[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 48
Federal Acquisition Regulations System
________________________
Chapter 2 (Parts 201 to 299)
Revised as of October 1, 2018
Containing a codification of documents of general
applicability and future effect
As of October 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 2--Defense Acquisition Regulations System,
Department of Defense 3
Finding Aids:
Table of CFR Titles and Chapters........................ 695
Alphabetical List of Agencies Appearing in the CFR...... 715
List of CFR Sections Affected........................... 725
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 201.104
refers to title 48, part
201, section 104.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2018), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
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Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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For inquiries concerning CFR reference assistance, call 202-741-6000
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The e-CFR is a regularly updated, unofficial editorial compilation
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of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2018.
[[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, 2018.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapter 2, parts 201 to 299)
--------------------------------------------------------------------
Part
chapter 2--Defense Acquisition Regulations System,
Department of Defense..................................... 201
[[Page 3]]
CHAPTER 2--DEFENSE ACQUISITION REGULATIONS SYSTEM, DEPARTMENT OF DEFENSE
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL
Part Page
200
[Reserved]
201 Federal Acquisition Regulations System...... 7
202 Definitions of words and terms.............. 13
203 Improper business practices and personal
conflicts of interest................... 16
204 Administrative matters...................... 22
SUBCHAPTER B--ACQUISITION PLANNING
205 Publicizing contract actions................ 38
206 Competition requirements.................... 40
207 Acquisition planning........................ 43
208 Required sources of supplies and services... 48
209 Contractor qualifications................... 54
210 Market research............................. 65
211 Describing agency needs..................... 66
212 Acquisition of commercial items............. 71
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
213 Simplified acquisition procedures........... 83
214 Sealed bidding.............................. 87
215 Contracting by negotiation.................. 89
216 Types of contracts.......................... 114
217 Special contracting methods................. 121
218 Emergency acquisitions...................... 138
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
219 Small business programs..................... 142
222 Application of labor laws to Government
acquisitions............................ 150
[[Page 4]]
223 Environment, energy and water efficiency,
renewable energy technologies,
occupational safety, and drug-free
workplace............................... 160
224 Protection of privacy and freedom of
information............................. 166
225 Foreign acquisition......................... 166
226 Other socioeconomic programs................ 218
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
227 Patents, data, and copyrights............... 220
228 Bonds and insurance......................... 263
229 Taxes....................................... 265
230 Cost accounting standards administration.... 267
231 Contract cost principles and procedures..... 268
232 Contract financing.......................... 273
233 Protests, disputes, and appeals............. 288
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
234 Major system acquisition.................... 289
235 Research and development contracting........ 294
236 Construction and architect-engineer
contracts............................... 298
237 Service contracting......................... 303
239 Acquisition of information technology....... 319
241 Acquisition of utility services............. 330
SUBCHAPTER G--CONTRACT MANAGEMENT
242 Contract administration and audit services.. 333
243 Contract modifications...................... 346
244 Subcontracting policies and procedures...... 349
245 Government property......................... 352
246 Quality assurance........................... 359
247 Transportation.............................. 368
249 Termination of contracts.................... 375
250 Extraordinary contractual actions and the
Safety Act.............................. 377
251 Use of Government sources by contractors.... 379
SUBCHAPTER H--CLAUSES AND FORMS
252 Solicitation provisions and contract clauses 381
253 Forms....................................... 652
SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
Appendix A--Armed Services Board of Contract
Appeals................................. 654
Appendixes B-E [Reserved]
Appendix F--Material Inspection and
Receiving Report........................ 666
[[Page 5]]
Appendix G [Reserved]
Appendix H--Debarment and Suspension
Procedures.............................. 683
Appendix I--Policy and Procedures for the
DoD Pilot Mentor-Protege
Program................................. 684
254-299
[Reserved]
[[Page 7]]
SUBCHAPTER A_GENERAL
PART 200 [RESERVED]
PART 201_FEDERAL ACQUISITION REGULATIONS SYSTEM--Table of Contents
Subpart 201.1_Purpose, Authority, Issuance
Sec.
201.101 Purpose.
201.104 Applicability.
201.105 Issuance.
201.105-3 Copies.
201.106 OMB approval under the Paperwork Reduction Act.
201.107 Certifications.
201.109 Statutory acquisition-related dollar thresholds-adjustment for
inflation.
201.170 Peer Reviews.
Subpart 201.2_Administration
201.201 Maintenance of the FAR.
201.201-1 The two councils.
201.201-70 Maintenance of Procedures, Guidance, and Information.
Subpart 201.3_Agency Acquisition Regulations
201.301 Policy.
201.303 Publication and codification.
201.304 Agency control and compliance procedures.
Subpart 201.4_Deviations From the FAR
201.402 Policy.
201.403 Individual deviations.
201.404 Class deviations.
Subpart 201.6_Career Development, Contracting Authority, and
Responsibilities
201.602 Contracting officers.
201.602-2 Responsibilities.
201.602-70 Contract clause.
201.603 Selection, appointment, and termination of appointment for
contracting officers.
201.603-2 Selection.
201.603-3 Appointment.
201.670 Appointment of property administrators and plant clearance
officers.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36284, July 31, 1991, unless otherwise noted.
Subpart 201.1_Purpose, Authority, Issuance
201.101 Purpose.
(1) The defense acquisition system, as defined in 10 U.S.C. 2545,
exists to manage the investments of the United States in technologies,
programs, and product support necessary to achieve the national security
strategy prescribed by the President pursuant to section 108 of the
National Security Act of 1947 (50 U.S.C. 3043) and to support the United
States Armed Forces.
(2) The investment strategy of DoD shall be postured to support not
only the current United States armed forces, but also future armed
forces of the United States.
(3) The primary objective of DoD acquisition is to acquire quality
supplies and services that satisfy user needs with measurable
improvements to mission capability and operational support at a fair and
reasonable price.
[83 FR 19641, May 4, 2018]
201.104 Applicability.
The FAR and the Defense Federal Acquisition Regulation Supplement
(DFARS) also apply to purchases and contracts by DoD contracting
activities made in support of foreign military sales or North Atlantic
Treaty Organization cooperative projects without regard to the nature or
sources of funds obligated, unless otherwise specified in this
regulation.
[56 FR 36284, July 31, 1991. Redesignated at 64 FR 39430, July 22, 1999]
201.105 Issuance.
201.105-3 Copies.
The DFARS and the DFARS Procedures, Guidance, and Information (PGI)
are available electronically via the World Wide Web at http://
www.acq.osd.mil/dpap/dars/index.htm.
[69 FR 63326, Nov. 1, 2004]
[[Page 8]]
201.106 OMB approval under the Paperwork Reduction Act.
See PGI 201.106 for a list of the information collection and
recordkeeping requirements contained in this regulation that have been
approved by the Office of Management and Budget.
[80 FR 67255, Oct. 30, 2015]
201.107 Certifications.
In accordance with 41 U.S.C. 1304, a new requirement for a
certification by a contractor or offeror may not be included in the
DFARS unless--
(1) The certification requirement is specifically imposed by
statute; or
(2) Written justification for such certification is provided to the
Secretary of Defense by the Under Secretary of Defense (Acquisition,
Technology, and Logistics), and the Secretary of Defense approves in
writing the inclusion of such certification requirement.
[63 FR 11528, Mar. 9, 1998, as amended at 65 FR 39704, June 27, 2000; 76
FR 58137, Sept. 20, 2011; 77 FR 35879, June 15, 2012]
201.109 Statutory acquisition-related dollar thresholds-adjustment
for inflation.
(a) Section 814(b) of the National Defense Authorization Act for
Fiscal Year 2012 (Pub. L. 112-81) requires that the threshold
established in 10 U.S.C. 2253(a)(2) for the acquisition of right-hand
drive passenger sedans be included in the list of dollar thresholds that
are subject to adjustment for inflation in accordance with the
requirements of 41 U.S.C. 1908, and is adjusted pursuant to such
provisions, as appropriate.
(d) A matrix showing the most recent escalation adjustments of
statutory acquisition-related dollar thresholds is available at PGI
201.109.
