and/or software to be used for the contract 
management system

[[Page 504]]

under this contract shall be [Contracting Officer insert appropriate 
language ``as prescribed in the schedule;'' ``a format, forms and/or 
software designated by the GTR;'' or, ``the contractor's own format, 
forms and/or software, subject to the approval of the GTR.''].
    (d) When this clause applies to individual task orders under the 
contract, the word ``contract'' shall mean ``task order.''

                             (End of clause)

    Alternate I (FEB 2006). As prescribed in 2442.1107, replace 
paragraph (b) with the following:

    (b) The contract management system shall consist of two parts:
    (1) Baseline plan. The baseline plan shall consist of:
    (i) A narrative portion that:
    (A) Identifies each task and significant activity required for 
completing the contract work, critical path activities, task 
dependencies, task milestones, and related deliverables;
    (B) Describes the contract work schedule, including the period of 
time needed to accomplish each task and activity (see paragraph (ii) of 
this section below);
    (C) Describes key personnel allocated to each task and significant 
activity; and,
    (D) Provides the rationale for contract work organization.
    (ii) A graphic portion showing the planned start and completion 
dates of all planned tasks and activities.
    (2) Progress reports. Progress reports shall consist of:
    (i) A narrative portion that:
    (A) Provides a brief, concise summary of technical progress made for 
each task during the reporting period; and
    (B) Identifies problems, or potential problems, that will affect the 
contract's cost or schedule, their causes, and the contractor's proposed 
corrective actions.
    (ii) A graphic portion showing the schedule status and degree of 
completion of the tasks, activities, and deliverables shown in the 
baseline plan for the reporting period, including actual start and 
completion dates for all tasks and activities in the baseline plan.
    (3) Reporting frequency. The reports described in (b)(2) shall be 
submitted [insert period, e.g., monthly, quarterly, or schedule].

                             (End of clause)

[71 FR 2441, Jan. 13, 2006]



Sec. 2452.246-70  Inspection and acceptance.

    As prescribed in 2446.502-70, insert the following clause in all 
solicitations and contracts:

                  Inspection and Acceptance (FEB 2006)

    Inspection and acceptance of all work required under this contract 
shall be performed by the Government Technical Representative (GTR) or 
other individual as designated by the Contracting Officer or the GTR.

                             (End of clause)

[71 FR 2441, Jan. 13, 2006]



Sec. 2452.251-70  Contractor employee travel.

    As prescribed in 2451.7001, insert the following clause in all cost-
reimbursement solicitations and contracts involving travel:

                  Contractor Employee Travel (OCT 1999)

    (a) To the maximum extent practical, the Contractor shall make use 
of travel discounts which are available to Federal employees while 
traveling in the conduct of official Government business. Such discounts 
may include, but are not limited to, lodging and rental car rates.
    (b) The Contractor shall be responsible for obtaining and/or 
providing to his/her employees written evidence of their status with 
regard to their performance of Government contract work needed to obtain 
such discounts.

                             (End of clause)

[64 FR 46101, Aug. 23, 1999]

                             PART 2453_FORMS

Sec.

Sec. 2453.000 Scope of part.

                  Subpart 2453.2_Prescription of Forms


Sec. 2453.215 Contracting by negotiation.

Sec. 2453.217 Special contracting methods.

Sec. 2453.217-70 Form HUD-730, Award/Modification of Interagency 
          Agreement.

Sec. 2453.227 Patents, data, and copyrights.

Sec. 2453.227-70 Form HUD-770, Report of Inventions and Subcontracts.

Sec. 2453.242 Contract administration.

Sec. 2453.246 Quality Assurance.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46543, Nov. 17, 1988, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 2453 appear at 64 FR 
46101, Aug. 23, 1999.

[[Page 505]]



Sec. 2453.000  Scope of part.

    This part prescribes Agency forms for use in acquisition and 
contains requirements and information generally applicable to the forms.

                  Subpart 2453.2_Prescription of Forms



Sec. 2453.215  Contracting by negotiation.



Sec. 2453.217  Special contracting methods.



Sec. 2453.217-70  Form HUD-730, Award/Modification of Interagency 
          Agreement.

    As prescribed in 2417.504(b), form HUD-730 shall be used by 
Contracting Officers when placing or modifying an order for supplies or 
services from another Government agency.



Sec. 2453.227  Patents, data, and copyrights.



Sec. 2453.227-70  Form HUD-770, Report of Inventions and Subcontracts.

    As prescribed in 2427.305-2, form HUD-770 shall be completed by the 
Contractor, and submitted to the Contracting Officer, if requested, upon 
completion of the contract.



Sec. 2453.242  Contract administration.



Sec. 2453.246  Quality Assurance.

[[Page 507]]



                 CHAPTER 25--NATIONAL SCIENCE FOUNDATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2501            Federal Acquisition Regulations System......         509
                   SUBCHAPTER B--ACQUISITION PLANNING
2509            Contractor qualifications...................         511
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2515            Contracting by negotiation..................         513
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2527            Patents, data, and copyrights...............         514
2532            Contract financing..........................         514

[[Page 509]]

                          SUBCHAPTER A_GENERAL

            PART 2501_FEDERAL ACQUISITION REGULATIONS SYSTEM

               Subpart 2501.1_Purpose, Authority, Issuance

Sec.

Sec. 2501.101 Purpose.

Sec. 2501.102 Authority.

Sec. 2501.103 Applicability.

Sec. 2501.104 Issuance.

Sec. 2501.104-1 Publication and code arrangement.

Sec. 2501.104-2 Arrangement of regulations.

                 Subpart 2501.4_Deviations From the FAR


Sec. 2501.403 Individual deviations.

Sec. 2501.404 Class deviations.

        Subpart 2501.6_Contracting Authority and Responsibilities


Sec. 2501.601 General.

Sec. 2501.602 Contracting officers.

Sec. 2501.602-1 Authority.

    Authority: 42 U.S.C. 1870(a).

    Source: 49 FR 46744, Nov. 28, 1984, unless otherwise noted.

               Subpart 2501.1_Purpose, Authority, Issuance



Sec. 2501.101  Purpose.

    These regulations implement and supplement the Federal Acquisition 
Regulations (FAR).



Sec. 2501.102  Authority.

    The NSF Acquisition Regulations are issued under the authority of 
section 11(a) of the National Science Foundation Act of 1950, as amended 
(42 U.S.C. 1870(a)).



Sec. 2501.103  Applicability.

    Except where a deviation is specifically authorized in accordance 
with subpart 2501.4 or otherwise authorized by law, the FAR and the 
NSFAR govern all NSF acquisitions.



Sec. 2501.104  Issuance.



Sec. 2501.104-1  Publication and code arrangement.

    (a) The NSFAR is published in the daily issues of the Federal 
Register and, in cumulative form, in the Code of Federal Regulations.
    (b) The NSFAR is issued as chapter 25 of title 48, CFR.



Sec. 2501.104-2  Arrangement of regulations.

    The NSFAR uses the same numbering system and arrangement used in the 
FAR. Where the NSFAR implements the FAR it is numbered and captioned to 
correspond to the FAR. Where there is no corresponding material in the 
FAR, Parts 70 and up are used by the NSFAR. Where the subject matter in 
the FAR requires no implementation the NSFAR contains no corresponding 
part.

                 Subpart 2501.4_Deviations From the FAR



Sec. 2501.403  Individual deviations.

    Individual deviations, affecting only one contracting action may be 
authorized by the NSF Procurement Executive.



Sec. 2501.404  Class deviations.

    Class deviations may be authorized by the NSF Procurement Executive 
subject to the limitations set forth in FAR subpart 1.4.

        Subpart 2501.6_Contracting Authority and Responsibilities



Sec. 2501.601  General.

    Authority and responsibility to contract for authorized supplies and 
services is vested in the Director, NSF, within the limits expressly 
provided by the National Science Foundation Act of 1950 (42 U.S.C. 1861 
et seq.). The NSF Procurement Executive is delegated overall 
responsibility by the Director for the Foundation's contracting 
activities.



Sec. 2501.602  Contracting officers.



Sec. 2501.602-1  Authority.

    NSF Contracting Officers have authority to enter into, administer, 
or terminate contracts and make related

[[Page 510]]

determinations and findings to the extent of the authority delegated to 
them in writing by the NSF Procurement Executive.

[[Page 511]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                   PART 2509_CONTRACTOR QUALIFICATIONS

         Subpart 2509.4_Debarment, Suspension, and Ineligibility

Sec.

Sec. 2509.400 Scope of subpart.

Sec. 2509.403 Definitions.

Sec. 2509.405 Effect of listing.

Sec. 2509.405-1 Continuation of current contracts.

Sec. 2509.405-2 Restrictions on subcontracting.

Sec. 2509.406 Debarment.

Sec. 2509.406-1 General.

Sec. 2509.406-3 Procedures.

Sec. 2509.407 Suspension.

Sec. 2509.407-1 General.

Sec. 2509.407-3 Procedures.

Sec. 2509.408 Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters.

Sec. 2509.410 Appeals.

    Authority: Sec. 11(a), National Science Foundation Act of 1950, as 
amended (42 U.S.C. 1870(a)).

    Source: 57 FR 34881, Aug. 7, 1992, unless otherwise noted.

         Subpart 2509.4_Debarment, Suspension, and Ineligibility



Sec. 2509.400  Scope of subpart.

    This subpart supplements subpart 9.4 of the Federal Acquisition 
Regulation by prescribing NSF policies and procedures and assigning 
responsibility for making debarment and suspension decisions. Nothing in 
this subpart is intended to alter the effect of subpart 9.4.



Sec. 2509.403  Definitions.

    The NSF Deputy Director is the ``debarring official'' and 
``suspending official'' for the Foundation. All duties assigned to the 
NSF Deputy Director by this regulation or by subpart 9.4 of the Federal 
Acquisition Regulation may be delegated by him or her to any officer or 
employee of the Foundation.



Sec. 2509.405  Effect of listing.



Sec. 2509.405-1  Continuation of current contracts.

    (a) The NSF Deputy Director will decide whether to continue NSF 
contracts or subcontracts in existence at the time a contractor is 
debarred, suspended, or proposed for debarment.
    (b) The NSF Deputy Director will decide whether to renew or 
otherwise extend the duration of NSF contracts, or consent to 
subcontracts, with contractors debarred, suspended, or proposed for 
debarment. He or she will prepare a written statement of the compelling 
reasons for renewal and extension.



Sec. 2509.405-2  Restrictions on subcontracting.

    The NSF Deputy Director may authorize a contracting officer to 
consent to a subcontract with a contractor debarred, suspended, or 
proposed for debarment. He or she will prepare a written statement of 
the compelling reasons for such approval.



Sec. 2509.406  Debarment.



Sec. 2509.406-1  General.

    (c) The NSF Deputy Director will decide whether to enter into a 
contract with a contractor that is debarred or proposed for debarment. 
He or she will prepare a written statement of the compelling reasons 
justifying continued business dealings between the Foundation and the 
contractor.



Sec. 2509.406-3  Procedures.

    (a) Any NSF employee who becomes aware of circumstances that may 
serve as the basis for debarment of a contractor will promptly report 
them to the NSF Office of Inspector General (OIG) and the debarring 
official. OIG will investigate the circumstances and, if it determines 
appropriate, prepare a written referral of the matter to the debarring 
official.
    (b) Upon receipt of a referral from the NSF Office of Inspector 
General, the debarring official will determine, in consultation as 
appropriate with OIG, the NSF Office of the General Counsel, the NSF 
Procurement Executive, and program officials, what additional steps are 
necessary and appropriate to make a decision in accordance with the 
requirements of 48 CFR 9.406-3.

[[Page 512]]



Sec. 2509.407  Suspension.



Sec. 2509.407-1  General.

    (d) The NSF Deputy Director will decide whether to enter into a 
contract with a suspended contractor. He or she will prepare a written 
statement of the compelling reasons justifying continued business 
dealings between the Foundation and the contractor.



Sec. 2509.407-3  Procedures.

    (a) Any NSF employee who becomes aware of circumstances that may 
serve as the basis for suspension of a contractor will promptly report 
them to the NSF Office of Inspector General (OIG) and the suspending 
official. OIG will investigate the circumstances and, if it determines 
appropriate, prepare a written referral of the matter to the suspending 
official.
    (b) Upon receipt of a referral from the NSF Office of Inspector 
General, the suspending official will determine, in consultation as 
appropriate with OIG, the NSF Office of the General Counsel, the NSF 
Procurement Executive, and program officials, what additional steps are 
necessary and appropriate to make a decision in accordance with the 
requirements of 48 CFR 9.407-3.



Sec. 2509.408  Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters.

    (a)(2) NSF contracting officers will notify the Office of Inspector 
General and the Deputy Director whenever information submitted by 
offerors in compliance with the Certifications Regarding Debarment, 
Suspension, Proposed Debarment, and Other Responsibility Matters 
provisions in solicitations indicates the existence of an indictment, 
charge, conviction, or civil judgment.



Sec. 2509.410  Appeals.

    (a) A debarred or suspended contractor may appeal to the Director in 
writing within 30 days after receiving notice of the debarring or 
suspending official's decision in accordance with 48 CFR 9.406-3(e) or 
9.407-3(d)(4). The debarring or suspending official's decision becomes a 
final administrative action if not appealed within the 30 day period.
    (b) The Director may appoint an uninvolved NSF officer or employee 
to review an appeal and make recommendations.
    (c) The Director will inform the appellant of a final decision 
within 30 days after receiving the appeal. That decision will be the 
final administrative action of the Foundation.

[[Page 513]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

                  PART 2515_CONTRACTING BY NEGOTIATION

    Authority: 42 U.S.C. 1870(c).

    Source: 49 FR 46744, Nov. 28, 1984, unless otherwise noted.

                 Subpart 2515.2_Negotiation Authorities



Sec. 2515.215-70  NSF negotiation authorities.

    (a) Authorities. Citation: 42 U.S.C. 1870(c).
    (b) Application. When an NSF contract is for scientific activities 
which are determined by the NSF contracting officer to be ``necessary to 
carry out the purposes of the NSF Act,'' then 41 U.S.C. 252(c)(15) is 
applicable and the contract may be entered into through negotiation 
rather than formal advertising. The Foundation's contracting officer 
may, in lieu of reliance on 42 U.S.C. 1870(c) and 41 U.S.C. 252(c)(15), 
utilize other applicable negotiating authorities at his or her 
discretion. 42 U.S.C. 1870(c) and 41 U.S.C. 252(c)(15) may also be used 
to authorize negotiation if the Foundation is carrying out, ``at the 
request of the Secretary of State or Secretary of Defense, specific 
scientific activities in connection with matters relating to 
international cooperation or national security.'' Contracts or their 
modifications entered into under this authority may be done so without 
legal consideration and without performance or other bonds.

[[Page 514]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 2527_PATENTS, DATA, AND COPYRIGHTS

           Subpart 2527.70_Disposition of Rights in Inventions

Sec.

Sec. 2527.7001 General.

Sec. 2527.7002 NSF patent policy.

Subpart 2527.71--Data Rights [Reserved]

    Authority: 35 U.S.C. 200-212; 42 U.S.C. 1870(e) and 1871); and the 
Presidential Memorandum entitled ``Government Patent Policy'', issued 
February 18, 1983.

           Subpart 2527.70_Disposition of Rights in Inventions



Sec. 2527.7001  General.

    National Science Foundation policies, procedures, and clauses 
governing allocation of rights to inventions made under NSF contracts, 
grants, and cooperative agreements are codified as part 650 of title 45 
of the Code of Federal Regulations.

[57 FR 34882, Aug. 7, 1992, as amended at 61 FR 51022, Sept. 30, 1996]



Sec. 2527.7002  NSF patent policy.

    As authorized by the National Science Board at its 230th meeting, 
October 15-16, 1981, the Director of the National Science Foundation has 
adopted the following statement of NSF patent policy.
    (a) In accordance with by the Bayh-Dole Act and the Presidential 
Memorandum entitled ``Government Patent Policy'' issued February 18, 
1983, the Foundation will use the Patent Rights clause prescribed by the 
Department of Commerce in all its funding agreements for the performance 
of experimental, developmental, or research work, including awards made 
to foreign entities, unless the Foundation determines that some other 
provision would better serve the purposes of that Act or the interests 
of the United States and the general public.
    (b) In funding agreements covered by a treaty or agreement that 
provides that an international organization or foreign government, 
research institute, or inventor will own or share patent rights, the 
Foundation will acquire such patent rights as are necessary to comply 
with the applicable treaty or agreement.
    (c) If an awardee elects not to retain rights to an invention, the 
Foundation will allow the inventor to retain the principal patent rights 
unless the awardee, or the inventor's employer if other than the 
awardee, shows that it would be harmed by that action.
    (d) The Foundation will normally allow any patent rights not wanted 
by the awardee or inventor to be dedicated to the public through 
publication in scientific journals or as a statutory invention 
registration. However, if another Federal agency is known to be 
interested in the relevant technology, the Foundation may give it an 
opportunity to review and patent the invention so long as that does not 
inhibit the dissemination of the research results to the scientific 
community.

[57 FR 34882, Aug. 7, 1992]

Subpart 2527.71--Data Rights [Reserved]

                      PART 2532_CONTRACT FINANCING

                     Subpart 2532.4_Advance Payments

Sec.

