[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2013 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 48
Federal Acquisition Regulations System
________________________
Chapter 29 to End
Revised as of October 1, 2012
Containing a codification of documents of general
applicability and future effect
As of October 1, 2012
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
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Table of Contents
Page
Explanation................................................. vi
Title 48:
Chapter 29--Department of Labor 3
Chapter 30--Department of Homeland Security,
Homeland Security Acquisition Regulation (HSAR) 57
Chapter 34--Department of Education Acquisition
Regulation 131
Chapter 51--Department of the Army Acquisition
Regulations 173
Chapter 52--Department of the Navy Acquisition
Regulations 183
Chapter 53--Department of the Air Force Federal
Acquisition Regulation Supplement [Reserved]
Chapter 54--Defense Logistics Agency, Department of
Defense 191
Chapter 57--African Development Foundation 195
Chapter 61--Civilian Board of Contract Appeals,
General Services Administration 199
Chapter 63--Department of Transportation Board of
Contract Appeals 241
Chapter 99--Cost Accounting Standards Board, Office
of Federal Procurement Policy, Office of Management
and Budget 255
Finding Aids:
Table of CFR Titles and Chapters........................ 491
Alphabetical List of Agencies Appearing in the CFR...... 511
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List of CFR Sections Affected........................... 521
[[Page v]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 2901.001
refers to title 48, part
2901, section 001.
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[[Page vi]]
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, 2012), 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 vii]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[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
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contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
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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.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page viii]]
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
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Charles A. Barth,
Director,
Office of the Federal Register.
October 1, 2012.
[[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, 2008.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
The first volume, containing chapter 1 (parts 1 to 51), includes an
index to the Federal acquisition regulations.
For this volume, Robert J. Sheehan was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
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TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
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Part
chapter 29--Department of Labor............................. 2901
chapter 30--Department of Homeland Security, Homeland
Security Acquisition Regulation (HSAR).................... 3001
chapter 34--Department of Education Acquisition Regulation.. 3401
chapter 51--Department of the Army Acquisition Regulations.. 5108
chapter 52--Department of the Navy Acquisition Regulations.. 5215
chapter 53--Department of the Air Force Federal Acquisition Regulation
Supplement [Reserved]
chapter 54--Defense Logistics Agency, Department of Defense. 5416
chapter 57--African Development Foundation.................. 5706
chapter 61--Civilian Board of Contract Appeals, General
Services Administration................................... 6101
chapter 63--Department of Transportation Board of Contract
Appeals................................................... 6301
chapter 99--Cost Accounting Standards Board, Office of
Federal Procurement Policy, Office of Management and
Budget.................................................... 9900
[[Page 3]]
CHAPTER 29--DEPARTMENT OF LABOR
(Parts 2900 to 2999)
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SUBCHAPTER A--GENERAL
Part Page
2901 Department of Labor Acquisition Regulation
System.................................. 5
2902 Definitions of words and terms.............. 12
2903 Improper business practices and personal
conflicts of interest................... 13
2904 Administrative matters...................... 16
SUBCHAPTER B--ACQUISITION PLANNING
2905 Publicizing contract actions................ 17
2906 Competition requirements.................... 18
2907 Acquisition planning........................ 18
2908 Required sources of supplies and services... 19
2909 Contractor qualifications................... 19
2910 Market research............................. 22
2911 Describing agency needs..................... 23
2912 Acquisition of commercial items............. 23
2913 Simplified acquisition procedures........... 24
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2914 Sealed bidding.............................. 26
2915 Contracting by negotiation.................. 26
2916 Contract types.............................. 28
2917 Special contracting methods................. 28
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2918
[Reserved]
2919 Small business and small disadvantaged
business concerns....................... 31
2920-2921
[Reserved]
2922 Application of labor laws to Government
acquisitions............................ 33
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2923 Environment, energy and water efficiency,
renewable energy technologies,
occupational safety, and drug-free
workplace............................... 34
2924-2927
[Reserved]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2928 Bonds and insurance......................... 36
2929 Taxes....................................... 36
2930 Cost accounting standards administration.... 36
2931 Contract cost principles and procedures..... 37
2932 Contract financing.......................... 37
2933 Protests, disputes, and appeals............. 37
2934-2935
[Reserved]
2936 Construction and architect-engineer
contracts............................... 40
2937 Service contracting......................... 42
2938-2941
[Reserved]
SUBCHAPTER G--CONTRACT MANAGEMENT
2942 Contract administration and audit services.. 45
2943 Contract modifications...................... 46
2944 Subcontracting policies and procedures...... 46
2945 Government property......................... 47
2946-2951
[Reserved]
SUBCHAPTER H--CLAUSES AND FORMS
2952 Solicitation provisions and contract clauses 49
2953 Forms....................................... 49
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SUBCHAPTER A_GENERAL
PART 2901_DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM
Subpart 2901.0_Scope of Subpart
Sec.
Sec. 2901.001 Scope of subpart.
Subpart 2901.1_Purpose, Authority, Issuance
Sec. 2901.101 Purpose.
Sec. 2901.103 Authority.
Sec. 2901.105-2 Arrangement of regulations.
Sec. 2901.105-3 Copies.
Subpart 2901.2_Administration
Sec. 2901.201-1 Maintenance of the FAR.
Subpart 2901.3_Agency Acquisition Regulations
Sec. 2901.302 Limitations.
Sec. 2901.304 Agency control and compliance procedures.
Subpart 2901.4_Deviations From the FAR and DOLAR
Sec. 2901.403 Individual deviations from the FAR.
Sec. 2901.404 Class deviations.
Sec. 2901.405 Deviations pertaining to treaties and executive
agreements.
Subpart 2901.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 2901.601 General.
Sec. 2901.602 Contracting officers.
Sec. 2901.602-1 Authority.
Sec. 2901.602-3 Ratification of unauthorized commitments.
Sec. 2901.603 Selection, appointment, and termination of Appointment.
Sec. 2901.603-1 General.
Sec. 2901.603-3 Appointment.
Sec. 2901.603-4 Terminations.
Sec. 2901.603-70 Responsibility of other government personnel.
Sec. 2901.603-71 Contracting officer's technical representatives (COTR).
Sec. 2901.603-72 Administrative procurement management reviews.
Subpart 2901.7_Determinations and Findings
Sec. 2901.707 Signatory authority.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2901.0_Scope of Subpart
Sec. 2901.001 Scope of part.
This chapter may be referred to as the Department of Labor
Acquisition Regulation or the DOLAR. This subpart sets forth
introductory information about the Department of Labor Acquisition
Regulation. This subpart explains the relationship of the DOLAR to the
Federal Acquisition Regulation (FAR) and explains the DOLAR's purpose,
authority, applicability, exclusions, and issuance.
Subpart 2901.1_Purpose, Authority, Issuance
Sec. 2901.101 Purpose.
(a) Chapter 29, Department of Labor Acquisition Regulation, is
established within Title 48 of the Federal Acquisition Regulation System
of the Code of Federal Regulations.
(b) The purpose of the DOLAR is to implement the FAR, and to
supplement the FAR when coverage is needed for subject matter not
covered in the FAR. The DOLAR is not by itself a complete document, as
it must be used in conjunction with the FAR.
Sec. 2901.103 Authority.
The DOLAR is issued pursuant to the authority of the Secretary of
Labor under 5 U.S.C. 301 and 40 U.S.C. 486(c). This authority has been
delegated to the Assistant Secretary for Administration and Management
under Secretary's Order 4-76 in accordance with FAR 1.301(d)(3).
Sec. 2901.105-2 Arrangement of regulations.
(a) Numbering. Where DOLAR implements the FAR, the implementing
part, subpart, section or subsection of the DOLAR is numbered and
captioned, to the extent feasible, the same as the FAR part, subpart,
section or subsection being implemented, except that
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the section or subsection being implemented is preceded with a 29 or a
290 such that there will always be four numbers to the left of the first
decimal. For example, the DOLAR implementation of FAR l.105-l is shown
as 290l.105-1 and the DOLAR implementation of FAR subpart 24.1 is shown
as DOLAR subpart 2924.1. Material which supplements the FAR is assigned
the subsection numbers 70 and up. For example, the DOL regulation
governing appointment and termination of contracting officers' technical
representatives is identified as 2901.603-71.
(b) References to FAR materials within the DOLAR will include the
acronym FAR and the identifying number, for example, FAR l.104-2(c)(2).
References to DOLAR materials within the DOLAR simply cite the
identifying number, for example, 2901.104-2(c)(2).
Sec. 2901.105-3 Copies.
Copies of the DOLAR published in the Federal Register, CD-ROM, or
Code of Federal Regulations may be purchased from the Superintendent of
Documents, Government Printing Office, Washington, DC 20402, or from the
Government Printing Office Web Page, http://www.gpo.gov/. Requests
should reference the DOLAR as chapter 29 of title 48. The Code of
Federal Regulations is printed in paperback edition with updates as
needed. Additional information on DOL may be obtained on the Internet at
www.dol.gov. Other DOL procurement policy documents referenced within
the DOLAR may be available when appropriate by mail from the Division of
Acquisition Management Services.
Subpart 2901.2_Administration
Sec. 2901.201-1 Maintenance of the FAR.
A member of the Division of Acquisition Management Services (DAMS),
an organization within the Office of Acquisition and Management Support
Services, the Business Operations Center, Office of the Assistant
Secretary for Administration and Management (OASAM), represents the
Department of Labor on the Civilian Agency Acquisition Council (CAAC).
DAMS will be responsible for coordination with all interested DOL
elements regarding proposed FAR revisions and advocating revisions
sought by DOL.
Subpart 2901.3_Agency Acquisition Regulations
Sec. 2901.302 Limitations.
DOLAR System issuances are limited to published, codified,
Department-wide regulations, which implement or supplement FAR policies
and procedures and which affect organizations or individuals seeking to
contract with the Department.
Sec. 2901.304 Agency control and compliance procedures.
(a) The DOLAR is under the direct oversight and control of the
Department's Senior Procurement Executive. Procedures for review and
approval of issuances under the DOLAR System comply with FAR subparts
1.3 and 1.4. These procedures are contained in subpart 2901.6.
(b) DOLAR issuances shall comply with the restrictions in FAR
1.304(b).
(c) Heads of Contracting Activity (HCAs) must submit all proposed
instructions and materials that implement or supplement the DOLAR to the
Director, DAMS. In conjunction with the Office of the Solicitor, DAMS
will review all issuances whether or not they will be published in the
Federal Register as a part of the DOLAR System. In the case of internal
procurement policy instructions, the purpose of the review is to
ascertain that such instructions are consistent with the FAR and the
DOLAR and that they do not contain information which should be issued
under the DOLAR.
Subpart 2901.4_Deviations From the FAR and DOLAR
Sec. 2901.403 Individual deviations from the FAR.
(a) The Senior Procurement Executive is authorized to approve
deviations from FAR provisions (see FAR 1.403) or DOLAR provisions,
which affect only one contracting action, unless FAR 1.405(e) is
applicable. Requests for deviations shall be submitted through the
Director, DAMS.
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(b) Requests for deviations under paragraph (a) of this section must
be submitted by the HCA and include justification as to why the
deviation is required.
(c) A copy of the approved deviation must be included in the
contract file.
Sec. 2901.404 Class deviations.
(a) The Senior Procurement Executive is authorized to approve class
deviations from FAR or DOLAR provisions which affect more than one
contracting action, unless FAR 1.405(e) is applicable. The request for
deviation is submitted through the Director, DAMS.
(b) Requests for deviations under paragraph (a) of this section must
be submitted by the HCA and include justification as to why the
deviation is required and the number of contracting actions which will
be affected.
(c) For a FAR class deviation the Director, DAMS will consult with
the Chair of the CAAC, as required in FAR 1.404(a)(1), before
authorizing the deviation.
(d) A copy of the approved class deviation must be included in each
contract file.
(e) Recommended revisions to the FAR and a copy of each approved
class FAR deviation will be transmitted to the FAR Secretariat by the
Director, DAMS as required in FAR 1.404.
Sec. 2901.405 Deviations pertaining to treaties and executive
agreements.
(a) The Director, DAMS is responsible for transmitting to the FAR
Secretariat the information required in FAR 1.405(d).
(b) For deviations not authorized by FAR 1.405(b) or (c), the
Director, DAMS, will process the request for deviation through the FAR
Secretariat.
Subpart 2901.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 2901.601 General.
(a) This section deals with contracting authority and
responsibilities of the head of the agency as described in 2902.1, FAR
subpart 1.6 and this subpart.
(1) The authority and responsibility vested in the Secretary to
contract for authorized supplies and services is delegated to the
Assistant Secretary for Administration and Management.
(2) The Assistant Secretary for Administration and Management may
delegate contracting authority to a bureau or agency within the
Department of Labor as he/she delineates in writing.
(b) The Assistant Secretary for Administration and Management,
acting through the Senior Procurement Executive, may delegate additional
procurement authority subject to the issuance of warrants by the Senior
Procurement Executive, and reserves the right to rescind any acquisition
authority, if it is determined that such action is in the best interest
of the Government.
Sec. 2901.602 Contracting officers.
Sec. 2901.602-1 Authority.
Contracting warrants, at all levels above the micro-purchase
threshold, must be requested by the HCA in writing and signed by the
Senior Procurement Executive. Warrants may be accompanied by letters of
appointment that may provide requirements for maintaining the warrant
(e.g., maintaining current documentation for the FAR, DOLAR, and other
guidance, and recurrent training). Copies of the appointment shall be
maintained in the Division of Acquisition Management Services.
Contracting officers must display the original warrant (and its
limitations) in their workspace. A listing of current contracting
officers may be available for review on the Internet at http://
www.dol.gov/oasam/grants/prgms.htm. To modify a contracting officer's
authority, the present appointment must be revoked and a new certificate
issued.
Sec. 2901.602-3 Ratification of unauthorized commitments.
(a) If the HCA agrees that the commitment appears to be without
valid authorization, the Division of Acquisition Management Services
must be notified by the HCA in accordance with the procedures outlined
in this section.
(b) Ratifications--Thresholds. The Department of Labor may only
ratify acquisitions that were intended to fulfill a bona fide need and
otherwise could
[[Page 8]]
have been authorized when made. If the action to be ratified is not
approved, then the employee who authorized the work may be liable for
the entire cost of the action. Requests received by contracting officers
for ratification of commitments made by personnel lacking contracting
authority must be processed as follows:
----------------------------------------------------------------------------------------------------------------
Must be approved by (Ratifying
Dollar threshold official) Steps to be followed
----------------------------------------------------------------------------------------------------------------
Below the micro-purchase threshold...... Head of the Contracting Office.. 1 through 5 & 7.
Between the micropurchase threshold and Head of Contracting Activity.... 1 through 5 & 7.
the Simplified Acquisition Threshold.
Above the Simplified Acquisition Assistant Secretary for 1 through 7.
Threshold. Administration and Management,
after review by the Procurement
Review Board.
----------------------------------------------------------------------------------------------------------------
Note: DOL procurement policies require review by the Procurement Review Board of advisory and assistance
services acquisitions above $50,000 for competitive acquisitions and at any dollar amount for noncompetitive
acquisitions, and waivers for contracts with employees and recently separated employees. Therefore, review by
the PRB is required for unauthorized obligations at these lower thresholds.
Step--Instruction
(1) The individual is placed on notice by the contracting officer,
in writing, that the purchase may be inappropriate because he did not
have a purchasing request, funding, or authority to obligate the
Government to make an expenditure of funds.
(i) The individual who made the unauthorized contractual commitment
shall furnish the contracting officer all records and documents
concerning the commitment and a complete written statement of the facts,
including, but not limited to a statement as to why the acquisition
office was not used, a description of work to be performed or products
to be furnished, an estimated or agreed-upon contract price, citation of
appropriation available, and a statement as to whether the contractor
has commenced performance.
(ii) In the absence of such an individual, the head of the
applicable office will be responsible for providing such information,
including an explanation of why the individual who made the unauthorized
commitment is unavailable to provide this information.
(2) The individual who made the unauthorized commitment or the head
of the applicable office, as appropriate, shall provide a determination
and finding (See FAR 1.704) to the contracting officer indicating that:
(i) Supplies or services have been provided to and accepted by the
Government, or the Government otherwise has obtained or will obtain a
benefit resulting from performance of the unauthorized commitment;
(ii) A procurement request and/or accompanying documentation
including a statement signed by the individual that explains why normal
acquisition procedures were not followed, explains why the source was
selected, lists other sources considered, describes the work, and
estimates or states the agreed upon price. (If the DOL employee who made
the unauthorized commitment is no longer available, appropriate program
personnel must provide the information described in this paragraph); and
(iii) Funds are available and were available at the time of the
unauthorized commitment.
(3) The contracting officer reviewing the unauthorized commitment
shall determine whether the price is fair and reasonable and if payment
is recommended to the ratifying official. (The contracting officer may
rely upon written documentation submitted by managing staff above the
individual who made the unauthorized commitment, in making his/her
determination.)
(4) Legal review is required before ratification by the ratifying
official.
(5) The ratifying official shall make an affirmative determination
and finding that:
(i) The resulting purchase order or contract would otherwise have
been proper if made by an appropriate contracting officer.
(ii) The contracting officer reviewing the unauthorized commitment
has determined that the price is fair and reasonable and payment is
recommended.
[[Page 9]]
(6) For cases over the simplified acquisition threshold, all
documentation for steps (1) through (5) must be forwarded to the
Director, Division of Acquisition Management Services, for submission to
the Procurement Review Board. However, the ratifying official is
responsible for directing the receipt and acceptance for all products
and deliverables received by the Government as a result of an
unauthorized commitment.
(7) The supervisor of the individual who made the unauthorized
commitment shall prepare a corrective action plan to preclude further
unauthorized commitments (e.g., ethics, purchase card, or administrative
procedures training, or other appropriate action). The ratifying
official may approve the corrective action plan. The individual shall
report to the ratifying official in writing when the corrective action
has been initiated and again after it has been fully implemented.
Sec. 2901.603 Selection, appointment, and termination of appointment.
Sec. 2901.603-1 General.
(a) The Senior Procurement Executive will develop and manage an
acquisition career management program for contracting personnel.
Training requirements must conform to Office of Federal Procurement
Policy Letters 92-3, 97-01, and the Federal Acquisition Institute's
curriculum. These references are available at:
http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL97-01.html,
http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL92-3.html, and
through the Federal Acquisition Institute (FAI) at:
http://www.faionline.com/fai/campus/index4.htm.
(b) The program must cover all contracting personnel in the
following categories:
(1) General Schedule (GS-1102) Contracting Series (See also FAR
1.603);
(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 Technical Representatives as identified
in 2901.603-71.
Sec. 2901.603-3 Appointment.
General. In accordance with FAR 1.603-3, appointments will be made
in writing on an SF 1402 for all warrants above the micro-purchase
threshold. In addition, appointments may be made for specific functions
unrelated to dollar threshold, such as indirect cost negotiation, debt
management, and closeout functions.
(a) Purchase Cards (micro-purchase threshold). Purchase cardholders
will be appointed in accordance with the DOL Guidelines for Purchase
Card Use and the Agency/Office procedures approved by the HCA. Agency/
Organization Purchase Card Coordinators requesting issuance of a
purchase card must be responsible for ensuring that the purchase
cardholder has taken an orientation course before issuance and/or use of
the purchase card. A list of purchase cardholders is available at:
http://www.dol.gov/oasam/foia/hotfoia/citibank-list.htm.
(b) Simplified Acquisition Threshold (currently $100,000). The HCA
may request a delegation of procurement authority not to exceed the
simplified acquisition threshold based on education, training, and
experience in the acquisition field. Effective July 26, 2004, all new
appointments must comply with training requirements listed in ``OFPP
Policy Letter No. 92-3, Procurement Professionalism Program Policy-
Training for Contracting Personnel'', dated June 24, 1992.
(c) $500,000. The HCA may request a delegation of procurement
authority not to exceed $500,000 based on the individual's education,
training and experience in contracting. Although primarily reserved for
those in the GS-1102 series, the HCA may consider business acumen,
education, training, and experience. Effective May 27, 2004, all new
appointments must comply with training requirements listed in ``OFPP
Policy Letter No. 92-3, Procurement Professionalism Program Policy-
Training for Contracting Personnel'', dated June 24, 1992.
[[Page 10]]
(d) Unlimited. The HCA may request a delegation of procurement
authority on an unlimited basis for individuals whose education,
training, and experience in contracting warrant such authority. Although
primarily reserved for those in the GS-1102 series, the HCA may consider
length of service, training, and experience. Effective May 27, 2004, all
new appointments must comply with training requirements listed in ``OFPP
Policy Letter No. 92-3, Procurement Professionalism Program Policy-
Training for Contracting Personnel'', dated June 24, 1992.
Sec. 2901.603-4 Terminations.
Termination of a contracting officer's appointment will be made in
writing unless the warrant contains the basis for the termination (i.e.,
retirement, reassignment). Terminations may be immediate, but must not
operate retroactively.
Sec. 2901.603-70 Responsibility of other government personnel.
(a) Only DOL personnel with contracting authority shall obligate DOL
to any type of contractual obligation and only to the extent of their
delegated authority. Responsibility for determining how to buy, the
conduct of the buying process, and execution of the contract rests with
the contracting officer.
(b) Personnel responsible for determining agency needs should
maintain a close and continuous relationship with their contracting
officer to ensure that acquisition personnel are made aware of
contemplated acquisition actions. This will be mutually beneficial in
terms of better planning for acquisition action and more timely,
efficient and economical acquisition.
(c) Personnel not delegated contracting authority or insufficient
contracting authority may not commit the Government, formally or
informally, to any type of contractual obligation. However, DOL
personnel who must use the contracting process to accomplish their
programs must support the contracting officer to ensure that:
(1) Requirements are clearly defined and specified without being
overly restrictive in accordance with FAR 11.002;
(2) Competitive sources are solicited, evaluated, and selected as
appropriate;
(3) The FAR and the Competition in Contracting Act requirements for
full and open competition are satisfied to the maximum extent
practicable. Sole source purchases may only be permitted in accordance
with FAR Subpart 6.3 or other applicable provisions of the FAR (e.g. FAR
part 8) or federal law;
(4) Quality standards are prescribed, and met;
(5) Performance or delivery is timely;
(6) Files are documented to substantiate the judgments, decisions,
and actions taken, including compliance with paragraphs (c)(2) and (3)
of this section;
(7) Requirements are written so as to encourage competition and to
comply with regulations and federal policy for meeting acquisition goals
such as performance-based contracting, HUBZone contractors, etc. The
contracting officer will identify these programs to the program office.