[71 FR 75892, Dec. 19, 2006, as amended at 77 FR 19128, Mar. 30, 2012]
201.170 Peer reviews.
(a) DoD peer reviews. (1) The Office of the Director, Defense
Procurement and Acquisition Policy, will organize teams of reviewers and
facilitate peer reviews for solicitations and contracts, as follows
using the procedures at PGI 201.170--
(i) Preaward peer reviews for competitive procurements will be
conducted in three phases for all solicitations valued at $1 billion or
more;
(ii) Preaward peer reviews for noncompetitive procurements will be
conducted in two phases for new contract actions valued at $500 million
or more; and
(iii) Postaward peer reviews will be conducted for all contracts for
services valued at $1 billion or more.
(2) To facilitate planning for peer reviews, the military
departments and defense agencies shall provide a rolling annual forecast
of acquisitions at the end of each quarter (i.e., March 31; June 30;
September 30; December 31), to the Deputy Director, Defense Procurement
and Acquisition Policy (Contract Policy and International Contracting)
via email to [email protected].
(b) Component peer reviews. The military departments and defense
agencies shall establish procedures for--
(1) Preaward peer reviews of solicitations for competitive
procurements valued at less than $1 billion;
(2) Preaward peer reviews for noncompetitive procurements valued at
less than $500 million; and
(3) Postaward peer reviews of all contracts for services valued at
less than $1 billion.
[77 FR 19126, Mar. 30, 2012, as amended at 78 FR 54968, Sept. 9, 2013;
79 FR 51264, Aug. 28, 2014]
Subpart 201.2_Administration
201.201 Maintenance of the FAR.
201.201-1 The two councils.
(c) The composition and operation of the DAR Council is prescribed
in DoD Instruction 5000.35, Defense Acquisition Regulations (DAR)
System.
(d)(i) Departments and agencies process proposed revisions of FAR or
DFARS through channels to the Director of the DAR Council. Process the
proposed revision as a memorandum in the following format, addressed to
the Director, DAR Council, OUSD(AT&L), 3060 Defense Pentagon,
Washington, DC 20301-3060; datafax (571) 372-6094:
[[Page 9]]
I. PROBLEM: Succinctly state the problem created by current FAR and/
or DFARS coverage and describe the factual and/or legal reasons
necessitating the change to the regulation.
II. Recommendation: Identify the FAR and/or DFARS citations to be
revised. Attach as TAB A a copy of the text of the existing coverage,
conformed to include the proposed additions and deletions. Indicate
deleted coverage with dashed lines through the current words being
deleted and insert proposed language in brackets at the appropriate
locations within the existing coverage. If the proposed deleted portion
is extensive, it may be outlined by lines forming a box with diagonal
lines drawn connecting the corners.
III. Discussion: Include a complete, convincing explanation of why
the change is necessary and how the recommended revision will solve the
problem. Address advantages and disadvantages of the proposed revision,
as well as any cost or administrative impact on Government activities
and contractors. Identify any potential impact of the change on
automated systems, e.g., automated financial and procurement systems.
Provide any other background information that would be helpful in
explaining the issue.
IV. Collaterals: Address the need for public comment (FAR 1.301(b)
and subpart 1.5), the Paperwork Reduction Act, and the Regulatory
Flexibility Act (FAR 1.301(c)).
V. Deviations: If a recommended revision of DFARS is a FAR
deviation, identify the deviation and include under separate TAB a
justification for the deviation that addresses the requirements of
201.402(2). The justification should be in the form of a memorandum for
the Director of Defense Procurement and Acquisition Policy, Office of
the Under Secretary of Defense (Acquisition, Technology, and Logistics).
(ii) The public may offer proposed revisions of FAR or DFARS by
submission of a memorandum, in the format (including all of the
information) prescribed in paragraph (d)(i) of this subsection, to the
Director of the DAR Council.
[56 FR 36284, July 31, 1991, as amended at 60 FR 61591, Nov. 30, 1995;
61 FR 50451, Sept. 26, 1996; 63 FR 11528, Mar. 9, 1998; 65 FR 6552, Feb.
10, 2000; 68 FR 7439, Feb. 14, 2003; 73 FR 70906, Nov. 24, 2008; 77 FR
76937, Dec. 31, 2012; 78 FR 13543, Feb. 28, 2013]
201.201-70 Maintenance of Procedures, Guidance, and Information.
The DAR Council is also responsible for maintenance of the DFARS
Procedures, Guidance, and Information (PGI).
[69 FR 63326, Nov. 1, 2004]
Subpart 201.3_Agency Acquisition Regulations
201.301 Policy.
(a)(1) DoD implementation and supplementation of the FAR is issued
in the Defense Federal Acquisition Regulation Supplement (DFARS) under
authorization and subject to the authority, direction, and control of
the Secretary of Defense. The DFARS contains--
(i) Requirements of law;
(ii) DoD-wide policies;
(iii) Delegations of FAR authorities;
(iv) Deviations from FAR requirements; and
(v) Policies/procedures that have a significant effect beyond the
internal operating procedures of DoD or a significant cost or
administrative impact on contractors or offerors.
(2) Relevant procedures, guidance, and information that do not meet
the criteria in paragraph (a)(1) of this section are issued in the DFARS
Procedures, Guidance, and Information (PGI).
(b) When Federal Register publication is required for any policy,
procedure, clause, or form, the department or agency requesting Under
Secretary of Defense (Acquisition, Technology, and Logistics)
(USD(AT&L)) approval for use of the policy, procedure, clause, or form
(see 201.304(1)) must include an analysis of the public comments in the
request for approval. Information on determining when a clause requires
publication in the Federal Register and approval in accordance with
201.304(1) is provided at PGI 201.301(b).
[56 FR 36284, July 31, 1991, as amended at 60 FR 61591, Nov. 30, 1995;
65 FR 6552, Feb. 10, 2000; 69 FR 63326, Nov. 1, 2004; 80 FR 36718, June
26, 2015]
201.303 Publication and codification.
(a)(i) The DFARS is codified under chapter 2 in title 48, Code of
Federal Regulations.
(ii) To the extent possible, all DFARS text (whether implemental or
supplemental) is numbered as if it were
[[Page 10]]
implemental. Supplemental numbering is used only when the text cannot be
integrated intelligibly with its FAR counterpart.
(A) Implemental numbering is the same as its FAR counterpart, except
when the text exceeds one paragraph, the subdivisions are numbered by
skipping a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence.
For example, three paragraphs implementing FAR 19.501 would be numbered
219.501 (1), (2), and (3) rather than (a), (b), and (c). Three
paragraphs implementing FAR 19.501(a) would be numbered 219.501(a) (i),
(ii), and (iii) rather than (a) (1), (2), and (3). Further subdivision
of the paragraphs follows the prescribed numbering sequence, e.g.,
219.501(1)(i)(A)(1)(i).
(B) Supplemental numbering is the same as its FAR counterpart, with
the addition of a number of 70 and up or (S-70) and up. Parts, subparts,
sections, or subsections are supplemented by the addition of a number of
70 and up. Lower divisions are supplemented by the addition of a number
of (S-70) and up. When text exceeds one paragraph, the subdivisions are
numbered using the FAR 1.105-2(b)(2) prescribed sequence, without
skipping a unit. For example, DFARS text supplementing FAR 19.501 would
be numbered 219.501-70. Its subdivisions would be numbered 219.501-70
(a), (b), and (c).
(C) Subdivision numbering below the 4th level does not repeat the
numbering sequence. It uses italicized Arabic numbers and then
italicized lower case Roman numerals.
(D) An example of DFARS numbering is in Table 1-1, DFARS Numbering.
(iii) Department/agency and component supplements must parallel the
FAR and DFARS numbering, except department/agency supplemental numbering
uses subsection numbering of 90 and up, instead of 70 and up.