Sec. 2532.401 Statutory authority.

Sec. 2532.403 Applicability.

    Authority: 42 U.S.C. 1870(d).

    Source: 49 FR 46745, Nov. 28, 1984, unless otherwise noted.

                     Subpart 2532.4_Advance Payments



Sec. 2532.401  Statutory authority.

    The NSF Act (42 U.S.C. 1870(d)) provides that advance, progress, or 
other payments which relate to scientific activities or scientific 
information may

[[Page 515]]

be made without regard to the provisions of section 3324 of title 31 of 
the United States Code.

[49 FR 46745, Nov. 28, 1984, as amended at 61 FR 51022, Sept. 30, 1996]



Sec. 2532.403  Applicability.

    Advance payments may be made in any amount not exceeding the 
contract price, provided (a) the amount of the advance payment is based 
upon an analysis of the financing required by the contractor for the 
contract and does not exceed reasonable financial requirements between 
payments, and (b) such advance payment is appropriate in order to 
contract for the required work.

[[Page 517]]



                    CHAPTER 28--DEPARTMENT OF JUSTICE




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2801            Department of Justice Acquisition Regulation 
                    System..................................         519
2802            Definitions of words and terms..............         522
2803            Improper business practices and personal 
                    conflicts of interest...................         523
2804            Administrative matters......................         525
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
2805            Publicizing contract actions................         528
2806            Competition requirements....................         529
2807            Acquisition planning........................         530
2808            Required sources of supplies and services...         532
2809            Contractor qualifications...................         532
2811            Describing agency needs.....................         533
2812            Acquisition of commercial items.............         534
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2813            Simplified acquisition procedures...........         536
2814            Sealed bidding..............................         537
2815            Contracting by negotiation..................         537
2816            Types of contracts..........................         538
2817            Special contracting methods.................         539
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2819            Small business programs.....................         541
2822            Application of labor laws to Government 
                    acquisitions............................         542
2823            Environment, conservation, occupational 
                    safety, and drug-free workplace.........         542
2824            Protection of privacy and freedom of 
                    information.............................         544
2825            Foreign acquisition.........................         544
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2828            Bonds and insurance.........................         545
2829            Taxes.......................................         545

[[Page 518]]

2830            Cost Accounting Standards (CAS) 
                    administration..........................         546
2831            Contract cost principles and procedures.....         546
2832            Contract financing..........................         547
2833            Protests, disputes, and appeals.............         548
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
2834            Major system acquisition....................         551
                    SUBCHAPTER G--CONTRACT MANAGEMENT
2842            Contract administration.....................         552
2845            Government property.........................         552
2846            Quality assurance...........................         553
                     SUBCHAPTER H--CLAUSES AND FORMS
2852            Solicitation provisions and contract clauses         554

[[Page 519]]

                          SUBCHAPTER A_GENERAL

     PART 2801_DEPARTMENT OF JUSTICE ACQUISITION REGULATIONS SYSTEM

               Subpart 2801.1_Purpose, Authority, Issuance

Sec.

Sec. 2801.101 Purpose.

Sec. 2801.106 OMB approval under the Paperwork Reduction Act.

                      Subpart 2801.2_Administration


Sec. 2801.270-1 Revisions.

              Subpart 2801.3_Agency Acquisition Regulations


Sec. 2801.304 Agency control and compliance procedures.

             Subpart 2801.4_Deviations From the FAR and JAR


Sec. 2801.403 Individual deviations.

Sec. 2801.404 Class deviations.

Sec. 2801.470 Requests for class deviations.

     Subpart 2801.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 2801.601 General.

Sec. 2801.602 Contracting officers.

Sec. 2801.602-3 Ratification of unauthorized commitments.

Sec. 2801.603 Selection, appointment and termination of appointment.

Sec. 2801.603-1 Department of Justice Acquisition Career Management 
          Program.

Sec. 2801.603-3 Appointment.

     Subpart 2801.70_Contracting Officer's Technical Representative


Sec. 2801.7001-701 General.

Sec. 2801.7001-702 Selection, appointment, and limitation of authority.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16118, Apr. 2, 1998, unless otherwise noted.

               Subpart 2801.1_Purpose, Authority, Issuance



Sec. 2801.101  Purpose.

    (a) The Justice Acquisition Regulations (JAR) in this chapter are 
established to provide procurement regulations that supplement the 
Federal Acquisition Regulation (FAR), 48 CFR chapter 1. As such, the 
regulations contained in the JAR will include coverage of only those 
areas where agency implementation is required by the FAR, or where 
Department of Justice (DOJ) policies and procedures exist that 
supplement FAR coverage and directly affect the contractual relationship 
between the Department and potential or existing contractors. The JAR 
will not repeat FAR coverage.
    (b) The FAR contains many references to agency procedures. If the 
JAR does not include supplemental guidance under the corresponding part 
or subpart, it is because the FAR language is considered to be 
sufficient. In those instances where the JAR states ``in accordance with 
bureau procedures,'' it does not mean that the bureau must have a 
procedure. It is intended that the bureau procedures are to be followed 
if they exist, however, it does not mean that the bureau must have a 
formal written procedure. Where both the JAR and bureau procedures do 
not address a FAR subject, the FAR guidance is to be followed.
    (c) The JAR is not a complete system of regulations and must be used 
in conjunction with the FAR.



Sec. 2801.106  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) and the 
Office of Management and Budget's (OMB) implementing regulations at 5 
CFR part 1320, require that reporting and record keeping requirements 
affecting 10 or more members of the public be cleared by that office. 
The OMB control number for the collection of information under 48 CFR 
chapter 28 is 1103-0018.

                      Subpart 2801.2_Administration



Sec. 2801.270-1  Revisions.

    In addition to changes published in the Federal Register, the JAR 
will be amended by issuance of Justice Acquisition Circulars (JACs) 
containing

[[Page 520]]

loose-leaf replacement pages which revise parts, subparts, sections, 
subsections, paragraphs or subparagraphs. A vertical bar (edit bar) at 
the beginning or end of a line indicates that a change has been made 
within that line.

              Subpart 2801.3_Agency Acquisition Regulations



Sec. 2801.304  Agency control and compliance procedures.

    Pursuant to FAR 1.304, the Procurement Executive (PE) is responsible 
for ensuring that bureau acquisition regulations and directives do not 
restrain the flexibilities found in the FAR. For this reason, bureau 
acquisition regulations shall be forwarded to the PE upon issuance. The 
PE reserves the right to revoke the regulations and directives in this 
chapter if they are determined to be restrictive.

             Subpart 2801.4_Deviations From the FAR and JAR



Sec. 2801.403  Individual deviations.

    Individual deviations from the FAR or the JAR shall be approved by 
the head of the contracting activity (HCA). A copy of the deviation 
shall be included in the contract file. Copies of all deviations will be 
provided to the PE.



Sec. 2801.404  Class deviations.

    Requests for class deviations from the FAR or the JAR shall be 
submitted to the PE. The PE will consult with the chairperson of the 
Civilian Agency Acquisition Council, as appropriate, and send his/her 
recommendations to the Assistant Attorney General for Administration 
(AAG/A). The AAG/A will grant or deny requests for such deviations. For 
the purposes of this chapter, requests for deviations involving basic 
ordering agreements, master type contracts, or situations where multiple 
awards are made from one solicitation, are considered to involve more 
than one contract and therefore considered to be class deviation 
requests.



Sec. 2801.470  Requests for class deviations.

    Requests for approval of class deviations from the FAR or the JAR 
shall be forwarded to the PE. Such requests will be signed by the Bureau 
Procurement Chief (BPC). Requests for class deviations shall be 
submitted as far in advance as the exigencies of the situation permit 
and shall contain sufficient written justification to evaluate the 
request.

     Subpart 2801.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 2801.601  General.

    (a) In accordance with Attorney General Order 1687-93, the authority 
vested in the Attorney General with respect to contractual actions, for 
goods and services, is delegated to the following officials:
    (1) AAG/A (for the offices, boards, and divisions (OBDs);
    (2) Director, Federal Bureau of Investigation;
    (3) Director, Federal Bureau of Prisons;
    (4) Commissioner, Federal Prison Industries;
    (5) Commissioner, Immigration and Naturalization Service;
    (6) Administrator, Drug Enforcement Administration;
    (7) Assistant Attorney General, Office of Justice Programs;
    (8) Director, U.S. Marshals Service;
    (9) Inspector General, Office of the Inspector General.
    (b) The acquisition authority delegated to the officials in 
2801.601(a) may be redelegated to subordinate officials as necessary for 
the efficient and proper administration of the Department's acquisition 
operations. Such redelegated authority shall expressly state whether it 
carries the power of redelegation of authority.
    (c) The redelegation of contracting authority directly to specific 
persons without regard for intermediate organizational levels only 
establishes authority to represent the Government in its commercial 
business dealings. It is not intended to affect the organizational 
relationship between the contracting officers and higher administrative 
and supervisory levels in the performance of their duties.

[[Page 521]]



Sec. 2801.602  Contracting officers.



Sec. 2801.602-3  Ratification of unauthorized commitments.

    The HCA may delegate the authority to ratify unauthorized 
commitments to the chief of the contracting office, except for those 
actions effected by his or her office. Dollar thresholds for delegations 
made under this section will be determined by the HCA. Copies of all 
ratifications are to be provided to the PE.



Sec. 2801.603  Selection, appointment and termination of appointment.



Sec. 2801.603-1  Department of Justice Acquisition Career Management 
          Program.

    (a) Each Bureau Procurement Chief shall develop and manage an 
acquisition career management program for contracting personnel in his 
or her component, consistent and uniform with this section and the 
Department of Justice Acquisition Procurement Career Management Program.
    (b) The program shall cover all contracting personnel in the 
following categories:
    (1) General Schedule (GS-1102) Contracting Series;
    (2) Contracting officers, regardless of General Schedule Series, 
with contracting authority above the simplified acquisition threshold;
    (3) Purchasing Series (GS-1105), other individuals performing 
purchasing duties and individuals with contracting authority between the 
micro purchase and simplified acquisition thresholds.
    (4) All Contracting Officer Representatives/Contracting Officer 
Technical Representatives, or equivalent positions.
    (c) The program shall include:
    (1) Management information system. Standardized information on the 
acquisition workforce will be collected and maintained. To the maximum 
extent practicable, such data requirements shall conform to the 
standards established by the Office of Personnel Management for the 
Central Personnel Data File and shall be compatible with the Department 
of Justice acquisition workforce management information system.
    (2) Individual assessments and development plans for personnel in 
the GS-1102 contracting series. (i) An individual assessment by a 
supervisor of each covered employee's state of competence to perform the 
full range of potential duties of his or her job; and
    (ii) An individual development plan to schedule classroom, on-the-
job training, or other training to develop the employee's skill level to 
an appropriate level in each area of competence necessary to perform his 
or her job.
    (iii) Individual assessments and development plans should be 
designed to fit the needs of the component, but they should be built 
upon the units of competence and instruction prepared by the Federal 
Acquisition Institute whenever feasible. Individual development plans 
should attempt to bring the employee to an appropriate level of skill in 
all necessary competencies in the field of procurement. In general, a 
proficiency skill level of 3, as defined in Attachment 1 to Office of 
Federal Procurement Policy (OFPP) Policy Letter 92-3, shall be obtained 
for any contracting duty that is actually required to be performed on 
the job. Individual assessments and development plans should be reviewed 
annually and revised as appropriate, until the employee reaches the full 
competency level of his or her job.
    (iv) Employees who perform only purchasing duties, regardless of 
occupational series, shall be required to obtain the requisite level of 
skill only in competencies involving simplified acquisitions. If the 
employee's duties are expanded to include contracting duties, then skill 
in procurement competencies must be assessed and developed.
    (v) Individual assessments of covered employee skills shall be 
completed within 90 days of the employee's entry on duty.
    (3) Mandatory training. Training shall be provided for the 
identified categories of contracting personnel to meet the minimum 
standards identified in OFPP Policy Letter 97-01.
    (4) Skills currency. Contract Specialists (GS-1102) and contracting 
officers with authority to obligate funds above the micro-purchase 
threshold that have

[[Page 522]]

satisfied the mandatory training requirements, shall be provided the 
equivalent of at least 40 hours of continuing procurement and 
acquisition related education and training every two years for the 
purpose of maintaining the currency of acquisition knowledge and skills.
    (5) Program funding. Bureau Procurement Chiefs are responsible for 
assessing the funding needs to provide for the education and training of 
their acquisition workforce and requesting such funding in the annual 
budget process.



Sec. 2801.603-3  Appointment.

    Contracting officers whose authority will be limited to micro-
purchases shall be appointed in writing and include any limitations to 
that authority.

     Subpart 2801.70_Contracting Officer's Technical Representative



Sec. 2801.7001-701  General.

    Contracting officers may appoint individuals selected by program 
offices to act as authorized representatives in the monitoring and 
administration of a contract. Such officials shall be designated as 
Contracting Officers' Technical Representatives (COTR's).



Sec. 2801.7001-702  Selection, appointment, and limitation of authority.

    (a) COTR standards program. This subpart sets forth policies and 
procedures for establishing standards for COTR's in DOJ. The program 
sets forth minimum standards for individuals to be eligible for an 
appointment as a COTR.
    (b) Applicability. The eligibility requirements of this subpart 
apply to all individuals who are designated by the contracting officer 
as COTR's.
    (c) Eligibility standards. To be determined eligible for an 
appointment as a DOJ COTR, the following standards must be met:
    (1) The candidate must attend and successfully complete a minimum of 
a 16-hour basic COTR course; and
    (2) The candidate must attend a minimum of 1 hour training 
specifically in procurement ethics, either through courses offered 
periodically by the Department, the bureaus, or a Government or 
commercial vendor.
    (d) Limitations. Each COTR appointment made by the contracting 
officer shall clearly state that the representative is not an authorized 
contracting officer and does not have the authority under any 
circumstances to:
    (1) Award, agree to award, or execute any contract, contract 
modification, notice of intent, or other form of binding agreement;
    (2) Obligate, in any manner, the payment of money by the Government;
    (3) Make a final decision on any contract matter which is subject to 
the clause at FAR 52.233-1, Disputes; or
    (4) Terminate, suspend, or otherwise interfere with the contractor's 
right to proceed, or direct any changes in the contractor's performance 
that are inconsistent with or materially change the contract 
specifications.
    (e) Termination. Termination of the COTR's appointment shall be made 
in writing by the contracting officer and shall give the effective date 
of the termination. The contracting officer shall promptly modify the 
contract once a COTR termination notice has been issued. A termination 
notice is not required when the COTR's appointment terminates upon 
expiration of the contract.
    (f) Waivers. No individual may serve as a COTR on any contract 
without the requisite training and signed COTR certificate for the file. 
In the rare event that there is an urgent requirement for a specific 
individual to serve as a COTR and the individual has not successfully 
completed the required training, the BPC may waive the training 
requirements and authorize the individual to perform the COTR duties, 
for a period of time not to exceed 120 days. The waiver will be granted 
in accordance with bureau procedures.
    (g) COTR clause. The clause at 2852.201-70 is required in all 
contracts where a COTR is designated.

                PART 2802_DEFINITIONS OF WORDS AND TERMS

                       Subpart 2802.1_Definitions

Sec.

Sec. 2802.101 Definitions.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

[[Page 523]]

                       Subpart 2802.1_Definitions



Sec. 2802.101  Definitions.

    Throughout this chapter, the following words and terms are used as 
defined in this subpart unless the context in which they appear clearly 
requires a different meaning, or a different definition is prescribed 
for a particular part or portion of a part.
    (a) Bureaus means contracting activities. (See contracting activity 
in this subpart.)
    (b) Bureau procurement chief means that supervisory official who is 
directly responsible for supervising, managing and directing all 
contracting offices of the bureau.
    (c) Chief of the contracting office means that supervisory official 
who is directly responsible for supervising, managing and directing a 
contracting office.
    (d) Contracting activity means a component within the Department 
which has been delegated procurement authority to manage contracting 
functions associated with its mission. See 2801.601(a).
    (e) DOJ means the Department of Justice.
    (f) HCA means head of the contracting activity i.e. those officials 
identified in 2801.601(a) having responsibility for supervising, 
managing, and directing the operations of the contracting activities.
    (g) JAR means the Department of Justice Acquisition Regulations in 
48 CFR chapter 28.
    (h) JMD means the Justice Management Division.
    (i) OBDs means the offices, boards, and divisions within the Justice 
Department.
    (j) PE means the Procurement Executive for the Department of 
Justice.

[63 FR 16121, Apr. 2, 1998]

PART 2803_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 2803.1_Safeguards

Sec.

Sec. 2803.101-3 Agency regulations.

Sec. 2803.104 Procurement integrity.

Sec. 2803.104-10 Violations or possible violations.

Sec. 2803.104-70 Ethics program training requirements.

      Subpart 2803.2_Contractor Gratuities to Government Personnel


Sec. 2803.203 Reporting suspected violations of the gratuities clause.

Sec. 2803.204 Treatment of violations.

        Subpart 2803.3_Reports of Suspected Antitrust Violations


Sec. 2803.301 General.