Sec. 2901.603-71 Contracting Officer's Technical Representatives
(COTR).
(a) At the time a COTR is to become responsible for a contract, task
order, or delivery order, the contracting officer must issue a written
letter of delegation informing the individual by name of his or her
authority, including a delineation of applicable limitations and
responsibilities. This applies to contracts awarded by the Department of
Labor and those awarded by other agencies, such as Federal Supply
Schedule Contracts or Economy Act transactions. Only the contracting
officer cognizant of the contract action may make a COTR delegation.
However, a contracting officer at any level above the cognizant
contracting officer may sign the delegation letter, following his or her
determination of its accuracy, completeness, and sufficiency.
(b) The functions of a COTR typically may include such actions as
inspecting, testing, and accepting contract line items, monitoring the
contractor's performance, controlling Government-furnished property,
reviewing and approving and/or recommending to the contracting officer
approval/disapproval of vouchers/invoices, etc. An individual
[[Page 11]]
COTR may have only the duties specifically identified in a written
delegation to him or her by name (i.e., COTR duties may not be delegated
to a position) and has no authority to exceed them.
(c) Contracting officers may not delegate to the COTR the following
authorities:
(1) The authority to issue task or delivery orders against a
contract or any of the agreements defined under FAR 16.7;
(2) The authority to change any of the terms and conditions of a
contract or any of the agreements defined under FAR 16.7;
(3) The authority to sign contracts or contract modifications;
(4) The authority to write letters to the contractor that will
affect the cost or schedule of the contract. The authority to otherwise
write letters to a contractor must require the COTR to send a copy of
the letters to the contracting officer for the contract file;
(5) The authority to approve contractors' final invoices under cost-
reimbursement contracts. However, the COTR must make a final payment
recommendation to the contracting officer; or
(6) The authority to commit the Government to any adjustments to the
price or cost of the contract or order (e.g., the contracting officer
must sign all pre-negotiation and price negotiation memoranda including
those which may be combined into one document for those adjustments
valued at $100,000 or less).
(d) The contracting officer's delegation must include the admonition
that the COTR may be personally liable for unauthorized commitments.
Contracting officer authority to sign or authorize contractual
instruments must not be delegated through a COTR designation or by any
means other than a contracting officer warrant.
(e) The contractor must be notified of the COTR designation in
writing and a copy of the COTR letter of appointment also must be
provided to the contractor. The contracting officer must provide the
COTR with a copy of the COTR designation notification that was sent to
the contractor.
(f) The letter delegating COTR authority must include the contract
number, and must include the following information, at a minimum:
(1) Contracting officer's and contract specialist's/administrator's
name and telephone number;
(2) COTR's specific authority and responsibilities;
(3) COTR's specific limitations, including the admonition that the
COTR may be personally liable for unauthorized commitments;
(4) Detailed description of the types of files and the content of
the files to be maintained by the COTR;
(5) Reference to meeting applicable requirements for ethics,
procurement integrity, no conflict of interest, and proper standards of
conduct, including a copy of FAR part 3, and other regulations,
statutes, or directives governing these topics (e.g., 5 CFR part 2635
Standards of Conduct);
(6) A requirement that the COTR acknowledge receipt and acceptance
of the letter and return it to the contracting officer;
(7) A description of the training required and information on
obtaining such training.
(g) Applicability. The eligibility requirements of this subpart must
apply to all individuals who are designated by the contracting officer
as COTRs.
(h) Eligibility standards. To be determined eligible for an
appointment as a DOL 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 of training
specifically in procurement ethics, either through courses offered
periodically by the Department of Labor, another federal agency's
program, or a commercial vendor.
(i) Limitations. Effective May 27, 2004, each COTR appointment made
by the contracting officer must 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;
[[Page 12]]
(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.
(j) Termination. (1) Termination of the COTR's appointment must be
made in writing by a contracting officer and must give the effective
date of the termination. The contracting officer must 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.
(2) COTRs may be terminated for reasons (not an exhaustive listing)
such as exceeding their authorities and limitations, conflicts of
interest, unethical conduct, failure to perform, reassignment/
resignation/retirement, and upon completion of the contract to which
assigned.
(k) 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 HCA may waive the training
requirements and authorize the individual to perform the COTR duties.
Sec. 2901.603-72 Administrative procurement management reviews.
(a) The Senior Procurement Executive is responsible for performing
administrative procurement reviews for each procurement office in the
Department of Labor, except the Office of the Inspector General (OIG).
The purpose of these reviews is to audit internal controls to ensure
compliance with established procurement law, regulations, policies,
procedures and applicable directives. The reviews are to emphasize the
development and improvement of managerial controls and best practices.
(b) The administrative procurement review system is a three-pronged
approach that includes self-assessment, statistical data for validation,
and flexible quality reviews and assessment techniques. This system is
required to:
(1) Evaluate the effectiveness and efficiency of office acquisition
systems;
(2) Assess the adequacy of policies, procedures and regulations
governing the acquisition process; and
(3) Identify and implement changes necessary to improve the systems.
(c) The Senior Procurement Executive shall establish procurement
review procedures, which will focus on:
(1) Conformance with policies of the FAR, DOLAR and the Department
of Labor Manual Series 2-800 and 2-900.
(2) Conformance with federal reporting requirements for the
Department of Labor.
(3) Understanding of new department-wide or government-wide
initiatives (e.g., E-Procurement).
(4) Government-wide procedures established by the Office of
Management and Budget.
(d) HCAs are responsible for ensuring contracting activity
compliance with law and regulations through the review and oversight
process.
Subpart 2901.7_Determinations and Findings
Sec. 2901.707 Signatory authority.
A class justification for other than full and open competition must
be approved in writing by the same approval authority as for individual
justifications in accordance with FAR 6.304(a). The approval level must
be determined by the estimated total value of the class.
PART 2902_DEFINITIONS OF WORDS AND TERMS
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Subpart 2.1_Definitions
Sec. 2902.101 Definitions.
(a) Commonly used words and terms are defined in FAR subpart 2.1.
This part 2902 gives DOL-specific meanings for some of these words and
terms and
[[Page 13]]
defines other words and terms commonly used in the DOL acquisition
process.
(b) The following words and terms are used as defined in this
subpart unless the context in which they are used clearly requires a
different meaning, or a different definition is prescribed for a
particular part or portion of a part:
Competition Advocate The Competition Advocate for the Department of
Labor is appointed by the Assistant Secretary for Administration and
Management and is defined in FAR 6.5 and 2906.5. If the appointee is
recused from a procurement action, the Assistant Secretary for
Administration and Management may designate another official to act in
that capacity.
Contracting Activity means an agency or component office within the
Department of Labor with specific responsibility for managing contract
functions pursuant to one or more warrants signed by the Senior
Procurement Executive (or the Office of the Inspector General for its
contracting activity).
Contracting Officer's Technical Representative means the individual
appointed by the contracting officer to represent the Department of
Labor's programmatic interests on a Department of Labor contract, task
order, or delivery order. This individual is responsible to the
contracting officer for overseeing receipt and acceptance of goods/
services by the Government, reporting on the contractor's performance,
and approving/disapproving payment to the contractor. Authority is
otherwise limited to giving technical direction to the contractor within
the framework of the contract (see 2901.603-71). This position may go by
other titles, such as: a technical point of contact (TPOC) or Contacting
Officer's Representative (COR).
Head of Agency (also called agency head), for the FAR and DOLAR
only, means the Assistant Secretary for Administration and Management;
except that the Secretary of Labor is the Head of Agency for acquisition
actions, which by the terms of a statute or delegation must be performed
specifically by the Secretary of Labor; the Inspector General is the
Head of Agency in all cases for the Office of the Inspector General.
Authority to act as the Head of Agency has been delegated to the
Assistant Secretary for Employment and Training and the Assistant
Secretary for Mine Safety and Health for their respective agencies. For
purposes of the Economy Act (determinations and interagency agreements
under FAR 17.5) only, the Employee Benefits Security Administration,
Employment Standards Administration, Women's Bureau, Office of the
Solicitor, Bureau of Labor Statistics, Office of Disability Employment
Policy, and the Occupational Safety and Health Administration are
delegated contracting authority.
Head of Contracting Activity (HCA) means the official who has
overall responsibility for managing the contracting activity, when the
contracting activity has more than one person with a warrant issued by
the Senior Procurement Executive. In the Department of Labor the
following officials are the HCA for their respective organization:
(i) For the Mine Safety and Health Administration, the Director,
Administration and Management, MSHA.
(ii) For the Employment and Training Administration, the Director,
Office of Grants and Contract Management, ETA.
(iii) For the Office of the Inspector General, the Director,
Division of Finance and Administration, OIG.
(iv) For the Bureau of Labor Statistics, the Director, Division of
Administrative Services, BLS.
(v) For the Office of the Assistant Secretary for Administration and
Management and all other agencies not listed in this definition, the
Director, Business Operations Center, OASAM.
Senior Procurement Executive means the Deputy Assistant Secretary
for Administration and Management as defined at FAR 2.101.
[69 FR 22991, Apr. 27, 2004]
PART 2903_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 2903.1_Safeguards
Sec.
Sec. 2903.101 Standards of conduct.
Sec. 2903.101-1 General.
[[Page 14]]
Sec. 2903.104 Procurement integrity.
Sec. 2903.104-3 Definitions.
Sec. 2903.104-5 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
Sec. 2903.104-7 Violations or possible violations of standards of
conduct.
Subpart 2903.2_Contractor Gratuities to Government Personnel
Sec. 2903.203 Reporting suspected violations of the Gratuities clause.
Sec. 2903.204 Treatment of violations.
Subpart 2903.6_Contracts With Government Employees or Organizations
Owned or Controlled by Them
Sec. 2903.601 Policy.
Sec. 2903.602 Exceptions.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2903.1_Safeguards
Sec. 2903.101 Standards of conduct.
Sec. 2903.101-1 General.
The statutory prohibitions and their application to DOL personnel
are discussed in the Standards of Ethical Conduct for Employees of the
Executive Branch, 5 CFR part 2635 and the supplemental DOL standards of
conduct, 5 CFR part 5201. All DOL personnel involved in acquisitions
must become familiar with these statutory prohibitions. Any questions
concerning them must be referred to an Agency Ethics Official in the
Office of the Solicitor. In addition to criminal penalties, the statutes
provide that transactions entered into in violation of these
prohibitions are voidable (18 U.S.C. 218). Any suspected violations must
be reported promptly to the Office of the Inspector General.
Sec. 2903.104 Procurement integrity.
Sec. 2903.104-3 Definitions.
Agency ethics official means the Solicitor or the Associate
Solicitor for Legislation and Legal Counsel.
Sec. 2903.104-5 Disclosure, protection, and marking of contractor bid
or proposal information and source selection information.
(a) Government employees serving in the following positions are
authorized access to proprietary or source selection information, but
only to the extent necessary to perform their official duties:
(1) Personnel participating in technical evaluation panels (i.e.,
source selection board) or personnel evaluating an offeror's or bidder's
technical or cost proposal under other competitive procedures, and
personnel evaluating protests.
(2) Personnel assigned to the contracting office.
(3) The initiator of the procurement request (to include the
official having principal technical cognizance over the requirement).
(4) Small business specialists.
(5) Personnel assigned to the Office of the Solicitor.
(6) Personnel assigned to the Department of Labor's Division of Cost
Determination and the Defense Contract Audit Agency.
(7) Personnel assigned to the Division of Acquisition Management
Services.
(8) Members of the Procurement Review Board.
(9) The Office of the Inspector General.
(10) Other Government employees authorized by the contracting
officer.
(11) Supervisors, at any level, of the personnel listed in this
paragraph (a).
(b) The originator of information that may be source selection
information must consult with the contracting officer or the procurement
officer, who must determine whether the information is source selection
information. DOL personnel responsible for preparing source selection
information as defined in FAR 2.101 must assure that the material is
marked with the legend in FAR 3.104-4 at the time the material is
prepared.
(c) Unless marked with the legend ``SOURCE SELECTION INFORMATION--
SEE FAR 3.104-4,'' draft specifications, purchase descriptions, and
statements of work could erroneously be released during a market survey
in order to determine the capabilities of
[[Page 15]]
potential competitive sources (see FAR 7.1 and FAR 10).
Sec. 2903.104-7 Violations or possible violations of standards of
conduct.
(a) The Senior Procurement Executive is the individual designated to
receive the contracting officer's report of violations.
(b) The HCA or designee must refer all information describing an
actual or possible violation to the Associate Solicitor for Legislation
and Legal Counsel, the Senior Procurement Executive, and Inspector
General staff.
Subpart 2903.2_Contractor Gratuities to Government Personnel
Sec. 2903.203 Reporting suspected violations of the Gratuities clause.
Contractor gratuities offered to Government personnel are subject to
the restriction under the Standards of Ethical Conduct for Employees of
the Executive Branch, 5 CFR part 2635.
Sec. 2903.204 Treatment of violations.
Any suspected violations of FAR subpart 3.2 and the clause at FAR
52.203-3, Gratuities, must be reported to the Office of the Inspector
General. The authority to determine whether a violation of the
Gratuities clause by the contractor, its agent, or another
representative, has occurred and the appropriate remedies are delegated
to the HCA.
Subpart 2903.6_Contracts With Government Employees or Organizations
Owned or Controlled by Them
Sec. 2903.601 Policy.
In addition to restrictions placed on current Federal government
employees, 18 U.S.C. 207 places some restrictions on contracting with
former officers, employees, and elected officials of the executive and
legislative branches. Under these prohibitions, contracts with former
employees are prohibited for a period of one year from the date of
severance of duties, unless an exception is granted as set forth in
2903.602.
Sec. 2903.602 Exceptions.
(a) In accordance with FAR 3.602, only when there is a most
compelling reason to do so, is the Assistant Secretary for
Administration and Management authorized to except a contract from the
policy in FAR 3.601, after the Procurement Review Board and the agency
ethics official have reviewed and recommended approval of the exception.
However, when time does not permit, the Assistant Secretary for
Administration and Management may unilaterally approve an exception. The
exception and information supporting the exception must be provided to
the contracting officer for their official records.
(b) When an exception under this subpart is requested, it is
submitted through the director of the cognizant program office to the
HCA. In the procurement request, the director must describe the basis
for the exception from the restrictions of FAR 3.601.
(c) Except as allowed in paragraph (a) of this section, the
Department of Labor may enter into a negotiated contract or an amendment
to an existing contract with former employees of DOL within one year of
separation (or with firms in which former employees are known to have a
substantial interest) only after review and recommendation for approval
by the agency ethics official, the Procurement Review Board, and written
approval by the Assistant Secretary for Administration and Management.
(d) Approval of a decision to grant an exception as provided in this
section must be documented by a written findings and determination
prepared by the requesting official for signature by the Assistant
Secretary for Administration and Management. The determination and
findings must document compliance with FAR 3.603, FAR 9.5 and DOLAR
2909.5; specify the compelling reason(s) for award; and be placed in the
contract files and the files of the Policy Review Board.
[[Page 16]]
PART 2904_ADMINISTRATIVE MATTERS
Subpart 2904.8_Government Contract Files
Sec.
Sec. 2904.800-70 Contents of contract files.
Sec. Appendix A to Part 2904.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Subpart 2904.8_Government Contract Files
Sec. 2904.800-70 Contents of contract files.
(a) The reports listed in appendix A to this part are applicable to
the Department of Labor.
(b) HCAs must be responsible for establishing standard contract
files for their contracting activities. The HCA must provide one or more
representative contract files to the Director, Division of Acquisition
Management Services, as requested for comment.
Sec. Appendix A to Part 2904
----------------------------------------------------------------------------------------------------------------
Title of report Reference Date due Submitted to
----------------------------------------------------------------------------------------------------------------
Report of Proposed Federal 29 CFR 1.4............. Annually; 20-Aug....... ESA Davis Bacon.
Construction*.
Contractor Report of Government FAR Chapter 45;........ Annually; 31-Oct....... Business Operations
Property*. Center.
Major Preference Program Goals and DLMS 2 1000............ By the 20th of each Office of Small
Achievements Report*. month. Business Programs.
A-76 & FAIR Act Inventory............ FAIR ACT & OMB MEMO.... June 30th of each year. Office of Competitive
Sourcing.
SF 294, Subcontracting Report for FAR Subpart 19.7;...... Semi-annually;......... Contracting Officer.
Individual Contracts.
SF 294................. April 30; 30-Oct....... Office of Small
Business Programs.
SF 295, Summary Subcontract Report... FAR Subpart 19.7;...... Semi-annually March 30; Contracting Officer.
September 30.
Value Engineering Report*............ OMB Circular A-131..... Annually; 7-Dec........ Office of Acquisition
and Management Support
Services.
Report on Federal Support to Section 3(a)(7) of the Annually; O/A 15-May... Upon request From
Universities, Colleges, and National Science National Science
Nonprofit Institutions. Foundation (NSF) Act. Foundation.
Procurement Forecast Initial and Pub. L. 100-656;....... Sept 15 (Init.) and Apr Division of Acquisition
Update. 15 (Update). Management Services.
----------------------------------------------------------------------------------------------------------------
For those reports with an (*), if there was no activity for the period being reported, a negative response for
the period must be submitted to the requisitioning office.
[69 FR 22991, Apr. 27, 2004]
[[Page 17]]
SUBCHAPTER B_ACQUISITION PLANNING
PART 2905_PUBLICIZING CONTRACT ACTIONS
Subpart 2905.1_Dissemination of Information
Sec.
Sec. 2905.101 Methods of disseminating information.
Subpart 2905.2_Synopsis of Proposed Contract Actions
Sec. 2905.202 Exceptions.
Subpart 2905.4_Release of Information
Sec. 2905.402 General public.
Sec. 2905.403 Requests from Members of Congress.
Sec. 2905.404 Release procedures.
Subpart 2905.5_Paid Advertisements
Sec. 2905.501 Scope.
Sec. 2905.502 Authority.
Sec. 2905.503 Procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2905.1_Dissemination of Information
Sec. 2905.101 Methods of disseminating information.
Contracting officers may only use the Government Point of Entry
(GPE) for synopsis and dissemination of information concerning
procurement actions. The Division of Acquisition Management Services
manages the DOL account.
Subpart 2905.2_Synopsis of Proposed Contract Actions
Sec. 2905.202 Exceptions.
The Assistant Secretary for Administration and Management is
authorized to make the determination prescribed in FAR 5.202(b). A
written determination documenting the reasons why advance notice is not
appropriate or reasonable must be submitted by the HCA for appropriate
action including communication with the officials listed in FAR
5.202(b).
Subpart 2905.4_Release Of Information
Sec. 2905.402 General public.
(a) Unless the HCA determines that disclosure would be prejudicial
to the interests of DOL, if a list of interested parties is collected in
reference to a solicitation, it may be released upon request.
(b) Any request for release of information is subject to the Freedom
of Information Act and FAR 24.2.
Sec. 2905.403 Requests from Members of Congress.
All proposed responses to Congressional inquiries must be prepared
and forwarded for coordination with the Office of the Solicitor and the
Office of Congressional and Intergovernmental Affairs to determine
whether circumstances exist that will allow the release of additional
information. In such instances, the Congressional requestor must be
furnished an interim reply providing the information that is releasable.
The interim reply must describe the problem that precludes release of
any requested materials and describe generally what steps, if any, are
being taken to make such information available.
Sec. 2905.404 Release procedures.
HCAs are authorized to release long-range acquisition estimates
under the conditions in FAR 5.404-1.
Subpart 2905.5_Paid Advertisements
Sec. 2905.501 Scope.
This subpart provides policies and procedures for the procurement of
paid advertising as covered by 5 U.S.C. 302, and 44 U.S.C. 3701, 3702,
and 3703.
Sec. 2905.502 Authority.
When it is deemed necessary to use paid advertisements in newspapers
and trade journals, written authority for
[[Page 18]]
such publication may be obtained from the HCA or designee.
Sec. 2905.503 Procedures.
(a) Prior to obtaining HCA approval, an agency should seek legal
review to determine whether it has appropriate legal authority for
advertising. The HCA exercising the authority delegated by 2905.502 must
do so in accordance with the procedures set forth in FAR 5.503 and those
in this section.
(b) Requests for procurement of advertising must 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.
PART 2906_COMPETITION REQUIREMENTS
Subpart 2906.3_Other Than Full and Open Competition
Sec.
Sec. 2906.301 Policy.
Sec. 2906.303 Justifications.
Subpart 2906.5_Competition Advocates
Sec. 2906.501 Requirement.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2906.3_Other Than Full and Open Competition
Sec. 2906.301 Policy.
(a) Department of Labor acquisitions must comply with the Department
of Labor Manual Series (DLMS) 2, Chapter 830 (available by mail from the
Director, Division of Acquisition Management Services, 200 Constitution
Ave., NW., Washington, DC 20210-0001), or electronically from http://
www.dol.gov/oasam/programs/boc/prb.htm. Any proposed noncompetitive
acquisition in excess of the simplified acquisition threshold must be
fully justified and, if required by the DLMS, submitted to the DOL
Procurement Review Board and approved by the Assistant Secretary for
Administration and Management and, in the case of research and
development contracts, also by the Assistant Secretary for Policy.
(b) With the exception of contracts for advisory and assistance
services or for research and development, the contracting officer has
the authority below the simplified acquisition threshold to approve sole
source contracts. The contracting officer is responsible for assuring
that proposed acquisitions below the simplified acquisition threshold
are in compliance with FAR and DOLAR requirements regarding competition.
Sec. 2906.303 Justifications.
The authority of the agency head to determine that only specified
make and models of technical equipment will satisfy the agency's need
under FAR 6.302-1 is delegated to the HCA.
Subpart 2906.5_Competition Advocate
Sec. 2906.501 Requirement.
The Assistant Secretary for Administration and Management must
appoint a Competition Advocate for the Department of Labor. The
appointment will be predicated on an understanding of the competition
requirements in the FAR, and particularly small business programs.
PART 2907_ACQUISITION PLANNING
Subpart 2907.1_Acquisition Plans
Sec.
Sec. 2907.105 Contents of written acquisition plans.
Sec. 2907.107 Additional requirements for acquisitions involving
bundling.
Subpart 2907.3_Contractor Versus Government Performance
Sec. 02907.300 Availability of inventory.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
[[Page 19]]
Subpart 2907.1_Acquisition Plans
Sec. 2907.105 Contents of written acquisition plans.
The Department of Labor has implemented its acquisition planning
system in compliance with FAR 7.1 and internal procedures provided in
DLMS 2 section 834. The annual forecast is available for review from:
http://www.apps.dol.gov/contract--grant/index.htm.