Table 1-1--DFARS Numbering
------------------------------------------------------------------------
FAR Is implemented as Is supplemented as
------------------------------------------------------------------------
19 219 219.70
19.5 219.5 219.570
19.501 219.501 219.501-70
19.501-1 219.501-1 219.501-1-70
19.501-1(a) 219.501-1(a) 219.501-1(a)(S-70)
19.501-1(a)(1) 219.501-1(a)(1) 219.501-1(a)(1)(S-70)
------------------------------------------------------------------------
[56 FR 36284, July 31, 1991, as amended at 64 FR 51074, Sept. 21, 1999]
201.304 Agency control and compliance procedures.
Departments and agencies and their component organizations may issue
acquisition regulations as necessary to implement or supplement the FAR
or DFARS.
(1)(i) Approval of the USD (AT&L) is required before including in a
department/agency or component supplement, or any other contracting
regulation document such as a policy letter or clause book, any policy,
procedure, clause, or form that--
(A) Has a significant effect beyond the internal operating
procedures of the agency; or
(B) Has a significant cost or administrative impact on contractors
or offerors.
(ii) Except as provided in paragraph (2) of this section, the
USD(AT&L) has delegated authority to the Director of Defense Procurement
and Acquisition Policy (OUSD(AT&L)DPAP) to approve or disapprove the
policies, procedures, clauses, and forms subject to paragraph (1)(i) of
this section.
(2) In accordance with 41 U.S.C. 1304, a new requirement for a
certification by a contractor or offeror may not be included in a
department/agency or component procurement regulation unless--
(i) The certification requirement is specifically imposed by
statute; or
(ii) Written justification for such certification is provided to the
Secretary of Defense by USD(AT&L), and the Secretary of Defense approves
in writing the inclusion of such certification requirement.
(3) Contracting activities must obtain the appropriate approval (see
201.404) for any class deviation (as defined in FAR subpart 1.4) from
the FAR
[[Page 11]]
or DFARS, before its inclusion in a department/agency or component
supplement or any other contracting regulation document such as a policy
letter or clause book.
(4) Each department and agency must develop and, upon approval by
OUSD(AT&L)DPAP, implement, maintain, and comply with a plan for
controlling the use of clauses other than those prescribed by FAR or
DFARS. Additional information on department and agency clause control
plan requirements is available at PGI 201.304(4).
(5) Departments and agencies must submit requests for the Secretary
of Defense, USD(AT&L), and OUSD(AT&L)DPAP approvals required by this
section through the Director of the DAR Council. Procedures for
requesting approval of department and agency clauses are provided at PGI
201.304(5).
(6) The Director of Defense Procurement publishes changes to the
DFARS in the Federal Register and electronically via the World Wide Web.
Each change includes an effective date. Unless guidance accompanying a
change states otherwise, contracting officers must include any new or
revised clauses, provisions, or forms in solicitations issued on or
after the effective date of the change.
[56 FR 36284, July 31, 1991, as amended at 60 FR 61591, Nov. 30, 1995;
63 FR 11528, Mar. 9, 1998; 64 FR 39430, July 22, 1999; 65 FR 6552, Feb.
10, 2000; 68 FR 7439, Feb. 14, 2003; 76 FR 58137, Sept. 20, 2011; 77 FR
35879, June 15, 2012; 80 FR 36718, June 26, 2015]
Subpart 201.4_Deviations From the FAR
201.402 Policy.
(1) The Director of Defense Procurement and Acquisition Policy,
Office of the Under Secretary of Defense (Acquisition, Technology, and
Logistics) (OUSD(AT&L)DPAP), is the approval authority within DoD for
any individual or class deviation from--
(i) FAR 3.104, Procurement Integrity, or DFARS 203.104, Procurement
Integrity;
(ii) FAR Subpart 27.4, Rights in Data and Copyrights, or DFARS
Subpart 227.4, Rights in Data and Copyrights;
(iii) FAR part 30, Cost Accounting Standards Administration, or
DFARS part 230, Cost Accounting Standards Administration;
(iv) FAR subpart 31.1, Applicability, or DFARS subpart 231.1,
Applicability (contract cost principles);
(v) FAR subpart 31.2, Contracts with Commercial Organizations, or
DFARS subpart 231.2, Contracts with Commercial Organizations; or
(vi) FAR part 32, Contract Financing (except subparts 32.7 and 32.8
and the payment clauses prescribed by subpart 32.1), or DFARS part 232,
Contract Financing (except subparts 232.7 and 232.8).
(2) Submit requests for deviation approval through department/agency
channels to the approval authority in paragraph (1) of this section,
201.403, or 201.404, as appropriate. Submit deviations that require
OUSD(AT&L)DPAP approval through the Director of the DAR Council. At a
minimum, each request must--
(i) Identify the department/agency, and component if applicable,
requesting the deviation;
(ii) Identify the FAR or DFARS citation from which a deviation is
needed, state what is required by that citation, and indicate whether an
individual or class deviation is requested;
(iii) Describe the deviation and indicate which of paragraphs (a)
through (f) of FAR 1.401 best categorizes the deviation;
(iv) State whether the deviation will have a significant effect
beyond the internal operating procedures of the agency and/or a
significant cost or administrative impact on contractors or offerors,
and give reasons to support the statement;
(v) State the period of time for which the deviation is required;
(vi) State whether approval for the same deviation has been received
previously, and if so, when;
(vii) State whether the proposed deviation was published (see FAR
subpart 1.5 for publication requirements) in the Federal Register and
provide analysis of comments;
(viii) State whether the request for deviation has been reviewed by
legal counsel, and if so, state results; and
[[Page 12]]
(ix) Give detailed rationale for the request. State what problem or
situation will be avoided, corrected, or improved if request is
approved.
[56 FR 36284, July 31, 1991, as amended at 60 FR 61591, Nov. 30, 1995;
61 FR 50451, Sept. 26, 1996; 64 FR 8727, Feb. 23, 1999; 65 FR 6552, Feb.
10, 2000; 68 FR 7439, Feb. 14, 2003]
201.403 Individual deviations.
(1) Individual deviations, except those described in 201.402(1) and
paragraph (2) of this section, must be approved in accordance with the
department/agency plan prescribed by 201.304(4).
(2) Contracting officers outside the United States may deviate from
prescribed nonstatutory FAR and DFARS clauses when--
(i) Contracting for support services, supplies, or construction,
with the governments of North Atlantic Treaty Organization (NATO)
countries or other allies (as described in 10 U.S.C. 2341(2)), or with
United Nations or NATO organizations; and
(ii) Such governments or organizations will not agree to the
standard clauses.
[65 FR 6552, Feb. 10, 2000]
201.404 Class deviations.
(b)(i) Except as provided in paragraph (b)(ii) of this section,
OUSD(AT&L)DPAP is the approval authority within DoD for any class
deviation.
(ii) The senior procurement executives for the Army, Navy, and Air
Force, and the Directors of the Defense Commissary Agency, the Defense
Contract Management Agency, and the Defense Logistics Agency, may
approve any class deviation, other than those described in 201.402(1),
that does not--
(A) Have a significant effect beyond the internal operating
procedures of the department or agency;
(B) Have a significant cost or administrative impact on contractors
or offerors;
(C) Diminish any preference given small business concerns by the FAR
or DFARS; or
(D) Extend to requirements imposed by statute or by regulations of
other agencies such as the Small Business Administration and the
Department of Labor.
[65 FR 6552, Feb. 10, 2000, as amended at 65 FR 52951, Aug. 31, 2000; 68
FR 7439, Feb. 14, 2003]
Subpart 201.6_Career Development, Contracting Authority, and
Responsibilities
201.602 Contracting officers.
201.602-2 Responsibilities.
(d) Follow the procedures at PGI 201.602-2 regarding designation,
assignment, and responsibilities of a contracting officer's
representative (COR).
(1) A COR shall be an employee, military or civilian, of the U.S.
Government, a foreign government, or a North Atlantic Treaty
Organization/coalition partner. In no case shall contractor personnel
serve as CORs.
[79 FR 22036, Apr. 21, 2014]
201.602-70 Contract clause.
Use the clause at 252.201-7000, Contracting Officer's
Representative, in solicitations and contracts when appointment of a
contracting officer's representative is anticipated.
201.603 Selection, appointment, and termination of appointment for contracting officers.
201.603-2 Selection.