    Subpart 2803.9_Whistleblower Protections for Contractor Employees


Sec. 2803.905 Procedures for investigating complaints.

Sec. 2803.906 Remedies.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16121, Apr. 2, 1998, unless otherwise noted.

                        Subpart 2803.1_Safeguards



Sec. 2803.101-3  Agency regulations.

    The DOJ regulations governing Standards of Conduct are contained in 
5 CFR part 2635.



Sec. 2803.104  Procurement integrity.



Sec. 2803.104-10  Violations or possible violations.

    (a) Upon receipt of information of a violation or possible violation 
of section 27 of the Act, the contracting officer must do the following:
    (1) Refer the matter to the Office of the Inspector General or other 
office designated in Attorney General Order 1931-94; and
    (2) Make the determination required by FAR 3.104-10(a) and follow 
the procedures prescribed therein.
    (b) The individual referenced in FAR 3.104-10(a)(1) is the Bureau 
Procurement Chief.
    (c) The HCA must follow the criteria contained in FAR 3.104-10(g) 
when designating authority under this subpart.
    (d) The HCA, or designee, shall refer information regarding actual 
or possible violations of section 27 of the Act to the Office of the 
Inspector General or other office designated in Attorney General Order 
1931-94 for guidance before taking action.

[[Page 524]]

    (e) If the HCA, or designee, receiving the information of a 
violation, or possible violation, determines that award is justified by 
urgent and compelling circumstances, or is otherwise in the interest of 
the Government, then the contracting officer may be authorized to award 
the contract after notification to the Office of the Inspector General 
or other office designated in Attorney General Order 1931-94.
    (f) The contracting officer will be advised, or directed by the HCA, 
or designee, as to the action to be taken. The types of actions that 
would normally be taken when a violation has occurred that affected the 
outcome of a procurement are listed in FAR 3.104-11(d).
    (g) The PE shall be advised of all instances where violations have 
been determined to have occurred. Information must describe the 
violation as well as actions taken.



Sec. 2803.104-70  Ethics program training requirements.

    It is the responsibility of the bureaus to provide training for 
``procurement officials'' concerning the requirements of FAR 3.104. The 
bureau procurement training efforts should be coordinated with the 
Department's Ethics Official, who is responsible for developing agency 
ethics training plans, to include briefings on ethics and standards of 
conduct for employees who are contracting officers and procurement 
officials. The Ethics Official should be contacted directly to schedule 
training.

      Subpart 2803.2_Contractor Gratuities to Government Personnel



Sec. 2803.203  Reporting suspected violations of the gratuities clause.

    DOJ personnel shall report suspected violations of the gratuities 
clause to the contracting officer or chief of the contracting office in 
writing. The report shall clearly state the circumstances surrounding 
the incident, including the nature of the gratuity, the behavior or 
action the gratuity was to influence, and the persons involved. The 
contracting officer, after review, shall forward the report along with 
his or her recommendations regarding the treatment of the violation in 
accordance with FAR 3.204(c) to the HCA or designee.



Sec. 2803.204  Treatment of violations.

    (a) The HCA or designee shall determine whether adverse action 
against the contractor in accordance with FAR 3.204(c) should be taken. 
In reaching a decision, the HCA or designee shall consult with the 
contracting activity's legal advisor and the Office of the Inspector 
General or other office designated in Attorney General Order 1931-94.
    (b) Prior to taking any action against the contractor the HCA or 
designee shall allow the contractor the opportunity to present opposing 
arguments in accordance with FAR 3.204(b).
    (c) The PE shall be advised of all instances where violations have 
been determined to have occurred. Information must describe the 
violation as well as actions taken.

        Subpart 2803.3_Reports of Suspected Antitrust Violations



Sec. 2803.301  General.

    Reports of suspected antitrust violations shall be referred to the 
AG and PE in accordance with bureau procedures.

    Subpart 2803.9_Whistleblower Protections for Contractor Employees



Sec. 2803.905  Procedures for investigating complaints.

    (a) The Inspector General shall conduct an investigation and provide 
a written report of findings to the HCA.
    (b) The HCA will ensure that the Inspector General provides the 
report of finding as specified in FAR 3.905(c).
    (c) The complainant and contractor shall be afforded the opportunity 
to submit a written response to the report of findings within 30 days to 
the HCA. Extensions of time to file a written response may be granted by 
the HCA.
    (d) The HCA may at any time request additional investigative work be 
done on the complaint.

[[Page 525]]



Sec. 2803.906  Remedies.

    (a) Upon determination that a contractor has subjected one of its 
employees to a reprisal for providing information, the HCA may take one 
or more actions specified in FAR 3.906(a).
    (b) Whenever a contractor fails to comply with an order, the HCA 
shall request an action be filed for enforcement of such order in the 
United States district court.

                    PART 2804_ADMINISTRATIVE MATTERS

   Subpart 2804.4_Safeguarding Classified Information Within Industry

Sec.

Sec. 2804.402 General.

Sec. 2804.403 Responsibilities of contracting officers.

Sec. 2804.470 Contractor Personnel Security Program.

Sec. 2804.470-1 Policy.

Sec. 2804.470-2 Responsibilities.

            Subpart 2804.5_Electronic Commerce in Contracting


Sec. 2804.506 Exemptions.

                    Subpart 2804.6_Contract Reporting


Sec. 2804.602 Federal Procurement Data System.

                Subpart 2804.8_Government Contract Files


Sec. 2804.805 Storage, handling, and disposal of contract files.

  Subpart 2804.9_Information Reporting to the Internal Revenue Service


Sec. 2804.901 Definitions.

Sec. 2804.902 Contract information.

Sec. 2804.970 Special reporting exceptions.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16122, Apr. 2, 1998, unless otherwise noted.

   Subpart 2804.4_Safeguarding Classified Information Within Industry



Sec. 2804.402  General.

    Classified acquisitions or contracts which require access to 
classified material, as defined in FAR 4.401, for their performance 
shall be subject to the policies, procedures, and instructions contained 
in departmental regulations and shall be processed in a manner 
consistent with those regulations.



Sec. 2804.403  Responsibilities of contracting officers.

    For proposed solicitations and contracts which may require access to 
classified material or where guard services are assigned to safeguard 
departmental activities in possession of classified information, the 
contracting officer shall consult with the COTR and the Director, 
Security and Emergency Planning Staff, JMD, to determine the appropriate 
security measures to safeguard such material and information.



Sec. 2804.470  Contractor Personnel Security Program.



Sec. 2804.470-1  Policy.

    It is the policy of the Department of Justice that all acquisitions 
which allow unescorted contractor access to Government facilities or 
sensitive information contain, as appropriate, requirements for 
appropriate personnel security screening by the contractor. To the 
maximum extent practicable, contractors shall be made responsible for 
the performance of personnel security screening. The personnel security 
screening may vary from one acquisition to another, depending upon the 
type, context, duration and location of the work to be performed. 
Classified contracts are exempted from the requirements of this section 
because they are governed by the requirements of Executive Order 12829 
(January 6, 1993).



Sec. 2804.470-2  Responsibilities.

    (a) The primary acquiring component, together with its Security 
Program Manager, is responsible for providing the contracting officer 
with the appropriate contractor personnel security screening 
requirements (including waiver requirements, if appropriate) to be 
included in the statement of work.
    (b) The contracting officer is responsible for including in the 
contract file for all such acquisitions, a certification made by the 
responsible Security Program Manager that the personnel security 
requirements of the

[[Page 526]]

contract are adequate to ensure the security of Departmental operations, 
information and personnel.
    (c) The Security Program Manager for the acquiring component is 
responsible for monitoring and ensuring that the contractor personnel 
security requirements of the contract are accomplished.
    (d) For purposes of this section, the term Contracting Officer 
includes anyone empowered to place orders under Blanket Purchase 
Agreements (BPA) or any other existing contract vehicle and/or through 
the use of the government-wide commercial purchase card.

            Subpart 2804.5_Electronic Commerce in Contracting



Sec. 2804.506  Exemptions.

    Pursuant to FAR 4.506(b), all determinations that FACNET processing 
is not cost-effective or practicable for the contracting officer, or 
portions thereof, shall be initiated by the HCA and submitted to the PE 
for processing to the Attorney General for signature.

                    Subpart 2804.6_Contract Reporting



Sec. 2804.602  Federal Procurement Data System.

    (a) Federal Procurement Data System (FPDS) reports shall be 
submitted to the Procurement Policy and Review Group (PPRG) within 20 
days of the close of each of the first three quarters of the fiscal year 
and within 30 days after the close of the fourth quarter. Specific 
preparation procedures are contained in the FPDS Reporting Manual and 
the Product and Service Code Manual.
    (b) Bureaus shall submit periodic reports of their subcontract 
activities, together with copies of their Standard Forms 295 and 294 to 
the Director, Office of Small and Disadvantaged Business Utilization 
(OSDBU) as required by that office.
    (c) BPCs shall provide to the PE, the name, office, mailing address, 
and telephone number of the individual who will provide day-to-day 
operational contact within the bureau for the implementation of the 
FPDS. Changes and updates shall be forwarded to PPRG within 10 days 
after they occur. It is the responsibility of the bureau contacts to 
ensure that all actions are reported and submitted to PPRG in a timely 
manner and that all statistics and reports are accurate, current, and 
complete. BPCs shall be responsible for validating the data.

                Subpart 2804.8_Government Contract Files



Sec. 2804.805  Storage, handling, and disposal of contract files.

    In accordance with FAR 4.805, each bureau shall prescribe procedures 
for the handling, storing, and disposing of contract files.

  Subpart 2804.9_Information Reporting to the Internal Revenue Service



Sec. 2804.901  Definitions.

    Classified contract, as used in this subpart, means a contract such 
that the fact of its existence of its subject matter has been designated 
and clearly marked or clearly represented, pursuant to the provisions of 
Federal law or an Executive Order, as requiring a specific degree of 
protection against unauthorized disclosure for reasons of national 
security.
    Confidential contract, as used in this subpart, means a contract, 
the reporting of which to the Internal Revenue Service (IRS) as required 
under 26 U.S.C. 6050M, would interfere with the effective conduct of a 
confidential law enforcement activity, such as contracts for sites for 
undercover operations or contracts with informants, or foreign 
counterintelligence activity.



Sec. 2804.902  Contract information.

    (a) Pursuant to FAR 4.902, the HCA, or delegate, shall certify to 
the PE, in the format specified in this section, under penalty of 
perjury, that such official has examined the information submitted by 
that bureau as its FPDS data, that the data has been prepared pursuant 
to the requirement of 26 U.S.C. 6050M, and that, to the best of such 
official's knowledge and belief it

[[Page 527]]

is compiled from bureau records maintained in the normal course of 
business for the purpose of making a true, correct and complete return 
as required by 26 U.S.C. 6050M.
    (b) The following certification will be signed and dated by the HCA, 
or delegate, and submitted with each bureau quarterly FPDS report (as 
specified by 2804.602).

                              CERTIFICATION

    I, ------------------------(Name),
---------------------------- (Title) under the penalties of perjury have 
examined the information to be submitted by ------------------------ 
(Bureau) to the Procurement Executive, for making information returns on 
behalf of the Department of Justice to the Internal Revenue Service, and 
certify that this information has been prepared pursuant to the 
requirements of 26 U.S.C. 6050M and that it is to the best of my 
knowledge and belief, a compilation of bureau records maintained in the 
normal course of business for the purpose of providing true, correct and 
complete returns as required by 26 U.S.C. 6050M.

Signature_______________________________________________________________
Date____________________________________________________________________

    (c) The PE will certify the consolidated FPDS data for the 
Department, transmit the data to the Federal Procurement Data Center 
(FPDC) and authorize the FPDC to make returns to the IRS on behalf of 
the agency.



Sec. 2804.970  Special reporting exceptions.

    (a) The Technical and Miscellaneous Revenue Act of 1988 (Pub. L. 
100-647) amended 26 U.S.C. 6050M to allow exceptions to the reporting 
requirements for certain classified or confidential contracts.
    (b) The head of the agency has determined that the filing of 
information returns, as required by 26 U.S.C. 6050M, on confidential 
contracts, which involve law enforcement or foreign counterintelligence 
activities, would interfere with the effective conduct of those 
confidential law enforcement or foreign counterintelligence activities, 
and that the special reporting exceptions added to 26 U.S.C. 6050M by 
The Technical and Miscellaneous Revenue Act of 1988 to these types of 
contracts.

[[Page 528]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                 PART 2805_PUBLICIZING CONTRACT ACTIONS

          Subpart 2805.2_Synopses of Proposed Contract Actions

Sec.

Sec. 2805.201-70 Departmental notification.

               Subpart 2805.3_Synopses of Contract Awards


Sec. 2805.302-70 Department notification.

                   Subpart 2805.5_Paid Advertisements


Sec. 2805.502 Authority.

Sec. 2805.503-70 Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16123, Apr. 2, 1998, unless otherwise noted.

          Subpart 2805	2_Synopses of Proposed Contract Actions



Sec. 2805.201-70  Departmental notification.

    (a) A copy of each synopsis of a proposed contract action sent to 
the Department of Commerce, shall be furnished to the Director, Office 
of Small and Disadvantaged Business Utilization (OSDBU), Justice 
Management Division (JMD).
    (b) Contracting officers shall document, in the contract file, that 
a copy of the notice has been forwarded to the OSDBU. A ``cc'' to the 
OSDBU on the file copy of the Commerce Business Daily (CBD) notice shall 
be considered adequate documentation.

               Subpart 2805.3_Synopses of Contract Awards



Sec. 2805.302-70  Departmental notification.

    (a) The contracting officer shall forward a copy of the synopsis of 
contract award, as prepared under FAR 5.302, to the Director, OSDBU, 
JMD.
    (b) Contracting officers shall document in the contract file that a 
copy of the notice has been forwarded to the OSDBU. A ``cc'' to the 
OSDBU on the file copy of the CBD notice shall be considered adequate 
documentation.

                   Subpart 2805.5_Paid Advertisements

    This subpart provides policies and procedures for the procurement of 
paid advertising as covered by 5 U.S.C. 302, 44 U.S.C. 3701, 3702, and 
3703, and Title 7, Chapter 5-25.2, General Accounting Office Policy and 
Procedures Manual for Guidance of Federal Agencies.



Sec. 2805.502  Authority.

    (a) Authorization for paid advertising is required for newspapers 
only. Pursuant to 28 CFR 0.14, the authority to approve publication of 
paid advertisements in newspapers has been delegated to the officials 
listed in 2801.601(a). This authority may be redelegated as appropriate.
    (b) Authority to purchase paid advertising must be granted in 
writing by an official delegated such authority. No advertisement, 
notice, or proposal will be published prior to receipt of advance 
written authority for such publication. No voucher for any such 
advertisement or publication will be paid unless there is presented, 
with the voucher, a copy of such written authority. Authority shall not 
be granted retroactively.



Sec. 2805.503-70  Procedures.

    (a) Agency officials exercising the authority delegated by 
2805.502(a) and (b) shall do so in accordance with the procedures set 
forth in FAR 5.503 and those in this subsection.
    (b) Requests for procurement of advertising shall be accompanied by 
written authority to advertise or publish which sets forth justification 
and includes the names of newspapers or journals concerned, frequency 
and dates of proposed advertisements, estimated cost, and other 
pertinent information.
    (c) Procedures for payment of vouchers are contained in Title 7, 
Chapter 5-25.2, General Accounting Office Policy

[[Page 529]]

and Procedures Manual for Guidance of Federal Agencies.

                   PART 2806_COMPETITION REQUIREMENTS

           Subpart 2806.3_Other Than Full and Open Competition

Sec.

Sec. 2806.302 Circumstances permitting other than full and open 
          competition.

Sec. 2806.302-7 Public interest.

Sec. 2806.302-70 Determination and findings.

Sec. 2806.303 Justifications.

Sec. 2806.303-1 Requirements.

Sec. 2806.303-2 Content.

Sec. 2806.304 Approval of the justification.

                  Subpart 2806.5_Competition Advocates


Sec. 2806.501 Requirement.

Sec. 2806.502 Duties and responsibilities.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16124, Apr. 2, 1998, unless otherwise noted.

           Subpart 2806.3_Other Than Full and Open Competition



Sec. 2806.302  Circumstances permitting other than full and open 
          competition.



Sec. 2806.302-7  Public interest.



Sec. 2806.302-70  Determination and findings.

    (a) Procedure. The determination and findings (D&F) required by FAR 
6.302.7(c)(1) shall be prepared in the format provided in paragraph (b) 
of this subsection. The original D&F and documentation supporting the 
use of this exception to the requirement for full and open competition 
shall be submitted to PPRG, JMD, for concurrence and coordination to the 
Attorney General for signature.
    (b) Format. The following format shall be used for the D&F:

                          Department of Justice

                          Washington, DC 20530

                       Determination and Findings

Authority To Use Other Than Full and Open Competition:
    Upon the basis of the following findings and determination, which I 
hereby make pursuant to the authority of 41 U.S.C. 253(c)(7), as 
implemented by FAR 6.302-7, it is in the public interest to provide for 
other than full and open competition in the contract action described 
below.
Findings:
    1. The (1) proposes to enter into a contract for the acquisition of 
(2).
    2. Use of the authority cited above is necessary and in the public 
interest for the following reasons: (3)

                              Determination

    For the reasons described above, it is necessary and in the public 
interest to use other than full and open competition in the proposed 
acquisition.