Sec. 2907.107 Additional requirements for acquisitions involving
bundling.
The FAR requirements for justification, review, and approval of
bundling of contract requirements also apply to an order from a Federal
Supply Schedule contract, Governmentwide acquisition contracts, or other
indefinite-delivery contracts if the requirements consolidated under the
order meet the definition of ``bundling'' at FAR 2.101.
Subpart 2907.3_Contractor Versus Government Performance
Sec. 2907.300 Availability of inventory.
The Department of Labor's FAIR Act inventory of commercial
activities performed by federal employees and inherently governmental
functions may be accessed on the Internet at: www.dol.gov under ``Doing
Business with DOL''.
PART 2908_REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 2908.4_Federal Supply Schedules
Sec.
Sec. 2908.404 Using schedules.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2908.4_Federal Supply Schedules
Sec. 2908.404 Using schedules.
Small business considerations, procedures regarding both prime and
subcontracting, and clearances specified in DOLAR 2919 apply to GSA
Federal Supply Schedule Orders above the simplified acquisition
threshold. Procedures to be followed may be modified by the Office of
Small Business Program as appropriate in order to comply with GSA
Federal Supply Schedule procedures (e.g., first tier contracts may be
required to report their commercial subcontracting goals to the DOL
Office of Small Business Programs).
[69 FR 22991, Apr. 27, 2004]
PART 2909_CONTRACTOR QUALIFICATIONS
Subpart 2909.1_Responsible Prospective Contractors
Sec.
Sec. 2909.105 Procedures.
Subpart 2909.4_Debarment, Suspension, And Ineligibility
Sec. 2909.402 Policy.
Sec. 2909.405 Effect of listing.
Sec. 2909.405-1 Continuation of current contracts.
Sec. 2909.406 Debarment.
Sec. 2909.406-1 General.
Sec. 2909.406-3 Procedures.
Sec. 2906.407 Suspension.
Sec. 2909.407-1 General.
Subpart 2909.5_Organizational and Consultant Conflicts of Interest
Sec. 2909.503 Waiver.
Sec. 2909.506 Procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2909.1_Responsible Prospective Contractors
Sec. 2909.105 Procedures.
Before awarding a contract, the contracting officer must make a
written determination of the otherwise successful bidder's/offeror's
responsibility in accordance with FAR 9.105. In addition to past
performance information, the contracting officer must insure that the
proposed contractor, and any subcontractor representing more than
$25,000 in goods or services, does not appear in the ``List of Parties
Excluded from Federal Procurement'' (available on the Internet at
www.epls.gov). In addition, contracting officers should base
[[Page 20]]
their determination of contractor responsibility on a review of the
company's ``Summary or Financial Report'' from Dun & Bradstreet
(available on the Internet for a fee at http://www.dnb.com/).
Subpart 2909.4_Debarment, Suspension, and Ineligibility
Sec. 2909.402 Policy.
(a) This subpart prescribes DOL policies and procedures governing
the debarment and suspension of contractors, the listing of debarred and
suspended contractors, contractors declared ineligible (see FAR 9.403)
and distribution of the list. This subpart does not apply to Department
of Labor debarments or suspensions issued for Davis-Bacon Act and Davis-
Bacon Related Act violations, Service Contract Act violations,
Affirmative Action/Equal Employment Opportunity violations, or
violations under other statutes administered by the Department of Labor.
(b) Contracting activity officials shall have the following
responsibilities. (1) Heads of contracting activity (HCA) shall:
(i) Provide an effective system to ensure that contracting staffs
consult the ``List of Parties Excluded from Federal Procurement and
Nonprocurement Programs'' at http://epls.arnet.gov/ before soliciting
offers, awarding or extending contracts, or consenting to subcontract.
(ii) Consider debarment or suspension of a contractor when cause, as
defined under FAR 9.406-2 for debarment and FAR 9.407-2 for suspension,
is shown. Contracting officers should consult with their appropriate
legal counsel before 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 is subject to
reconsideration if warranted by new information.
(iii) When the decision is made to initiate debarment and/or
suspension of a contractor, the Senior Procurement Executive must
prepare a notice in accordance with FAR 9.406-3(c) or FAR 9.407-3(c).
The draft notice, along with the administrative file containing all
relevant facts and analysis, must be forwarded to the Senior Procurement
Executive, as the debarring and suspending official, following review by
the activity's legal counsel.
(2) The Senior Procurement Executive shall:
(i) Review the notice and administrative file for sufficiency and
provide for review by other DOL officials as considered appropriate;
(ii) In accordance with FAR 9.406-3(c) or FAR 9.407-3(c), if it is
determined that action is warranted, give the contractor prompt notice
of the proposed debarment or suspension;
(iii) Direct additional fact-finding as necessary when material
facts are in dispute;
(iv) Notify the contractor and any affiliates involved 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);
(v) Be responsible for accomplishing the actions required in FAR
9.404(c) within five working days after debarring or suspending a
contractor or modifying or rescinding such an action;
(vi) Maintain Department-wide records of debarred or suspended
contractors in accordance with FAR 9.404.
Sec. 2909.405 Effect of listing.
(a) Contractors debarred, suspended, or proposed for debarment are
excluded from receiving contracts, and agencies must not solicit offers
from, award contracts to, or consent to subcontract with these
organizations, unless the HCA determines in writing that there is a
compelling reason for such action and the Assistant Secretary for
Administration and Management approves such determinations.
(b) Bids received from any listed contractor in response to an
invitation for bids must 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 Assistant Secretary for
Administration and Management 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
[[Page 21]]
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 Assistant Secretary for
Administration and Management approves such action.
Sec. 2909.405-1 Continuation of current contracts.
(a) At the time an option is being exercised, contracting officers
must review the List of Parties Excluded from Federal Procurement and
Nonprocurement Programs. If a contractor or significant subcontractor is
identified in the listing, the contracting officer must make a written
determination either to proceed or to terminate the contract, and must
explain the rationale for the decision. In accordance with FAR 9.405-1,
contracting officers 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. The contracting officer must make such determination in
writing, after consulting with the contracting officer's technical
representative and legal counsel. The determination must be approved by
the HCA.
(b) Contracting activities must 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 Assistant Secretary for Administration and Management approves
such action.
Sec. 2909.406 Debarment.
Sec. 2909.406-1 General.
(a) The Senior Procurement Executive is the debarring official for
DOL and is authorized to debar a contractor for any of the causes in FAR
9.406-2, using the procedures in 2909.406-3.
(b) The Senior Procurement Executive is authorized to make an
exception regarding debarment by another agency debarring official in
accordance with the conditions in FAR 9.406-1(c).
Sec. 2909.406-3 Procedures.
(a) Investigation and referral. Whenever a DOL employee knows a
cause for debarment, as listed in FAR 9.406-2, the appropriate HCA
affected must be notified. The contracting officer must consult with the
Office of the Solicitor and the Office of the Inspector General, as
appropriate, and submit a formal recommendation documenting the cause
for debarment to the Senior Procurement Executive.
(b) Notice of proposal to debar. Based upon review of the
recommendation to debar and consultation with the Office of the
Solicitor and Office of the Inspector General, as appropriate, the
Senior Procurement Executive must initiate proposed debarment by taking
the actions listed in FAR 9.406-3(c) and advising the contractor of
DOL's rules under 2909.4.
(c) Fact-finding proceedings. For actions listed under FAR 9.406-
3(b)(2), the Senior Procurement Executive must afford the contractor the
opportunity to appear at an informal fact-finding proceeding as required
by FAR 9.406-3(b)(2)(i). The proceeding must be conducted by the Office
of Administrative Law Judges and must be held at a date and location
reasonably convenient to the parties concerned. Subject to the
provisions of 29 CFR part 18, entitled ``Rules Of Practice And Procedure
For Administrative Hearings Before The Office Of Administrative Law
Judges'', the contractor and any specifically named affiliates, may be
represented by counsel or any duly authorized representative. Either
party may call witnesses. The proceedings must be conducted
expeditiously and in such a manner that each party will have a full
opportunity to present all information considered pertinent to the
proposed debarment. A transcript of the proceedings must be made
available to the contractor under the conditions in FAR 9.406-
3(b)(2)(ii).
(d) Decision and notice. The Senior Procurement Executive shall make
a decision on imposing debarment in accordance with the procedures in
FAR 9.406-3(d), findings of fact of the Administrative Law Judge, and
the conditions in FAR 9.406-4 and 9.406-5. Notice of the decision must
be provided to the contractor and any affiliates involved
[[Page 22]]
in accordance with the procedures in FAR 9.406-3(e).
Sec. 2909.407 Suspension.
(a) The Senior Procurement Executive is the suspending official for
DOL and is authorized to suspend a contractor for any of the causes in
FAR 9.407-2, using the procedures in 2909.406-3.
(b) The Senior Procurement Executive is authorized to make an
exception, regarding suspension by another agency suspending official
under the conditions in FAR 9.407-1(d).
Sec. 2909.407-1 General.
(a) Investigation and referral. Whenever a DOL employee knows of a
cause for suspension, as listed in FAR 9.407-2, the appropriate HCA
affected must be notified. The HCA must consult with the Office of the
Solicitor and the Office of the Inspector General, as appropriate, and
submit a formal recommendation documenting the cause for suspension, to
the Senior Procurement Executive.
(b) Notice of suspension. Based upon review of the recommendation to
suspend and consultation with the Office of the Solicitor and the Office
of the Inspector General, as required, the Senior Procurement Executive
will initiate suspension by taking the actions listed in FAR 9.407-3(c)
and advising the contractor of DOL's rules under this subpart.
(c) Fact-finding proceedings. For actions listed under FAR 9.407-
3(b)(2), the Senior Procurement Executive must afford the contractor the
opportunity to appear at informal proceedings, as required by FAR 9.407-
3(b)(2)(i). Either party may call witnesses. The proceedings must be
conducted expeditiously and in such a manner that each party will have a
full opportunity to present all information considered pertinent to the
proposed suspension.
(d) Suspension decisions. The Senior Procurement Executive must make
a final decision on suspension as prescribed in FAR 9.407-3(d). Notice
of the decision must be provided to the contractor and any affiliates
involved, in accordance with the provisions in FAR 9.407-3(d)(4).
Subpart 2909.5_Organizational and Consultant Conflicts of Interest
Sec. 2909.503 Waiver.
(a) The Senior Procurement Executive is delegated authority by the
Assistant Secretary for Administration and Management to waive any
general rule or procedure in FAR 9.5 when its application in a
particular situation would not be in the Government's best interest.
(b) Requests for waivers must be made by the HCA to the PE. Each
request must include:
(1) An analysis of the facts involving the potential or actual
conflict including benefits and detriments to the Government and
prospective contractors;
(2) A discussion of the factors which preclude avoiding,
neutralizing, or mitigating the conflict; and
(3) Identification of the provision(s) in FAR 9.5 to be waived.
(c) In making determinations under this subpart the Senior
Procurement Executive must request the opinion of the Office of the
Solicitor, Division of Legislation and Legal Counsel.
Sec. 2909.506 Procedures.
(a) If a prospective contractor disagrees with the decision of a
contracting officer regarding an organizational conflict of interest and
requests higher level review as referred to in FAR 9.506, the matter
must be referred to the Office of the Solicitor, Associate Solicitor for
Legislation and Legal Counsel, and the Director, Division of Acquisition
Management Services.
(b) Referrals must be made by the HCA concerned and include the
contracting officer's decision and the position of the prospective
contractor.
PART 2910_MARKET RESEARCH
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Sec. 2910.002 Procedures.
(a) In accordance with FAR 6.302-1(c), purchase descriptions must
not specify a product, or specific feature of a product, peculiar to a
manufacturer unless they are justified to the contracting officer in
writing by the office initiating
[[Page 23]]
the purchase request. The justification must state that the product, or
specific product feature, is essential to the Government's requirements
and other similar products or features will not meet these requirements.
This determination must be signed by a representative of the office
originating the request and must accompany the purchase requisition
submitted to the appropriate contracting office. If such a justification
is not made, the contracting officer may assume that another make and
model or a generic product could equally meet the DOL requirement.
(b) In accordance with FAR 10.002(b), the requisitioning office must
submit to the contracting officer information demonstrating that a
variety of products from various commercial sources have been
considered. This requirement is not necessary for required sources (See
FAR 8.001). Orders to be placed against non-mandatory sources, such as
the Federal Supply Schedules, or other Governmentwide Acquisition
Contracts, should include product information concerning multiple
sources based on research from www.contractdirectory.gov site or other
sources. When documented in this manner, the contracting officer may
rely on this information in developing a procurement strategy, or for
documenting the comparison of catalogs or pricelists.
[69 FR 22991, Apr. 27, 2004]
PART 2911_DESCRIBING AGENCY NEEDS
Subpart 2911.1_Selecting And Developing Requirements Documents
Sec.
Sec. 2911.103 Market acceptance.
Subpart 2911.5_Liquidated Damages
Sec. 2911.501 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2911.1_Selecting And Developing Requirements Documents
Sec. 2911.103 Market acceptance.
The authority of the Head of an Agency under FAR 11.103(a), to
require offerors to demonstrate that the items offered have either
achieved commercial market acceptance or been satisfactorily supplied to
an agency under current or recent contracts for the same or similar
requirements, and otherwise meet the item description, specifications,
or other criteria prescribed in the public notice and solicitation, is
delegated to the HCA.
Subpart 2911.5_Liquidated Damages
Sec. 2911.501 Policy.
In accordance with FAR 11.501(d), the authority of the Head of
Agency to recommend to the Department of Treasury, Commissioner,
Financial Management Services, that the amount of a contractor's
liquidated damages be waived or reduced in whole or in part, is
delegated to the HCA.
PART 2912_ACQUISITION OF COMMERCIAL ITEMS
Subpart 2912.3_Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
Sec.
Sec. 2912.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2912.3_Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
Sec. 2912.302 Tailoring of provisions and clauses for the acquisition
of commercial items.
In accordance with FAR 12.302(c), a request for waiver to tailor
terms inconsistent with customary commercial
[[Page 24]]
practice must be documented in a written justification by the
contracting officer, and may be approved by the HCA on an individual or
class basis.
PART 2913_SIMPLIFIED ACQUISITION PROCEDURES
Subpart 2913.1_Procedures
Sec.
Sec. 2913.106-3 Soliciting competition, evaluation of quotations or
offers, award and documentation.
Subpart 2913.2_Actions At Or Below The Micro-Purchase Threshold
Sec. 2913.201 General.
Subpart 2913.3_Simplified Acquisition Methods
Sec. 2913.301 Governmentwide commercial purchase card.
Sec. 2913.307 Forms.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2913.1_Procedures
Sec. 2913.106-3 Soliciting competition, evaluation of quotations or
offers, award and documentation.
In accordance with FAR 13.106-3(b), simplified acquisition files
must contain documentation of the factors considered in making an award
in excess of the micro-purchase threshold. When other than the lowest
responsive quotation from a responsible supplier is used as the basis
for a purchase, the contracting officer must identify the basis (i.e.,
best value) of the award and include in the purchase file documentation
of the reasons for rejecting any lower quotation and the name of the
individual responsible for making the determination to award to other
than the lowest priced quotation. The contracting officer has broad
discretion in determining the award of a purchase order, which may be
based on the factors listed in FAR 13.106-3. This requirement does not
necessitate a separate determination if the procurement file contains
preprinted standardized classifications for award.
Subpart 2913.2_Actions at or Below the Micro-Purchase Threshold
Sec. 2913.201 General.
The Government commercial purchase card must be used in preference
to other methods of procurement for purchases up to the micro-purchase
threshold. Other small purchase methods (blanket purchase agreements,
third party drafts, and purchase orders) may be used in lieu of the
Government purchase card when it is more cost-effective or practicable.
Subpart 2913.3_Simplified Acquisition Methods
Sec. 2913.301 Governmentwide commercial purchase card.
(a) The Government purchase card has far fewer requirements for
documentation than other methods of purchasing. However, the same legal
restrictions apply to credit card purchases that apply to other
purchases using appropriated funds. If a purchase cardholder has
questions about the lawfulness of a particular purchase, he or she must
initially consult his or her appropriate office purchase card
administrator, who will consult the Office of the Solicitor as
necessary.
(b) GAO decisions surrounding the concept of the ``availability of
appropriations'' are often stated in terms of whether appropriated funds
are or are not ``legally available'' for a given expenditure.
Restrictions on the purposes for which appropriated funds may be used
come from a variety of sources, including the DOL Appropriations Acts,
and decisions of the Comptroller General and his predecessor, the
Comptroller of the Treasury.
(c) HCAs, administrative officers, and contracting officers are
encouraged to review the GAO publication entitled Principles of Federal
Appropriations Law. This document must be consulted when developing
Office/Agency Purchase/Credit Card Program procedures. A number of the
more common restrictions which ``accounting officers of the Government''
have had frequent occasion to consider and apply include, for example:
[[Page 25]]
(1) Payment of attorney's fees;
(2) Purchase of food, entertainment or recreation;
(3) Payment of personal membership fees; and
(4) Payment of personal expense items such as gifts for employees,
and entry fees for contests.
Sec. 2913.307 Forms.
(a) In accordance with FAR 13.307, contracting officers are
encouraged to use the Standard Form (SF) SF-1449, when executing
commercial acquisitions. Agencies may use forms other than the SF-1449
and may print on those forms the clauses considered to be suitable for
these purchases. In these instances, alternate forms should conform with
the Standard Form to the maximum extent practicable.
(b) The SF-30 is to be used to modify a purchase order.
[[Page 26]]
SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES
PART 2914_SEALED BIDDING
Subpart 2914.4_Opening of Bids and Award of Contract
Sec.
Sec. 2914.404-1 Cancellation of invitations after opening.
Sec. 2914.407-3 Other mistakes disclosed before award.
Sec. 2914.408 Award.
Sec. 2914.408-1 General.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2914.4_Opening of Bids and Award of Contract
Sec. 2914.404-1 Cancellation of invitations after opening.
The authority of the agency head in FAR 14.404-1(c) and (f) to make
a written determination to cancel an invitation for bids and reject all
bids after opening and to authorize completion of the acquisition
through negotiation is delegated to the HCA.
Sec. 2914.407-3 Other mistakes disclosed before award.
(a) The authority to make determinations, as conferred by FAR
14.407-3(e) is delegated to the HCA, without power of redelegation, but
only after consultation with the Office of the Solicitor. All such
determinations shall be documented in the contract file.
(b) The following procedures must be followed when submitting
doubtful cases of mistakes in bids to the Comptroller General for an
advance decision, as provided by FAR 14.407-3(i).
(1) Requests must be made by the HCA after consultation with the
Office of the Solicitor.
(2) Requests must be in writing, dated, signed by the requestor,
addressed to the Comptroller General of the United States, General
Accounting Office, Washington, DC 20548, and contain the following:
(i) The name and address of the party requesting the decision; and
(ii) A statement of the question to be decided, a presentation of
all relevant facts, a statement of the requesting party's position with
respect to the question, and copies of all pertinent records and
supporting documentation.
Sec. 2914.408 Award.
Sec. 2914.408-1 General.
(a) 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:
(1) The specifications used in the invitation were not unduly
restrictive;
(2) Adequate competition was solicited and it could have been
reasonably assumed that more than one bid would have been submitted;
(3) The price is reasonable; and
(4) The bid is otherwise in accordance with the invitation for bids.
(b) Such a determination must be placed in the contract file.
PART 2915_CONTRACTING BY NEGOTIATION
Subpart 2915.4_Contract Pricing
Sec.
Sec. 2915.405-70 Determining fair and reasonable price.
Subpart 2915.5_Preaward, Award, and Postaward Notifications, Protests,
and Mistakes
Sec. 2915.508 Discovery of mistakes.
Subpart 2915.6_Unsolicited Proposals
Sec. 2915.604 Agency points of contact.
Sec. 2915.605 Content of unsolicited proposals.
Sec. 2915.606 Agency procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
[[Page 27]]
Subpart 2915.4_Contract Pricing
Sec. 2915.405-70 Determining fair and reasonable price.
(a) Where the contractor insists on a price or demands a profit or
fee that the contracting officer considers unreasonable and the
contracting officer has taken all authorized actions to resolve the
matter (see FAR 15.402), the contract action must be referred to the HCA
for final resolution.
(b) Resolution under paragraph (a) of this section must be
documented and signed by the HCA and included in the contract file.
Subpart 2915.5_Preaward, Award, and Postaward Notifications, Protests,
and Mistakes
Sec. 2915.508 Discovery of mistakes.
(a) The HCA is authorized to make the administrative determinations
in FAR 15.508 after consultation with the Office of the Solicitor as
required by FAR 14.407-4. This authority may not be redelegated.
(b) The contracting officer must process a mistake and prepare a
case file in accordance with the requirements of FAR 14.407-4(e)(2). The
file must be submitted to the HCA for final determination.
Subpart 2915.6_Unsolicited Proposals
Sec. 2915.604 Agency points of contact.
(a) HCAs shall be the preliminary contacts for unsolicited
proposals. This responsibility may be delegated.
(b) HCAs must establish within their agencies procedures for
handling unsolicited proposals to ensure that unsolicited proposals are
controlled, evaluated, safeguarded and disposed of in accordance with
FAR 15.6.
(c) The HCA must not forward for consideration an unsolicited
proposal, if the proposal resembles an upcoming solicitation or a
procurement identified in the current annual acquisition plan.
Sec. 2915.605 Content of unsolicited proposals.
In addition to the contents required by FAR 15.605, unsolicited
proposals for research should contain a commitment by the offeror to
include cost-sharing or should represent a significant cost savings to
the Department of Labor.
Sec. 2915.606 Agency procedures.
When an unsolicited proposal is received by an official of the
Department of Labor, the recipient of the proposal must forward it to
the HCA. The HCA must address the requirements of FAR 15.604. The HCA
must determine if there is an office(s) within the Department of Labor
whose mission could be impacted by the proposal. If there is, the HCA
must designate a recipient within that office as an ``assignee'', and
take the following action:
(a) Within seven (7) working days of receipt, the HCA must forward
the proposal to the assignee along with instructions concerning the
security, review and disposition of the document.
(1) Inform the offeror of this transfer in writing (preferably by
facsimile or other electronic means).
(2) Within one (1) month of receipt of the unsolicited proposal by
the assignee, the office receiving the proposal must determine the merit
of the unsolicited proposal.
(i) If the office finds insufficient merit to consider the
unsolicited proposal further, then a letter will be sent to inform the
offeror that their proposal will not be considered further, and is not
being retained.