(1) In accordance with 10 U.S.C. 1724, in order to qualify to serve
as a contracting officer with authority to award or administer contracts
for amounts above the simplified acquisition threshold, a person must--
(i) Have completed all contracting courses required for a
contracting officer to serve in the grade in which the employee or
member of the armed forces will serve;
(ii) Have at least 2 years experience in a contracting position;
(iii) Have--
(A) Received a baccalaureate degree from an accredited educational
institution; and
(B) Completed at least 24 semester credit hours, or equivalent, of
study from an accredited institution of higher education in any of the
following
[[Page 13]]
disciplines: accounting, business finance, law, contracts, purchasing,
economics, industrial management, marketing, quantitative methods, and
organization and management; and
(iv) Meet such additional requirements, based on the dollar value
and complexity of the contracts awarded or administered in the position,
as may be established by the Secretary of Defense.
(2) The qualification requirements in paragraph (1)(iii) of this
subsection do not apply to a DoD employee or member of the armed forces
who--
(i) On or before September 30, 2000, occupied--
(A) A contracting officer position with authority to award or
administer contracts above the simplified acquisition threshold; or
(B) A position either as an employee in the GS-1102 occupational
series or a member of the armed forces in an occupational specialty
similar to the GS-1102 series;
(ii) Is in a contingency contracting force; or
(iii) Is an individual appointed to a 3-year developmental position.
Information on developmental opportunities is contained in DoD
Instruction 5000.66, Operation of the Defense Acquisition, Technology,
and Logistics Workforce Education, Training, and Career Development
Program.
(3) Waivers to the requirements in paragraph (1) of this subsection
may be authorized. Information on waivers is contained in DoD
Instruction 5000.66.
[67 FR 65509, Oct. 25, 2002, as amended at 73 FR 21844, Apr. 23, 2008]
201.603-3 Appointment.
(a) Certificates of Appointment executed under the Armed Services
Procurement Regulation or the Defense Acquisition Regulation have the
same effect as if they had been issued under FAR.
(b) Agency heads may delegate the purchase authority in 213.301 to
DoD civilian employees and members of the U.S. Armed Forces.
[56 FR 36284, July 31, 1991, as amended at 64 FR 56705, Oct. 21, 1999]
201.670 Appointment of property administrators and plant clearance officers.
(a) The appropriate agency authority shall appoint or terminate (in
writing) property administrators and plant clearance officers.
(b) In appointing qualified property administrators and plant
clearance officers, the appointing authority shall consider experience,
training, education, business acumen, judgment, character, and ethics.
[76 FR 52142, Aug. 19, 2011]
PART 202_DEFINITIONS OF WORDS AND TERMS--Table of Contents
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Subpart 202.1_Definitions
202.101 Definitions.
Authorized aftermarket manufacturer means an organization that
fabricates an electronic part under a contract with, or with the express
written authority of, the original component manufacturer based on the
original component manufacturer's designs, formulas, and/or
specifications.
Compromise means disclosure of information to unauthorized persons,
or a violation of the security policy of a system, in which unauthorized
intentional or unintentional disclosure, modification, destruction, or
loss of an object, or the copying of information to unauthorized media
may have occurred.
Congressional defense committees means--
(1) In accordance with 10 U.S.C. 101(a)(16), except as otherwise
specified in paragraph (2) of this definition or as otherwise specified
by statute for particular applications--
(i) The Committee on Armed Services of the Senate;
(ii) The Committee on Appropriations of the Senate;
(iii) The Committee on Armed Services of the House of
Representatives; and
(iv) The Committee on Appropriations of the House of
Representatives.
[[Page 14]]
(2) For use in subpart 217.1, see the definition at 217.103.
Contract administration office also means a contract management
office of the Defense Contract Management Agency.
Contract manufacturer means a company that produces goods under
contract for another company under the label or brand name of that
company.
Contracting activity for DoD also means elements designated by the
director of a defense agency which has been delegated contracting
authority through its agency charter. DoD contracting activities are
listed at PGI 202.101.
Contracting officer's representative means an individual designated
and authorized in writing by the contracting officer to perform specific
technical or administrative functions.
Contractor-approved supplier means a supplier that does not have a
contractual agreement with the original component manufacturer for a
transaction, but has been identified as trustworthy by a contractor or
subcontractor.
Counterfeit electronic part means an unlawful or unauthorized
reproduction, substitution, or alteration that has been knowingly
mismarked, misidentified, or otherwise misrepresented to be an
authentic, unmodified electronic part from the original manufacturer, or
a source with the express written authority of the original manufacturer
or current design activity, including an authorized aftermarket
manufacturer. Unlawful or unauthorized substitution includes used
electronic parts represented as new, or the false identification of
grade, serial number, lot number, date code, or performance
characteristics.
Cyber incident means actions taken through the use of computer
networks that result in a compromise or an actual or potentially adverse
effect on an information system and/or the information residing therein.
Departments and agencies, as used in DFARS, means the military
departments and the defense agencies. The military departments are the
Departments of the Army, Navy, and Air Force (the Marine Corps is a part
of the Department of the Navy). The defense agencies are the Defense
Advanced Research Projects Agency, the Defense Commissary Agency, the
Defense Contract Management Agency, the Defense Finance and Accounting
Service, the Defense Information Systems Agency, the Defense
Intelligence Agency, the Defense Logistics Agency, the Defense Security
Cooperation Agency, the Defense Security Service, the Defense Threat
Reduction Agency, the Missile Defense Agency, the National Geospatial-
Intelligence Agency, the National Security Agency, the United States
Special Operations Command, and the United States Transportation
Command.
Department of Defense (DoD), as used in DFARS, means the Department
of Defense, the military departments, and the defense agencies.
Electronic part means an integrated circuit, a discrete electronic
component (including, but not limited to, a transistor, capacitor,
resistor, or diode), or a circuit assembly (section 818(f)(2) of Pub. L.
112-81).
Executive agency means for DoD, the Department of Defense, the
Department of the Army, the Department of the Navy, and the Department
of the Air Force.
General public and non-governmental entities, as used in the
definition of commercial item at FAR 2.101, do not include the Federal
Government or a State, local, or foreign government (Pub. L. 110-181,
section 815(b)).
Head of the agency means, for DoD, the Secretary of Defense, the
Secretary of the Army, the Secretary of the Navy, and the Secretary of
the Air Force. Subject to the direction of the Secretary of Defense, the
Under Secretary of Defense (Acquisition, Technology, and Logistics), and
the Director of Defense Procurement and Acquisition Policy, the
directors of the defense agencies have been delegated authority to act
as head of the agency for their respective agencies (i.e., to perform
functions under the FAR or DFARS reserved to a head of agency or agency
head), except for such actions that by terms of statute, or any
delegation, must be exercised within the Office of the Secretary of
Defense. (For emergency acquisition flexibilities, see 218.270.)
[[Page 15]]
Major defense acquisition program is defined in 10.U.S.C. 2430(a).
Micro-purchase threshold, for DoD acquisition of supplies or
services funded by DoD appropriations, in lieu of the definition at FAR
2.101, means $5,000 (10 U.S.C. 2338), except--
(1) For DoD acquisition of supplies or services for basic research
programs and for activities of the DoD science and technology
reinvention laboratories (https://www.acq.osd.mil/rd/laboratories/labs/
list_strl.html), it means $10,000 (10 U.S.C. 2339);
(2) For acquisitions of construction subject to 40 U.S.C. chapter
31, subchapter IV, Wage Rate Requirements (Construction), $2,000;
(3) For acquisitions of services subject to 41 U.S.C. chapter 67,
Service Contract Labor Standards, $2,500; and
(4) For acquisitions of supplies or services that, as determined by
the head of the contracting activity, are to be used to support a
contingency operation; or to facilitate defense against or recovery from
cyber, nuclear, biological, chemical or radiological attack; to support
a request from the Secretary of State or the Administrator of the United
States Agency for International Development to facilitate provision of
international disaster assistance pursuant to 22 U.S.C. 2292 et seq.; or
to support response to an emergency, or major disaster (42 U.S.C. 5122),
as described in 13.201(g)(1), except for construction subject to 40
U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction)
(41 U.S.C. 1903)--
(i) $20,000 in the case of any contract to be awarded and performed,
or purchase to be made, inside the United States; and
(ii) $30,000 in the case of any contract to be awarded and
performed, or purchase to be made, outside the United States.