Signature_______________________________________________________________
Date____________________________________________________________________

Notes:
    (1) Name of contracting activity.
    (2) Brief description of supplies or services.
    (3) Explain the need for use of the authority.



Sec. 2806.303  Justifications.



Sec. 2806.303-1  Requirements.

    Pursuant to FAR 6.303-1(d), a copy of the justification shall be 
forwarded through the Department's Competition Advocate to the 
Department's point of contact with the Office of the United States Trade 
Representative.



Sec. 2806.303-2  Content.

    In addition to the information required by FAR 6.303-2, 
justifications requiring the approval of the PE shall contain the 
following documents:
    (a) A written Acquisition Plan as required by FAR 7.102 and part 
2807 of this chapter. If a plan was not prepared, explain why planning 
was not feasible or accomplished.
    (b) A copy of the CBD announcement or proposed announcement in 
accordance with the requirements of FAR 5.203.
    (c) As part of the description of the supplies or services required 
in FAR 6.303-2, the justification shall include the statement of need as 
submitted by the requiring activity and any subsequent changes or 
revisions to the specifications.
    (d) Any additional documentation that may be unique to the proposed 
procurement and is relevant to the justification.

[[Page 530]]



Sec. 2806.304  Approval of the justification.

    (a) All justifications for contract actions over the contracting 
officer's approval dollar threshold shall be submitted to the BPC for 
concurrence before being forwarded to the contracting activity 
competition advocate for approval. Justifications requiring approval by 
the PE shall be further submitted for the concurrence of the contracting 
activity competition advocate and the HCA, or designee, before being 
forwarded to the PE for approval.
    (b) After approval by the PE, the signed original will be returned 
to the contracting activity and one copy will be retained by the PPRG, 
JMD.
    (c) Pursuant to FAR 6.304(c), a class justification for other than 
full and open competition shall be approved in accordance with bureau 
procedures.

                  Subpart 2806.5_Competition Advocates



Sec. 2806.501  Requirement.

    In accordance with FAR 6.501:
    (a) The Assistant Director, Procurement Policy and Review Group, 
Management and Planning Staff, Justice Management Division, has been 
designated as the Competition Advocate for the Department of Justice.
    (b) The agency head will appoint, in each bureau, an official to be 
the contracting activity competition advocate. The contracting activity 
competition advocates shall be vested with the overall responsibility 
for competition activities within their contracting activity. No 
individual in the contracting office at or below the level of chief of 
the contracting office may serve as the contracting activity competition 
advocate. An individual at any level above the BPC may serve as 
contracting activity competition advocate.



Sec. 2806.502  Duties and responsibilities.

    In addition to the duties and responsibilities set forth in FAR 
6.502(b) and elsewhere in this chapter, contracting activity competition 
advocates shall:
    (a) Actively enforce the Department's Competition Advocacy Program 
within the contracting activity and ensure that systems are established 
for the effective internal control of contracting activity functions and 
activities which implement the Department's Competition Advocacy 
Program.
    (b) Implement specific goals and objectives to enhance competition 
and the acquisition of commercial items.
    (c) Prepare and submit to the DOJ Competition Advocate, by November 
30 of each year, an annual report of competition advocacy activities 
conducted during the prior fiscal year.

                     PART 2807_ACQUISITION PLANNING

                    Subpart 2807.1_Acquisition Plans

Sec.

Sec. 2807.102 Policy.

Sec. 2807.102-70 Applicability.

Sec. 2807.103 Agency-head responsibilities.

Sec. 2807.103-70 Other officials' responsibilities.

Sec. 2807.105 Contents of written acquisition plans.

            Subpart 2807.5_Inherently Governmental Functions


Sec. 2807.503 Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16124, Apr. 2, 1998, unless otherwise noted.

                    Subpart 2807.1_Acquisition Plans



Sec. 2807.102  Policy.

    (a)(1) In accordance with FAR 7.1, DOJ contracting activities shall 
perform acquisition planning and conduct market research for all 
acquisitions in order to promote and provide for:
    (i) Full and open competition (see FAR part 6);
    (ii) Maximum practicable competition for those acquisitions where 
full and open competition is not required by FAR part 6; and
    (iii) The acquisition of commercial items or, when commercial items 
are not available, nondevelopmental items to the maximum extent 
practicable.
    (2) The degree of planning and market research may vary, depending 
on such factors as the acquisition's size, scope and complexity.

[[Page 531]]

    (b) Acquisition planning shall be the joint responsibility of both 
the contracting and program offices. All acquisition plans shall be 
prepared sufficiently in advance of solicitation release dates to ensure 
that requirements are presented in a way that promotes full and open 
competition and provides sufficient time for the identification and 
resolution of impediments that could delay the acquisition or lead to 
increased cost or technical risk.



Sec. 2807.102-70  Applicability.

    (a) Planning commensurate with the complexity and dollar value of 
the individual requirement shall be performed for all acquisitions, 
except for those acquisitions listed in paragraph (c) of this subsection 
which may be exempt from the planning process. Heads of contracting 
activities may authorize the use of oral plans for simple and/or small 
dollar acquisitions. When oral plans are used, the file should be 
documented with the name of the individual who approved the plan.
    (b) Written acquisition plans shall be prepared for all major 
systems acquisitions as defined in 2834.002.
    (c) The following types of acquisitions may be exempt from the 
acquisition planning program;
    (1) Architect-engineering services;
    (2) Unsolicited proposals (when deemed innovative and unique in 
accordance with FAR 15.5);
    (3) Regulated utility services where services are available from 
only one source;
    (4) Acquisitions made from or through other Government agencies; and
    (5) Contract modifications which exercise an option or add funds to 
an incrementally funded contract (provided there is an approved 
acquisition planning document for the original action and there is no 
significant deviation from that plan).



Sec. 2807.103  Agency-head responsibilities.

    The AAG/A may establish acquisition planning criteria and thresholds 
for those bureaus who:
    (a) Fail to allow ample time for conducting competitive 
acquisitions;
    (b) Develop a pattern of awarding urgent requirements that generally 
restrict competition;
    (c) Fail to identify identical or like requirements that, where 
appropriate, can be combined under one solicitation and miss 
opportunities to obtain lower costs through volume purchasing, reduce 
administrative costs in processing one contract action versus multiple 
actions, and standardize goods and services.



Sec. 2807.103-70  Other officials' responsibilities.

    (a) In accordance with FAR 7.1, the HCA shall develop an acquisition 
planning program for all acquisitions to ensure that its needs are met 
in the most effective, economical, the timely manner.
    (b) Heads of contracting activities have the flexibility to develop 
programs that are best suited to their individual needs. Criteria and 
thresholds shall be established at which increasingly greater detail and 
formality in the planning process is required. DOJ components are 
encouraged to keep paperwork to a minimum and to put a premium on 
simplicity.
    (c) HCAs shall ensure that, during the acquisition planning phase, 
requirements personnel consider the use of:
    (1) The metric system of measurement consistent with 15 U.S.C. 
2205(b); and
    (2) Environmentally preferable and energy-efficient products and 
services.



Sec. 2807.105  Contents of written acquisition plans.

    (a) HCAs shall prescribe format and content of acquisition planning 
documents that are commensurate with the complexity and dollar value of 
the individual acquisition (sample acquisition planning documents for 
both simple and complex acquisitions will be make available by PPRG, 
JMD, and may be used or modified as appropriate).
    (b) HCAs shall include, at a minimum, the content elements at FAR 
7.105 and 7.106 for all major systems acquisitions as defined in 
2834.002.

[[Page 532]]

            Subpart 2807.5_Inherently Governmental Functions



Sec. 2807.503  Policy.

    The requirements official shall provide the contracting officer, 
concurrent with the transmittal of the statement of work (or 
modification thereof), a written determination that none of the 
functions to be performed are inherently governmental. Any disputes 
concerning this determination shall be resolved by the contracting 
officer, after consultation with the requirements official. The 
contracting officer's determination shall be final.

           PART 2808_REQUIRED SOURCES OF SUPPLIES AND SERVICES

       Subpart 2808.8_Acquisition of Printing and Related Supplies

Sec.

Sec. 2808.802 Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

       Subpart 2808.8_Acquisition of Printing and Related Supplies



Sec. 2808.802  Policy.

    The Director, Facilities and Administrative Services Staff, has been 
designated to serve as the central printing authority for the 
Department.

[63 FR 16125, Apr. 2, 1998]

                   PART 2809_CONTRACTOR QUALIFICATIONS

         Subpart 2809.4_Debarment Suspension, and Ineligibility

Sec.

Sec. 2809.402 Policy.

Sec. 2809.404 List of parties excluded from Federal procurement and 
          nonprocurement programs.

Sec. 2809.405 Effect of listing.

Sec. 2809.405-1 Continuation of current contracts.

    Subpart 2809.5_Organizational and Consultant Conflict of Interest


Sec. 2809.503 Waiver.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16125, Apr. 2, 1998, unless otherwise noted.

         Subpart 2809.4_Debarment, Suspension, and Ineligibility



Sec. 2809.402  Policy.

    Contracting activities shall:
    (a) Consider debarment or suspension of a contractor when cause is 
shown as listed under FAR 9.406-2 and FAR 9.407-2. Contracting staffs 
should consult with their appropriate legal counsel prior to making a 
decision to initiate debarment or suspension proceedings. If a 
determination is made that available facts do not justify beginning 
debarment or suspension proceedings, the file should be documented 
accordingly. This determination should be subject to reconsideration if 
new information or additional fact-finding so justifies.
    (b) If the decision is made to initiate debarment and/or suspension 
of a contractor, immediately prepare a notice in accordance with FAR 
9.406-3(c) of FAR 9.407-3(c). The draft notice, along with the 
administrative file containing all relevant facts and analysis shall be 
forwarded to the PE, as the debarring and suspending official, following 
review by the activity's legal counsel and BPC.
    (c) The PE shall:
    (1) Review the notice and administrative file for sufficiency and 
provide for review by other DOJ officials as considered appropriate;
    (2) If it is determined that action is warranted, give the 
contractor prompt notice of the proposed debarment or suspension, in 
accordance with FAR 9.406-3(c) or FAR 9.407-3(c);
    (3) Direct additional fact-finding as necessary when material facts 
are in dispute.
    (4) Notify the contractor of the final decision to debar or suspend, 
including a decision not to debar or suspend, in accordance with FAR 
9.406-3(c) and FAR 9.407-3(c).



Sec. 2809.404  List of parties excluded from Federal procurement and 
          nonprocurement programs.

    (a) The PE shall:
    (1) Provide GSA notification of the information set forth in FAR 
9.404(b)

[[Page 533]]

within five working days after debarring or suspending a contractor or 
modifying or rescinding such an action.
    (2) Maintain agency-wide records of debarred or suspended 
contractors in accordance with FAR 9.404.
    (b) Contracting activities shall provide an effective system to 
ensure that contracting staff consult the ``List of Parties Excluded 
from Federal Procurement and Nonprocurement Programs'' prior to 
soliciting offers from, awarding or extending contracts to, or 
consenting to subcontracts with contractors on the list.



Sec. 2809.405  Effect of listing.

    (a) Contractors debarred, suspended, or proposed for debarment are 
excluded from receiving contracts, and bureaus shall not solicit offers 
from, award contracts to, or consent to subcontracts with these 
contractors, unless the HCA determines that there is a compelling reason 
for such action and the PE approves such determinations.
    (b) Bids received from any listed contractor in response to an 
invitation for bids shall be entered on the abstract of bids, and 
rejected unless the HCA determines in writing that there is a compelling 
reason to consider the bid and the PE approves such action.
    (c) Proposals, quotations, or offers received from any listed 
contractor shall not be evaluated for award or included in the 
competitive range, nor shall discussions be conducted with a listed 
offeror during a period of ineligibility, unless the HCA determines in 
writing that there is a compelling reason to do so and the PE approves 
such action.



Sec. 2809.405-1  Continuation of current contracts.

    (a) In accordance with FAR 9.405-1, contracting activities may 
continue contracts or subcontracts in existence at the time a contractor 
is suspended or debarred unless it is determined that termination of the 
contract is in the best interest of the Government. In making this 
determination, contracting activities shall consider the seriousness of 
the act or omission leading to the debarment or suspension, the effect 
of debarment or suspension on the contractor's ability to continue 
operations, and the Department's ability to safeguard its interests and 
receive satisfactory performance.
    (b) Contracting activities shall not renew or otherwise extend the 
duration of current contracts, or consent to subcontracts, with 
contractors debarred, suspended, or proposed for debarment, unless the 
HCA states, in writing, the compelling reasons for renewal or extension 
and the PE approves such action.

   Subpart 2809.5_Organizational and Consultant Conflicts of Interest



Sec. 2809.503  Waiver.

    The HCA may waive any general rule or procedure of FAR 9.5 by 
determining that its application in a particular situation would not be 
in the Government's interest.

                    PART 2811_DESCRIBING AGENCY NEEDS

Sec.

Sec. 2811.001 Definitions.

Sec. 2811.002 Policy.

     Subpart 2811.1_Selecting and Developing Requirements Documents


Sec. 2811.103 Market acceptance.

Sec. 2811.104-70 Brand-name or equal description.

                Subpart 2811.6_Priorities and Allocations


Sec. 2811.603 Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16126, Apr. 2, 1998, unless otherwise noted.



Sec. 2811.001  Definitions.

    Dual systems means the use of both inch-pound and metric systems. 
For example, an item is designed, produced and described in inch-pound 
values with soft metric values also shown for information or comparison 
purposes.
    Hybrid systems means the use of both inch-pound and standard metric 
values in specifications, standards, supplies, and services; e.g., an 
engine with internal parts in metric dimensions and external fittings or 
attachments in inch-pound dimensions.

[[Page 534]]

    Metric system means the International System of Units established by 
the General Conference of Weights and Measures in 1960.
    Soft metric means the result of mathematical conversion of inch-
pound measurements to metric equivalents in specifications, standards, 
supplies, and services. The physical dimensions are not changed.



Sec. 2811.002  Policy.

    Consistent with the policy expressed in FAR 11.002(b), solicitations 
must include specifications and purchase descriptions stated in metric 
units of measurement whenever metric is the accepted industry system. 
Whenever possible, commercially developed metric specifications and 
internationally, or domestically developed voluntary standards, using 
metric measurements, must be adopted. While an industry is in transition 
to metric specifications, solicitations must include requirements 
documents stated in soft metric, hybrid, or dual systems, except when 
impractical or inefficient.

     Subpart 2811.1_Selecting and Developing Requirements Documents



Sec. 2811.103  Market acceptance.

    Pursuant to FAR 11.103, the HCA or designee at a level not lower 
than the BPC has the authority to require offerors to demonstrate that 
the items offered meet the criteria set forth in FAR 11.103(a).



Sec. 2811.104-70  Brand-name or equal description.

    When a brand-name or equal description is used, the clause set forth 
in 2852.211-70, Brand-name or Equal, shall be inserted into the 
solicitation.

                Subpart 2811.6_Priorities and Allocations



Sec. 2811.603  Procedures.

    The PE is the agency official delegated authority to exercise 
priority authority on behalf of the Department. Any request for a 
priority rating on a contract or order must be submitted to PPRG, JMD, 
in accordance with the procedures in this subpart.
    (a) The requesting activity shall submit, to the PE, a description 
of the supplies or services requiring a priority rating and a complete 
justification for the necessity of a rated order including the method 
and type of contract and the anticipated award date. The justification 
must also state the level of priority rating requested and comply with 
the requirements of the Defense Priorities and Allocations System.
    (b) Upon receipt, the PPRG shall review the request for completeness 
and establish appropriate liaison with the Department of Commerce (DOC), 
the administering agency. Depending on the nature of the requirement, 
the PPRG may schedule a meeting with DOC officials to present the 
proposal. In such cases, a representative from the requiring activity 
may be requested to attend.
    (c) DOJ activities requesting rated orders that concern classified 
material shall call PPRG before submitting their request to ensure 
appropriate transmission and handling between the requesting activity 
and PPRG.

                PART 2812_ACQUISITION OF COMMERCIAL ITEMS

  Subpart 2812.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items

Sec.

Sec. 2812.302 Tailoring of provisions and clauses for the acquisition of 
          commercial items.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

  Subpart 2812.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 2812.302  Tailoring of provisions and clauses for the acquisition 
          of commercial items.

    Pursuant to FAR 12.302(c), the HCA or designee at a level not lower 
than the BPC is authorized to approve clauses or additional terms or 
conditions for inclusion in solicitations or contracts for commercial 
items that

[[Page 535]]

are inconsistent with customary commercial practices.

[63 FR 16127, Apr. 2, 1998]

[[Page 536]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 2813_SIMPLIFIED ACQUISITION PROCEDURES

              Subpart 2813.3_Simplified Acquisition Methods

Sec.

Sec. 2813.305 Imprest funds and third party drafts.

Sec. 2813.307 Forms.

               Subpart 2813.70_Certified Invoice Procedure


Sec. 2813.7001 Policy.

Sec. 2813.7002 Procedure.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and 28 
CFR 0.76(j).