(ii) If, after a comprehensive evaluation as defined by FAR 15.606-
2, the office finds merit in the proposal, it must consult with a
Department of Labor contracting officer for direction in complying with
FAR 15.607. If not excluded by a condition of FAR 15.607(a), a
requisition may be prepared in accordance with FAR 15.607(b). If the
requirement exceeds the simplified acquisition threshold inclusive of
options then a request must be prepared for the Procurement Review Board
in accordance with Department of Labor procedures stated in Department
of Labor Manual Series 2-830 (available by mail from the Division of
Acquisition Management Services).
[[Page 28]]
(b) If within one (1) month of receipt (by the HCA) no assignee can
be identified, the HCA must notify the offeror that the proposal is not
being considered further.
PART 2916_CONTRACT TYPES
Sec.
Sec. 2916.000 Scope of part.
Subpart 2916.5_Indefinite-Delivery Contracts
Sec. 2916.505 Ordering.
Subpart 2916.6_Time-and-Materials, Labor-Hour, and Letter Contracts
Sec. 2916.603-2 Application.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Sec. 2916.000 Scope of part.
This part describes types of contracts that may be used in
acquisitions. It further prescribes policies and procedures for
implementing contracts.
Subpart 2916.5_Indefinite-Delivery Contracts
Sec. 2916.505 Ordering.
In accordance with FAR 16.505(b)(5), the Department of Labor Task
Order and Delivery Order Ombudsman is the DOL Competition Advocate (see
DOLAR part 2902).
Subpart 2916.6_Time-and-Materials, Labor-Hour, and Letter Contracts
Task orders against DOL contracts and orders against multi-agency or
Governmentwide contracts for services above the micropurchase threshold
must comply with the provisions of FAR 16.505.
Sec. 2916.603-2 Application.
The HCA is authorized to extend the period for definitization of a
letter contract required by FAR 16.603-2(c) in extreme cases where it is
determined in writing that such action is in the best interest of the
Government.
PART 2917_SPECIAL CONTRACTING METHODS
Sec.
Sec. 2917.000 Scope of part.
Subpart 2917.2_Options
Sec. 2917.202 Use of options.
Sec. 2917.207 Exercising options.
Subpart 2917.5_Interagency Acquisitions Under The Economy Act
Sec. 2917.500 Scope of subpart.
Sec. 2917.501 Definitions.
Sec. 2917.502 General.
Sec. 2917.503 Determinations and findings requirements.
Sec. 2917.504 Ordering procedures.
Sec. 2917.504-70 Signature authority and internal procedures.
Authority: 5 U.S.C. 301; 31 U.S.C. 1535; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Sec. 2917.000 Scope of part.
This part implements polices and procedures stated in FAR part 17.
Subpart 2917.2_Options
Sec. 2917.202 Use of options.
The HCA may, in unusual circumstances, approve option quantities in
excess of the 50 percent limit prescribed in FAR 17.203(g)(2). The
documentation required by FAR 17.205(a) must include a written
justification to fully support the need for such action.
Sec. 2917.207 Exercising options.
The contracting officer must use a standardized determination and
finding before exercising an option in accordance with FAR 17.207(f).
Subpart 2917.5_Interagency Acquisitions Under The Economy Act
Sec. 2917.500 Scope of subpart.
This subpart establishes DOL policy and procedures to assure the
appropriate and consistent use of interagency acquisitions under the
Economy Act (31 U.S.C. 1535) as prescribed by FAR 17.5.
[[Page 29]]
Sec. 2917.501 Definitions.
Interagency Acquisition means a procedure by which a DOL agency
obtains needed supplies or services from, or through, another DOL agency
or Federal agency, and appropriated funds are obligated.
Interagency Agreement means the legal instrument used for an
interagency acquisition to exchange funds or property between two DOL
organizations or between a DOL agency and another Federal agency. This
instrument is used when the DOL organization meets the definition of
either the Requesting Agency or the Servicing Agency. ``Interagency
Agreement'' and ``Interagency Acquisition'' does not include:
(1) Agreements involving supplies and services acquired from or
through mandatory sources, as described in FAR part 8;
(2) Contracts with the Small Business Administration based upon
Section 8(a) of the Small Business Act or a HUBZone small business under
the Historically Underutilized Business Zone (HUBZone) Act of 1997;
(3) Cooperative agreements and grants; or
(4) Any agreement or acquisition where a statute authorizes
exception.
Military Interdepartmental Procurement Request (MIPR) means a type
of interagency agreement used to place orders for supplies and non-
personal services with a military department.
Requesting Agency means the Federal agency that needs the supplies
or services, and is obligating the funds to provide for the costs of
performance.
Servicing Agency means the Federal agency which is providing the
supplies or performing the services, directly or indirectly, and will be
receiving the funds to provide for the costs of performance.
Sec. 2917.502 General.
(a) Policy. It is the policy of DOL to require that interagency
agreements are written to assure that the obligation of fiscal year
funds is valid, that statutory authority exists to obtain or perform the
stated requirements, that the stated requirements are consistent with
DOL's mission responsibilities, and that each agreement complies with
applicable laws and regulations.
(b) Applicability. The provisions of this subpart apply to
interagency acquisitions and agreements under the Economy Act.
(c) Appropriations principles. The appropriate use of interagency
acquisitions embodies several principles of Federal appropriations law.
(1) In order to record a valid obligation of appropriations, 31
U.S.C. 1501 imposes the requirements that interagency agreements be:
(i) A binding written agreement for specific goods or services to
meet an existing bona fide need;
(ii) For a purpose authorized by law; and
(iii) Executed and obligated by the receiving agency before the
expiration of available funds.
(2) The Economy Act authorizes interagency acquisitions and provides
for payment in advance, as well as reimbursement to the appropriation
account to which the performance costs have been charged. The Economy
Act further authorizes the servicing agency, as an alternative to
fulfilling the requirement through internal resources, to obtain the
needed supplies or services by contract.
(3) An agreement entered into under the Economy Act is recorded as
an obligation by the requesting agency the same as a contract. However,
under the Economy Act, the obligated appropriations must be deobligated
upon the date of ``expiration'' of the appropriation account to the
extent that the servicing agency has not incurred obligations through
charged costs or under a contract.
(4) Within DOL, the DOL agencies have a number of statutory
authorities available for entering into interagency agreements. Each DOL
agency, in consultation with the Office of the Solicitor, must be
responsible for determining those authorities, as well as constraints
applicable to the use of advance payments and contractors, and set-up
procedures.
Sec. 2917.503 Determinations and findings requirements.
Applicability. Before the execution of an interagency agreement
under the
[[Page 30]]
Economy Act, the contracting officer, or other authorized official, must
sign the determination required in FAR 17.503 and 31 U.S.C. 1535.
Sec. 2917.504 Ordering procedures.
(a) Requests for the processing of interagency agreements must be
submitted to the procurement office serving the requisitioning office.
(b) The procurement request must state whether the work is to be
performed by a DOL organization, a Federal agency other than DOL, or
through one of these entities by a contractor.
(c) Where the Economy Act is to be used as the authority for an
interagency acquisition, the requisitioning office must include the
facts which support the conclusion that it is more economical to obtain
the required supplies or services through the proposed interagency
agreement, rather than by direct contract with a commercial concern.
Current market prices or recent procurement prices may be used in this
process.
(d) Orders placed under interagency agreements may take any form
that is legally sufficient and reflects the agreement of the parties.
(e) The contracting officer, or authorized official, must assure
compliance with the ordering procedures and payment provisions
prescribed in FAR 17.504 and FAR 17.505, and require inclusion of the
following provisions in all interagency agreements and/or orders placed
against them:
(1) Legislative authority;
(2) Period of performance;
(3) Dollar amount of agreement;
(4) Billing provisions, including the name and address of the
following offices:
(i) Designated office to receive the required deliverables; and
(ii) Designated office to receive billings and process payments;
(5) Modification and termination provisions; and
(6) Other provisions, as appropriate.
(f) The contracting officer must assure that each interagency
agreement or order placed against it includes a reference number
assigned by each of the parties. Such numbers must be assigned in
accordance with the existing procedures established by the respective
organizations.
(g) Modifications to existing interagency agreements may be
accomplished through the use of an SF 30, Amendment of Solicitation/
Modification of Contract, or through any other format acceptable to the
parties.
Sec. 2917.504-70 Signature authority and internal procedures.
(a) A DOL contracting officer, HCA, Agency Head, or another official
designated by the Assistant Secretary for Administration and Management
in accordance with FAR 17.503(c), must sign interagency agreements and/
or orders placed against them which will result in a procurement action
by the requesting or servicing agency.
(b) Internal procedures (DLMS 3-1700) require DOL Agency Heads to
provide notice to the Director, Executive Secretariat of the signing of
all new Federal Interagency Agreements and deleting expired agreements.
(c) Agencies should be aware that, in addition to the requirements
of this subpart, there are various other internal Departmental
procedures that apply to various types of agreements. Agencies should
consult with the Office of the Solicitor and the Office of the Assistant
Secretary for Administration and Management, as appropriate.
[[Page 31]]
SUBCHAPTER D_SOCIOECONOMIC PROGRAMS
PART 2918 [RESERVED]
PART 2919_SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
Sec.
Sec. 2919.000 Scope of part.
Subpart 2919.2_Policies
Sec. 2919.201 General policy.
Sec. 2919.202 Specific policies.
Sec. 2919.202-1 Encouraging small business participation in
acquisitions.
Sec. 2919.202-2 Locating small business sources.
Subpart 2919.5_Set-Asides for Small Business
Sec. 2919.502 Setting aside acquisitions.
Sec. 2919.505 Rejecting Small Business Administration recommendations.
Subpart 2919.7_The Small Business Subcontracting Program
Sec. 2919.704 Subcontracting plan requirements.
Sec. 2919.705-1 General support for the program.
Sec. 2919.705-5 Awards involving subcontracting plans.
Sec. 2919.705-6 Post-award responsibilities of the contracting officer.
Sec. 2919.706 Responsibilities of the cognizant administrative
contracting officer.
Subpart 2919.8_Contracting with the Small Business Administration (The
8(a) Program)
Sec. 2919.812 Contract administration.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Sec. 2919.000 Scope of part.
This part implements FAR part 19 and small business programs at the
Department of Labor.
Subpart 2919.2_Policies
Sec. 2919.201 General policy.
(a) It is the policy of the Department of Labor to provide maximum
practicable opportunities to small businesses in acquisitions.
(b) Management responsibilities for small and disadvantaged business
utilization are the responsibility of the Director, Office of Small
Business Programs. This individual is responsible for performing all
functions and duties prescribed in FAR 19.2 including appointing, as
prescribed in FAR 19.201(d)(8), a small business specialist (SBS) for
each contract office. The Department of Labor Manual Series (DLMS),
Chapter 2 1000, addresses the implementation of the preference programs
in procurement including HUBZone, Subcontracting Plans, Standard Form
294 (Subcontracting Report for Individual Contracts), and the report,
Standard Form 295 (Summary Subcontracting Report) submission, et al.
(c) All DOL procurements over the simplified acquisition threshold,
whether being conducted via open market or by ordering from a pre-
existing contract vehicle such as GSA Schedule, must be reviewed and
receive a recommendation by the Office of Small Business Programs, the
Department of Labor's Office of Small Disadvantaged Business
Utilization, prior to being advertised. The Acquisition Screening and
Review Form DL-1-2004 shall be used for this purpose and the statement
of work and market survey documentation shall be submitted to Office of
Small Business Programs with the request for review.
Sec. 2919.202 Specific policies.
Contracting officers, administrative officers and program management
shall ensure that procurements are structured and conducted to afford
small businesses the maximum practicable opportunity to participate in
DOL's prime and subcontracts. Administrative officers will review
requisitions that will result in an award of $2 million or more using
available information to certify whether the acquisition would
constitute a ``bundled contract'' under the definition provided in FAR
2.101 in accordance with procedures established by the Office of Small
Business Programs. Each certification will be submitted to the Division
of Acquisition Management Services, and included with the requisition
[[Page 32]]
to the contracting officer. Reports will be provided to the Office of
Small Business Programs.
Sec. 2919.202-1 Encouraging small business participation in
acquisitions.
During the performance of a contract, the contracting officer will
consider performance against subcontracting plan goals, objectives and
planned efforts before exercising an optional period of performance. The
contracting officer will document the evaluation of the contractor's
actual performance using SF-294 data compared to their approved
subcontracting plan goals.
Sec. 2919.202-2 Locating small business sources.
Any procurement conducted on an unrestricted basis will include
solicitations to small businesses of each category with legislatively
established government-wide procurement goals (e.g., small, small
disadvantaged, women-owned small, HUBZone and service disabled veteran-
owned small businesses) to the extent practicable.
Subpart 2919.5_Set-Asides for Small Business
Sec. 2919.502 Setting aside acquisitions.
Contracting officers will conduct market surveys specifically to
determine whether procurements should be conducted via 8(a) procedures,
HUBZone procedures or as small business set-asides. If a reasonable
expectation exists that at least two responsible small businesses may
submit offers at fair market prices (three responsible small businesses
in procurements via GSA Federal Supply Schedule), then the procurement
will be set aside for small business. Market surveys will be documented
in all procurement actions not reserved for small businesses.
Sec. 2919.505 Rejecting Small Business Administration recommendations.
When the SBA Procurement Center Representative appeals a ``rejection
of an SBA recommendation'' as referenced in FAR 19.505(b) and (c), the
appeal must be referred to the Assistant Secretary for Administration
and Management who is authorized to make a final decision.
Subpart 2919.7_The Small Business Subcontracting Program
Sec. 2919.704 Subcontracting plan requirements.
Contracting Officers will refer subcontracting plans to the Office
of Small Business Programs for review and recommendation before awarding
contracts that require subcontracting plans. Contracting officers will
document the substance of any agreement with the contractor that permits
performance at less than the stated goals recommended by the Office of
the Small Business Programs.
Sec. 2919.705-1 General support for the program.
Contracting officers will make available a significant number of
award points for quality of the subcontracting plan. High-rated
subcontract plans will incorporate the highest yield of subcontracting
to all categories of small businesses when compared to DOL or separately
negotiated agency subcontracting goals on a dollar and percentage basis.
Conversely, prime small businesses will be compared favorably to large
businesses with subcontract goals, but may also be given the maximum
score for qualifying under multiple small business categories.
Contracting officers may also make available a significant number of
award points for performance against previous subcontracting plan goals
and efforts to achieve those goals.
Sec. 2919.705-5 Awards involving subcontracting plans.
The Office of Small Business Programs will review subcontracting
plans and SF 295 submissions for performance against business goals
negotiated between the Department of Labor and the Small Business
Administration.
Sec. 2919.705-6 Post-award responsibilities of the contracting officer.
(a) Even when a subcontracting plan was submitted to and approved by
the Office of Small Business Programs before award, the contracting
officer upon award, amendment, or significant
[[Page 33]]
modification of a contract, must forward to the Director, Office of
Small Business Programs, a copy of the subcontracting plan that was
incorporated into a contract or contract modification.
(b) Each contracting activity must maintain a list of active prime
contracts containing subcontracting plans.
Sec. 2919.706 Responsibilities of the cognizant administrative
contracting officer.
Contracting officers must collect annual and semiannual
subcontracting reports from contractors with established subcontracting
plans. Copies of the report, Standard Form 294 (Subcontracting Report
for Individual Contracts), and the report, Standard Form 295 (Summary
Subcontracting Report), must be forwarded to the Director, Office of
Small Business Programs, not later than the 30th day of the month
following the close of the reporting period. If the contractor has not
met the goals for the reporting period, the contracting officer will
provide an acknowledgement to the contractor and request corrective
action to be taken. If goals are not met in subsequent periods, the
contracting officer must consider factors that would demonstrate a good
faith effort, and take appropriate action including assessing liquidated
damages in accordance with FAR 52.219-16, and/or not exercising
subsequent option periods.
Subpart 2919.8_Contracting with the Small Business Administration (The
8(a) Program)
Sec. 2919.812 Contract administration.
(a) Contracting officers, or designees, must conduct periodic
evaluations of the performance of an 8(a) contract at various stages of
the contract period of performance. Any problems encountered during the
performance evaluation, which cannot be resolved, must be referred to
the Office of Small Business Programs for subsequent review and
discussion with the appropriate SBA official.
(b) The Office of Small Business Programs and the SBA should be
notified at least 45 days before initiating final action to terminate an
8(a) contract.
PARTS 2920 2921 [RESERVED]
PART 2922_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 2922.1_Basic Labor Policies
Sec.
Sec. 2922.101-3 Reporting labor disputes.
Sec. 2922.101-4 Removal of items from contractor's facilities affected
by work stoppages.
Sec. 2922.103-4 Approvals.
Subpart 2922.8_Equal Employment Opportunity
Sec. 2922.802 General.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2922.1_Basic Labor Policies
Sec. 2922.101-3 Reporting labor disputes.
Potential or actual labor disputes that may interfere with contract
performance must be reported by the contracting activity to the Office
of the Solicitor for legal advice or assistance. It may also become
necessary to seek advice or assistance from the National Office of the
Federal Mediation and Conciliation Service, 2100 K Street, NW.,
Washington, DC 20006, or other mediation agencies.
Sec. 2922.101-4 Removal of items from contractor facilities affected by
work stoppages.
Before initiating any action under FAR 22.101-4 for removal of items
from contractors' facilities, the contracting officer must obtain legal
advice from the Office of the Solicitor.
Sec. 2922.103-4 Approvals.
The ``agency approving official'' as identified in FAR 22.103-4(a)
and (b) is a manager, supervisor, or executive responsible for the
contracting officer's technical representative (see 2901.603-71).
[[Page 34]]
Subpart 2922.8_Equal Employment Opportunity
Sec. 2922.802 General.
Executive Order 11246, as amended, sets forth the Equal Opportunity
clause and requires that the Secretary of Labor promote full realization
of equal opportunity for all persons regardless of race, color,
religion, sex, or national origin. No DOL contracting officer may
contract for supplies or services in a manner to avoid applicability of
the requirements of E.O. 11246.
PART 2923_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c); 42 U.S.C. 8262(g).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2923.2_Energy And Water Efficiency and Renewable Energy
Sec. 2923.271 Purchase and use of environmentally sound and energy
efficient products and services.
The Department will implement policies and procedures that comply
with the intent and specific goals mandated by the following statutes
and executive orders and any other issuances as may be mandated to
maximize cost efficient energy management:
(a) The GSA Federal Supply Schedule Products Guide identifies the
recycled and recycled-content items available in the GSA FSS supply
system. Copies of the guide may be obtained, without cost, from the GSA,
Centralized Mailing List Service, P.O. Box 6477, Fort Worth, Texas,
76115, or by calling (817) 334-5215. See also GSA Advantage! at:
www.gsaadvantage.gov.
(b) Executive Order 13123, Greening the Government Through Efficient
Energy Management, dated June 8, 1999, requires agencies to select for
procurement those energy consuming goods or products which are the most
life cycle cost-effective (see FAR 7.101). Green purchasing includes the
acquisition of recycled content products, environmentally preferable
products and services, biobased products, energy- and water-efficient
products, alternate fuel vehicles, and products using renewable energy.
(1) To the extent practicable, each program official must require
vendors of goods or products to provide appropriate data that can be
used to assess the life cycle cost of each good or product, including
building energy system components, lighting systems, office equipment
and other energy using equipment.
(2) In preparing solicitations and evaluating and selecting offers
for award, contracting personnel must consider the life cycle cost data
along with other relevant evaluation criteria. If life cycle costing is
not used, the contract file must be documented to reflect the rationale
for not obtaining and evaluating the data.
(c) Executive Order 13101, Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition, dated September 14,
1998, requires agencies to comply with executive branch policies for the
acquisition and use of environmentally preferable products and services
and implement cost-effective procurement preference programs favoring
the purchase of these products and services.
(d) Executive Order 13148, Greening the Government Through
Leadership in Environmental Management Systems, dated April 21, 2000.
This Executive Order assists with developing an environmental management
system. The following sources are provided as references for the subject
matter indicated:
(1) The Office of the Federal Environmental Executive provides
references to all greening the Government executive orders, web links to
other relevant cites, and information on biobased and bioenergy
products. http://www.ofee.gov/gp/gp.htm.
(2) The Comprehensive Procurement Guidelines program is part of the
Environmental Protection Agency's continued effort to promote the use of
materials recovered from solid waste. This
[[Page 35]]
listing provides information on products made from recycled materials,
such as the carpeting and insulation used in office buildings, or reams
of office paper. www.epa.gov/cpg.
(3) ENERGY STAR is a government-backed program helping businesses
and individuals protect the environment through superior energy
efficiency. See also http://www.eere.energy.gov/femp/procurement.
www.energystar.gov.
(4) The Alternative Fuels Data Center is a one-stop shop for agency
alternative fuel and vehicle information needs. http://
www.afdc.nrel.gov.
(5) The Defense Logistics Agency has created an electronic mall for
buying environmentally preferable products. www.emall.dla.mil.
PARTS 2924 2927 [RESERVED]
[[Page 36]]
SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS
PART 2928_BONDS AND INSURANCE
Subpart 2928.2_Sureties and Other Security for Bonds
Sec.
Sec. 2928.204 Alternatives in lieu of corporate or individual sureties.
Subpart 2928.3_Insurance
Sec. 2928.305 Overseas workers' compensation and war hazard insurance.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2928.2_Sureties and Other Security for Bonds
Sec. 2928.204 Alternatives in lieu of corporate or individual sureties.
Upon receipt of any of the types of securities listed in FAR 28.20l
or FAR 28.203, the contracting officer must verify the validity of the
security and coordinate the retention of the security with the Chief
Financial Officer. Contracting officers may obtain access to Department
of Treasury Circular 570 through the Internet at http://
www.fms.treas.gov/c570/index.html.
Subpart 2928.3_Insurance
Sec. 2928.305 Overseas workers' compensation and war hazard insurance.
The authority of the Agency Head to recommend to the Secretary of
Labor waiver of the applicability of the Defense Base Act (42 U.S.C.
1651, et seq.) to any contract, subcontract, work location, or
classification of employees, is delegated to the HCA.
PART 2929_TAXES
Subpart 2929.1_General
Sec.
Sec. 2929.101 Resolving tax problems.
Subpart 2929.3_State and Local Taxes
Sec. 2929.303 Application of state and local taxes to Government
contractors and subcontractors.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2929.1_General
Sec. 2929.101 Resolving tax problems.
Contract tax problems or questions must be referred by the
contracting officer to the Office of the Solicitor for resolution.