Non-Government sales means sales of the supplies or services to non-
Governmental entities for purposes other than governmental purposes.
Obsolete electronic part means an electronic part that is no longer
available from the original manufacturer or an authorized aftermarket
manufacturer.
Offset means a benefit or obligation agreed to by a contractor and a
foreign government or international organization as an inducement or
condition to purchase supplies or services pursuant to a foreign
military sale (FMS). There are two types of offsets: Direct offsets and
indirect offsets.
(1) A direct offset involves benefits or obligations, including
supplies or services that are directly related to the item(s) being
purchased and are integral to the deliverable of the FMS contract. For
example, as a condition of a foreign military sale, the contractor may
require or agree to permit the customer to produce in its country
certain components or subsystems of the item being sold. Generally,
direct offsets must be performed within a specified period, because they
are integral to the deliverable of the FMS contract.
(2) An indirect offset involves benefits or obligations, including
supplies or services that are not directly related to the specific
item(s) being purchased and are not integral to the deliverable of the
FMS contract. For example, as a condition of a foreign military sale,
the contractor may agree to purchase certain manufactured products,
agricultural commodities, raw materials, or services, or make an equity
investment or grant of equipment required by the FMS customer, or may
agree to build a school, road or other facility. Indirect offsets would
also include projects that are related to the FMS contract but not
purchased under said contract (e.g., a project to develop or advance a
capability, technology transfer, or know-how in a foreign company).
Indirect offsets may be accomplished without a clearly defined period of
performance.
Offset costs means the costs to the contractor of providing any
direct or indirect offsets required (explicitly or implicitly) as a
condition of a foreign military sale.
Original component manufacturer means an organization that designs
and/or engineers a part and is entitled to any intellectual property
rights to that part.
Original equipment manufacturer means a company that manufactures
products that it has designed from purchased components and sells those
products under the company's brand name.
[[Page 16]]
Original manufacturer means the original component manufacturer, the
original equipment manufacturer, or the contract manufacturer.
Procedures, Guidance, and Information (PGI) means a companion
resource to the DFARS that--
(1) Contains mandatory internal DoD procedures. The DFARS will
direct compliance with mandatory procedures using imperative language
such as ``Follow the procedures at * * *'' or similar directive
language;
(2) Contains non-mandatory internal DoD procedures and guidance and
supplemental information to be used at the discretion of the contracting
officer. The DFARS will point to non-mandatory procedures, guidance, and
information using permissive language such as ``The contracting officer
may use * * *'' or ``Additional information is available at * * *'' or
other similar language;
(3) Is numbered similarly to the DFARS, except that each PGI
numerical designation is preceded by the letters ``PGI''; and
(4) Is available electronically at http://www.acq.osd.mil/dpap/dars/
index.htm.
Senior procurement executive means, for DoD--
Department of Defense (including the defense agencies)--Under
Secretary of Defense (Acquisition, Technology, and Logistics);
Department of the Army--Assistant Secretary of the Army
(Acquisition, Logistics and Technology);
Department of the Navy--Assistant Secretary of the Navy (Research,
Development and Acquisition);
Department of the Air Force--Assistant Secretary of the Air Force
(Acquisition).
The directors of the defense agencies have been delegated authority
to act as senior procurement executive for their respective agencies,
except for such actions that by terms of statute, or any delegation,
must be exercised by the Under Secretary of Defense (Acquisition,
Technology, and Logistics).
Sufficient non-Government sales means relevant sales data that
reflects market pricing and contains enough information to make
adjustments covered by FAR 15.404-1(b)(2)(ii)(B).
Suspect counterfeit electronic part means an electronic part for
which credible evidence (including, but not limited to, visual
inspection or testing) provides reasonable doubt that the electronic
part is authentic.
Tiered evaluation of offers, also known as cascading evaluation of
offers, means a procedure used in negotiated acquisitions, when market
research is inconclusive for justifying limiting competition to small
business concerns, whereby the contracting officer--
(1) Solicits and receives offers from both small and other than
small business concerns;
(2) Establishes a tiered or cascading order of precedence for
evaluating offers that is specified in the solicitation; and
(3) If no award can be made at the first tier, evaluates offers at
the next lower tier, until award can be made.
Uncertified cost data means the subset of ``data other than
certified cost or pricing data'' (see FAR 2.101) that relates to cost.
[56 FR 36287, July 31, 1991]
Editorial Note: For Federal Register citations affecting section
202.101, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
PART 203_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--
Table of Contents
Sec.
203.070 Reporting of violations and suspected violations.
Subpart 203.1_Safeguards
203.104 Procurement integrity.
203.104-4 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
203.170 Business practices.
203.171 Senior DoD officials seeking employment with defense
contractors.
203.171-1 Scope.
203.171-2 Definition.
203.171-3 Policy.
203.171-4 Solicitation provision and contract clause.
Subpart 203.5_Other Improper Business Practices
203.502-2 Subcontractor kickbacks.
[[Page 17]]
203.570 Prohibition on persons convicted of frauds or other defense-
contract-related felonies.
203.570-1 Scope.
203.570-2 Prohibition period.
203.570-3 Contract clause.
Subpart 203.7_Voiding and Rescinding Contracts
203.703 Authority.
Subpart 203.8_Limitations on the Payment of Funds To Influence Federal
Transactions
203.806 Processing suspected violations.
Subpart 203.9_Whistleblower Protections for Contractor Employees
203.900 Scope of subpart.
203.901 Definitions.
203.903 Policy.
203.904 Procedures for filing complaints.
203.905 Procedures for investigating complaints.
203.906 Remedies.
203.970 Contract clause.
Subpart 203.10_Contractor Code of Business Ethics and Conduct
203.1003 Requirements.
203.1004 Contract clauses.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1
Source: 56 FR 36288, July 31, 1991, unless otherwise noted.
203.070 Reporting of violations and suspected violations.
Report violations and suspected violations of the following
requirements in accordance with 209.406-3 or 209.407-3 and DoDD 7050.5,
Coordination of Remedies for Fraud and Corruption Related to Procurement
Activities:
(a) Certificate of Independent Price Determination (FAR 3.103).
(b) Procurement integrity (FAR 3.104).
(c) Gratuities clause (FAR 3.203).
(d) Antitrust laws (FAR 3.303).
(e) Covenant Against Contingent Fees (FAR 3.405).
(f) Kickbacks (FAR 3.502).
(g) Prohibitions on persons convicted of defense-related contract
felonies (203.570).
[69 FR 74990, Dec. 15, 2004, as amended at 77 FR 35879, June 15, 2012]
Subpart 203.1_Safeguards
203.104 Procurement integrity.
203.104-4 Disclosure, protection, and marking of contractor bid
or proposal information and source selection information.
(d)(3) For purposes of FAR 3.104-4(d)(3) only, DoD follows the
notification procedures in FAR 27.404-5(a). However, FAR 27.404-5(a)(1)
does not apply to DoD.
[74 FR 2409, Jan. 15, 2009]
203.170 Business practices.
To ensure the separation of functions for oversight, source
selection, contract negotiation, and contract award, departments and
agencies shall adhere to the following best practice policies:
(a) Senior leaders shall not perform multiple roles in source
selection for a major weapon system or major service acquisition.
(b) Vacant acquisition positions shall be filled on an ``acting''
basis from below until a permanent appointment is made. To provide
promising professionals an opportunity to gain experience by temporarily
filling higher positions, these oversight duties shall not be accrued at
the top.
(c) Acquisition process reviews of the military departments shall be
conducted to assess and improve acquisition and management processes,
roles, and structures. The scope of the reviews should include--
(1) Distribution of acquisition roles and responsibilities among
personnel;
(2) Processes for reporting concerns about unusual or inappropriate
actions; and
(3) Application of DoD Instruction 5000.2, Operation of the Defense
Acquisition System, and the disciplines in the Defense Acquisition
Guidebook.