    Source: 63 FR 16127, Apr. 2, 1998, unless otherwise noted.

              Subpart 2813.3_Simplified Acquisition Methods



Sec. 2813.305  Imprest funds and third party drafts.

    Regulations governing the operation and procedures of the imprest 
fund shall be contained in internal bureau regulations. Individuals 
delegated the authority to withdraw from the imprest fund are further 
subject to the limitations contained in their delegation memorandum.



Sec. 2813.307  Forms.

    In accordance with FAR 13.307, bureaus may use order forms other 
than Standard Form (SF) 1449, OF 347 and 348 and may print on those 
forms, clauses considered to be suitable for purchases.
    (a) Contracting activities using the SF 44 will be responsible for 
instructing authorized users as to the limitations and procedures for 
use of the form as outlined in FAR 13.306.
    (b) Since the SF 44 is an accountable form, a record shall be 
maintained of: serial numbers of the forms; to whom issued; and, the 
date issued. SF 44s shall be kept securely under lock and key to prevent 
unauthorized use. A reservation of funds shall be established to cover 
total anticipated expenditures prior to use of the SF 44.

               Subpart 2813.70_Certified Invoice Procedure



Sec. 2813.7001  Policy.

    Under limited circumstances as described in this subpart, supplies 
or services directly related to mission accomplishment, may be acquired 
on the open market from local suppliers at the site of the work or use 
point, using vendor's invoices under the certified invoice procedure, 
instead of issuing purchase orders. Certified invoice procedures may not 
be used to place orders under established contracts.



Sec. 2813.7002  Procedure.

    (a) Purchases utilizing the certified invoice procedure shall be 
effected only in accordance with FAR part 13 and this part 2813, subject 
to the following:
    (1) The amount of any one purchase does not exceed the micro-
purchase threshold;
    (2) A purchase order is not required by either the supplier or the 
Government;
    (3) Appropriate invoices can be obtained from the supplier; and,
    (4) The items to be purchased shall be domestic source end products, 
except as provided in FAR subpart 25.1.
    (b) Use of the certified invoice procedures does not eliminate the 
requirements in FAR part 13 or this part 2813 that are applicable to 
purchases of this dollar threshold.
    (c) The chief of the contracting office, as defined in 2802.101(c), 
shall delegate the authority to use the certified invoice procedure. 
Each delegation must specify any limitations placed on the individual's 
use of these procedures, such as limits on the amount of each purchase, 
or limits on the commodities, or services which can be procured.
    (d) Each individual using this purchasing technique shall require 
the supplier to immediately submit properly prepared invoices which 
itemize

[[Page 537]]

property or services furnished. Upon receiving the invoice, the 
individual making the purchase shall annotate the invoice with the date 
of receipt, verify the arithmetic accuracy of the invoiced amount and 
verify on the invoice that the supplies and/or services have been 
received and accepted. If the invoice is correct, the individual making 
the purchase shall sign the invoice indicating acceptance and 
immediately forward it to the appropriate administrative office. The 
invoice shall be approved by the appropriate administrative office and 
forwarded to the Finance Office for payment within 5 workdays after 
receipt of the invoice, or acceptance of supplies or services, whichever 
is later. Before forwarding the invoice to Finance, the administrative 
office shall place the following statement on the invoice, along with 
the accounting and appropriation data:

    I certify that these goods and/or services were received on --------
-------- (date) an accepted on ---------------- (date). Oral purchase 
was authorized and no confirming order has been issued.

Signature_______________________________________________________________
Date____________________________________________________________________
________________________________________________________________________
Printed or Typed Name and Title

                        PART 2814_SEALED BIDDING

          Subpart 2814.4_Opening of Bids and Award of Contract

Sec.

Sec. 2814.407 Mistakes in bids.

Sec. 2814.407-3 Other mistakes disclosed before award.

Sec. 2814.407-4 Mistakes after award.

Sec. 2814.409 Information to bidders.

Sec. 2814.409-2 Award of classified contracts.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16127, Apr. 2, 1998, unless otherwise noted.

          Subpart 2814.4_Opening of Bids and Award of Contract



Sec. 2814.407  Mistakes in bids.



Sec. 2814.407-3  Other mistakes disclosed before award.

    (a) The authority to make determinations under paragraphs (a), (b), 
(c), and (d) of FAR 14.407-3 is delegated to the HCA or designee at a 
level not lower that the BPC.
    (b) The following procedures shall be followed when submitting 
doubtful cases of mistakes in bids to the Comptroller General for an 
advance decision:
    (1) Requests for advance decisions submitted to the Comptroller 
General in cases of mistakes in bids shall be made by the HCA.
    (2) Requests for advance decisions shall be in writing, dated, 
signed by the requestor, addressed to the Comptroller General of the 
United States, General Accounting Office, Washington, D.C. 20548, and 
contain the following:
    (i) The name and address of the party requesting the decision;
    (ii) A statement of the question to be decided, a presentation of 
all relevant facts, and a statement of the requesting party's position 
with respect to the question; and
    (iii) Copies of all pertinent records and supporting documentation.



Sec. 2814.407-4  Mistakes after award.

    Proposed determinations under FAR 14.407 shall be coordinated with 
legal counsel in accordance with bureau procedures.



Sec. 2814.409  Information to bidders.



Sec. 2814.409-2  Award of classified contracts.

    In accordance with FAR 14.409-2, the contracting officer shall 
advise the unsuccessful bidders, including any who did not bid, to take 
disposition action in accordance with bureau procedures.

                  PART 2815_CONTRACTING BY NEGOTIATION

  Subpart 2815.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 2815.205 Issuing solicitations.

Sec. 2815.207 Handling proposals and information.

                     Subpart 2815.4_Contract Pricing


Sec. 2815.404 Proposal analysis.

Sec. 2815.404-2 Information to support proposal analysis.

Sec. 2815.404-4 Profit.

Sec. 2815.407-4 Should-cost review.

[[Page 538]]

                  Subpart 2815.6_Unsolicited Proposals


Sec. 2815.606 Agency procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16128, Apr. 2, 1998, unless otherwise noted.

  Subpart 2815.2_Solicitation and Receipt of Proposals and Information



Sec. 2815.205  Issuing solicitations.

    Solicitations involving classified information shall be handled in 
accordance with the policies and procedures contained in Departmental 
regulations and other offices, boards, divisions, and bureaus (OBDBs) 
prescribed policies and regulations that supplement Departmental 
regulations.



Sec. 2815.207  Handling proposals and information.

    Classified proposals and quotations shall be handled in accordance 
with the current DOJ Order agency regulations and any supplemental 
directives or orders implemented by the OBDBs. Such supplemental 
regulations must have the prior approval of the AAG/A before 
implementation in accordance with the Departmental regulations.

                     Subpart 2815.4_Contract Pricing



Sec. 2815.404  Proposal analysis.



Sec. 2815.404-2  Information to support proposal analysis.

    All requests for field pricing support shall be made by the 
contracting officer directly to the cognizant audit agency. A copy of 
the request for such services shall be sent to the Department of Justice 
Office of the Inspector General (OIG) at the address shown in this 
subsection at the time it is mailed to the cognizant audit agency. A 
copy of each report received shall also be sent to the OIG. Requests for 
other audit assistance may be made to the Assistant Inspector General 
for Audits, Suite 5000, 1425 New York Avenue, NW., Washington, DC 20530.



Sec. 2815.404-4  Profit.

    If a contractor insists on a price or demands a profit or fee that 
the contracting officer considers unreasonable and the contracting 
officer has taken all authorized actions to negotiate a reasonable price 
or profit or fee without success, the contracting officer shall then 
refer the contract action to the HCA or designee.



Sec. 2815.407-4  Should-cost review.

    In acquisitions for which a program should-cost review is conducted, 
the required should-cost review team report shall be prepared in 
accordance with bureau procedures.

                  Subpart 2815.6_Unsolicited Proposals



Sec. 2815.606  Agency procedures.

    (a) Each contracting activity shall designate a point of contact for 
the receipt and handling of unsolicited proposals. Generally, the 
official designated shall be the BPC or immediate subordinate.
    (b) The designated point of contact for each contracting activity 
shall provide for and coordinate receipt, review, evaluation, and final 
disposition of unsolicited proposals in accordance with FAR subpart 
15.6.

                      PART 2816_TYPES OF CONTRACTS

              Subpart 2816.5_Indefinite-Delivery Contracts

Sec.

Sec. 2816.505 Ordering.

   Subpart 2816.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 2816.601 Time-and-material contracts.

Sec. 2816.602 Labor-hour contracts.

Sec. 2816.603 Letter contracts.

Sec. 2816.603-2 Application.

Sec. 2816.603-3 Limitations.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and 28 
CFR 0.76(j).

    Source: 63 FR 16128, Apr. 2, 1998, unless otherwise noted.

              Subpart 2816.5_Indefinite-Delivery Contracts



Sec. 2816.505  Ordering.

    (a) In accordance with FAR 16.505(b)(4), the Department of Justice

[[Page 539]]

Task Order and Delivery Order Ombudsman is the DOJ Competition Advocate.
    (b) Heads of contracting activities shall designate a contracting 
activity Task Order and Delivery Order Ombudsman. This person may be the 
contracting activity competition advocate and must meet the 
qualification requirements of 2806.501(b).
    (c) Contracting activity ombudsman shall review and resolve 
complaints from contractors concerning task or delivery orders placed by 
the contracting activity.
    (d) Contractors not satisfied with the resolution of a complaint by 
a contracting activity ombudsman may request the Departmental Ombudsman 
to review the complaint.

   Subpart 2816.6_Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 2816.601  Time-and-material contracts.

    In addition to the limitations listed in FAR 16.601(c), a time-and-
materials contract may be used only after the contracting officer 
receives written approval from the chief of the contracting office. When 
the contracting officer is also the chief of the contracting office, the 
approval to use a time-and-materials type contract will be made at a 
level above the contracting officer.



Sec. 2816.602  Labor-hour contracts.

    The limitations set forth in 2816.601 for time-and-material 
contracts also apply to labor-hour contracts.



Sec. 2816.603  Letter contracts.



Sec. 2816.603-2  Application.

    In cases where the contracting officer and the contractor cannot 
negotiate the definitization of a letter contract within 180 days after 
the date of the letter contract, or before completion of 40 percent of 
the work to be performed, the contracting officer may, with the written 
approval of the PE, revise and extend the definitization schedule. 
However, in no event shall the extension of the definitization schedule 
extend beyond the lesser of an additional 180 day period or the 
completion of 80 percent of the work to be performed. If at the end of 
the extension, the contracting officer and the contractor cannot 
negotiate a definitive contract because of failure to reach an agreement 
on price or fee, the procedures set forth in FAR 51.216-25, 16.603-2, 
15.8, and part 31 shall be followed, as applicable.



Sec. 2816.603-3  Limitations.

    A letter contract may be used only after the express written 
approval of the Procurement Executive. Requests for approval shall 
contain the rationale explaining why no other contract is suitable and 
shall include the approval of the HCA or designee. Under circumstances 
of compelling urgency which do not permit the time needed for written 
approval, oral approval must be obtained; however, written documentation 
to support the award and confirm the oral approval must be submitted as 
soon as practicable after award.

                  PART 2817_SPECIAL CONTRACTING METHODS

                  Subpart 2817.1_Multiyear Contracting

Sec.

Sec. 2817.108 Congressional notification.

            Subpart 2817.6_Management and Operating Contracts


Sec. 2817.605 Award, renewal, and extension.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j); and 28 
CFR 0.76(j).

    Source: 63 FR 16129, Apr. 2, 1998, unless otherwise noted.

                  Subpart 2817.1_Multiyear Contracting



Sec. 2817.108  Congressional notification.

    Pursuant to FAR 17.108(a), the original congressional notification 
shall be submitted to PPRG, JMD, for concurrence, coordination to the 
Attorney General, and subsequent transmission to the appropriate 
congressional committees.

[[Page 540]]

            Subpart 2817.6_Management and Operating Contracts



Sec. 2817.605  Award, renewal, and extension.

    In accordance with FAR 17.605(b), the contracting officer, following 
bureau procedures, shall review each management and operation contract, 
at appropriate intervals and at least once every 5 years.

[[Page 541]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 2819_SMALL BUSINESS PROGRAMS

                         Subpart 2819.2_Policies

Sec.

Sec. 2819.201 General policy.

              Subpart 2819.5_Set-Asides for Small Business


Sec. 2819.506 Withdrawing or modifying set-asides.

    Subpart 2819.6_Certificates of Competency and Determinations of 
                               Eligibility


Sec. 2819.602 Procedures.

Sec. 2819.602-1 Referral.

      Subpart 2819.70_Forecasts of Expected Contract Opportunities


Sec. 2819.7001 General.

Sec. 2819.7002 Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16129, Apr. 2, 1998, unless otherwise noted.

                         Subpart 2819.2_Policies



Sec. 2819.201  General policy.

    (a) The Office of Small and Disadvantaged Business Utilization 
(OSDBU) is organizationally attached to the Office of the Deputy 
Attorney General in accordance with 28 CFR 0.18a, but is located in JMD 
for administrative purposes.
    (b) The Director, OSDBU, is responsible for the administration of 
the DOJ small and disadvantaged business programs in accordance with the 
duties described in 28 CFR 0.18a.

              Subpart 2819.5_Set-Asides for Small Business



Sec. 2819.506  Withdrawing or modifying set-asides.

    (a) Before a contracting officer may withdraw or modify a small 
business set-aside, the contracting officer shall seek the concurrence 
of the Director, OSDBU.
    (b) If the contracting officer and the Director, OSDBU, are unable 
to agree on the proposed withdrawal or modification, the Director, OSDBU 
shall:
    (1) Forward the matter to the Small Business Administration (SBA) 
procurement center representative assigned to the Department of Justice 
for resolution; or,
    (2) Forward the matter to the PE for resolution if an SBA 
procurement center representative is not assigned to the Department of 
Justice.

    Subpart 2819.6_Certificates of Competency and Determinations of 
                               Eligibility



Sec. 2819.602  Procedures.



Sec. 2819.602-1  Referral.

    In accordance with FAR 19.602-1(a)(2), the matter shall be submitted 
to the Director, OSDBU, for subsequent referral to the cognizant SBA 
Regional Office.

      Subpart 2819.70_Forecasts of Expected Contract Opportunities



Sec. 2819.7001  General.

    Section 501 of Public Law 100-656, the Business Opportunity 
Development Reform Act of 1988, requires executive agencies having 
contract actions in excess of $50 million in Fiscal Year 1988 or later 
to prepare an annual forecast of expected contract opportunities, or 
classes of contract opportunities that small business concerns, 
including those owned and controlled by socially and economically 
disadvantaged individuals, are capable of performing.



Sec. 2819.7002  Procedures.

    The content and format of bureau annual forecasts of contract 
opportunities, as well as the updates to their contracting forecasts 
shall be as specified by the Director, OSDBU.

[[Page 542]]

     PART 2822_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                   Subpart 2822.1_Basic Labor Policies

Sec.

Sec. 2822.101 Labor relations.

Sec. 2822.101-1 General.

Sec. 2822.101-3 Reporting labor disputes.

Sec. 2822.103 Overtime.

Sec. 2822.103-4 Approvals.

   Subpart 2822.4_Labor Standards for Contracts Involving Construction


Sec. 2822.406 Administration and enforcement.

Sec. 2822.406-8 Investigations.

        Subpart 2822.13_Special Disabled and Vietnam Era Veterans


Sec. 2822.1303 Waivers.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16129, Apr. 2, 1998, unless otherwise noted.

                   Subpart 2822.1_Basic Labor Policies



Sec. 2822.101  Labor relations.



Sec. 2822.101-1  General.

    All matters regarding labor relations shall be handled in accordance 
with bureau procedures.



Sec. 2822.101-3  Reporting labor disputes.

    The office administering the contract shall report, directly to the 
contracting officer, any potential or actual labor disputes that may 
interfere with performing any contracts under its cognizance.



Sec. 2822.103  Overtime.



Sec. 2822.103-4  Approvals.

    The inclusion of a dollar amount greater than zero in paragraph (a) 
of the FAR clause 52.222-2, Payment For Overtime Premiums, must be 
approved at a level above the contracting officer. Such approval shall 
be reflected by the signature of the approving official on the 
contracting officer's written determination made in accordance with FAR 
22.103-4.

   Subpart 2822.4_Labor Standards for Contracts Involving Construction



Sec. 2822.406  Administration and enforcement.



Sec. 2822.406-8  Investigations.

    Pursuant to FAR 22.406-8(d), the contracting officer shall prepare 
and forward the report of violations to the HCA or designee at a level 
not lower than the BPC. That official shall be responsible for 
processing the report in accordance with FAR 22.406-8(d)(2).

        Subpart 2822.13_Special Disabled and Vietnam Era Veterans



Sec. 2822.1303  Waivers.

    In accordance with FAR 22.1303, all requests for waivers shall be 
forwarded from the HCA to PPRG, JMD, for processing to the Attorney 
General.

PART 2823_ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE 
                                WORKPLACE

        Subpart 2823.1_Pollution Control and Clean Air and Water

Sec.

Sec. 2823.107 Compliance responsibilities.