Subpart 2929.3_State and Local Taxes
Sec. 2929.303 Applications of state and local taxes to Government
contractors and subcontractors.
(a) Contractors may only be treated as agents of the Government for
the purposes set forth in FAR 29.303(a) upon the written review and
approval of the Assistant Secretary for Administration and Management.
(b) Requests for approval under paragraph (a) of this section must
be submitted by the HCA through the Office of the Solicitor, to the
Division of Acquisition Management Services, for further action.
PART 2930_COST ACCOUNTING STANDARDS ADMINISTRATION
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2930.2_CAS Program Requirements
Sec. 2930.201-5 Waiver.
(a) The HCA is authorized to waive CAS requirements as provided in
FAR 30.201-5.
(b) Requests for waivers under paragraph (a) of this subsection must
be prepared by the contracting officer as
[[Page 37]]
prescribed in FAR 30.201-5(e) and submitted to the HCA.
PART 2931_CONTRACT COST PRINCIPLES AND PROCEDURES
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2931.1_Applicability
Sec. 2931.101 Objectives.
Individual and class deviations from cost principles in FAR part 31
must be processed as prescribed in DOLAR subpart 2901.4.
[69 FR 22991, Apr. 27, 2004]
PART 2932_CONTRACT FINANCING
Subpart 2932.4_Advance Payments for Non-Commercial Items
Sec.
Sec. 2932.402 General.
Sec. 2932.407 Interest.
Subpart 2932.7_Contract Funding
Sec. 2932.703 Contract funding requirements.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2932.4_Advance Payments for Non-Commercial Items
Sec. 2932.402 General.
The HCA is authorized to approve determinations and findings as well
as contract terms for advance payments. The contracting officer must
submit a recommendation for approval or disapproval of the contractor's
request to the HCA.
Sec. 2932.407 Interest.
The HCA may authorize advance payments without interest pursuant to
FAR 32.407.
Subpart 2932.7_Contract Funding
Sec. 2932.703 Contract funding requirements.
(a) Except in unusual circumstances, the contracting office may not
issue solicitations until an approved procurement request (PR),
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 obligation before receipt of the PR certifying that
funds are available when:
(1) The Assistant Secretaries, Inspector General, Bureau Chief,
Deputy Under Secretary, Solicitor of Labor, Commissioner, or Director of
the Women's Bureau certifies that such action is necessary to meet
critical program schedules for their program area;
(2) The Budget Officer certifies that program authority has been
issued and funds to cover the acquisition will be available before the
date set for receipt of proposals;
(3) The solicitation includes the clause at FAR 52.232-18,
Availability of Funds.
(b) The contracting office may not open bids/close solicitations
until a PR, either planning or final, has been received that contains a
certification of fund availability. Only the project or program official
with the authority to commit funds from the agency that initiated the PR
may make that written certification.
(c) The project or program office that initiated the PR is
responsible for obtaining required certifications.
PART 2933_PROTESTS, DISPUTES, AND APPEALS
Subpart 2933.1_Protests
Sec.
Sec. 2933.102 General.
Sec. 2933.103 Protests to the agency.
Sec. 2933.104 Protests to GAO.
Subpart 2933.2_Disputes And Appeals
Sec. 2933.203 Applicability.
Sec. 2933.209 Suspected fraudulent claims.
Sec. 2933.211 Contracting officer's decision.
Sec. 2933.212 Contracting officer's duties upon appeal.
Sec. 2933.213 Obligation to continue performance.
[[Page 38]]
Sec. 2933.270 Department of Labor Board of Contract Appeals.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c); E.O. 12979, 60 FR 55171,
3 CFR, 1995 Comp., p. 417.
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2933.1_Protests
Sec. 2933.102 General.
(a) The Division of Acquisition Management Services, 200
Constitution Ave., NW., S-1513 B, Washington, DC 20210-0001, telephone
(202) 693-7285, facsimile (202) 693-7290 (or the Office acting in that
capacity), is responsible for coordinating procurement protests filed
with the General Accounting Office.
(b) The authority of the Assistant Secretary for Administration and
Management under FAR 33.102(b) to determine that a solicitation,
proposed award, or award does not comply with the requirements of law or
regulation may be delegated to the HCA.
Sec. 2933.103 Protests to the agency.
(a) In accordance with Executive Order 12979, the following
procedures apply to agency protests:
(1) The filing time frames in FAR 33.103(e) apply to agency
protests. An agency protest is filed when the protest complaint is
received at the location the solicitation designates for serving
protests; or if none is designated, when filed with a contracting
officer or HCA.
(2) An interested party filing an agency protest may request either
that the contracting officer or the Agency Protest Official decide the
protest. The ``Agency Protest Official'' is an individual above the
level of the contracting officer and designated by the Assistant
Secretary for Administration and Management, such as the Competition
Advocate. The deciding official, whether a contracting officer or Agency
Protest Official, must work in consultation with the Office of the
Solicitor to resolve the protest.
(3) In addition to the information required by FAR 33.103(d)(2), the
protest must:
(i) Indicate that it is a protest to the agency;
(ii) Be contemporaneously filed with the contracting officer;
(iii) 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.
(b) ``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.
(c) If the Agency Protest Official is chosen by the protestor to
decide the protest, this is an alternative to a decision by the
contracting officer, not an appeal. The Agency Protest Official will not
consider appeals from a contracting officer's decision on an agency
protest.
(d) The deciding official should consider conducting a scheduling
conference with the protestor within five (5) days after the protest is
filed. The scheduling conference will establish deadlines for written
arguments in support of the agency protest and for agency officials to
present information in response to the protest issues. Alternative
Dispute Resolution techniques will be considered if determined
appropriate by the deciding official.
(e) Oral conferences may take place either by telephone or in
person. Other parties may attend at the discretion of the deciding
official.
(f) Apart from its protest document, the protestor will be given
only one opportunity to support or explain in writing the substance of
its protest. Department of Labor 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.
(g) The preferred practice is to resolve protests through informal
oral discussion.
(h) An interested party may represent itself or be represented by
legal counsel. The Department of Labor will not reimburse the protester
for any legal fees or costs related to the agency protest.
[[Page 39]]
(i) If an agency protest is received before contract award, the
contracting officer may only make award if the HCA makes a determination
to proceed under FAR 33.103(f)(1). Similarly, if an agency protest is
filed within ten (10) days after award, or within five (5) days of the
offer of a debriefing required by FAR 15.505 or 15.506, whichever is
later, the contracting officer must suspend performance of the contract
unless the HCA 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.
(j) 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 oral or written, dependent upon advice of legal
counsel.
(k) The deciding official must send a confirming letter within three
(3) days after the decision using a means that provides evidence of
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.
(3) If the deciding official sustains the protest, relief may
consist of any of the following:
(i) Recommendation that the contract be terminated for convenience
or cause, or that the solicitation be canceled.
(ii) Recompeting the requirement from the beginning of the
solicitation or from the last round of negotiations.
(iii) Amending the solicitation.
(iv) Refraining from exercising contract options.
(v) Awarding a contract consistent with statute, regulation, and the
terms of the solicitation.
(vi) Other action that the deciding official determines is
appropriate.
(l) If the deciding 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 deciding official, if the contracting officer was not
the deciding official, in writing, if any recommendations have not been
implemented and explain why.
(m) If the protest is denied, and contract performance has been
suspended under paragraph (i) of this section, the contracting officer
will not lift such suspension until five (5) days after the protest
decision has been issued, to allow the protester to file a protest with
the General Accounting Office, unless the HCA makes a new finding under
FAR 33.103(f)(3). The contracting officer shall consider allowing such
suspension to remain in effect pending the resolution of any GAO
proceeding.
(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 Labor.
Sec. 2933.104 Protests to GAO.
(a) General procedures. The HCA has the responsibility to prepare
and provide to the General Accounting Office (GAO) the agency report
with the information required by FAR 33.104(a). The agency report must
be coordinated with the Office of the Solicitor before the report is
signed and sent to the GAO.
(b) Protests before award. The authority of the HCA under FAR
33.104(b) to authorize a contract award when the agency has received
notice from the GAO of a protest filed directly with the GAO is
nondelegable. The HCA has the responsibility to prepare and provide to
the GAO the written finding with the information required by FAR
33.104(b)(1). The written finding must be coordinated with Office of the
Solicitor before the HCA affirms its approval by signing the written
finding and sending it to the GAO. Copies of the signed written finding
and the signed written notice to the GAO must be provided to the Senior
Procurement Executive within two (2) working days after they are sent to
the GAO.
(c) Protests after award. The authority of the HCA under FAR
33.104(c) to authorize contract performance when the agency has received
notice from the GAO of a protest filed directly with the GAO is
nondelegable. The HCA has the
[[Page 40]]
responsibility to prepare and provide to the GAO the written finding
with the information required by FAR 33.104(c)(2). The written finding
must be coordinated with the Office of the Solicitor before the notice
is signed by the HCA and sent to the GAO.
(d) Notice to the GAO. The authority of the HCA under FAR 33.104(g),
to report to the GAO the failure to fully implement the GAO
recommendations with respect to a solicitation for a contract or an
award or a proposed award of a contract within 60 days of receiving the
GAO recommendations, is nondelegable. The written notice must be
coordinated with the Office of the Solicitor before the notice is signed
by the HCA and sent to the GAO. A copy of all notices to the GAO
submitted in accordance with FAR 33.104(g) must be provided to the
Senior Procurement Executive within (two) working days after they are
sent to the GAO.
Subpart 2933.2_Disputes and Appeals
Sec. 2933.203 Applicability.
The authority of the Agency Head to determine that the application
of the Contract Disputes Act of 1978 to any contract with a foreign
government or agency of that government, or an international
organization or a subsidiary body of that organization, would not be in
the public interest is delegated to the HCA.
Sec. 2933.209 Suspected fraudulent claims.
The contracting officer must refer all matters relating to suspected
fraudulent claims by a contractor under the conditions in FAR 33.209 to
the Office of the Inspector General for further action or investigation.
Sec. 2933.211 Contracting officer's decision.
The written decision required by FAR 33.211(a)(4) must include, in
the paragraph listed under FAR 33.211(a)(4)(v), specific reference to
the Department of Labor Board of Contract Appeals (LBCA), 800 K Street,
NW, Suite 400 North, Washington, DC 20001-8002.
Sec. 2933.212 Contracting officer's duties upon appeal.
(a) When a notice of appeal has been received, the contracting
officer must endorse on the appeal the date of mailing (or the date of
receipt if the notice was not mailed). The contracting officer must also
notify the Solicitor of Labor of the appeal.
(b) The contracting officer should prepare and transmit the
administrative file for the Office of the Solicitor and assist with the
appeal.
Sec. 2933.213 Obligation to continue performance.
The contracting officer must include the clause at FAR 52.233-1,
Disputes (Alternate I), in contracts where continued performance is
necessary pending resolution of any claim arising under or relating to
the contract.
Sec. 2933.270 Department of Labor Board of Contract Appeals.
(a) The Department of Labor Board of Contract Appeals (LBCA) is
authorized by the Secretary to consider and determine appeals from
decisions of contracting officers arising under a contract, or relating
to a contract, made by the Department or any other executive agency when
such agency or the Administrator of the Office of Federal Procurement
Policy has designated the LBCA to decide the appeal.
(b) The LBCA rules of procedure are contained in 41 CFR part 29-
60.104, appearing in the July 1, 1983, edition of 41 CFR, subtitle A,
chapters 19-100.
PARTS 2934 2935 [RESERVED]
PART 2936_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 2936.2_Special Aspects of Contracting for Construction
Sec.
Sec. 2936.201 Evaluation of contractor performance.
Sec. 2936.209 Construction contracts with architect-engineer firms.
Subpart 2936.5_Contract Clauses
Sec. 2936.516 Quality surveys.
[[Page 41]]
Subpart 2936.6_Architect-Engineer Services
Sec. 2936.602 Selection of firms for architect-engineer contracts.
Sec. 2936.602-1 Selection criteria.
Sec. 2936.602-2 Evaluation boards.
Sec. 2936.602-3 Evaluation board functions.
Sec. 2936.602-4 Selection Authority.
Sec. 2936.602-5 Short selection processes for contracts not to exceed
$100,000.
Sec. 2936.603 Collecting data on and appraising firms' qualifications.
Sec. 2936.604 Performance evaluation.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2936.2_Special Aspects of Contracting for Construction
Sec. 2936.201 Evaluation of contractor performance.
The HCA must establish procedures to evaluate construction
contractor performance and prepare performance reports as required by
FAR 36.201.
Sec. 2936.209 Construction contracts with architect-engineer firms.
As required by FAR 36.209, no contract for construction of a project
may be awarded to the firm that designed the project, or to its
subsidiaries or affiliates, without the written approval of the
Assistant Secretary for Administration and Management. Any request for
approval must include the reason(s) why award to the design firm is
required; an analysis of the facts involving potential or actual
organizational conflicts of interest including benefits and detriments
to the Government and the prospective contractor; and the measures which
are to be taken to avoid, neutralize, or mitigate conflicts of interest.
Subpart 2936.5_Contract Clauses
Sec. 2936.516 Quality surveys.
The HCA is authorized to make the determination regarding the
impracticability of Government performance of original and final surveys
as prescribed in FAR 36.516.
Subpart 2936.6_Architect-Engineer Services
Sec. 2936.602 Selection of firms for architect-engineer contracts.
Sec. 2936.602-1 Selection criteria.
HCAs are authorized to approve the use of design competition under
the conditions in FAR 36.602-1(b).
Sec. 2936.602-2 Evaluation boards.
HCAs must establish procedures to provide permanent or ad hoc
architect-engineer evaluation boards as prescribed in FAR 36.602-2.
Procedures must provide for the appointment of private practitioners of
architecture, engineering, or related professions when such action is
determined in writing by the HCA to be essential to meeting the
Government's minimum needs.
Sec. 2936.602-3 Evaluation board functions.
The selection report required in FAR 36.602-3(d) must be prepared
for the approval of the HCA.
Sec. 2936.602-4 Selection Authority.
The HCA is authorized to serve as the designated Selection Authority
in accordance with FAR 36.602-1.
Sec. 2936.602-5 Short selection processes for contracts not to exceed
$100,000.
The selection process prescribed in FAR 36.602-5(b) must be used for
architect-engineer contracts not exceeding the simplified acquisition
threshold.
Sec. 2936.603 Collecting data on and appraising firms' qualifications.
(a) HCAs who acquire architect-engineer services must establish
procedures to comply with the requirements of FAR 36.603.
(b) Copies of procedures established under paragraph (a) of this
section must be submitted to the Division of Acquisition Management
Services, for review and recommendation for approval to the HCA when
updated. These procedures must include a list of names, addresses, and
telephone numbers of offices or boards assigned to maintain architect-
engineer qualification data files.
[[Page 42]]
Sec. 2936.604 Performance evaluation.
(a) The HCA must establish procedures to evaluate architect-engineer
contractor performance as required in FAR 36.604. Normally, the
performance report must be prepared by the contracting officer's
authorized representative or other official who was responsible for
monitoring contract performance and who is qualified to evaluate overall
performance. DOL Agency/Office procedures must prescribe instructions
for review of the report, before distribution, as prescribed in FAR
36.604(b).
(b) Performance reports must be made using Standard Form 1421,
Performance Evaluation (Architect-Engineer) as prescribed in FAR
36.702(c). Details covering unsatisfactory performance, including
Government notification to the contractor and written comments by the
contractor, must also be attached to the report.
PART 2937_SERVICE CONTRACTING
Subpart 2937.1_Service Contracts-General
Sec.
Sec. 2937.103 Contracting officer responsibility.
Sec. 2937.103-70 Department of Labor checklist to aid analysis and
review of requirements for service contracts.
Subpart 2937.2_Advisory and Assistance Services
Sec. 2937.203 Policy.
Subpart 2937.6_Preference for Performance-Based Contracting (PBC)
Sec. 2937.602 Elements of performance-based contracting.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2937.1_Service Contracts-General
Sec. 2937.103 Contracting officer responsibility.
The HCA is responsible for establishing internal review and approval
procedures for service contracts in accordance with OFPP Policy Letter
93-1 (Reissued), ``Management Oversight of Service Contracting''. As
defined by FAR 37.101, contracts for personal services are permitted
under the circumstances in 5 U.S.C. 3109.
Sec. 2937.103-70 Department of Labor checklist to aid analysis and
review of requirements for service contracts.
Contracting specialists and contracting officers must work in close
collaboration with the beneficiaries of the services being purchased to
ensure that contractor performance meets contract requirements and
performance standards.
(a) General. Following is a checklist to aid analysis and review of
requirements for service contracts.
(1) Is the statement of work complete, with a clear-cut division of
responsibility between the contracting parties?
(2) Is the statement of work discussed in terms the market can
satisfy?
(3) Does the statement of work encompass all commercially available
services that can meet the actual functional need (eliminates any
nonessential preferences that may thwart full and open competition)?
(4) Is the statement of work performance-based to the maximum extent
possible (i.e., is the acquisition structured around the purpose of the
work to be performed, as opposed to either the manner by which the work
is to be performed or a broad and imprecise statement of work)?
(b) Cost effectiveness. If the response to any of the following
questions is negative, the agency may not have a valid requirement or
not be obtaining the requirement in the most cost effective manner.
(1) Is the statement of work written so that it supports the need
for a specific service?
(2) Is the statement of work written so that it permits adequate
evaluation of contractor versus in-house cost and performance?
(3) Are the choices of contract type, quality assurance plan,
competition strategy, or other related acquisition strategies and
procedures in the acquisition plan appropriate to ensure good
[[Page 43]]
contractor performance to meet the user's needs?
(4) If a cost reimbursement contract is contemplated, is the
acquisition plan adequate to ensure that the contractor will have the
incentive to control costs under the contract?
(5) Is the acquisition plan adequate to address the cost
effectiveness of using contractor support (either long-term or short-
term) versus in-house performance?
(6) Is the cost estimate or other supporting cost information
adequate to enable the contracting office to effectively determine
whether costs are reasonable?
(7) Is the statement of work adequate to describe the requirement in
terms of ``what'' is to be performed as opposed to ``how'' the work is
to be accomplished?
(8) Is the acquisition plan adequate to ensure that there is proper
consideration given to ``quality'' and ``best value?''
(c) Control. If the response to any of the following questions is
negative, there may be a control problem.
(1) Are there sufficient resources to evaluate contractor
performance when the statement of work requires the contractor to
provide advice, analysis and evaluation, opinions, alternatives, or
recommendations that could significantly influence agency policy
development or decision-making?
(2) Does the quality assurance plan provide for adequate monitoring
of contractor performance?
(3) Is the statement of work written so that it specifies a contract
deliverable or requires progress reporting on contractor performance?
(4) Is agency expertise adequate to independently evaluate the
contractor's approach, methodology, results, options, conclusions or
recommendations?
(d) Conflicts of interest. If the response to any of the following
questions is affirmative, there may be a conflict of interest.
(1) Can the potential offeror perform under the contract to devise
solutions or make recommendations that would influence the award of
future contracts to that contractor?
(2) If the requirement is for support services (such as system
engineering or technical direction), were any of the potential offerors
involved in developing the system design specifications or in the
production of the system?
(3) Has a potential offeror participated in earlier work involving
the same program or activity that is the subject of the present
contract, wherein the offeror had access to source selection or
proprietary information not available to other offerors competing for
the contract?
(4) Will the contractor be evaluating a competitor's work?
(5) Does the contract allow the contractor to accept its own
products or activities on behalf of the Government?
(6) Will the work under this contract put the contractor in a
position to influence government decision-making, e.g., developing
regulations that will affect the contractor's current or future
business?
(7) Will the work under this contract affect the interests of the
contractor's other clients?
(8) Are any of the potential offerors, or their personnel who will
perform the contract, former agency officials who--while employed by the
agency--personally and substantially participated in the development of
the requirement for, or the procurement of, these services within the
past two years?
(e) Competition. If the response to any of the following questions
is negative, competition may be unnecessarily limited.
(1) Is the statement of work defined so as to avoid overly
restrictive specifications or performance standards?
(2) Is the contract formulated in such a way as to avoid creating a
continuous and dependent arrangement with the same contractor?
(3) Is the use of an indefinite quantity or term contract
arrangement appropriate to obtain the required services?
(4) Will the requirement be obtained through the use of full and
open competition?
[[Page 44]]
Subpart 2937.2_Advisory and Assistance Services
Sec. 2937.203 Policy.
(a) HCAs having a requirement for certain advisory and assistance
services are required by the Department of Labor Manual Series (See DLMS
2 836) to prepare a written justification for such services. Written
justification must be submitted to the Assistant Secretary for
Administration and Management for review by the Procurement Review
Board, for Assistant Secretary for Administration and Management
approval.
(b) Regardless of the type of action planned, the justification in
paragraph (a) of this section must include the following:
(1) A statement of need, which certifies that the requested services
do not unnecessarily duplicate any previously performed work.
(2) Nature and scope of the need, and the results expected.
(3) Extent to which in-house staff availability was assessed, and
the reasons why procurement of outside services is necessary.
(4) Any additional information or data that support the requirement
for a contract.
(5) Name(s) and title(s) of official(s) who will be assigned as
project officer(s) to work with the contractor, and who can be contacted
for additional Information.
(6) A statement that the Government policy on advisory and
assistance services has been reviewed and complies with FAR 37.203.
Subpart 2937.6_Preference for Performance-Based Contracting (PBC)
Sec. 2937.602 Elements of performance-based contracting.
(a) Performance-based contracting is defined in FAR 37.101 and
discussed in FAR 37.6. Although FAR Part 37 primarily addresses services
contracts, PBC is not limited to these contracts. PBC is the preferred
way of contracting for services. (See exceptions listed in FAR 37.102.)
Generally, when contract performance risk under a PBC specification can
be shifted to the contractor to allow for the operation of objective
incentives, a contract type with objectively measurable incentives
(e.g., Firm-Fixed-Price, Fixed-Price-Incentive-Fee, or Cost-Plus-
Incentive-Fee) is appropriate. However, when contractor performance
(e.g., cost control, schedule, or quality/technical) is best evaluated
subjectively using qualitative measures, a Cost-Plus-Award-Fee contract
may be used.
(b) A labor hour level-of-effort contract is not considered a PBC.
PARTS 2938 2941 [RESERVED]
[[Page 45]]
SUBCHAPTER G_CONTRACT MANAGEMENT
PART 2942_CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 2942.1_Contract Audit Services
Sec.
Sec. 2942.101 Policy.
Subpart 2942.15_Contractor Performance Information
Sec. 2942.1501 Scope.