(d) Source selection processes shall be--
(1) Reviewed and approved by cognizant organizations responsible for
oversight;
(2) Documented by the head of the contracting activity or at the
agency level; and
(3) Periodically reviewed by outside officials independent of that
office or agency.
[[Page 18]]
(e) Legal review of documentation of major acquisition system source
selection shall be conducted prior to contract award, including the
supporting documentation of the source selection evaluation board,
source selection advisory council, and source selection authority.
(f) Procurement management reviews shall determine whether clearance
threshold authorities are clear and that independent review is provided
for acquisitions exceeding the simplified acquisition threshold.
[72 FR 20757, Apr. 26, 2007, as amended at 74 FR 2408, Jan. 15, 2009; 79
FR 73488, Dec. 11, 2014]
203.171 Senior DoD officials seeking employment with defense contractors.
203.171-1 Scope.
This section implements Section 847 of the National Defense
Authorization Act for Fiscal Year 2008 (Public Law 110-181).
[74 FR 2409, Jan. 15, 2009]
203.171-2 Definition.
Covered DoD official as used in this section, is defined in the
clause at 252.203-7000, Requirements Relating to Compensation of Former
DoD Officials.
[74 FR 2409, Jan. 15, 2009]
203.171-3 Policy.
(a) A DoD official covered by the requirements of Section 847 of
Public Law 110-181 (a ``covered DoD official'') who, within 2 years
after leaving DoD service, expects to receive compensation from a DoD
contractor, shall, prior to accepting such compensation, request a
written opinion from the appropriate DoD ethics counselor regarding the
applicability of post-employment restrictions to activities that the
official may undertake on behalf of a contractor.
(b) A DoD contractor may not knowingly provide compensation to a
covered DoD official within 2 years after the official leaves DoD
service unless the contractor first determines that the official has
received, or has requested at least 30 days prior to receiving
compensation from the contractor, the post-employment ethics opinion
described in paragraph (a) of this section.
(c) If a DoD contractor knowingly fails to comply with the
requirements of the clause at 252.203-7000, administrative and
contractual actions may be taken, including cancellation of a
procurement, rescission of a contract, or initiation of suspension or
debarment proceedings.
[74 FR 2409, Jan. 15, 2009]
203.171-4 Solicitation provision and contract clause.
(a) Use the clause at 252.203-7000, Requirements Relating to
Compensation of Former DoD Officials, in all solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items.
(b) Use the provision at 252.203-7005, Representation Relating to
Compensation of Former DoD Officials, in all solicitations, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items and solicitations for task and delivery orders
[76 FR 71829, Nov. 18, 2011, as amended at 78 FR 37983, June 25, 2013]
Subpart 203.5_Other Improper Business Practices
203.502-2 Subcontractor kickbacks.
(h) The DoD Inspector General has designated Special Agents of the
following investigative organizations as representatives for conducting
inspections and audits under 41 U.S.C. chapter 87, Kickbacks:
(i) U.S. Army Criminal Investigation Command.
(ii) Naval Criminal Investigative Service.
(iii) Air Force Office of Special Investigations.
(iv) Defense Criminal Investigative Service.
[56 FR 36288, July 31, 1991, as amended at 60 FR 29497, June 5, 1995; 77
FR 35879, June 15, 2012]
[[Page 19]]
203.570 Prohibition on persons convicted of frauds or other
defense-contract-related felonies.
203.570-1 Scope.
This subpart implements 10 U.S.C. 2408. For information on 10 U.S.C.
2408, see PGI 203.570-1.
[71 FR 14100, Mar. 21, 2006]
203.570-2 Prohibition period.
DoD has sole responsibility for determining the period of the
prohibition described in paragraph (b) of the clause at 252.203-7001,
Prohibition on Persons Convicted of Fraud or Other Defense-Contract-
Related Felonies. The prohibition period--
(a) Shall not be less than 5 years from the date of conviction
unless the agency head or a designee grants a waiver in the interest of
national security. Follow the waiver procedures at PGI 203.570-2(a); and
(b) May be more than 5 years from the date of conviction if the
agency head or a designee makes a written determination of the need for
the longer period. The agency shall provide a copy of the determination
to the address at PGI 203.570-2(b).
[69 FR 74990, Dec. 15, 2004]
203.570-3 Contract clause.
Use the clause at 252.203-7001, Prohibition on Persons Convicted of
Fraud or Other Defense-Contract-Related Felonies, in all solicitations
and contracts exceeding the simplified acquisition threshold, except
solicitations and contracts for commercial items.
[64 FR 14398, Mar. 25, 1999. Redesignated at 69 FR 74990, Dec. 15, 2004]
Subpart 203.7_Voiding and Rescinding Contracts
203.703 Authority.
The authority to act for the agency head under this subpart is
limited to a level no lower than an official who is appointed by and
with the advice of the Senate, without power of redelegation. For the
defense agencies, for purposes of this subpart, the agency head designee
is the Under Secretary of Defense (Acquisition, Technology, and
Logistics).
[56 FR 36288, July 31, 1991, as amended at 60 FR 61592, Nov. 30, 1995;
65 FR 39704, June 27, 2000]
Subpart 203.8_Limitations on the Payment of Funds To Influence Federal
Transactions
Source: 77 FR 19128, Mar. 30, 2012, unless otherwise noted.
203.806 Processing suspected violations.
Report suspected violations to the address at PGI 203.8(a).
Subpart 203.9_Whistleblower Protections for Contractor Employees
203.900 Scope of subpart.
This subpart applies to DoD instead of FAR subpart 3.9.
(1) This subpart implements 10 U.S.C. 2409 as amended by section 846
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L.
110-181), section 842 of the National Defense Authorization Act for
Fiscal Year 2009 (Pub. L. 110-417), and section 827 of the National
Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239).
(2) This subpart does not apply to any element of the intelligence
community, as defined in 50 U.S.C. 3003(4). This subpart does not apply
to any disclosure made by an employee of a contractor or subcontractor
of an element of the intelligence community if such disclosure--
(i) Relates to an activity or an element of the intelligence
community; or
(ii) Was discovered during contract or subcontract services provided
to an element of the intelligence community.
[58 FR 59853, Sept. 30, 2013, as amended at 79 FR 11337, Feb. 28, 2014]
203.901 Definitions.
Abuse of authority, as used in this subpart, means an arbitrary and
capricious exercise of authority that is inconsistent with the mission
of DoD or the successful performance of a DoD contract.
[[Page 20]]
203.903 Policy.
(1) Prohibition. 10 U.S.C. 2409 prohibits contractors and
subcontractors from discharging, demoting, or otherwise discriminating
against an employee as a reprisal for disclosing, to any of the entities
listed at paragraph (3) of this section, information that the employee
reasonably believes is evidence of gross mismanagement of a DoD
contract, a gross waste of DoD funds, an abuse of authority relating to
a DoD contract, a violation of law, rule, or regulation related to a DoD
contract (including the competition for or negotiation of a contract),
or a substantial and specific danger to public health or safety. Such
reprisal is prohibited even if it is undertaken at the request of an
executive branch official, unless the request takes the form of a non-
discretionary directive and is within the authority of the executive
branch official making the request.
(2) Classified information. As provided in section 827(h) of the
National Defense Authorization Act for Fiscal Year 2013, nothing in this
subpart provides any rights to disclose classified information not
otherwise provided by law.
(3) Entities to whom disclosure may be made:
(i) A Member of Congress or a representative of a committee of
Congress.
(ii) An Inspector General that receives funding from or has
oversight over contracts awarded for or on behalf of DoD.
(iii) The Government Accountability Office.
(iv) A DoD employee responsible for contract oversight or
management.
(v) An authorized official of the Department of Justice or other law
enforcement agency.
(vi) A court or grand jury.
(vii) A management official or other employee of the contractor or
subcontractor who has the responsibility to investigate, discover, or
address misconduct.
(4) Disclosure clarified. An employee who initiates or provides
evidence of contractor or subcontractor misconduct in any judicial or
administrative proceeding relating to waste, fraud, or abuse on a DoD
contract shall be deemed to have made a disclosure.
(5) Contracting officer actions. A contracting officer who receives
a complaint of reprisal of the type described in paragraph (1) of this
section shall forward it to legal counsel or to the appropriate party in
accordance with agency procedures.