  Subpart 2823.3_Hazardous Material Identification and Material Safety 
                                  Data


Sec. 2823.303-70 Departmental contract clause.

                Subpart 2823.4_Use of Recovered Materials


Sec. 2823.403 Policy.

Sec. 2823.404 Procedures.

Sec. 2823.404-70 Affirmative procurement program for recycled materials.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16130, Apr. 2, 1998, unless otherwise noted.

[[Page 543]]

        Subpart 2823.1_Pollution Control and Clean Air and Water



Sec. 2823.107  Compliance responsibilities.

    If a contracting officer becomes aware of noncompliance with clean 
air, water or other affected media standards in facilities used in 
performing nonexempt contracts, that contracting officer shall notify 
the Department of Justice Environmental Executive (DOJEE).

  Subpart 2823.3_Hazardous Material Identification and Material Safety 
                                  Data



Sec. 2823.303-70  Departmental contract clause.

    The contracting officer shall insert the clause at 2852.223-70, 
Unsafe Conditions Due to the Presence of Hazardous Material, in all 
solicitations and contracts, as appropriate, if the contract will 
require the performance of services on Government-owned or Government-
leased facilities.

              Subpart 2823.4_Use of the Recovered Materials



Sec. 2823.403  Policy.

    It is the policy of DOJ that its contracting activities and 
contractors that procure on behalf of DOJ, acquire EPA designated items 
in accordance with EPA's Comprehensive Procurement Guideline For 
Products Containing Recovered Materials (CPG) (40 CFR part 247). The 
recommended minimum recovered materials content of EPA designated items 
is set forth in EPA's Recovered Materials Advisory Notices (RMANs) and 
in E.O. 12873 as amended. These publications are available from the 
DOJEE.



Sec. 2823.404  Procedures.

    (a) The program office initiating the acquisition is responsible for 
determining if recovered materials should be included in the 
specification. Procurement offices are responsible for informing program 
offices of the requirement for writing specifications for designated 
items that include minimum content standards specified in the RMANs.
    (b) If the program office chooses to procure designated items 
containing less than the minimum content standards, and program office 
must justify that decision in writing and include a copy of the signed 
justification with the procurement request package. FAR 23.404(b)(3) 
sets forth the only acceptable justifications for acquiring EPA 
designated items which do not meet the minimum content standard. The 
contracting officer is the approving official for justifications made 
pursuant to FAR 23.404(b)(3). Contracting officers are responsible for 
including a signed copy of the justification in the acquisition file and 
submitting a copy of the approved justification to the DOJEE.



Sec. 2823.404-70  Affirmative procurement program for recycled 
          materials.

    (a) Recovered materials preference program. Preference will be given 
to procuring and using products containing recovered materials rather 
than products made with virgin materials when adequate competition 
exists, and when price, performance and availability are equal.
    (b) Promotion program. The DOJEE has primary responsibility for 
actively promoting the acquisition of products containing recycled 
materials throughout DOJ. Technical and procurement personnel will 
cooperate with the DOJEE to actively promote DOJ's Affirmative 
Procurement Program (APP).
    (c) Procedures for vendor estimation, verification and 
certification--(1) Estimation. The contractor shall provide estimates of 
the total percentage(s) of recovered materials for EPA designated items 
to be used in products or services provided.
    (2) Certification. Contracting officers shall provide copies of all 
vendor and subcontractor certifications required by FAR 23.405(b) to the 
DOJEE.
    (3) Vertification. The DOJEE is responsible for periodically 
reviewing vendor certification documents and waivers as part of the 
annual review and monitoring process to determine if DOJ is in 
compliance with E.O. 12873 and subsequent amendments.

[[Page 544]]

       PART 2824_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

                Subpart 2824.2_Freedom of Information Act

Sec.

Sec. 2824.202 Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16130, Apr. 2, 1998, unless otherwise noted.

                Subpart 2824.2_Freedom of Information Act



Sec. 2824.202  Policy.

    Procedures for processing Freedom of Information Act requests are 
set forth in Departmental regulations and 28 CFR part 16.

[63 FR 16130, Apr. 2, 1998]

                      PART 2825_FOREIGN ACQUISITION

         Subpart 2825.2_Buy American Act_Construction Materials

Sec.

Sec. 2825.203 Evaluating offers.

               Subpart 2825.3_Balance of Payments Program


Sec. 2825.302 Policy.

          Subpart 2825.9_Additional Foreign Acquisition Clauses


Sec. 2825.901 Omission of audit clause.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16130, Apr. 2, 1998, unless otherwise noted.

         Subpart 2825.2_Buy American Act_Construction Materials



Sec. 2825.203  Evaluating offers.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make determination that using a particular 
domestic construction material would unreasonably increase the cost of 
the acquisition or would be impracticable.

               Subpart 2825.3_Balance of Payments Program



Sec. 2825.302  Policy.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make determinations under FAR 
25.302(b)(3), as well as authorize the use of a differential greater 
than 50 percent, as specified in FAR 25.302(c), for the evaluation of 
domestic and foreign offers under the Balance of Payments Program. All 
determinations made under this section shall be in writing and shall set 
forth the facts and circumstances supporting the determination. 
Determinations shall be reviewed and concurred in by the contracting 
activity's legal counsel.

          Subpart 2825.9_Additional Foreign Acquisition Clauses



Sec. 2825.901  Omission of audit clause.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make determinations under FAR 25.901(c). 
All determinations made under this authority shall be reviewed and 
concurred in by the contracting activity's legal counsel prior to being 
approved by the authorized agency official.

[[Page 545]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                      PART 2828_BONDS AND INSURANCE

                          Subpart 2828.1_Bonds

Sec.

Sec. 2828.106 Administration.

Sec. 2828.106-6 Furnishing information

                         Subpart 2828.2_Sureties


Sec. 2828.204 Alternatives in lieu of corporate or individual sureties.

                        Subpart 2828.3_Insurance


Sec. 2828.307-1 Group insurance plans.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16131, Apr. 2, 1998, unless otherwise noted.

                          Subpart 2828.1_Bonds



Sec. 2828.106  Administration.



Sec. 2828.106-6  Furnishing information.

    In accordance with FAR 28.106-6(c), the HCA, or designee at a level 
not lower than the BPC, is the agency official authorized to furnish the 
certified copy of the bond and the contract.

                         Subpart 2828.2_Sureties



Sec. 2828.204  Alternatives in lieu of corporate or individual
sureties.

    When contractors submit any of the types of security described in 
FAR 28.204-1 through 28.204-3 in lieu of furnishing sureties, the 
contracting officer shall enter into an agreement with the contractor 
covering a bank account, and suitable covenants protecting the 
Government's interest, in which the securities will be deposited to 
protect against their loss during the period of the bond obligation.

                        Subpart 2828.3_Insurance



Sec. 2828.307-1  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 and approval. During review, the 
contracting office should utilize all sources of information available 
such as audit, industry practices, etc., to determine that acceptance of 
the group insurance plan, as submitted, is in the Government's best 
interest.

                             PART 2829_TAXES

                  Subpart 2829.3_State and Local Taxes

Sec.

Sec. 2829.303 Application of State and local taxes to Government 
          contractors and subcontractors.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

                  Subpart 2829.3_State and Local Taxes



Sec. 2829.303  Application of State and local taxes to Government 
          contractors and subcontractors.

    (a) It is DOJ policy that DOJ contracts shall not contain clauses 
expressly designating prime contractors as agents of the Government for 
the purpose of avoiding State and local taxes.
    (b) Although circumstances may exist under which a contractor is an 
agent of the Government, even in the absence of a contract clause 
expressly designating a contractor as such, these circumstances should 
be extremely rare. Before any DOJ contracting activity may contend that 
any of its contractors are agents of the Government for the purpose of 
claiming immunity from State and local sales and use taxes, the matter 
will be referred to the AAG/A for review, and approval to ensure that 
DOJ policy is complied with and that the contracting activity's 
contention is fully in accordance with the pertinent legal principles 
and precedents. Each case forwarded will be reviewed by the HCA before 
referral to the AAG/A. The referral will include all pertinent data on 
which the contracting activity's contention is based, together with a 
thorough analysis of all relevant legal precedents.
    (c) Whenever clauses, procedures, and business practices are cited 
by DOJ

[[Page 546]]

contracting activities to support the contention that a contractor is an 
agent of the Government for the purpose of immunity from a State or 
local sales or use tax, contracting activities should whenever possible, 
devise alternative clauses, procedures, and practices for future use 
which will accomplish their intended purpose without providing the basis 
for contention that the contractor is an agent of the Government for the 
purpose of immunity from State and local sales or use taxes. Any 
referral to the AAG/A for approval under this subpart shall include 
comments on the extent to which alternative clauses, procedures, or 
practices may be utilized to accomplish the intended purpose without 
providing the basis for the contention that the contractor is an agent 
of the Government for the purpose of immunity from State and local sales 
or use taxes.

[63 FR 16131, Apr. 2, 1998]

        PART 2830_COST ACCOUNTING STANDARDS (CAS) ADMINISTRATION

                 Subpart 2830.2_CAS Program Requirements

Sec.

Sec. 2830.201-5 Waiver.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

                 Subpart 2830.2_CAS Program Requirements



Sec. 2830.201-5  Waiver

    A request for a waiver of the Cost Accounting Standards requirements 
shall be forwarded to the HCA after the contracting officer has made the 
determination required by FAR 30.201-5.

[63 FR 16131, Apr. 2, 1998]

            PART 2831_CONTRACT COST PRINCIPLES AND PROCEDURES

                      Subpart 2831.1_Applicability

Sec.

Sec. 2831.101 Objectives.

Sec. 2831.109 Advance agreements.

         Subpart 2831.2_Contracts With Commercial Organizations


Sec. 2831.205 Selected costs.

Sec. 2831.205-32 Precontract costs.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16132, Apr. 2, 1998, unless otherwise noted.

                      Subpart 2831.1_Applicability



Sec. 2831.101  Objectives.

    (a) The PE is the official authorized to grant individual deviations 
from the cost principles of FAR part 31. All requests for individual 
deviations must cite the facts and circumstances surrounding the request 
as well as attempts to negotiate contractor compliance.
    (b) Requests for class deviations from the cost principles set forth 
in FAR part 31 will be forwarded through the PE prior to submission to 
the Civilian Agency Acquisition Counsel. Requests must contain the 
information required in paragraph (a) of this section.



Sec. 2831.109  Advance agreements.

    (a) The DOJ and bureau contracting officers are encouraged to 
negotiate advance agreements concerning the treatment of special or 
unusual costs to avoid possible subsequent disputes or disallowance of 
costs based upon unreasonableness or nonallowability. All such 
agreements shall be negotiated in accordance with FAR 31.109 prior to 
the contractor incurring such costs. Contracting officers are not 
authorized to agree to a treatment of costs which would be inconsistent 
with FAR part 31.
    (b) Prior to negotiating an advance agreement, contracting officers 
shall make a written determination setting forth the reasons and 
rationale for entering into such agreements. In addition, the 
determination will set forth the nature, the duration, and which 
contract or contracts are covered by the proposed agreement. All 
determinations required by this subpart will be reviewed and approved at 
a level above the contracting officer prior to negotiation of the 
proposed agreement. The approved determination will be placed in the 
contract file.

[[Page 547]]

    (c) All advance agreements shall be in writing and shall set forth 
the nature, duration, and contract or contracts covered by the 
agreements. Advance agreements will be signed by both the contractor and 
the contracting officer, and made a part of the contract file. Copies of 
executed advance agreements will be distributed to the cognizant audit 
office when applicable.
    (d) All advance agreements will be incorporated in full in the 
subsequent contract(s) to which they pertain, prior to award.

         Subpart 2831.2_Contracts With Commercial Organizations



Sec. 2831.205  Selected costs.



Sec. 2831.205-32  Precontract costs.

    (a) Precontract cost authorizations shall be used only on cost 
reimbursement contracts, contain no provisions for payment of fees, and 
be treated as advance agreements in accordance with the provisions of 
FAR 31.109 and 2831.109.
    (b) The following limitations apply to the execution of precontract 
cost authorizations.
    (1) Contracts which are estimated to be greater than the simplified 
acquisition threshold may contain a precontract cost authorization 
providing the authorization is for a period of 60 days or less and the 
dollar amount does not exceed the lesser of the simplified acquisition 
threshold or one third of the total estimated costs (including fee if 
any) of the contract.
    (2) the limitation expressed under paragraph (b) of this section may 
be increased in unusual circumstances as appropriate, with the written 
approval of the HCA, but in no event shall they exceed one-third of the 
total estimated costs (including fee if any) of the contract or be for 
periods of time which exceed 90 days.

                      PART 2832_CONTRACT FINANCING

          Subpart 2832.1_Non-Commercial Item Purchase Financing

Sec.

Sec. 2832.114 Unusual contract financing.

        Subpart 2832.4_Advance Payments for Non-Commercial Items


Sec. 2832.402 General.

Sec. 2832.407 Interest.

                      Subpart 2832.9_Prompt Payment


Sec. 2832.903 Policy.

                Subpart 2832.11_Electronic Funds Transfer


Sec. 2832.1110 Solicitation provision and contract clauses.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16132, Apr. 2, 1998, unless otherwise noted.

          Subpart 2832.1_Non-Commercial Item Purchase Financing



Sec. 2832.114  Unusual contract financing.

    The HCA, or designee at a level not lower than the BPC, is the 
official authorized to approve unusual contract financing as set forth 
in FAR 31.114.

        Subpart 2832.4_Advance Payments for Non-Commercial Items



Sec. 2832.402  General.

    (a) The authority to sign written determinations and findings with 
respect to making advance payments is vested in the HCA.
    (b) Prior to awarding a contract which contains provisions for 
making advanced payments, the contract terms and conditions concerning 
advance payments must be approved at a level above the contracting 
officer, with advice and consent of the bureau's legal counsel.
    (c) The contracting officer shall coordinate with the activity that 
is to provide contract financing for advance payments, the bureau's 
disbursing or finance office, or the Treasury Department, as 
appropriate, to ensure that all

[[Page 548]]

FAR and departmental requirements are met.



Sec. 2832.407  Interest.

    In cases where advance payments may be made on an interest free 
basis (FAR 32.407(d)), the intent to make such interest free advance 
payments, and the circumstance permitting interest free advance 
payments, shall be set forth in the original determination and findings 
and be approved in accordance with 2832.402.

                      Subpart 2832.9_Prompt Payment



Sec. 2832.903  Policy.

    The HCA is responsible for promulgating policies and procedures to 
implement FAR 32.9 and to ensure that, when specifying due dates, full 
consideration will be given to the time reasonably required by 
Government officials to fulfill their administrative responsibilities 
under the contract.

                Subpart 2832.11_Electronic Funds Transfer



Sec. 2832.1110  Solicitation provision and contract clauses.

    When the clause at FAR 52.232-34, Payment by Electronic Funds 
Transfer-Other than Central Contractor Registration, is required the 
contracting officer may insert in paragraph (b)(1) of the clause a 
particular time after award, such as a fixed number of days, or an event 
such as the submission of the first request for payment, to establish 
the point at which contractors' EFT information must be provided.

[64 FR 37045, July 9, 1999]

                PART 2833_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 2833.1_Protests

Sec.

Sec. 2833.101 Definitions.

Sec. 2833.102 General.

Sec. 2833.103 Protests to the agency.

                   Subpart 2833.2_Disputes and Appeals


Sec. 2833.209 Suspected fraudulent claims.

Sec. 2833.211 Contracting officer's decision.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16132, Apr. 2, 1998, unless otherwise noted.

                         Subpart 2833.1_Protests



Sec. 2833.101  Definitions.

    (a) Agency Protest Official means the official, other than the 
contracting officer, designated to review and decide procurement 
protests filed with a contracting activity of the Department of Justice.
    (1) This person will be at a level above that of the Contracting 
Officer, will be knowledgeable about the acquisition process in general 
and will have no programmatic interest in the procurement.
    (2) This official shall be an individual designated by the head of 
the contracting activity and may be the Competition Advocate.
    (b) Deciding Official means the person chosen by the protestor to 
decide the agency protest; it may be either the Contracting Officer or 
the Agency Protest Official.
    (c) Interested Party means an actual or prospective offeror whose 
direct economic interest would be affected by the award of a contract or 
by the failure to award a contract.



Sec. 2833.102  General.

    (a) This part describes policies and procedures for processing 
protests to the Department of Justice in accordance with Executive Order 
12979, Agency Procurement Protests, dated October 25, 1995, and FAR 
33.103. They are intended to be flexible and to provide for fair, quick, 
and inexpensive resolution of agency protests.
    (b) Interested parties have the option of protesting to the 
Contracting Officer or to the Agency Protest Official.
    (c) Contracting officers and potential protestors are encouraged to 
use their best efforts to resolve concerns through frank and open 
discussion, as required by FAR 33.103(b). In resolving concerns and/or 
protests, consideration should be given to the use of alternative 
dispute resolution techniques where appropriate.
    (d) Responsibilities:

[[Page 549]]

    (1) Contracting Officers: (i) Include the provision at 2852.233-70 
in all solicitations that are expected to exceed the simplified 
acquisition threshold.
    (ii) If the protestor requests that the Contracting Officer decide 
the protest, or if the protest is silent on this issue, the Contracting 
Officer decides the protest using the procedures in this subpart and FAR 
33.103.
    (iii) If the protestor requests that the Agency Protest Official 
decide the protest, the Contracting Officer must ensure that the Agency 
Protest Official receives a copy of the materials served on the 
Contracting Officer within one business day after the filing date.
    (2) Agency Protest Official: If the protestor requests that the 
Agency Protest Official decide the protest, the Official must use the 
procedures in this subpart and FAR 33.103 to provide an independent 
review of the issues raised in the protest.