Sec. 2942.1502 Policy.
Sec. 2942.1503 Procedures.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2942.1_Contract Audit Services
Sec. 2942.101 Policy.
The OASAM Division of Cost Determination is responsible for
establishing billing rates and indirect cost rates as prescribed in FAR
42.7 for the Department of Labor.
Subpart 2942.15_Contractor Performance Information
Sec. 2942.1501 Scope.
This subpart provides policies and procedures for evaluating,
maintaining, and releasing contractor performance information under DOL
contracts.
Sec. 2942.1502 Policy.
DOL contracting officers are required to use or interface with the
Past Performance Information Retrieval System (PPIRS), and specifically
the National Institutes of Health's Contractor Performance System. The
HCA is responsible for ensuring that a contractor performance evaluation
system is generated to meet the requirements of FAR subpart 42.15,
including compliance with subcontracting plans. Contracts, task orders,
and delivery orders, exceeding the simplified acquisition threshold,
should be formally evaluated in writing. Interim evaluations should be
performed on contracts exceeding one year in duration. This will assist
contractors with improving marginal performance and identifying any
major deficiencies. It will also facilitate performance evaluations at
contract completion, as well as determining whether to exercise contract
options, if any.
Sec. 2942.1503 Procedures.
(a) In accordance with FAR 42.1502, the contracting officer will
prepare an interim evaluation of a contractor's performance at least
annually for submission to the Past Performance Information Retrieval
System (PPIRS), and specifically the Contractor Performance System
maintained by the National Institutes of Health.
(b) The contracting officer, or designee, must determine who will
evaluate a contractor's performance. The contracting officer's technical
representative, program manager, contract specialists or administrators,
and users are candidates likely to be selected to perform the
evaluation.
(c) A contractor's performance evaluation should be obtained from a
person who monitored contractor performance when that individual's
assignment of duties or employment terminates before physical completion
of the contract. The areas of performance to be selected for evaluation
should be tailored to the type of supplies or services normally acquired
by the contracting activities and the type of contract. HCAs must ensure
uniformity of the evaluation criteria within their contracting
activities.
(d) Release of contractor performance evaluation information.
(1) Requests for performance evaluation information from the public
must be processed in accordance with FOIA, as implemented by DOL under
29 CFR part 70.
(2) Release of a contractor's performance evaluation information to
other Federal agencies is subject to FAR 42.1502. When the performance
evaluation information is released to other federal agencies, it should
be provided with a written statement that it is nonpublic information
that must be
[[Page 46]]
processed under FOIA principles if a request for its disclosure is
received.
(e) Even though the retention period for past performance evaluation
information is three years (see FAR 42.1503), the contractor's
performance evaluation, any contractor rebuttal, and final decision
become a part of the contract file. Therefore, disposal of the
contractor's evaluation information must be accomplished in accordance
with FAR 4.804.
PART 2943_CONTRACT MODIFICATIONS
Subpart 2943.2_Change Orders
Sec.
Sec. 2943.205 Contract clauses.
Subpart 2943.3_Forms
Sec. 2943.301 Use of forms.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2943.2_Change Orders
Sec. 2943.205 Contract clauses.
HCAs may establish procedures, or office policies, when appropriate
for authorizing the contracting officer to vary the 30-day period for
submission of adjustment proposals to the clauses prescribed by FAR
43.205.
Subpart 2943.3_Forms
Sec. 2943.301 Use of forms.
(a) FAR 43.301(a)(1)(vi) requires the use of Standard Form 30 (SF-
30) to execute any obligation or deobligation of contract funds after
award. FAR 13.307(c)(3) allows, and the Department of Labor prefers, the
use of the SF-30 for simplified acquisitions. The SF-30 also must be
used to deobligate funds when effecting contract closeout when obligated
funds exceed the final contract costs. In such an instance, the SF-30
may be issued as an administrative modification on a unilateral basis if
the contractor's financial release has been separately obtained.
(b) The contracting officer must include, in any unilateral contract
modification issued for contract closeout, a statement that the
contractor has signed a release of claims and indicate the date the
release of claims was signed by the contractor.
PART 2944_SUBCONTRACTING POLICIES AND PROCEDURES
Subpart 2944.1_General
Sec.
Sec. 2944.101 Waiver.
Subpart 2944.2_Consent To Subcontract
Sec. 2944.201-1 Consent requirements.
Sec. 2944.202 Contracting officer's evaluation.
Sec. 2944.202-2 Considerations.
Sec. 2944.203 Consent limitations.
Subpart 2944.3_Contractors' Purchasing Systems Reviews
Sec. 2944.302 Requirements.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2944.1_General
Sec. 2944.101 Waiver.
The waiver of consent must be in writing, signed by the contracting
officer, and included in the contract file. The waiver must include all
supporting facts, including the rationale for waiving the consent to
subcontract requirements.
Subpart 2944.2_Consent To Subcontract
Sec. 2944.201-1 Consent requirements.
In accordance with FAR 44.201-1(b) or FAR 44.201-2, advance
notification and agreement are required for all cost-reimbursement,
time-and-materials, or labor-hour subcontracts exceeding the simplified
acquisition threshold.
Sec. 2944.202 Contracting officer's evaluation.
Sec. 2944.202-2 Considerations.
The review required by FAR 44.202-2(a) must be documented in writing
(including supporting facts and rationale), signed by the contracting
officer, and included in the contract file.
[[Page 47]]
Sec. 2944.203 Consent limitations.
Any limitations placed on the consent to subcontract must be
documented in writing (including supporting facts and rationale), signed
by the contracting officer, and included in the contract file.
Subpart 2944.3_Contractors' Purchasing Systems Reviews
Sec. 2944.302 Requirements.
The authority of the Assistant Secretary for Administration and
Management under FAR 44.302(a), to raise or lower the $25 million review
level for a contractor's purchasing system, may not be delegated. When a
contractor's purchasing system review is required by the contracting
officer, the effort must be coordinated with the OASAM Business
Operations Center's Division of Acquisition Management Services and the
Division of Cost Determination.
PART 2945_GOVERNMENT PROPERTY
Subpart 2945.1_General
Sec.
Sec. 2945.104 Review and correction of contractors' property control
systems.
Sec. 2945.105 Records of Government property.
Subpart 2945.3_Providing Government Property to Contractors
Sec. 2945.302 Providing facilities.
Subpart 2945.4_Contractor Use and Rental of Government Property
Sec. 2945.403 Rental-use and charges clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2945.1_General
Sec. 2945.104 Review and correction of contractors' property control
systems.
When the Government's property administrator determines that review
and approval of the contractor's property control system rests with DOL,
the Government's property administrator must review the system to
determine whether the contractor will be able to meet the requirements
of FAR 45.104. The review must be completed, signed by the appointed
property administrator, and retained in the contract file.
Sec. 2945.105 Records of Government property.
Contracting officers must maintain a file on any Government-
furnished property (GFP) in the possession of contractors. As a minimum,
the file must contain the following:
(a) A copy of the applicable portions of the contract that list the
GFP;
(b) Contracting officer's letters assigning the GFP administrator to
the contract;
(c) Written evidence that the contractor's property control system
was reviewed and approved as required by FAR 45.104;
(d) If applicable, documentation of the request and approval or
denial of the contractor's requests to acquire or fabricate special test
equipment in accordance with FAR 45.307 or other property;
(e) The contractor's written notice of receipt of the GFP and any
reported discrepancies thereto, as required by FAR 45.502-1 and 45.502-
2, respectively;
(f) Any other documents pertaining to or affecting the status of the
GFP in the possession of contractors or subcontractors under the
contract;
(g) Documentation of the screening and disposal of all GFP as
required by FAR 45.6.
Subpart 2945.3_Providing Government Property to Contractors
Sec. 2945.302 Providing facilities.
The HCA is authorized to make the determination to provide
facilities to a contractor as prescribed in FAR 45.302-1(a)(4).
[[Page 48]]
Subpart 2945.4_Contractor Use and Rental of Government Property
Sec. 2945.403 Rental-use and charges clause.
The HCA must make the determination to charge rent on the basis of
use under the clause at FAR 52.245-9 when the contracting officer
provides access to Government production and research property, as
prescribed in FAR 45.403(a).
PARTS 2946 2951 [RESERVED]
[[Page 49]]
SUBCHAPTER H_CLAUSE AND FORMS
PART 2952_SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 52.2_Text of Provisions and Clauses
Sec. 2952.201-70 Contracting Officer's Technical Representative (COTR).
Insert the following clause into contracts requiring COTR
representation under 2901.603.71:
Contracting officer's technical representative (COTR) May 2004
(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
deliverables; 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
must issue such changes.
PART 2953_FORMS
Subpart 2953.1_General
Sec.
Sec. 2953.100 Request for Recommendation by Procurement Review Board DL
1-490.
Sec. 2953.101 Simplified Acquisition Documentation Checklist DL 1-2216.
Sec. 2953.102 Quotation for Simplified Acquisitions DL 1-2078.
Sec. 2953.103 Acquisition Screening and Review--over $100,000 DL 1-2004.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 69 FR 22991, Apr. 27, 2004, unless otherwise noted.
Subpart 2953.1_General
Sec. 2953.100 Request for Recommendation by Procurement Review Board DL
1-490.
The following form must be used by the requisitioning office to
submit a request for review by the Procurement Review Board as specified
in DOLAR 2901 and 2943. This form must be submitted through the
Assistant Secretary for the program office to the Director, Division of
Acquisition Management Services, for scheduling before the Procurement
Review Board.
[[Page 50]]
[GRAPHIC] [TIFF OMITTED] TR27AP04.000
[[Page 51]]
[GRAPHIC] [TIFF OMITTED] TR27AP04.001
[[Page 52]]
[GRAPHIC] [TIFF OMITTED] TR27AP04.002
[[Page 53]]
[GRAPHIC] [TIFF OMITTED] TR27AP04.003
Sec. 2953.101 Simplified Acquisition Documentation Checklist DL 1-2216.
The following checklist must be used to document all simplified
acquisitions at or below the simplified acquisition threshold.
[[Page 54]]
[GRAPHIC] [TIFF OMITTED] TR27AP04.004
Sec. 2953.102 Quotation for Simplified Acquisitions DL 1-2078.
The following form must be used to document all simplified
acquisitions above the micro-purchase threshold and below the simplified
acquisition threshold. This form may also be used to document commercial
acquisitions on a fixed price basis up to $5 million.
[[Page 55]]
[GRAPHIC] [TIFF OMITTED] TR27AP04.005
Sec. 2953.103 Acquisition Screening and Review--over $100,000 DL 1-
2004.
The requiring organization must complete the following form for all
acquisitions above the simplified acquisition threshold. This form will
then be submitted through the contracting officer to the Office of Small
Business Programs for review.
[[Page 56]]
[GRAPHIC] [TIFF OMITTED] TR27AP04.006
[[Page 57]]
CHAPTER 30--DEPARTMENT OF HOMELAND SECURITY, HOMELAND SECURITY
ACQUISITION REGULATION (HSAR)
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL
Part Page
3001 Federal Acquisition Regulations System...... 59
3002 Definitions of words and terms.............. 64
3003 Improper business practices and personal
conflicts of interest................... 66
3004 Administrative matters...................... 68
SUBCHAPTER B--ACQUISITION PLANNING
3005 Publicizing contract actions................ 70
3006 Competition requirements.................... 70
3007 Acquisition planning........................ 72
3008
Required sources of supplies and services [Reserved]
3009 Contractor qualifications................... 73
3010
Market research [Reserved]
3011 Describing agency needs..................... 81
3012 xxx......................................... 81
SUBCHAPTER C--CONTRACT METHODS AND CONTRACT TYPES
3013 Simplified acquisition procedures........... 82
3014
Sealed bidding [Reserved]
3015 Contracting by negotiation.................. 82
3016 Types of contracts.......................... 83
3017 Special contracting methods................. 84
3018 Emergency acquisitions...................... 85
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
3019 Small business programs..................... 86
3020-3021
[Reserved]
3022 Application of labor laws to Government
acquisitions............................ 87
[[Page 58]]
3023 Environment, energy and water efficiency,
renewable energy technologies,
occupational safety, and drug-free
workplace............................... 88
3024 Protection of privacy and freedom of
information............................. 89
3025 Foreign acquisition......................... 89
3026
Other socioeconomic programs [Reserved]
3027 Patents, data, and copyrights............... 91
3028 Bonds and insurance......................... 92
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
3029
Taxes [Reserved]
3030 Cost accounting standards administration.... 95
3031 Contract cost principles and procedures..... 95
3032 Contract financing.......................... 95
3033 Protests, disputes, and appeals............. 96
3034 Major system acquisition.................... 97
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
3035 Research and development contracting........ 98
3036 Construction and architect-engineer
contracts............................... 99
3037 Service contracting......................... 99
3038
Federal supply schedule contracting [Reserved]
3039
Acquisition of information technology [Reserved]
3040
[Reserved]
3041
Acquisition of utility services [Reserved]
SUBCHAPTER G--CONTRACT MANAGEMENT
3042 Contract administration and audit services.. 101
3043
Contract modifications [Reserved]
3044
Subcontracting policies and procedures [Reserved]
3046 Quality assurance........................... 101
3047 Transportation.............................. 104
3048
Value engineering [Reserved]
3049
Termination of contracts [Reserved]
3050
Extraordinary contractual actions [Reserved]
3051
Use of government sources by contractors [Reserved]
SUBCHAPTER H--CLAUSES AND FORMS
3052 Solicitation provisions and contract clauses 105
3053 Forms....................................... 129
[[Page 59]]
SUBCHAPTER A_GENERAL
PART 3001_FEDERAL ACQUISITION REGULATIONS SYSTEM
Subpart 3001.1_Purpose, Authority, Issuance
Sec.
Sec. 3001.101 Purpose.
Sec. 3001.102 Statement of Guiding Principles for the Federal
Acquisition System.
Sec. 3001.103 Authority.
Sec. 3001.104 Applicability.
Sec. 3001.105 Issuance.
Sec. 3001.105-1 Publication and code arrangement.
Sec. 3001.105-2 Arrangement of regulations.
Sec. 3001.105-3 Copies.
Sec. 3001.106 OMB Approval under the Paperwork Reduction Act.
Subpart 3001.3_Agency Acquisition Regulations
Sec. 3001.301 Policy.
Sec. 3001.301-70 Amendment of HSAR.
Sec. 3001.301-71 Effective date.
Sec. 3001.301-72 HSAC or HSAR Notice numbering.
Sec. 3001.303 Publication and codification.
Sec. 3001.304 Agency control and compliance procedures.
Subpart 3001.4_Deviations from the FAR
Sec. 3001.403 Individual deviations.
Sec. 3001.404 Class deviations.
Subpart 3001.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 3001.601 General.
Sec. 3001.602 Contracting Officers.
Sec. 3001.602-3 Ratification of unauthorized commitments.
Sec. 3001.603 Selection, appointment, and termination of appointment.
Sec. 3001.603-1 General.
Subpart 3001.7_Determinations and Findings
Sec. 3001.704 Content.
Subpart 3001.70_Other Determinations, Waivers, Exceptions, Approvals,
Reviews, and Submittals
Sec. 3001.7000 Coordination and approval.
Sec. 3001.7001 Content.
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 CFR
part 1, subpart 1.3, and DHS Delegation Number 0702.
Source: 68 FR 67871, Dec. 4, 2003, unless otherwise note.
Subpart 3001.1_Purpose, Authority, Issuance
Sec. 3001.101 Purpose.
The Department of Homeland Security Acquisition Regulation (HSAR)
establishes uniform acquisition policies and procedures, which implement
and supplement the Federal Acquisition Regulation (FAR).
Sec. 3001.102 Statement of Guiding Principles for the Federal
Acquisition System.
(d) The FAR and this supplement are to be interpreted permissively,
if consistent with statutory and regulatory requirements, policy, and
sound professional judgment.
Sec. 3001.103 Authority.
The HSAR is issued by DHS's Chief Procurement Officer, who is the
Senior Procurement Executive (SPE), see 41 U.S.C. 1702 and DHS
Delegation Number 0702, under authority of 5 U.S.C. 301-302, the Office
of Federal Procurement Policy Act, Pub. L. No. 93-400, 88 Stat. 796
(1974), including sections 22 and 25, 41 U.S.C. 1707, 1302 and 1303, and
(FAR) 48 CFR part 1, subpart 1.3.
[77 FR 50632, Aug. 22, 2012]
Sec. 3001.104 Applicability.
(a) The following order of precedence applies to resolve any
acquisition regulation or procedural inconsistency found within HSAR or
the Homeland Security Acquisition Manual (HSAM):
(1) Statute;
(2) FAR or other applicable regulation or Executive Order;
(3) HSAR;
(4) Department of Homeland Security (DHS) Directives; and
(5) HSAM.
(b) The Transportation Security Administration (TSA) exception to
this regulation is authorized by the Aviation and Transportation
Security Act of 2001 (ATSA) (section 101(a) of Public Law 107-71, as
implemented at section
[[Page 60]]
114(o) of title 49) for contracts awarded by TSA pursuant to this ATSA
authority. The Consolidated Appropriations Act of 2008, Public Law 110-
161, Division E, Title V, section 568 eliminates ATSA section 114(o)
effective June 23, 2008. Accordingly, TSA acquisitions initiated after
June 22, 2008 are subject to 48 CFR Chapters 1 and 30.
(c) Contracts involving Non-Appropriated Fund Instrumentalities
(NAFIs) must contain suitable dispute provisions and may provide for
appellate dispute jurisdiction in the Civilian Board of Contract Appeals
(CBCA). However, the contract must not attempt to confer court
jurisdiction that does not otherwise exist.
(d) The FAR and HSAR may be followed, where feasible, for:
(1) No-cost contracts;
(2) Concession contracts; and
(3) Contracts on behalf of NAFIs entered into by appropriated fund
contracting officers.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 25767, May 2, 2006; 72
FR 1297, Jan. 11, 2007; 73 FR 30318, May 27, 2008]
Sec. 3001.105 Issuance.
Sec. 3001.105-1 Publication and code arrangement.
(a) The HSAR is published in:
(1) The Federal Register and
(2) Cumulated form in the Code of Federal Regulations (CFR).
Sec. 3001.105-2 Arrangement of regulations.
(a) General. The HSAR, which encompasses both Department-wide and
Component-unique guidance, conforms to the arrangement and numbering
system prescribed by (FAR) 48 CFR 1.105-2. Guidance that is unique to a
Component contains the organization's acronym or abbreviation directly
following the title. The following acronyms and abbreviations apply:
DHS Management (MGMT), including the Office of Procurement
Operations (OPO) and the Office of Selective Acquisitions (OSA);
Federal Emergency Management Agency (FEMA);
Federal Law Enforcement Training Center (FLETC);
Transportation Security Administration (TSA);
U.S. Coast Guard (USCG);
U.S. Customs and Border Protection (CBP);
U.S. Immigration and Customs Enforcement (ICE); and
U.S. Secret Service (USSS).
[77 FR 50632, Aug. 22, 2012]
Sec. 3001.105-3 Copies.
Official versions of the HSAR are available in the Code of Federal
Regulations, as supplemented and revised from time to time by the
Federal Register, both of which are available from the Government
Printing Office in paper and electronic form. The HSAR is also available
in electronic form at http://www.dhs.gov. A convenient but unofficial
up-to-date version of the HSAR is also available from the Government
Printing office at http://www.gpoaccess.gov/ecfr/index.html. The
Homeland Security Acquisition Manual (HSAM), which complements the HSAR,
can also be found at http://www.dhs.gov.
[77 FR 50632, Aug. 22, 2012]
Sec. 3001.106 OMB Approval under the Paperwork Reduction Act.
(a) The Office of Management and Budget (OMB) has assigned the
following control numbers that must appear on the upper right-hand
corner of the face page of each solicitation, contract, modification,
and order:
OMB Control No. 1600-002 (Contract related forms)
OMB Control No. 1600-005 (Offeror submissions)
OMB Control No. 1600-003 (Contractor submissions)
OMB Control No. 1600-004 (Protests)
(b) OMB regulations and OMB's approval and assignment of control
numbers are conditioned upon not requiring more than three copies
(including the original) of any document of information. OMB has granted
a waiver to permit the Department to require up to eight copies of
proposal packages, including proprietary data, for solicitations,
provided that contractors who submit only an original and two copies
will not be placed at a disadvantage.
[[Page 61]]
Subpart 3001.3_Agency Acquisition Regulations
Sec. 3001.301 Policy.
(a)(1) The HSAR is issued for Departmental guidance according to the
policy cited in (FAR) 48 CFR 1.301. The HSAR establishes uniform
Department of Homeland Security policies and procedures for all
acquisition activities within the Department of Homeland Security.
Component supplemental acquisition regulations to be inserted in the
HSAR as a HSAR supplement regulation must be reviewed and approved by
the Chief Procurement Officer (CPO) before the CPO authorizes and
submits the proposed content for publication in the Federal Register
under (FAR) 48 CFR part 1, subparts 1.3 and 1.5.
(2)(i) The CPO is authorized to issue internal agency guidance at
any organizational level. Department-wide procedures are contained in
the HSAM. The HCA may implement internal procedures or supplement the
FAR, HSAR, or HSAM as provided in HSAM 3001.3. The HCA may issue
procedures or delegate this authority to any organizational level deemed
appropriate. Component procedures may be more restrictive or require
higher approval levels than those permitted by the HSAM, unless
otherwise specified.
(ii) Individuals granted authority in the HSAR may delegate that
authority, unless the FAR or HSAR specifically state that the authority
is not delegable.
(b) The Under Secretary of Management established procedures through
Management Directive (MD) 0490.1, entitled Federal Register Notice and
Rules, to ensure that agency acquisition regulations are published for
comment in the Federal Register in conformance with FAR procedures at
(FAR) 48 CFR subpart 1.5.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 25767, May 2, 2006; 71
FR 48800, Aug. 22, 2006; 77 FR 50632, Aug. 22, 2012]
Sec. 3001.301-70 Amendment of HSAR.
(a) Requests for changes to the regulation may be recommended by DHS
personnel, other Government agencies, or the public. Change requests are
to be submitted in the following format to the Department of Homeland
Security, Attn: Office of the Under Secretary of Management, Chief
Procurement Officer, Washington, DC 20528.
(1) Problem: Succinctly state the problem(s) created by current HSAR
requirements or processes and describe the factual or legal reasons for
requesting a regulatory change.
(2) Recommendation: Identify the recommended change by using the
current language and lining through the words to be deleted and
inserting proposed language in brackets. If the change is extensive,
deleted language may be displayed by forming a box with diagonal lines
connecting the corners.