[58 FR 59853, Sept. 30, 2013, as amended at 79 FR 11337, Feb. 28, 2014;
79 FR 23278, Apr. 28, 2014]
203.904 Procedures for filing complaints.
(1) Any employee of a contractor or subcontractor who believes that
he or she has been discharged, demoted, or otherwise discriminated
against contrary to the policy in 203.903 may file a complaint with the
Inspector General of the Department of Defense.
(2) A complaint may not be brought under this section more than
three years after the date on which the alleged reprisal took place.
(3) The complaint shall be signed and shall contain--
(i) The name of the contractor;
(ii) The contract number, if known; if not, a description reasonably
sufficient to identify the contract(s) involved;
(iii) The violation of law, rule, or regulation giving rise to the
disclosure;
(iv) The nature of the disclosure giving rise to the discriminatory
act, including the party to whom the information was disclosed; and
(v) The specific nature and date of the reprisal.
[58 FR 59853, Sept. 30, 2013, as amended at 79 FR 11337, Feb. 28, 2014]
203.905 Procedures for investigating complaints.
(1) Unless the DoD Inspector General makes a determination that the
complaint is frivolous, fails to allege a violation of the prohibition
in 203.903, or has been previously addressed in another Federal or State
judicial or administrative proceeding initiated by the complainant, the
DoD Inspector General will investigate the complaint.
(2) If the DoD Inspector General investigates the complaint, the DoD
Inspector General will--
(i) Notify the complainant, the contractor alleged to have committed
the violation, and the head of the agency; and
[[Page 21]]
(ii) Provide a written report of findings to the complainant, the
contractor alleged to have committed the violation, and the head of the
agency.
(3) Upon completion of the investigation, the DoD Inspector
General--
(i) Either will determine that the complaint is frivolous, fails to
allege a violation of the prohibition in 203.903, or has been previously
addressed in another Federal or State judicial or administrative
proceeding initiated by the complainant, or will submit the report
addressed in paragraph (2) of this section within 180 days after
receiving the complaint; and
(ii) If unable to submit a report within 180 days, will submit the
report within the additional time period, up to 180 days, as agreed to
by the person submitting the complaint.
(4) The DoD Inspector General may not respond to any inquiry or
disclose any information from or about any person alleging the reprisal,
except to the extent that such response or disclosure is--
(i) Made with the consent of the person alleging reprisal;
(ii) Made in accordance with 5 U.S.C. 552a (the Freedom of
Information Act) or as required by any other applicable Federal law; or
(iii) Necessary to conduct an investigation of the alleged reprisal.
(5) The legal burden of proof specified at paragraph (e) of 5 U.S.C.
1221 (Individual Right of Action in Certain Reprisal Cases) shall be
controlling for the purposes of an investigation conducted by the DoD
Inspector General, decision by the head of an agency, or judicial or
administrative proceeding to determine whether prohibited discrimination
has occurred.
[74 FR 2410, Jan. 15, 2009, as amended at 78 FR 59853, Sept. 30, 2013;
79 FR 11337, Feb. 28, 2014]
203.906 Remedies.
(1) Not later than 30 days after receiving a DoD Inspector General
report in accordance with 203.905, the head of the agency shall
determine whether sufficient basis exists to conclude that the
contractor has subjected the complainant to a reprisal as prohibited by
203.903 and shall either issue an order denying relief or shall take one
or more of the following actions:
(i) Order the contractor to take affirmative action to abate the
reprisal.
(ii) Order the contractor to reinstate the person to the position
that the person held before the reprisal, together with compensatory
damages (including back pay), employment benefits, and other terms and
conditions of employment that would apply to the person in that position
if the reprisal had not been taken.
(iii) Order the contractor to pay the complainant an amount equal to
the aggregate amount of all costs and expenses (including attorneys'
fees and expert witnesses' fees) that were reasonably incurred by the
complainant for, or in connection with, bringing the complaint regarding
the reprisal, as determined by the head of the agency.
(2) If the head of the agency issues an order denying relief or has
not issued an order within 210 days after the submission of the
complaint or within 30 days after the expiration of an extension of time
granted in accordance with 203.905(3)(ii), and there is no showing that
such delay is due to the bad faith of the complainant--
(i) The complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint; and
(ii) The complainant may bring a de novo action at law or equity
against the contractor to seek compensatory damages and other relief
available under 10 U.S.C. 2409 in the appropriate district court of the
United States, which shall have jurisdiction over such an action without
regard to the amount in controversy. Such an action shall, at the
request of either party to the action, be tried by the court with a
jury. An action under this authority may not be brought more than two
years after the date on which remedies are deemed to have been
exhausted.
(3) An Inspector General determination and an agency head order
denying relief under paragraph (2) of this section shall be admissible
in evidence in any de novo action at law or equity brought pursuant to
10 U.S.C. 2409(c).
(4) Whenever a contractor fails to comply with an order issued by
the head of agency in accordance with 10
[[Page 22]]
U.S.C. 2409, the head of the agency or designee shall request the
Department of Justice to file an action for enforcement of such order in
the United States district court for a district in which the reprisal
was found to have occurred. In any action brought under this paragraph,
the court may grant appropriate relief, including injunctive relief,
compensatory and exemplary damages, and reasonable attorney fees and
costs. The person upon whose behalf an order was issued may also file
such an action or join in an action filed by the head of the agency.
(5) Any person adversely affected or aggrieved by an order issued by
the head of the agency in accordance with 10 U.S.C. 2409 may obtain
judicial review of the order's conformance with the law, and the
implementing regulation, in the United States Court of Appeals for a
circuit in which the reprisal is alleged in the order to have occurred.
No petition seeking such review may be filed more than 60 days after
issuance of the order by the head of the agency or designee. Review
shall conform to Chapter 7 of Title 5, Unites States Code. Filing such
an appeal shall not act to stay the enforcement of the order by the head
of an agency, unless a stay is specifically entered by the court.
(6) The rights and remedies provided for in this subpart may not be
waived by any agreement, policy, form, or condition of employment.
[74 FR 2410, Jan. 15, 2009, as amended at 78 FR 59854, Sept. 30, 2013;
78 FR 73450, Dec. 6, 2013]
203.970 Contract clause.
Use the clause at 252.203-7002, Requirement to Inform Employees of
Whistleblower Rights, in all solicitations and contracts.
[74 FR 2410, Jan. 15, 2009]
Subpart 203.10_Contractor Code of Business Ethics and Conduct
203.1003 Requirements.
(b) Notification of possible contractor violation. Upon notification
of a possible contractor violation of the type described in FAR
3.1003(b), coordinate the matter with the following office:
Department of Defense Office of Inspector General, Investigative Policy
and Oversight Contractor Disclosure Program, 4800 Mark Center Drive,
Suite 11H25, Arlington, VA 22350-1500.
Toll-Free Telephone: 866-429-8011.
(c) Fraud hotline poster. For contracts performed outside the United
States, when security concerns can be appropriately demonstrated, the
contracting officer may provide the contractor the option to publicize
the program to contractor personnel in a manner other than public
display of the poster required by 203.1004(b)(2)(ii), such as private
employee written instructions and briefings.
[77 FR 76937, Dec. 31, 2012, as amended at 81 FR 73005, Oct. 21, 2016]
203.1004 Contract clauses.
(a) Use the clause at 252.203-7003, Agency Office of the Inspector
General, in solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of commercial
items, that include the FAR clause 52.203-13, Contractor Code of
Business Ethics and Conduct.
(b)(2)(ii) Unless the contract is for the acquisition of a
commercial item, use the clause at 252.203-7004, Display of Hotline
Posters, in lieu of the clause at FAR 52.203-14, Display of Hotline
Poster(s), in solicitations and contracts, if the contract value exceeds
$5.5 million. If the Department of Homeland Security (DHS) provides
disaster relief funds for the contract, DHS will provide information on
how to obtain and display the DHS fraud hotline poster (see FAR 3.1003).