Sec. 2833.103  Protests to the agency.

    (a) The filing time frames in FAR 33.103(e) apply. An agency protest 
is filed when the protest complaint is received at the location the 
solicitation designates for serving protests.
    (b) An interested party filing an agency protest has the choice of 
requesting either that the Contracting Officer or the Agency Protest 
Official decide the protest.
    (c) In addition to the information required by FAR 33.103(d)(2), the 
protest must:
    (1) Indicate that it is a protest to the agency.
    (2) Be filed with the Contracting Officer.
    (3) State whether the protestor chooses to have 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.
    (4) Indicate whether the protestor prefers to make an oral or 
written presentation of arguments in support of the protest to the 
deciding official.
    (d) The decision by the Agency Protest Official is an alternative to 
a decision by the Contracting Officer on a protest. The Agency Protest 
Official will not consider appeals from a Contracting Officer's decision 
on an agency protest.
    (e) The deciding official must conduct a scheduling conference with 
the protestor within five (5) days after the protest is filed. The 
scheduling conference will establish deadlines for oral or written 
arguments in support of the agency protest and for agency officials to 
present information in response to the protest issues. The deciding 
official may hear oral arguments in support of the agency protest at the 
same time as the scheduling conference, depending on availability of the 
necessary parties.
    (f) Oral conferences may take place either by telephone or in 
person. Other parties may attend at the discretion of the deciding 
official.
    (g) The protestor has only one opportunity to support or explain the 
substance of its protest. Department of Justice procedures do not 
provide for any discovery. The deciding official has discretion to 
request additional information from either the agency or the protestor. 
However, the deciding official will normally decide protests on the 
basis of information provided by the protestor and the agency.
    (h) The preferred practice is to resolve protests through informal 
oral discussion.
    (i) An interested party may represent itself or be represented by 
legal counsel. The Department of Justice will not reimburse the 
protester for any legal fees related to the agency protest.
    (j) If an agency protest is received before contract award, the 
Contracting Officer must not make award unless the Head of the 
Contracting Activity makes a determination to proceed under FAR 
33.103(f)(1). Similarly, if an agency protest is filed within ten (10) 
days after award, the Contracting Officer must stay performance unless 
the Head of the Contracting Activity makes a determination to proceed 
under FAR 33.103(f)(3). Any stay of award or suspension of performance 
remains in effect until the protest is decided, dismissed, or withdrawn.
    (k) The deciding official must make a best effort to issue a 
decision on the protest within twenty (20) days after the filing date. 
The decision may be

[[Page 550]]

oral or written. If oral, the deciding official must send a confirming 
letter within three (3) days after the decision using a means that 
provides receipt. The confirming letter must include the following 
information:
    (1) State whether the protest was denied, sustained or dismissed.
    (2) Indicate the date the decision was provided.
    (l) If the deciding official sustains the protest, relief may 
consist of any of the following:
    (1) Recommendation that the contract be terminated for convenience 
or cause.
    (2) Recompeting the requirement.
    (3) Amending the solicitation.
    (4) Refraining from exercising contract options.
    (5) Awarding a contract consistent with statute, regulation, and the 
terms of the solicitation.
    (6) Other action that the deciding official determines is 
appropriate.
    (m) If the Agency Protest Official sustains a protest, then within 
30 days after receiving the Official's recommendations for relief, the 
Contracting Officer must either:
    (1) Fully implement the recommended relief; or
    (2) Notify the Agency Protest Official in writing of any 
recommendations have not been implemented and explain why.
    (n) Proceedings on an agency protest may be dismissed or stayed if a 
protest on the same or similar basis is filed with a protest forum 
outside of the Department of Justice.

                   Subpart 2833.2_Disputes and Appeals



Sec. 2833.209  Suspected fraudulent claims.

    Contracting officers shall report suspected fraudulent claims to the 
Office of the Inspector General.



Sec. 2833.211  Contracting officer's decision.

    (a) The Agency Board of Contract Appeals (BCA), which will hear 
appeals from the decisions of bureau contracting officers, is the 
Department of Transportation BCA. The procedures set forth in 48 CFR 
chapter 63 shall apply.
    (b) Pursuant to 28 CFR 0.45(i), the contact for all appeals of 
decisions of DOJ contracting officers which will be forwarded to the BCA 
under paragraph (a) of this section, is the Deputy Assistant Attorney 
General, Commercial Litigation Branch, Civil Division.

[[Page 551]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                   PART 2834_MAJOR SYSTEM ACQUISITION

                         Subpart 2834.0_General

Sec.

Sec. 2834.002 Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

                         Subpart 2834.0_General



Sec. 2834.002  Policy.

    In accordance with Pub. L. 98-577, the Small Business and Federal 
Procurement Competition Enhancement Act of 1984, an executive agency may 
establish a dollar threshold for the designation of a major system. 
Accordingly, dollar thresholds for a major system under Office of 
Management and Budget Circular A-109 are designated in this section.
    (a) Major automated information system. Within the Department of 
Justice, a major automated information system is one whose life-cycle 
cost is in excess of $100 million.
    (b) Major real property system. (1) By purchase, when the assessed 
value of the property exceeds $60 million.
    (2) By lease, when the annual rental charges, including basic 
services (e.g., cleaning, guards, maintenance), exceed $1.8 million.
    (3) By transfer from another agency at no cost when the assessed 
value of the property exceeds $12 million.
    (c) Research and Development (R&D) System. Any R&D activity expected 
to exceed $0.5 million, for the R&D phase is subject to OMB Circular A-
109, unless exempted by the HCA.
    (d) Any other system or activity. The HCA responsible for the system 
may designate any system or activity as a Major System under OMB 
Circular A-109 as a result of Departmental review, e.g., selected 
systems designed to support more than one principal organizational unit.
    (e) Exemption. The AAG/A, upon recommendation by the HCA responsible 
for the system, may determine that because of the routine nature of the 
acquisition, the system (e.g., an information system utilizing only off-
the-shelf hardware or software) will be exempt from the OMB Circular A-
109 process, although by virtue of the life cycle costs, it would 
otherwise be identified as ``major'' in response to OMB Circular A-109.

[63 FR 16134, Apr. 2, 1998]

[[Page 552]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 2842_CONTRACT ADMINISTRATION

           Subpart 2842.15_Contractor Performance Information

Sec.

Sec. 2842.1502 Policy.

Sec. 2842.1503 Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16134, Apr. 2, 1998, unless otherwise noted.

           Subpart 2842.15_Contractor Performance Information



Sec. 2842.1502  Policy.

    The head of each contracting activity shall be responsible for 
establishing past performance evaluation procedures and systems as 
required by FAR 42.1502 and 42.1503.



Sec. 2842.1503  Procedures.

    Past performance evaluation procedures and systems shall include, to 
the greatest practicable extent, the evaluation and performance rating 
factors set forth in the Office of Federal Procurement Policy best 
practices guide for past performance.

                      PART 2845_GOVERNMENT PROPERTY

                         Subpart 2845.1_General

Sec.

Sec. 2845.105 Records of Government property.

 Subpart 2845.5_Management of Government Property in the Possession of 
                               Contractors


Sec. 2845.505-14 Report of Government Property.

  Subpart 2845.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory


Sec. 2845.603 Disposal methods.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16134, Apr. 2, 1998, unless otherwise noted.

                         Subpart 2845.1_General



Sec. 2845.105  Records of Government property.

    If departmental elements maintain the Government's official property 
management records, the contract records may be kept as a separate 
account in the bureau's internal property management system, in which 
case the contracting officer or formally designated property 
administrator shall serve as custodian of the account.

 Subpart 2845.5_Management of Government Property in the Possession of 
                               Contractors



Sec. 2845.505-14  Report of Government Property.

    (a) In compliance with FAR 45.505-14, by January 31 of each year, 
DOJ contractors shall furnish the cognizant contracting officer an 
annual report of the DOJ property for which they are accountable as of 
the end of the calendar year.
    (b) By March 1 of each year, bureaus shall submit a summary report 
of Departmental property furnished under each contract, as of the end of 
the calendar year, to the Facilities and Administrative Services Staff, 
Justice Management Division. The report shall be categorized in 
accordance with FAR 45.505 and shall include contracts for which the 
bureau maintains the official government records.

  Subpart 2845.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory



Sec. 2845.603  Disposal methods.

    Policies pertaining to reutilization and disposal of DOJ property, 
including requirements for internal screening, waivers, and disposal 
reporting, are prescribed in the Justice Property Management Regulations 
Subpart 128-43. Unless otherwise specified, the ``plant clearance 
officer'' shall be a designated utilization and disposal representative 
of a bureau's property management office.

[[Page 553]]

                       PART 2846_QUALITY ASSURANCE

        Subpart 2846.6_Material Inspection and Receiving Reports

Sec.

Sec. 2846.601 General.

                        Subpart 2846.7_Warranties


Sec. 2846.704 Authority for use of warranties.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16134, Apr. 2, 1998, unless otherwise noted.

        Subpart 2846.6_Material Inspection and Receiving Reports



Sec. 2846.601  General.

    Bureaus shall prescribe procedures and instructions for the use, 
preparation, and distribution of material inspection and receiving 
reports and commercial shipping document/packing lists to evidence 
Government inspection.

[63 FR 26739, May 14, 1998]

                        Subpart 2846.7_Warranties



Sec. 2846.704  Authority for use of warranties.

    The use of a warranty in an acquisition shall be approved at a level 
above the contracting officer.

[[Page 554]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 2852_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

      Subpart 2852.1_Instructions for Using Provisions and Clauses

Sec.

Sec. 2852.102 Incorporating provisions and clauses.

Sec. 2852.102-270 Incorporation in full text.

              Subpart 2852.2_Text of Provisions and Clauses


Sec. 2852.201-70 Contracting Officer's Technical Representative (COTR).

Sec. 2852.211-70 Brand-name or equal.

Sec. 2852.223-70 Unsafe conditions due to the presence of hazardous 
          material.

Sec. 2852.233-70 Protests filed directly with the Department of Justice.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16135, Apr. 2, 1998, unless otherwise noted.

      Subpart 2852.1_Instructions for Using Provisions and Clauses



Sec. 2852.102  Incorporating provisions and clauses.



Sec. 2852.102-270  Incorporation in full text.

    JAR provisions or clauses shall be incorporated in solicitations and 
contracts in full text.

              Subpart 2852.2_Text of Provisions and Clauses



Sec. 2852.201-70  Contracting Officer's Technical Representative (COTR).

    As prescribed in subpart 2801.70, insert the following clause:

    Contracting Officer's Technical Representative (COTR) (JAN 1985)

    (a) Mr./Ms (Name) of (Organization) (Room No.), (Building), 
(Address), (Area Code & Telephone No.), is hereby designated to act as 
Contracting Officer's Technical Representative (COTR) under this 
contract.
    (b) The COTR is responsible, as applicable, for: receiving all 
deliverable, inspecting and accepting the supplies or services provided 
hereunder in accordance with the terms and conditions of this contract; 
providing direction to the contractor which clarifies the contract 
effort, fills in details or otherwise serves to accomplish the 
contractual Scope of Work; evaluating performance; and certifying all 
invoices/vouchers for acceptance of the supplies or services furnished 
for payment.
    (c) The COTR does not have the authority to alter the contractor's 
obligations under the contract, and/or modify any of the expressed 
terms, conditions, specifications, or cost of the agreement. If as a 
result of technical discussions it is desirable to alter/change 
contractual obligations or the Scope of Work, the Contracting Officer 
shall issue such changes.

                             (End of clause)



Sec. 2852.211-70  Brand-name or equal.

    As prescribed in 2811.104-70, insert the following clause:

                     Brand-Name or Equal (JAN 1985)

    (a) The terms ``bid'' and ``bidders'', as used in this clause, 
include the terms ``proposal'' and ``offerors''. The terms ``invitation 
for bids'' and ``invitational'', as used in their clause include the 
terms ``request for proposal'' and ``request''.
    (b) If items called for by this invitation for bids have been 
identified in the schedule 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. Bids offering ``equal'' products (including products of 
a brand name manufacturer other than the one described by brand name) 
will be considered for award if such products are clearly identified in 
the bids and are determined by the Government to meet fully the salient 
characteristics and requirements listed in the invitation.
    (c) Unless the bidder clearly indicates in his/her bid that he/she 
is offering an ``equal'' product, his/her bid shall be considered as 
offering the brand name product referenced in the invitation for bids.
    (d)(1) If the bidder proposes to furnish an ``equal'' product, the 
branch name, if any, of the product to be furnished shall be inserted in 
the space provided in the invitation for bids, or such product shall be 
otherwise clearly identified in the bid. The evaluation of bids and the 
determinations to equality of the product offered shall be the 
responsibility of the Government and will be based on information 
furnished by the bidder or

[[Page 555]]

identified in his/her bid as well as other information reasonably 
available to the purchasing activity. To ensure the sufficient 
information is available, the bidder must furnish as a part of his/her 
bid all description material (such as cuts, illustrations, drawings, or 
other information) necessary for the purchasing activity to: (i) 
determine whether the product offered meets the salient characteristics 
requirements of the invitation for bids, and (ii) established exactly 
what the bidder proposed to furnish and what the Government would be 
binding itself to purchase by making an award. The information furnished 
may include specific references to information previously furnished or 
information otherwise available to the purchasing activity.
    (2) If the bidder proposes to modify a product so as to make it 
conform to the requirements of the invitation for bids, he/she shall: 
(i) include in his/her bid a clear description of such proposed 
modification, and (ii) clearly mark any description material to show the 
proposed modifications.
    (3) Modifications proposed after the bid opening to make a product 
conform to a brand name product referenced in the invitation for bids 
will not be considered.

                             (End of clause)



Sec. 2852.223-70  Unsafe conditions due to the presence of hazardous 
          material.

    As prescribed in 2823.303-70, insert the following clause:

 Unsafe Conditions Due to the Presence of Hazardous Material (JUN 1996)

    (a) ``Unsafe condition'' as used in this clause means the actual or 
potential exposure of contractor or Government employees to a hazardous 
material as defined in Federal Standard No. 313, and any revisions 
thereto during the term of this contract, or any other material or 
working condition designated by the Contracting Officer's Technical 
Representative (COTR) as potentially hazardous and requiring safety 
controls.
    (b) The Occupational Safety and Health Administration (OSHA) is 
responsible for issuing and administering regulations that require 
contractors to appraise its employees of all hazards to which they may 
be exposed in the course of their employment; proper conditions and 
precautions for safe use and exposure; and related symptoms and 
emergency treatment in the event of exposure.
    (c) Prior to commencement of work, contractors are required to 
inspect for and report to the contracting officer or designee the 
presence of, or suspected presence of, any unsafe condition including 
asbestos or other hazardous materials or working conditions in areas in 
which they will be working.
    (d) If during the performance of the work under this contract, the 
contractor or any of its employees, or subcontractor employees, 
discovers the existence of an unsafe condition, the contractor shall 
immediately notify the contracting officer, or designee, (with written 
notice provided not later than three (3) working days thereafter) of the 
existence of an unsafe condition. Such notice shall include the 
contractor's recommendations for the protection and the safety of 
Government, contractor and subcontractor personnel and property that may 
be exposed to the unsafe condition.
    (e) When the Government receives notice of an unsafe condition from 
the contractor, the parties will agree on a course of action to mitigate 
the effects of that condition and, if necessary, the contract will be 
amended. Failure to agree on a course of action will constitute a 
dispute under the Disputes clause of this contract.
    (f) Notice contained in this clause shall relieve the contractor or 
subcontractors from complying with applicable Federal, State, and local 
laws, codes, ordinances and regulations (including the obtaining of 
licenses and permits) in connection with hazardous material including 
but not limited to the use, disturbance, or disposal of such material.

                             (End of clause)



Sec. 2852.233-70  Protests filed directly with the Department of 
          Justice.

    As prescribed in 2833.102(d), insert a clause substantially as 
follows:

    Protests Filed Directly With the Department of Justice (JAN 1998)

    (a) The following definitions apply in this provision:
    (1) ``Agency Protest Official'' means the official, other than the 
contracting officer, designated to review and decide procurement 
protests filed with a contracting activity of the Department of Justice.
    (2) ``Deciding Official'' means the person chosen by the protestor 
to decide the agency protest; it may be either the Contracting Officer 
or the Agency Protest Official.
    (3) ``Interested Party'' means an actual or prospective offeror 
whose direct economic interest would be affected by the award of a 
contract or by the failure to award a contract.
    (b) A protest filed directly with the Department of Justice must:
    (1) Indicate that it is a protest to the agency.
    (2) Be filed with the Contracting Officer.
    (3) State whether the protestor chooses to have the Contracting 
Officer or the Agency Protest Official decide the protest. If the 
protestor is silent on this matter, the Contracting Officer will decide 
the protest.