(3) Discussion: Explain why the change is necessary and how the
change will solve the problem. Address any cost or administrative impact
on Government activities, offerors, and contractors. Provide any other
helpful information and documents such as statutes, legal decisions,
regulations, reports, etc.
(4) Point of Contact: Provide a point of contact for answering
questions regarding the recommendation, along with a telephone number,
e-mail or other method of reaching the contact.
(b) The HSAR is maintained by the CPO through the HSAR/HSAM change
process (i.e., input from various Components including representatives
specifically designated to formulate Departmental acquisition policies
and procedures).
(1) Homeland Security Acquisition Circular (HSAC). HSAC (see (HSAR)
48 Chapter 3001.301-72) will be used to amend (HSAR) 48 Chapter 30.
(2) HSAR Notices will be issued (with a specified expiration date)
when interim guidance is necessary under any of the following
circumstances:
(i) To promulgate, as rapidly as possible, selected material in a
general or narrative manner, in advance of a HSAC issuance;
(ii) To disseminate other acquisition related information; or
(iii) To issue guidance that is expected to be effective for a
period of 1 year or less.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 25767, May 2, 2006; 71
FR 48800, Aug. 22, 2006; 77 FR 50632, Aug. 22, 2012]
[[Page 62]]
Sec. 3001.301-71 Effective date.
Unless otherwise stated:
(a) HSAR changes apply to solicitations issued on or after the
effective date of the change;
(b) Contracting officers may, at their discretion, amend
solicitations issued before the effective date to include HSAR changes,
provided award of the resulting contract(s) will occur on or after the
effective date of the change; and
(c) When required by law, contracting officers must modify existing
contracts to include HSAR changes. Otherwise, and where feasible,
contracting officers should consider using the Changes clause or other
suitable authority, to modify existing contracts to include HSAR
changes.
[71 FR 25767, May 2, 2006, as amended at 77 FR 50632, Aug. 22, 2012]
Sec. 3001.301-72 HSAC or HSAR Notice numbering.
HSACs and HSAR Notices will be numbered consecutively on a fiscal
year basis beginning with number ``01'' prefixed by the last two digits
of the fiscal year (e.g., HSAR Notices 03-01 and 03-02 indicate the
first two HSAR Notices issued in fiscal year 2003).
Sec. 3001.303 Publication and codification.
(a) The HSAR is issued as chapter 30 of Title 48 of the CFR.
(1) The FAR numbering illustrations at (FAR) 48 CFR 1.105-2 apply to
the HSAR.
(2) Coverage within HSAR 48 CFR chapter 30 is identified by the
prefix ``30'' followed by the complete FAR cite which may extend
downward to the subparagraph level (e.g., (HSAR) 48 CFR 3001.101).
(3) Coverage in HSAR chapter 30 that supplements the FAR will use
part, subpart, section, and subsection numbers ending in ``70'' through
``89''. A series of numbers beginning with ``70'' is used for provisions
and clauses (e.g., (HSAR) 48 CFR 3001.301-70).
(4) Coverage in HSAR 48 CFR chapter 30, other than that identified
with a ``70'' or higher number, which implements the FAR uses the
identical number sequence and caption of the FAR segment being
implemented which may extend downward to the subparagraph level.
Subparagraph numbers/letters may not be shown as sequential, but may be
shown by the specific paragraph/subparagraph implemented from the FAR
(e.g., (HSAR) 48 CFR 3003.301 contains subparagraphs (a) and (b) because
only these subparagraphs, correlating to FAR, are being supplemented by
(HSAR) 48 CFR chapter 30).
(5) Component-unique guidance. Supplementary material for which
there is no counterpart in the FAR or HSAR shall be identified using
chapter, part, subpart, section, or subsection numbers of ``90'' and up
(e.g., the U.S. Coast Guard's acronym is ``USCG''; an USCG-unique clause
pertaining to ``Inspection and/or Acceptance'' would be designated
``USCG 3052.246-90'').
(6) References and citations. Cross references to the FAR in the
HSAR will be cited by ``FAR'' followed by the FAR numbered cite, and
cross reference to the HSAM in the HSAR will be cited by ``HSAM''
followed by the HSAM numbered cite.
(7) Department/agency and Component supplements must parallel the
FAR and HSAR numbering, except department/agency supplemental numbering
uses subsection numbering of 90 and up, instead of 70 and up.
Table 1-1--HSAR Numbering
----------------------------------------------------------------------------------------------------------------
FAR Is implemented as Is supplemented as
----------------------------------------------------------------------------------------------------------------
19.............................................................. 3019 3019.70
19.5............................................................ 3019.5 3019.570
19.501.......................................................... 3019.501 3019.501-70
19.501-1........................................................ 3019.501-1 3019.501-170
----------------------------------------------------------------------------------------------------------------
[[Page 63]]
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 48800, Aug. 22, 2006; 77
FR 50632, Aug. 22, 2012]
Sec. 3001.304 Agency control and compliance procedures.
(a) The HSAR is under the direct oversight and control of the
Department of Homeland Security, Office of the Chief Procurement Officer
(OCPO), which is responsible for evaluation, review, and issuance of all
Department-wide acquisition regulations and guidance. Each HCA may
supplement the HSAR with Component guidance. Supplementation should be
kept to a minimum. Components proposing to issue regulatory supplements
or use solicitation or contract clauses on a repetitive basis must
obtain legal review by the Component's legal counsel and forward
supplements to the CPO for concurrence prior to publication in the
Federal Register.
(c) The CPO is responsible for evaluating all regulatory coverage in
agency acquisition regulations to determine if the substance could apply
to other agencies and to make recommendation for inclusion in the FAR.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 48801, Aug. 22, 2006; 77
FR 50632]
Subpart 3001.4_Deviations from the FAR and HSAR
Sec. 3001.403 Individual deviations.
Unless precluded by law, executive order, or other regulation, the
HCA is authorized to approve individual deviation (except with respect
to (FAR) 48 CFR 30.201-3, 30.201-4; the requirements of the Cost
Accounting Standards board rules and regulations at 48 CFR chapter 99
(FAR appendix); and part 50). Submit requests per (HSAR) 48 CFR
3001.7000, including complete documentation of the justification for the
deviations (See HSAM 3001.403).
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 48801, Aug. 22, 2006; 77
FR 50632, Aug. 22, 2012]
Sec. 3001.404 Class deviations.
(a) Unless precluded by law, executive order, or other regulation,
the CPO is authorized to approve FAR class deviations, except (FAR) 48
CFR 30.201-3, and 30.201-4 (the requirements of the Cost Accounting
Standards Board); 48 CFR Chapter 99 (FAR Appendix); and part 50. Prior
to authorizing a FAR class deviation, the CPO shall consult with the
chairperson of the Civilian Agency Acquisition Council (CAA Council),
unless the CPO determines that urgency precludes such consultation. FAR
class deviation requests shall be submitted to the CPO per (HSAR) 48 CFR
subpart 3001.70 including complete documentation of the justification
for the deviation, and the estimated number and type of contract actions
affected. The CPO will transmit a copy of each approved FAR deviation to
the FAR Secretariat.
[71 FR 25767, May 2, 2006]
Subpart 3001.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 3001.601 General.
DHS Delegation Number 0200.1, Delegation to the Directorate of
Management, delegates authority from the Secretary to the Under
Secretary of Management to manage the acquisition function. DHS
Delegation 0700, Delegation to the Chief Procurement Officer for
Acquisition and Financial Assistance Management, delegates this
authority from the Under Secretary of Management to the Chief
Procurement Officer.
Sec. 3001.602 Contracting officers.
Sec. 3001.602-3 Ratification of unauthorized commitments.
DHS policy requires that acquisitions be made only by Government
officials having authority to enter into such acquisitions. Acquisitions
made by other than authorized personnel are contrary to Departmental
policy and may be considered matters of serious misconduct on the part
of an employee making an unauthorized commitment, and may result in
disciplinary action being taken against an employee who makes an
unauthorized commitment.
[68 FR 67871, Dec. 4, 2003, as amended at 77 FR 50633, Aug. 22, 2012]
[[Page 64]]
Sec. 3001.603 Selection, appointment, and termination of appointment.
Sec. 3001.603-1 General.
Under DHS Delegations, the Heads of the Contracting Activity (HCA),
with authority to redelegate no lower than the Chief of the Contracting
Office (COCO), are authorized to select and appoint contracting officers
and terminate their appointment.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 25767, May 2, 2006]
Subpart 3001.7_Determinations and Findings
Sec. 3001.704 Content.
The following format shall be used for all determinations and
findings (D&Fs), unless otherwise specified in the FAR or the HSAR. The
contracting officer is responsible for preparing D&Fs, and requirements
and technical personnel are responsible for the accuracy and adequacy of
the supporting factual information, which shall be furnished to the
contracting officer.
Insert specific information indicated in brackets.
Determination and Findings
Under [insert citation for appropriate statutory and/or regulatory
basis for D&F], the Department of Homeland Security, [insert contracting
activity], is granted authority to [insert nature and/or description of
the action being approved].
Findings
[Findings that detail the particular circumstances, facts, or
reasoning essential to support the determination.]
Determination
[A determination, based on the findings, that the proposed action is
justified under the applicable statute or regulation.] [Expiration date
of the D&F, if required.]
[Signature of authorized official]
Name and Title
[month, day, and year]
Date
Subpart 3001.70_Other Determinations, Waivers, Exceptions, Approvals,
Reviews, and Submittals
Sec. 3001.7000 Coordination and approval.
Documents requiring CPO approval. Requests shall be prepared in
writing by the contracting officer and submitted through the HCA to the
CPO for approval.
Sec. 3001.7001 Content.
The general format at (HSAR) 48 CFR 3001.704 shall be used to
provide a justification to support the requested determination, waiver,
exception or approval.
PART 3002_DEFINITIONS OF WORDS AND TERMS
Subpart 3002.1_Definitions
Sec.
Sec. 3002.101 Definitions.
Subpart 3002.2_Abbreviations
Sec. 3002.270 Abbreviations.
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 CFR
part 1, subpart 1.3, and DHS Delegation Number 0702.
Source: 68 FR 67871, Dec. 4, 2003, unless otherwise note.
Subpart 3002.1_Definitions
Sec. 3002.101 Definitions.
Chief Information Officer (CIO) means the Director of the Office of
the CIO.
Chief of the Contracting Office (COCO) means the individual(s)
responsible for managing the contracting office(s) within a Component.
Chief Procurement Officer (CPO) means the Senior Procurement
Executive (SPE).
Component means the following entities for purposes of this chapter:
(1) DHS Management (MGMT), including the Office of Procurement
Operations (OPO) and the Office of Selective Acquisitions (OSA);
(2) Federal Emergency Management Agency (FEMA);
(3) Federal Law Enforcement Training Center (FLETC);
[[Page 65]]
(4) Transportation Security Administration (TSA);
(5) U.S. Coast Guard (USCG);
(6) U.S. Customs and Border Protection (CBP);
(7) U.S. Immigration and Customs Enforcement (ICE); and
(8) U.S. Secret Service (USSS).
Contracting activity includes all the contracting offices within a
Component and is the same as the term ``procuring activity.''
Contracting officer means an individual authorized by virtue of
position or by appointment to perform the functions assigned by the
Federal Acquisition Regulation and the Homeland Security Acquisition
Regulation.
Head of the Agency means the Secretary of the Department of Homeland
Security, or, by delegation, the Under Secretary of Management.
Head of the Contracting Activity (HCA) means the official who has
overall responsibility for managing the contracting activity. For DHS,
the HCAs are:
(1) Director, Office of Procurement Operations (OPO);
(2) Director, Office of Selective Acquisitions (OSA);
(3) Director, Office of Acquisition Management (FEMA);
(4) Chief, Procurement Division (FLETC);
(5) Assistant Administrator for Acquisition (TSA);
(6) Director of Contracting and Procurement (USCG);
(7) Executive Director, Procurement (CBP);
(8) Director, Office of Acquisition Management (ICE); and
(9) Chief, Procurement Operations (USSS).
Legal counsel means the Department of Homeland Security Office of
General Counsel or Component office providing legal services to the
contracting organization.
Legal review means review by legal counsel.
Major system means, for DHS, that combination of elements that will
function together to produce the capabilities required to fulfill a
mission need, including hardware, equipment, software, or any
combination thereof, but excluding construction or other improvements to
real property. A DHS major system is one where the total lifecycle costs
for the system are estimated to equal or exceed $300M (in constant 2009
dollars), or if the Deputy Secretary has designated a program or project
as a major system. This corresponds to a DHS Level 1 or 2 capital
investment acquisition.
Micro-purchase threshold is defined as in (FAR) 48 CFR 2.101, except
when (HSAR) 48 CFR 3013.7003(a) applies.
Senior Procurement Executive (SPE) for the Department of Homeland
Security means the DHS Chief Procurement Officer (CPO), who is the
individual appointed pursuant to 41 U.S.C. 1702 to be responsible for
management direction of the procurement system of DHS, including
implementation of the unique procurement policies, regulations, and
standards of DHS.
Sensitive Information, as used in this Chapter, means any
information which if lost, misused, disclosed, or, without
authorization, is accessed or modified, could adversely affect the
national or homeland security interest, the conduct of Federal programs,
or the privacy to which individuals are entitled under 5 U.S.C. 552a
(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, homeland security or
foreign policy. This definition includes the following categories of
information:
(1) Protected Critical Infrastructure Information (PCII) as set out
in the Critical Infrastructure Information Act of 2002 (Title II,
Subtitle B, of the Homeland Security Act, Pub. L. 107-296, 196 Stat.
2135), as amended, the implementing regulations thereto (6 CFR part 29)
as amended, the applicable PCII Procedures Manual, as amended, and any
supplementary guidance officially communicated by an authorized official
of the Department of Homeland Security (including the PCII Program
Manager or his/her designee);
(2) Sensitive Security Information (SSI), as defined in 49 CFR part
1520, as amended, ``Policies and Procedures of Safeguarding and Control
of SSI,'' as
[[Page 66]]
amended, and any supplementary guidance officially communicated by an
authorized official of the Department of Homeland Security (including
the Assistant Secretary for the Transportation Security Administration
or his/her designee);
(3) Information designated as ``For Official Use Only,'' which is
unclassified information of a sensitive nature and the unauthorized
disclosure of which could adversely impact a person's privacy or
welfare, the conduct of Federal programs, or other programs or
operations essential to the national or homeland security interest; and
(4) Any information that is designated ``sensitive'' or subject to
other controls, safeguards or protections in accordance with
subsequently adopted homeland security information handling procedures.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 25767, May 2, 2006; 71
FR 48801, Aug. 22, 2006; 72 FR 1297, Jan. 11, 2007; 73 FR 30318, May 27,
2008; 75 FR 41099, July 15, 2010; 77 FR 50633, Aug. 22, 2012]
Subpart 3002.2_Abbreviations
Sec. 3002.270 Abbreviations.
CBCA Civilian Board of Contract Appeals
CFO Chief Financial Officer
CIO Chief Information Officer
COCO Chief of the Contracting Office
COR Contracting Officer's Representative
COTR Contracting Officer's Technical Representative
CPO Chief Procurement Officer
D&F Determination and Findings
FOIA Freedom of Information Act
HCA Head of the Contracting Activity
J&A Justification and Approval for Other than Full and Open Competition
KO Contracting Officer
MD Management Directive
OCPO Office of the Chief Procurement Officer
OIG Office of the Inspector General
OSDBU Office of Small and Disadvantaged Business Utilization
PCR SBA's Procurement Center Representative
RFP Request for Proposal
SBA Small Business Administration
SBS Small Business Specialist
SPE Senior Procurement Executive
[72 FR 1297, Jan. 11, 2007, as amended at 77 FR 50633, Aug. 22, 2012]
PART 3003_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 3003.1_Safeguards
Sec.
Sec. 3003.101 Standards of conduct.
Sec. 3003.101-3 Agency regulations.
Subpart 3003.2_Contractor Gratuities to Government Personnel
Sec. 3003.203 Reporting suspected violations of the Gratuities clause.
Sec. 3003.204 Treatment of violations.
Subpart 3003.3_Reports Of Suspected Antitrust Violations
Sec. 3003.301 General.
Subpart 3003.4_Contingent Fees
Sec. 3003.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
Subpart 3003.5_Other Improper Business Practices
Sec. 3003.502 Subcontractor kickbacks.
Sec. 3003.502-2 Subcontractor kickbacks.
Subpart 3003.9_Whistleblower Protections for Contractor Employees
Sec. 3003.901 Definitions.
Subpart 3003.10_Contractor Code of Business Ethics and Conduct
Sec. 3003.1003 Requirements.
Sec. 3003.1004 Contract clauses.
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 CFR
part 1, subpart 1.3, and DHS Delegation Number 0702.
Source: 68 FR 67871, Dec. 4, 2003, unless otherwise note.
Subpart 3003.1_Safeguards
Sec. 3003.101 Standards of conduct.
Sec. 3003.101-3 Agency regulations.
The United States Office of Government Ethics has promulgated
regulations applicable to the entire Executive Branch that address the
conduct matters referenced in (FAR) 48 CFR
[[Page 67]]
3.101-3. See 5 CFR vol. 3, ch. XVI, subch. B. The Department of Homeland
Security has also issued Management Directive 0480.1, Ethics/Standards
of Conduct.
[77 FR 50633, Aug. 22, 2012]
Subpart 3003.2_Contractor Gratuities to Government Personnel
Sec. 3003.203 Reporting suspected violations of the Gratuities clause.
(a) Suspected violations shall be reported to the contracting
officer responsible for the acquisition (or the COCO if the contracting
officer is suspected of the violation). The contracting officer (or the
COCO) shall obtain from the person reporting the violation, and any
witnesses to the violation, the following information:
(1) The date, time, and place of the suspected violation;
(2) The name and title (if known) of the individual(s) involved in
the violation; and
(3) The details of the violation (e.g., the gratuity offered or
intended) to obtain a contract or favorable treatment under a contract.
(4) The person reporting the violation and witnesses (if any) shall
be requested to sign and date the information certifying that the
information furnished is true and correct.
(b) The contracting officer shall submit the report to the COCO
(unless the alleged violation was directly reported to the COCO) and the
Head of the Contracting Activity (HCA) for further action. The COCO and
HCA will determine, with the advice of the Component legal counsel,
whether the case warrants submission to the OIG, or other investigatory
organization.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 25768, May 2, 2006; 71
FR 48801, Aug. 22, 2006]
Sec. 3003.204 Treatment of violations.
(a) The HCA is the official designated to make the determination
under (FAR) 48 CFR 3.204(a) whether a gratuities violation has occurred.
If the HCA has been personally and substantially involved in the
specific procurement, the advice of legal counsel should be sought to
determine whether the CPO should designate an alternate decision maker.
(b) The HCA shall ensure that the hearing procedures required by
(FAR) 48 CFR 3.204(b) are afforded to the contractor. Legal counsel
shall be consulted regarding the appropriateness of the hearing
procedures that are established.
(c) If the HCA determines that the alleged gratuities violation
occurred the HCA shall consult with legal counsel regarding appropriate
action and notify the Office of Inspector General.
[77 FR 50633, Aug. 22, 2012]
Subpart 3003.3_Reports Of Suspected Antitrust Violations
Sec. 3003.301 General.
(b) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for
suspected antitrust violations, except reports of suspected antitrust
violations shall be coordinated with legal counsel for referral to the
Department of Justice, if deemed appropriate.
Subpart 3003.4_Contingent Fees
Sec. 3003.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(a) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for
misrepresentation or violations of the covenant against contingent fees.
(b)(4) The procedures at (HSAR) 48 CFR 3003.203 shall be followed
for misrepresentation or violations of the covenant against contingent
fees, except reports of misrepresentation or violations of the covenant
against contingent fees shall be coordinated with legal counsel for
referral to the Department of Justice, if deemed appropriate.
Subpart 3003.5_Other Improper Business Practices
Sec. 3003.502 Subcontractor kickbacks.
Sec. 3003.502-2 Subcontractor kickbacks.
(g) The DHS OIG shall receive the prime contractor or subcontractors
written report.
[[Page 68]]
Subpart 3003.9_Whistleblower Protections for Contractor Employees
Sec. 3003.901 Definitions.
Authorized official of an agency means the Department of Homeland
Security's CPO.
Subpart 3003.10_Contractor Code of Business Ethics and Conduct
Source: 77 FR 50633, Aug. 22, 2012, unless otherwise noted.
Sec. 3003.1003 Requirements.
(a) Contractor requirements. Contractors making written disclosures
under the clause at (FAR) 48 CFR 52.203-13 must use the electronic
Contractor Disclosure Form at http://www.oig.dhs.gov. Contractors making
disclosures under contracts which do not contain the clause at (FAR) 48
CFR 52.203-13 are encouraged to also use this electronic form.
Sec. 3003.1004 Contract clauses.
(a) The contracting officer shall insert the clause at (HSAR) 48 CFR
3052.203-70, Instructions for Contractor Disclosure of Violations, in
solicitations and contracts containing the clause at (FAR) 48 CFR
52.203-13.
PART 3004_ADMINISTRATIVE MATTERS
Subpart 3004.1_Contract Execution
Sec.
Sec. 3004.103 Contract clause.
Subpart 3004.4_Safeguarding Classified and Sensitive Information Within
Industry
Sec. 3004.470 Security requirements for access to unclassified
facilities, Information Technology resources, and sensitive
information.
Sec. 3004.470-1 Scope.
Sec. 3004.470-2 Policy.
Sec. 3004.470-3 Contract clauses.
Subpart 3004.8_Government Contract Files
Sec. 3004.804 Closeout of contract files.
Sec. 3004.804-5 Procedures for closing out contract files.
Sec. 3004.804-570 Supporting closeout documents.
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 CFR
part 1, subpart 1.3, and DHS Delegation Number 0702.
Source: 68 FR 67871, Dec. 4, 2003, unless otherwise note.
Subpart 3004.1_Contract Execution
Sec. 3004.103 Contract clause.
Insert the clause at (FAR) 48 CFR 52.204-1, Approval of Contract, in
each solicitation where approval to award the resulting contract is
required above the contracting officer level.
Subpart 3004.4_Safeguarding Classified and Sensitive Information Within
Industry
Source: 71 FR 25768, May 2, 2006, unless otherwise noted.
Sec. 3004.470 Security requirements for access to unclassified
facilities, Information Technology resources, and sensitive
information.
Sec. 3004.470-1 Scope.