[[Page 556]]

    (4) Indicate whether the protestor prefers to make an oral or 
written presentation of arguments in support of the protest to the 
deciding official.
    (5) Include the information required by FAR 33.103(a)(2):
    (i) Name, address, facsimile number and telephone number of the 
protestor.
    (ii) Solicitation or contract number.
    (iii) Detailed statement of the legal and factual grounds for the 
protest, to include a description of resulting prejudice to the 
protestor.
    (iv) Copies of relevant documents.
    (v) Request for a ruling by the agency.
    (vi) Statement as to the form of relief requested.
    (vii) All information establishing that the protestor is an 
interested party for the purpose of filing a protest.
    (viii) All information establishing the timeliness of this protest.
    (c) An interested party filing a protest with the Department of 
Justice has the choice of requesting either that the Contracting Officer 
or the Agency Protest Official decide the protest.
    (d) The decision by the Agency Protest Official is an alternative to 
a decision by the Contracting Officer. The Agency Protest Official will 
not consider appeals from the Contracting Officer's decision on an 
agency protest.
    (e) The deciding official must conduct a scheduling conference with 
the protestor within five (5) days after the protest is filed. The 
scheduling conference will establish deadlines for oral or written 
arguments in support of the agency protest and for many officials to 
present information in response to the protest issues. The deciding 
official may hear oral arguments in support of the agency protest at the 
same time as the scheduling conference, depending on availability of the 
necessary parties.
    (f) Oral conferences may take place either by telephone or in 
person. Other parties may attend at the discretion of the deciding 
official.
    (g) The protestor has only one opportunity to support or explain the 
substance of its protest. Department of Justice procedures do not 
provide for any discovery. The deciding official may request additional 
information from either the agency or the protestor. The deciding 
official will resolve the protest through informal presentations or 
meetings to the maximum extent practicable.
    (h) An interested party may rerpresent itself or be represented by 
legal counsel. The Department of Justice will not reimburse the 
protester for any legal fees related to the agency protest.
    (i) The Department of Justice will stay award or suspend contract 
Performance in accordance with FAR 33.103(f). The stay or suspension 
unless over-ridden, remains in effect until the protest is decided, 
dismissed, or withdrawn.
    (j) The deciding official will make a best effort to issue a 
decision on the protest within twenty (20) days after the filing date. 
The decision may be oral or written.
    (k) The Department of Justice may dismiss or stay proceeding on an 
agency protest if a protest on the same or similar basis is filed with a 
protest forum outside the Department of Justice.

                             (End of clause)

[[Page 557]]



                              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 559]]



                    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 560]]

       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 561]]

    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 562]]

   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 563]]

       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 564]]

        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 565]]

               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 566]]

                    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 567]]

                       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 568]]

        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 569]]

        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 570]]

      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 571]]

         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 (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 572]]

                          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 573]]

       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 574]]

         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 575]]

       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 576]]

        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 577]]

         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 579]]





           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 580]]

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 581]]

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 582]]

  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 583]]

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 584]]

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 585]]

  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 586]]

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 587]]

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 588]]

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 589]]



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 15
1516.401-1 Added....................................................1980
1516.401-70 Added...................................................1980
1516.401-270 Added..................................................1980
1516.404-2 Redesignated as 1516.405-2...............................1981
1516.404-272 Redesignated as 1516.405-270...........................1981
1516.404-273 Redesignated as 1516.405-271...........................1981
1516.404-274 Redesignated as 1516.405-272...........................1981
1516.405 Redesignated as 1516.406...................................1981
1516.405-2 Redesignated from 1516.404-2.............................1981
1516.405-270 Redesignated from 1516.404-272.........................1981
1516.405-271 Redesignated from 1516.404-273.........................1981
1516.405-272 Redesignated from 1516.404-274.........................1981
1516.406 Redesignated from 1516.405; (c) and (d) added..............1981
1533.203 Revised....................................................1981
1552.216-77 Added...................................................1981
1552.216-78 Added...................................................1981
1552.216-79 Added...................................................1982
Chapter 16
1633 Removed.......................................................58886
Chapter 21
2133 Removed.......................................................58887
2152.370 (a) and (b) reinstated; CFR correction....................14727

                                  2009

  (Regulations published from January 1, 2009, through October 1, 2009)

48 CFR
                                                                   74 FR
                                                                    Page
Chapter 16
1652.216-70 (b)(2), (3), (4) and (6) revised; (b)(7) and (8) added
                                                                    7824
Chapter 18
1819.7201--1819.7215 (Subpart 1819.72) Revised.....................25672
1852.219-77 Revised................................................25676
1852.219-79 Revised................................................25676
Chapter 24
2409.7001 Correctly revised........................................44770

                                  2010

                       (No regulations published)

                                  2011

48 CFR
                                                                   76 FR
                                                                    Page
Chapter 15
1509.170-1--1509.170-8 (Subpart 1509.170) Removed; eff. 10-3-11....39017

[[Page 590]]

1542.1500--1542.1504 (Subpart 1542.15) Added; eff. 10-3-11.........39017
1552.209-76 Removed; eff. 10-3-11..................................39018
1552.242-71 Added; eff. 10-3-11....................................39018
Chapter 16
1602.170-2 (b) revised; interim.............................36859, 38285
    Regulation at 76 FR 36859 withdrawn............................38282
1602.170-5 (b) revised; interim.............................36860, 38285
    Regulation at 76 FR 36860 withdrawn............................38282
1602.170-13 Redesignated as 1602.170-14; interim...................36860
    Regulation at 76 FR 36860 withdrawn............................38282
1602.170-14 Redesignated as 1602.170-15; new 1602.170-14 added; 
        interim.............................................36860, 38285
    Regulation at 76 FR 36860 withdrawn............................38282
1602.170-15 Redesignated as 1602.170-16; interim...................36860
    Regulation at 76 FR 36860 withdrawn............................38282
    Redesignated as 1602.170-16; new 1602.170-15 redesignated from 
1602.170-14; interim...............................................38285
1602.170-16 Redesignated from 1602.170-15; interim.................38285
1615.402 (c)(3) revised; interim............................36860, 38285
    Regulation at 76 FR 36860 withdrawn............................38282
1615.406-2 Revised; interim.................................36860, 38285
    Regulation at 76 FR 36860 withdrawn............................38282
1632.170 (a)(3) added; interim..............................26861, 38286
    Regulation at 76 FR 36861 withdrawn............................38282
1652.216-70 (b)(2) through (5) revised; interim.............36861, 38286
    Regulation at 76 FR 36861 withdrawn............................38282
Chapter 18
1804.470-3 Revised..................................................4080
1804.470-4 Revised..................................................4080
1809.105-2 Added...................................................72328
1816.405-270 Revised; interim.......................................6697
    Regulation at 76 FR 6697 confirmed.............................46207
1816.405-271 Revised; interim.......................................6697
    Regulation at 76 FR 6697 confirmed.............................46207
1816.405-274 Revised; interim.......................................6697
    Regulation at 76 FR 6697 confirmed.............................46207
1816.405-275 Revised; interim.......................................6698
    Regulation at 76 FR 6698 confirmed.............................46207
1834.201 Revised...................................................40281
1834.203-70 Introductory text revised..............................40281
1845.107--1845.107-70 (Subpart 1845.1) Revised......................2004
1845.301-71--1845.302 (Subpart 1845.3) Added........................2005
1845.405--1845.407 (Subpart 1845.4) Removed.........................2005
1845.501-70--1845.506-70 (Subpart 1845.5) Revised...................2005
1845.606-70 Added...................................................2006
1845.7101-2 (c) revised.............................................2006
1845.7102 Removed...................................................2006
1845.7201--1845.7210-1 (Subpart 1845.72) Removed....................2006
1850 Revised.......................................................72328
1852.204-76 Revised.................................................4080
1852.215-84 Clause amended.........................................72329
1852.217-71 (e) amended............................................72330
1852.217-72 (e) amended............................................72330
1852.245-70 Revised.................................................2006
1852.245-71 Revised.................................................2006
1852.245-72 Revised.................................................2006
1852.245-73 Revised.................................................2006
1852.245-74 Revised.................................................2006
1852.245-75 Revised.................................................2006
1852.245-76 Revised.................................................2006
1852.245-77 Revised.................................................2006
1852.245-78 Revised.................................................2006
1852.245-79 Revised.................................................2006
1852.245-80 Revised.................................................2006
1852.245-81 Added...................................................2006
1852.245-82 Added...................................................2006
1852.245-83 Added...................................................2006

                                  2012

48 CFR
                                                                   77 FR
                                                                    Page
Chapter 15
1511.011-74 Revised.................................................8176
1552.211-79 Revised..................................................429
Chapter 16
1602.170-2 Regulation at 76 FR 38285 confirmed.....................19524
1602.170-5 Regulation at 76 FR 38285 confirmed.....................19524

[[Page 591]]

1602.170-14 Regulation at 76 FR 38285 confirmed; revised...........19524
1602.170-15 Regulation at 76 FR 38285 confirmed....................19524
1615.402 Regulation at 76 FR 38285 confirmed; (c)(3)(ii)(A) 
        revised....................................................19524
1615.406-2 Regulation at 76 FR 38285 confirmed; revised............19524
1632.170 Regulation at 76 FR 38286 confirmed.......................19524
1652.216-70 Regulation at 76 FR 38286 confirmed....................19524
    (b)(4) revised.................................................19525
Chapter 18
1812.301 (f)(i)(K) removed; (f)(i)(L) and (M) revised; eff. 10-29-
        12.........................................................59341
1812.7000 Revised..................................................65497
1816.405-270 Regulation at 76 FR 6697 confirmed....................46207
1816.405-271 Regulation at 76 FR 6697 confirmed....................46207
1816.405-274 Regulation at 76 FR 6697 confirmed....................46207
1816.405-275 Regulation at 76 FR 6698 confirmed....................46207
1828.371 Revised; eff. 10-29-12....................................59341
1852.216-76 Revised................................................18107
1852.216-77 Revised................................................18107
1852.228-72 Removed; eff. 10-29-12.................................59342
1852.228-76 Revised; eff. 10-29-12.................................59342
1852.228-78 Revised; eff. 10-29-12.................................59343
Chapter 24
2401 Authority citation revised....................................73525
2401.106-70 Added..................................................73525
2401.403 Revised...................................................73525
2401.404 Revised...................................................73525
2401.470 Added.....................................................73525
2401.471 Added.....................................................73525
2401.602-3 (b)(1) and (3) revised; (c)(7) removed..................73525
2402 Authority citation revised....................................73525
2402.101 Amended...................................................73525
2403.405 (b) revised...............................................73526
2404.7001 (Subpart 2404.7) Added...................................73526
2406 Authority citation revised....................................73526
2406.302-2 Added...................................................73526
2406.304-70 Removed................................................73526
2406.501 Revised...................................................73526
2407.102 Revised...................................................73526
2409 Authority citation revised....................................73526
2409.405--2409.470 (Subpart 409.4) Added...........................73526
2409.503 Revised...................................................73526
2409.7001 (Subpart 2409.70) Removed................................73526
2415 Authority citation revised....................................73526
2415.204--2415.209 (Subpart 2415.2) Heading revised................73526
2415.203 Added.....................................................73526
2415.204 Revised...................................................73526
2415.209 Revised...................................................73526
2415.303 Revised...................................................73527
2415.304 Revised...................................................73527
2415.305 (a)(3) revised............................................73527
2415.370 Added.....................................................73527
2416 Authority citation revised....................................73527
2416.307 (Subpart 2416.3) Added....................................73527
2416.505 Revised...................................................73527
2416.506-70 (b) revised............................................73527
2417 Authority citation revised....................................73528
2417.204 Revised...................................................73528
2419 Authority citation revised....................................73528
2419.201 (c) and (d) redesignated as (d) and (e); new (d), new (e) 
        introductory text and (1) revised..........................73528
2419.503 Removed...................................................73528
2419.708 Revised...................................................73528
2419.800 Revised...................................................73528
2419.803 Added.....................................................73528
2419.803-70 Added..................................................73528
2419.804 Added.....................................................73529
2419.804-2 Added...................................................73529
2419.804-3 Added...................................................73529
2419.804-370 Added.................................................73529
2419.805 Added.....................................................73529
2419.805-2 Added...................................................73529
2419.806 Added.....................................................73529
2419.808 Added.....................................................73529
2419.808-1 Added...................................................73529
2419.811 Added.....................................................73529
2419.811-1 Added...................................................73529
2419.811-2 Added...................................................73529
2419.811-3 Added...................................................73530
2419.812 Added.....................................................73530
2426 Authority citation revised....................................73530
2426.7001 Removed..................................................73530
2426.7002 Removed..................................................73530
2427 Authority citation revised....................................73530

[[Page 592]]

2427.305-2 Heading revised.........................................73530
2427.470 (Subpart 2427.4) Added....................................73530
2428 Authority citation revised....................................73530
2428.106 Heading revised...........................................73530
2432 Authority citation revised....................................73530
2432.006 Added.....................................................73530
2432.006-1 Added...................................................73530
2432.006-2 Added...................................................73530
2432.006-3 Added...................................................73530
2432.006-4 Added...................................................73530
2432.007 Added.....................................................73530
2432.703-1 Added...................................................73530
2432.704 Added.....................................................73531
2432.704-70 Added..................................................73531
2432.705 Added.....................................................73531
2432.705-70 Added..................................................73531
2432.903 Revised...................................................73531
2432.906 Revised...................................................73531
2432.908 (c)(1), (2) and (3) redesignated as (c)(2), (3) and (4); 
        new (c)(1) added; new (c)(2), (3) and (4) revised..........73531
2437 Authority citation revised....................................73531
2437.110 Revised...................................................73531
2439 Authority citation revised....................................73531
2439.107 (a) revised...............................................73531
2442 Authority citation and heading revised........................73532
2442.302-70 (Subpart 2442.3) Added.................................73532
2452 Authority citation revised....................................73532
2452.201-70 Redesignated from 2452.237-72; introductory text 
        revised....................................................73537
2452.204-70 Added..................................................73532
2452.215-70 Alternate III added....................................73533
2452.215-71 Added..................................................73533
2452.215-72 Added..................................................73533
2452.216-76 Revised................................................73533
2452.216-79 Added..................................................73533
2452.216-80 Added..................................................73533
2452.219-71 Added..................................................73533
2452.219-72 Added..................................................73534
2452.219-73 Added..................................................73534
2452.219-74 Added..................................................73534
2452.227-70 Added..................................................73534
2452.232-70 Revised................................................73535
2452.232-71 Revised................................................73536
2452.232-72 Added..................................................73536
2452.232-73 Added..................................................73537
2452.237-70 Introductory text revised..............................73537
2452.237-72 Redesignated as 2452.201-70............................73537
2452.237-73 Introductory text and (a) revised......................73537
2452.237-75 Revised................................................73537
2452.237-77 Heading and introductory text revised; clause amended 
                                                                   73538
2452.239-70 Revised................................................73538

                                  2013

  (Regulations published from January 1, 2013, through October 1, 2013)

48 CFR
                                                                   78 FR
                                                                    Page
Chapter 15
1504.804-5 Amended.................................................46289
1509.105 (Subpart 1509.1) Removed..................................46290
1511.011-70 Revised................................................46290
1511.011-73 Revised................................................46290
1511.011-74 (b) amended............................................46290
1511.011-80 Removed................................................46290
1516.405-272 Amended...............................................46290
1516.406 (d) amended...............................................46290
1522.103 (Subpart 1522.1) Removed..................................46290
1522.608 (Subpart 1522.6) Removed..................................46290
1523.7000--1523.7003 (Subpart 1523.70) Removed.....................46290
1528 Heading revised...............................................46290
1528.101 (Subpart 1528.1) Redesignated as Subpart 1528.3...........46290
1528.101 Redesignated as 1528.301; section amended.................46290
1552.208-70 Revised................................................22797
1552.209-74 Alternate IV amended...................................46290
1552.211-70 Amended................................................46290
1552.211-72 (g) revised............................................46290
1552.211-74 (c), Alternate I and II amended........................46291
1552.211-76 Amended................................................46291
1552.211-77 Revised................................................46291
1552.211-79 (c) revised; (d) amended...............................46291
1552.211-80 Removed................................................46291
1552.215-72 (b) introductory text revised..........................46291
1552.216-78 Alternate I amended....................................46291
1552.223-70 (a) amended............................................46291
1552.223-72 (c) amended............................................46291

[[Page 593]]

1552.228-70 Introductory text revised..............................46291
1552.232-70 (a), (e)(3) and Alternate I amended....................46291
1552.232-74 Amended................................................46291
1552.233-70 Introductory text amended..............................46291
1552.237-70 (b), (c)(1) and (3) amended............................46292
1552.237-71 (b) introductory text, (c) introductory text, (d), (e) 
        introductory text and (g) amended..........................46292
1552.237-74 Introductory text and (a) amended......................46292
1552.239-70 Removed................................................46292
1552.239-103 Removed...............................................46292
1552.245-70 Clause amended.........................................46292
1552.245-71 Clause amended.........................................46292
Chapter 15 Appendix I removed......................................46292
Chapter 24
2409.470 Correctly revised.........................................49698


                                  [all]