This section implements DHS's policies for assuring the security of
unclassified facilities, Information Technology (IT) resources, and
sensitive information during the acquisition process and contract
performance.
Sec. 3004.470-2 Policy.
(a) DHS's policies and procedures on contractor personnel security
requirements are set forth in various management directives (MDs),
Directives, and Instructions. MD 11042.1, Safeguarding Sensitive But
Unclassified (For Official Use Only) Information describes how
contractors must handle sensitive but unclassified information. The DHS
Sensitive Systems Policy Directive 4300A and the DHS 4300A Sensitive
Systems Handbook, provide the policies and procedures on security for
Information Technology resources. Compliance with these policies and
procedures, as amended, is required.
(b) The contractor must not use or redistribute any DHS information
processed, stored, or transmitted by
[[Page 69]]
the contractor except as specified in the contract.
[71 FR 25768, May 2, 2006, as amended at 77 FR 50634, Aug. 22, 2012]
Sec. 3004.470-3 Contract clauses.
(a) Contracting officers shall insert a clause substantially the
same as the clause at (HSAR) 48 CFR 3052.204-70, Security Requirements
for Unclassified Information Technology Resources, in solicitations and
contracts that require submission of an IT Security Plan.
(b) Contracting officers shall insert the basic clause at (HSAR) 48
CFR 3052.204-71, Contractor Employee Access, in solicitations and
contracts when contractor employees require recurring access to
Government facilities or access to sensitive information. Contracting
officers shall insert the basic clause with its Alternate I for
acquisitions requiring contractor access to IT resources. For
acquisitions in which the contractor will not have access to IT
resources, but the Department has determined contractor employee access
to sensitive information or Government facilities must be limited to
U.S. citizens and lawful permanent residents, the contracting officer
shall insert the clause with its Alternate II. Neither the basic clause
nor its alternates shall be used unless contractor employees will
require recurring access to Government facilities or access to sensitive
information. Neither the basic clause nor its alternates should
ordinarily be used in contracts with educational institutions.
[71 FR 25768, May 2, 2006, as amended at 77 FR 50634, Aug. 22, 2012]
Subpart 3004.8_Government Contract Files
Sec. 3004.804 Closeout of contract files.
Sec. 3004.804-5 Procedures for closing out contract files.
Sec. 3004.804-570 Supporting closeout documents.
(a) When applicable and prior to contract closure, the contracting
officer shall obtain the listed DHS and Department of Defense (DOD)
forms from the contractor for closeout.
(1) DHS Form 700-3, Contractor's Release (e.g., see (FAR) 48 CFR
52.216-7);
(2) DHS Form 700-2, Contractor's Assignment of Refunds, Rebates,
Credits and Other amounts (e.g., see (FAR) 48 CFR 52.216-7);
(3) DHS Form 700-1, Cumulative Claim and Reconciliation Statement
(e.g., see (FAR) 48 CFR 4.804-5(a)(13)); and
(4) DD Form 882, Report of Inventions and Subcontracts (e.g., see
(FAR) 48 CFR 52.227-14).
(b) The forms listed in this section (see (HSAR) 48 CFR part 3053)
are used primarily for the closeout of cost-reimbursement, time-and-
materials, and labor-hour contracts. The forms may also be used for
closeout of other contract types to protect the Government's interest.
[71 FR 25768, May 2, 2006, as amended at 77 FR 50634, Aug. 22, 2012]
[[Page 70]]
SUBCHAPTER B_ACQUISITION PLANNING
PART 3005_PUBLICIZING CONTRACT ACTIONS
Subpart 3005.4_Release of Information
Sec.
Sec. 3005.402 General public.
Sec. 3005.470 Contractor award announcements, advertisements, and
releases.
Sec. 3005.470-1 Policy.
Sec. 3005.470-2 Contract clauses.
Subpart 3005.90_Publicizing Contract Actions for Personal Services
Contracting
Sec. 3005.9000 Applicability (USCG).
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 CFR
part 1, subpart 1.3, and DHS Delegation Number 0702.
Source: 68 FR 67871, Dec. 4, 2003, unless otherwise note.
Subpart 3005.4_Release of Information
Sec. 3005.402 General public.
Requests for other specific records information shall be processed
according to the DHS Freedom of Information Act rules and regulations
(HSAR) 48 CFR 3024.203.
Sec. 3005.470 Contractor award announcements, advertisements, and
releases.
Sec. 3005.470-1 Policy.
(a) DHS policy requires its contracting officers to restrict DHS
contractors from referring to its DHS contract(s) in commercial
advertising in a manner that states or implies the Government approves
or endorses the contractor's products or services or considers them
superior to other products or services. The intent of this policy is to
prevent the appearance of Government bias toward any product or service.
(b) The Department's contractors share the responsibility for
protecting sensitive and classified information related to efforts under
their contracts. For any contract that involves sensitive or classified
information, prior to the release of any contract award announcement,
advertisement, or other release of information pertaining to the
contract, the contractor must obtain the approval of the responsible
contracting officer.
[77 FR 50634, Aug. 22, 2012]
Sec. 3005.470-2 Contract clauses.
(a) Insert the clause at (HSAR) 48 CFR 3052.205-70, Advertisements,
Publicizing Awards, and Releases, in all solicitations and contracts
that exceed the simplified acquisition threshold.
(b) Except for research contracts with educational institutions, if
the contract involves sensitive or classified information, use the
clause with its Alternate I. For research contracts with educational
institutions, see (HSAR) 48 CFR 3035.70-2(b).
[77 FR 50634, Aug. 22, 2012]
Subpart 3005.90_Publicizing Contract Actions for Personal Services
Contracting
Sec. 3005.9000 Applicability (USCG).
Contracts awarded by the U.S. Coast Guard using the procedures in
(HSAR) 48 CFR 3037.104-91 are expressly authorized for the Coast Guard
under 10 U.S.C. 1091, as amended by section 1512(d) of the Homeland
Security Act, 6 U.S.C. 552(d), and are exempt from (FAR) 48 CFR part 5.
[71 FR 25768, May 2, 2006]
PART 3006_COMPETITION REQUIREMENTS
Subpart 3006.1_Full and Open Competition
Sec.
Sec. 3006.101 Policy.
Sec. 3006.101-70 Definitions.
Subpart 3006.2_Full and Open Competition After Exclusion of Sources
Sec. 3006.202 Establishing or maintaining alternative sources.
[[Page 71]]
Subpart 3006.3_Other Than Full and Open Competition
Sec. 3006.302 Circumstances permitting other than full and open
competition.
Sec. 3006.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
Sec. 3006.302-270 Unusual and compelling urgency.
Sec. 3006.302-7 Public interest.
Sec. 3006.303 Justifications.
Sec. 3006.303-270 Content.
Sec. 3006.304 Approval of justification.
Sec. 3006.304-70 DHS Approval of justification.
Subpart 3006.5_Competition Advocates
Sec. 3006.501 Requirement.
Subpart 3006.90_Competition Requirements for Personal Services
Contracting
Sec. 3006.9000 Applicability (USCG).
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 CFR
part 1, subpart 1.3, and DHS Delegation Number 0702.
Source: 68 FR 67871, Dec. 4, 2003, unless otherwise note.
Subpart 3006.1_Full and Open Competition
Sec. 3006.101 Policy.
Sec. 3006.101-70 Definitions.
As used in this part:
Agency competition advocate means an individual designated by the
Chief Procurement Officer (CPO) to perform, at a minimum, the functions
under (FAR) 48 CFR 6.502(b) and is synonymous with ``Departmental
Competition Advocate'' and ``Senior Competition Advocate (SCA).''
Competition advocate for the procuring activity means the individual
who has been designated by the Component to approve Justifications and
Approvals (J & A) for other than full and open competition as permitted
by the (FAR) 48 CFR 6.304 and to perform the duties and responsibilities
assigned under (FAR) 48 CFR 6.502. This term is synonymous with
``procuring activity competition advocate.''
[71 FR 25769, May 2, 2006, as amended at 71 FR 48801, Aug. 22, 2006]
Subpart 3006.2_Full and Open Competition After Exclusion of Sources
Sec. 3006.202 Establishing or maintaining alternative sources.
(b)(1) The HCA is delegated authority to approve a D&F in support of
a contract action award under the authority of (FAR) 48 CFR 6.202(a).
Submit D&F in the format per (HSAR) 48 CFR 3001.704.
Subpart 3006.3_Other Than Full and Open Competition
Sec. 3006.302 Circumstances permitting other than full and open
competition.
Sec. 3006.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
(b)(4) The contracting officer may rely on this exception in the
case where only one source is available to provide additional units or
replacement items under a specific make and model requirement, but only
where the CPO has determined in accordance with the agency's
standardization program that only the specific make(s) and model(s) will
satisfy the agency's needs.
[77 FR 50634, Aug. 22, 2012]
Sec. 3006.302-270 Unusual and compelling urgency.
(d)(1)(iii) For contract awards to facilitate the response to or
recovery from a natural disaster, act of terrorism, or other man-made
disaster, that relies on this exception, the period of performance shall
be limited to the minimum period necessary to meet the urgent and
compelling requirements of the work to be performed and to enter into
another contract for the required goods or services through the use of
competitive procedures, but in no event shall the period of performance
exceed 150 days, unless the Head of the Contracting Activity (or higher
approval authority if required by (FAR) 48 CFR 6.304 or DHS procedures)
determines that exceptional circumstances apply, approving the
justification as set forth in (HSAR) 48 CFR 3006.304.
[[Page 72]]
The limitation on the period of performance applies to contracts awarded
in response to, or to recovery from:
(A) A major disaster or emergency declared by the President under
Title IV or Title V of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42 U.S.C. 5121-5207) (see http://
www.fema.gov/news/disasters.fema#sev2 for a list of declarations);
(B) An uncontrolled fire or fire complex, threatening such
destruction as would constitute a major disaster, and for which the
Federal Emergency Management Agency has approved a fire management
assistance declaration in accordance with regulatory criteria at 44 CFR
204.21 (see http://www.fema.gov/news/disasters.fema#sev2 for a list of
declarations); or
(C) An incident for which the National Operations Center (NOC),
through the National Response Coordination Center (NRCC), coordinates
the activation of the appropriate Emergency Support Functions and the
Secretary of Homeland Security has designated a Federal Resource
Coordinator (FRC) to manage Federal resource support.
[77 FR 50634, Aug. 22, 2012]
Sec. 3006.302-7 Public interest.
(c)(1)(ii) Requests shall be prepared in writing by the contracting
officer, using the format found in (HSAR) 48 CFR 3001.704, and submitted
through the HCA to the CPO for review and transmittal to the Secretary
for approval.
Sec. 3006.303 Justifications.
Sec. 3006.303-270 Content.
(a)(9)(iv) For a proposed contract subject to the restrictions of
(HSAR) 48 CFR 3006.302-270(d)(1)(iii) and where (FAR) 48 CFR 6.302-2 is
cited as the authority, the exceptional circumstances allowing for an
award for a period of performance in excess of 150 days.
[77 FR 50634, Aug. 22, 2012]
Sec. 3006.304 Approval of justification.
Sec. 3006.304-70 DHS Approval of justification.
A justification for other than full and open competition that cites
(FAR) 48 CFR section 6.302-2 as its authority shall be approved in
writing by the HCA (unless a higher approval authority is required in
accordance with (FAR) 48 CFR section 6.304 or DHS procedures) for a
proposed DHS contract to facilitate the response to or recovery from a
natural disaster, act of terrorism, or other man-made disaster with a
period of performance in excess of 150 days. The justification should
make plain the exceptional circumstances that justify the duration of
the contract. This authority may not be redelegated by the HCA.
[77 FR 50634, Aug. 22, 2012]
Subpart 3006.5_Competition Advocates
Sec. 3006.501 Requirement.
The DHS Senior Competition Advocate (SCA) is located in the Office
of the Chief Procurement Officer (OCPO).
Subpart 3006.90_Competition Requirements For Personal Services
Contracting
Sec. 3006.9000 Applicability (USCG).
Contracts awarded by the U.S. Coast Guard using the procedures in
(HSAR) 48 CFR 3037.104-91 are expressly authorized under Section 1091 of
Title 10 U.S.C. as amended, for the Coast Guard and are exempt from the
competition requirements of (FAR) 48 CFR part 6.
PART 3007_ACQUISITION PLANNING
Subpart 3007.1_Acquisition Plans
Sec.
Sec. 3007.106 Additional Requirements for Major Systems.
Sec. 3007.106-70 Limitations on Lead System Integrators.
Authority: 5 U.S.C. 301-302, 41 U.S.C. 418b(a) and (b), 41 U.S.C.
414, 48 CFR part 1, subpart 1.3, and DHS Delegation Number 0700.
[[Page 73]]
Source: 75 FR 41099, July 15, 2010, unless otherwise note.
Subpart 3007.1_Acquisition Plans
Sec. 3007.106 Additional Requirements for Major Systems.
Sec. 3007.106-70 Limitations on Lead System Integrators.
See (HSAR) 48 CFR 3009.570 for policy applicable to acquisition
strategies that consider the use of lead system integrators.
PART 3008_REQUIRED SOURCES OF SUPPLIES AND SERVICES [RESERVED]
PART 3009_CONTRACTOR QUALIFICATIONS
Subpart 3009.1_Responsible Prospective Contractors
Sec.
Sec. 3009.108-70 Prohibition on contracts with corporate expatriates.
Sec. 3009.108-7001 General.
Sec. 3009.108-7002 Definitions.
Sec. 3009.108-7003 Special rules.
Sec. 3009.108-7004 Waivers.
Sec. 3009.108-7005 Clause.
Sec. 3009.171 Prohibition on Federal Protective Service guard services
contracts with business concerns owned, controlled, or
operated by an individual convicted of a felony.
Subpart 3009.4_Debarment, Suspension, and Ineligibility
Sec. 3009.470 Reserve Officer Training Corps and military recruiting on
campus.
Sec. 3009.470-1 Definition.
Sec. 3009.470-2 Policy.
Sec. 3009.470-3 Procedures.
Sec. 3009.470-4 Contract clause.
Subpart 3009.5_Organizational and Consultant Conflicts of Interest
Sec. 3009.507 Solicitation provision and contract clause. [Reserved]
Sec. 3009.507-1 Solicitation provision.
Sec. 3009.507-2 Contract clause.
Sec. 3009.570 Limitations on contractors acting as lead system
integrators.
Sec. 3009.570-1 Definitions.
Sec. 3009.570-2 Policy.
Sec. 3009.570-3 Procedures.
Sec. 3009.570-4 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707(a) and (b), 41 U.S.C.
1702, 48 CFR part 1, subpart 1.3, and DHS Delegation Number 0700.
Source: 68 FR 67871, Dec. 4, 2003, unless otherwise note.
Subpart 3009.1_Responsible Prospective Contractors
Sec. 3009.108-70 Prohibition on contracts with corporate expatriates.
Sec. 3009.108-7001 General.
Except as provided in (HSAR) 48 CFR 3009.108-7004, DHS may not enter
into any contract with a foreign incorporated entity which is treated as
an inverted domestic corporation under subsection (b) of section 835 of
the Homeland Security Act, 6 U.S.C. 395(b), or any subsidiary of such an
entity.
[76 FR 70661, Nov. 15, 2011]
Sec. 3009.108-7002 Definitions.
As used in this subpart--
Expanded Affiliated Group means an affiliated group as defined in
section 1504(a) of the Internal Revenue Code of 1986 (without regard to
section 1504(b) of such Code), except that section 1504 of such Code
shall be applied by substituting `more than 50 percent' for `at least 80
percent' each place it appears.
Foreign Incorporated Entity means any entity which is, or but for
section 835(b) of the Homeland Security Act, 6 U.S.C. 395(b), would be,
treated as a foreign corporation for purposes of the Internal Revenue
Code of 1986.
Inverted Domestic Corporation. A foreign incorporated entity shall
be treated as an inverted domestic corporation if, pursuant to a plan
(or a series of related transactions)--
(1) The entity completes the direct or indirect acquisition of
substantially all of the properties held directly or indirectly by a
domestic corporation or substantially all of the properties constituting
a trade or business of a domestic partnership;
(2) After the acquisition at least 80 percent of the stock (by vote
or value) of the entity is held--
(i) In the case of an acquisition with respect to a domestic
corporation, by former shareholders of the domestic
[[Page 74]]
corporation by reason of holding stock in the domestic corporation; or
(ii) In the case of an acquisition with respect to a domestic
partnership, by former partners of the domestic partnership by reason of
holding a capital or profits interest in the domestic partnership; and
(3) The expanded affiliated group which after the acquisition
includes the entity does not have substantial business activities in the
foreign country in which or under the law of which the entity is created
or organized when compared to the total business activities of such
expanded affiliated group.
Person, domestic, and foreign have the meanings given such terms by
paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue
Code of 1986, respectively.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 25769, May 2, 2006.
Redesignated at 74 FR 58856, Nov. 16, 2009, 74 FR 66584, Dec. 16, 2009]
Sec. 3009.108-7003 Special rules.
The following special rules shall apply when determining whether a
foreign incorporated entity should be treated as an inverted domestic
corporation.
(a) Certain stock disregarded. For the purpose of treating a foreign
incorporated entity as an inverted domestic corporation these shall not
be taken into account in determining ownership:
(1) Stock held by members of the expanded affiliated group which
includes the foreign incorporated entity; or
(2) Stock of such entity which is sold in a public offering related
to the acquisition described in subsection (b)(1) of section 835 of the
Homeland Security Act, 6 U.S.C. 395(b)(1).
(b) Plan deemed in certain cases. If a foreign incorporated entity
acquires directly or indirectly substantially all of the properties of a
domestic corporation or partnership during the 4-year period beginning
on the date which is 2 years before the ownership requirements of
section 835(b)(2) of the Act are met, such actions shall be treated as
pursuant to a plan.
(c) Certain transfers disregarded. The transfer of properties or
liabilities (including by contribution or distribution) shall be
disregarded if such transfers are part of a plan a principal purpose of
which is to avoid the purposes of this section.
(d) Special rule for related partnerships. For purposes of applying
subsection (b) to the acquisition of a domestic partnership, except as
provided in regulations, all domestic partnerships which are under
common control (within the meaning of section 482 of the Internal
Revenue Code of 1986) shall be treated as a partnership.
(e) Treatment of certain rights. (1) Certain rights shall be treated
as stocks to the extent necessary to reflect the present value of all
equitable interests incident to the transaction, as follows:
(i) Warrants;
(ii) Options;
(iii) Contracts to acquire stock;
(iv) Convertible debt instruments;
(v) Others similar interests.
(2) Rights labeled as stocks shall not be treated as stocks whenever
it is deemed appropriate to do so to reflect the present value of the
transaction or to disregard transactions whose recognition would defeat
the purpose of section 835 of the Act.
[68 FR 67871, Dec. 4, 2003, as amended at 71 FR 25769, May 2, 2006.
Redesignated at 74 FR 58856, Nov. 16, 2009, 74 FR 66584, Dec. 16, 2009]
Sec. 3009.108-7004 Waivers.
(a) The Secretary shall waive the provisions of (HSAR) 48 CFR
3009.108-7001 with respect to any specific contract if the Secretary
determines that the waiver is required in the interest of national
security.
(b) Contractors shall submit waiver requests to the CPO. A copy of
the waiver request or the approved waiver shall be attached with the bid
or proposal.
[71 FR 25769, May 2, 2006. Redesignated at 74 FR 58856, Nov. 16, 2009,
74 FR 66584, Dec. 16, 2009; 76 FR 70661, Nov. 15, 2011]
Sec. 3009.108-7005 Clause.
Insert the provision (HSAR) 48 CFR 3052.209-70, Prohibition on
Contracts with Corporate Expatriates, in all solicitations and
contracts.
[71 FR 25769, May 2, 2006. Redesignated at 74 FR 58856, Nov. 16, 2009,
74 FR 66584, Dec. 16, 2009]
[[Page 75]]
Sec. 3009.171 Prohibition on Federal Protective Service guard services
contracts with business concerns owned, controlled, or
operated by an individual convicted of a felony.
Sec. 3009.171-1 General.
Sec. 3009.171-2 Definitions.
Sec. 3009.171-3 Determination of eligibility for award of FPS guard
service contracts.
Sec. 3009.171-4 Determination of ownership, control, or operation.
Sec. 3009.171-5 Serious felonies prohibiting award.
Sec. 3009.171-6 Guidelines for contracting officers.
Sec. 3009.171-7 Contract award approval procedures for contractors with
felony convictions.
Sec. 3009.171-8 Ineligible contractors.
Sec. 3009.171-9 Clause.
[74 FR 58856, Nov. 16, 2009]
Sec. 3009.171 Prohibition on Federal Protective Service guard services
contracts with business concerns owned, controlled, or
operated by an individual convicted of a felony.
[74 FR 58856, Nov. 16, 2009]
Sec. 3009.171-1 General.
Except as provided in (HSAR) 48 CFR 3009.171-6 and 3009.171-7,
Department of Homeland Security (DHS) contracting officers shall not
enter into a contract for guard services under the Federal Protective
Service (FPS) guard services program with any business concern owned,
controlled, or operated by an individual convicted of a serious felony.
[74 FR 58856, Nov. 16, 2009]
Sec. 3009.171-2 Definitions.
As used in this subpart--
Business concern means a commercial enterprise and the people who
constitute it.
Felony means an offense which, if committed by a natural person, is
punishable by death or imprisonment for a term exceeding one year.
Convicted of a felony means any conviction of a felony in violation
of state or federal criminal statutes, including the Uniform Code of
Military Justice, whether entered on a verdict or plea, including a plea
of nolo contendere, for which a sentence has been imposed.
Individual means any person, corporation, partnership, or other
entity with a legally independent status.
[74 FR 58856, Nov. 16, 2009]
Sec. 3009.171-3 Determination of eligibility for award of FPS guard
service contracts.
(a) Contracting officers shall make a determination of eligibility
for award of FPS guard service contracts upon identification of the
apparent successful offeror as a result of a solicitation for offers.
(b) Contractors shall be required to immediately notify the
contracting officer in writing upon any felony conviction of personnel
who own, control or operate a business concern as defined in (HSAR) 48
CFR 3009.171-4 at any time during the duration of an Indefinite
Delivery/Indefinite Quantity Contract, Blanket Purchase Agreements, or
other contractual instrument that may result in the issuance of task
orders or calls, or exercise of an option or options to extend the term
of a contract. Upon notification of a felony conviction, the contracting
officer shall review and make a new determination of eligibility prior
to the issuance of any task order, call or exercise of an option.
[74 FR 58856, Nov. 16, 2009]