[73 FR 46815, Aug. 12, 2008, as amended at 74 FR 53413, Oct. 19, 2009;
75 FR 59101, Sept. 27, 2010, as amended at 76 FR 32840, June 6, 2011; 76
FR 57674, Sept. 16, 2011; 78 FR 37983, June 25, 2013; 80 FR 5000, Jan.
29, 2015; 80 FR 36904, June 26, 2015]
PART 204_ADMINISTRATIVE MATTERS--Table of Contents
Subpart 204.1_Contract Execution
Sec.
204.101 Contracting officer's signature.
[[Page 23]]
Subpart 204.2_Contract Distribution
204.201 Procedures.
204.203 Taxpayer identification information.
204.270 Electronic Document Access.
204.270-1 Policy.
204.270-2 Procedures.
Subpart 204.4_Safeguarding Classified Information Within Industry
204.402 General.
204.403 Responsibilities of contracting officers.
204.404 Contract clause.
204.404-70 Additional contract clauses.
204.470 U.S.-International Atomic Energy Agency Additional Protocol.
204.470-1 General.
204.470-2 National security exclusion.
204.470-3 Contract clause.
Subpart 204.6_Contract Reporting
204.602 General.
204.604 Responsibilities.
204.606 Reporting data.
Subpart 204.8_Contract Files
204.802 Contract files.
204.804 Closeout of contract files.
204.805 Disposal of contract files.
Subpart 204.9_Taxpayer Identification Number Information
204.902 General.
Subpart 204.11_System For Award Management
204.1103 Procedures.
Subpart 204.12_Annual Representations and Certifications
204.1202 Solicitation provision.
Subpart 204.16_Uniform Procurement Instrument Identifiers
204.1601 Policy.
204.1603 Procedures.
204.1670 Cross reference to Federal Procurement Data System.
204.1671 Order of application for modifications.
Subpart 204.18_Commercial and Government Entity Code
204.1870 Procedures.
Subpart 204.70 [Reserved]
Subpart 204.71_Uniform Contract Line Item Numbering System
204.7100 Scope.
204.7101 Definitions.
204.7102 Policy.
204.7103 Contract line items.
204.7103-1 Criteria for establishing.
204.7103-2 Numbering procedures.
204.7104 Contract subline items.
204.7104-1 Criteria for establishing.
204.7104-2 Numbering procedures.
204.7105 Contract exhibits and attachments.
204.7106 Contract modifications.
204.7107 Contract accounting classification reference number (ACRN) and
agency accounting identifier (AAI).
204.7108 Payment instructions.
204.7109 Solicitation provision and contract clause.
Subpart 204.73_Safeguarding Covered Defense Information and Cyber
Incident Reporting
204.7300 Scope.
204.7301 Definitions.
204.7302 Policy.
204.7303 Procedures.
204.7304 Solicitation provision and contract clauses.
Subpart 204.74_Disclosure of Information to Litigation Support
Contractors
204.7400 Scope of subpart.
204.7401 Definitions.
204.7402 Policy.
204.7403 Solicitation provision and contract clauses.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36289, July 31, 1991, unless otherwise noted.
Subpart 204.1_Contract Execution
204.101 Contracting officer's signature.
Follow the procedures at PGI 204.101 for signature of contract
documents.
[71 FR 9268, Feb. 23, 2006]
Subpart 204.2_Contract Distribution
204.201 Procedures.
Follow the procedures at PGI 204.201 for the distribution of
contracts and modifications.
[[Page 24]]
(a) In lieu of the requirement at FAR 4.201 (a), contracting
officers shall distribute one signed copy or reproduction of the signed
contract to the contractor.
[70 FR 58982, Oct. 11, 2005, as amended at 80 FR 58631, Sept. 30, 2015]
204.203 Taxpayer identification information.
(b) The procedure at FAR 4.203(b) does not apply to contracts that
include the provision at FAR 52.204-7, System for Award Management. The
payment office obtains the taxpayer identification number and the type
of organization from the System for Award Management database.
[78 FR 28757, May 16, 2013]
204.270 Electronic Document Access.
[75 FR 59102, Sept. 27, 2010, as amended at 80 FR 58631, Sept. 30, 2015]
204.270-1 Policy.
(a) The Electronic Document Access (EDA) system, an online
repository for contractual instruments and supporting documents, is
DoD's primary tool for electronic distribution of contract documents and
contract data. Contract attachments shall be uploaded to EDA, except for
contract attachments that are classified, are too sensitive for
widespread distribution (e.g., personally identifiable information and
Privacy Act and Health Insurance Portability and Accountability Act, or
cannot be practicably converted to electronic format (e.g., samples,
drawings, and models). Section J (or similar location when the Uniform
Contract Format is not used) shall include the annotation ``provided
under separate cover'' for any attachment not uploaded to EDA.
(b) Agencies are responsible for ensuring the following when posting
documents, including contractual instruments, to EDA--
(1) The timely distribution of documents; and
(2) That internal controls are in place to ensure that--
(i) The electronic version of a contract document in EDA is an
accurate representation of the contract; and
(ii) The contract data in EDA is an accurate representation of the
underlying contract.
[80 FR 58631, Sept. 30, 2015]
204.270-2 Procedures.
(b) The procedures at PGI 204.270-2 provide details on how to record
the results of data verification in EDA. When these procedures are
followed, contract documents and data in EDA are an accurate
representation of the contract and therefore may be used for audit
purposes.
(c) The procedures at PGI 204.270-2(c) provide details on the
creation and processing of contract deficiency reports, which are used
to correct problems with contracts distributed in EDA.
[80 FR 58631, Sept. 30, 2015, as amended at 81 FR 72738, Oct. 21, 2016]
Subpart 204.4_Safeguarding Classified Information Within Industry
204.402 General.
DoD employees or members of the Armed Forces who are assigned to or
visiting a contractor facility and are engaged in oversight of an
acquisition program will retain control of their work products, both
classified and unclassified (see PGI 204.402).
[71 FR 9268, Feb. 23, 2006, as amended at 76 FR 76319, Dec. 7, 2011]
204.403 Responsibilities of contracting officers.
(1) Contracting officers shall ensure that solicitations comply with
PGI 204.403(1).
(2) For additional guidance on determining a project to be
fundamental research in accordance with 252.204-7000(a)(3), see PGI
204.403(2).
[79 FR 56278, Sept. 19, 2014]
204.404 Contract clause.
204.404-70 Additional contract clauses.
(a) Use the clause at 252.204-7000, Disclosure of Information, in
solicitations and contracts when the contractor will have access to or
generate unclassified
[[Page 25]]
information that may be sensitive and inappropriate for release to the
public.
(b) Use the clause at 252.204-7003, Control of Government Personnel
Work Product, in all solicitations and contracts.
(c) Use the clause at 252.204-7005, Oral Attestation of Security
Responsibilities, in solicitations and contracts that include the clause
at FAR 52.204-2, Security Requirements.
[57 FR 14992, Apr. 23, 1992, as amended at 64 FR 45197, Aug. 19, 1999]
204.470 U.S.-International Atomic Energy Agency Additional Protocol.
204.470-1 General.
Under the U.S.-International Atomic Energy Agency Additional
Protocol (U.S.-IAEA AP), the United States is required to declare a wide
range of public and private nuclear-related activities to the IAEA and
potentially provide access to IAEA inspectors for verification purposes.
[74 FR 2412, Jan. 15, 2009]
204.470-2 National security exclusion.
(a) The U.S.-IAEA AP permits the United States unilaterally to
declare exclusions from inspection requirements for activities, or
locations or information associated with such activities, with direct
national security significance.
(b) In order to ensure that all relevant activities are reviewed for
direct national security significance, both current and former
activities, and associated locations or information, are to be
considered for applicability for a national security exclusion.
(c) If a DoD program manager receives notification from a contractor
that the contractor is required to report any of its activities in
accordance with the U.S.-IAEA AP, the program manager will--
(1) Conduct a security assessment to determine if, and by what
means, access may be granted to the IAEA; or
(2) Provide written justification to the component or agency treaty
office for application of the national security exclusion at that
location to exclude access by the IAEA, in accordance with DoD
Instruction 2060.03, Application of the National Security Exclusion to
the Agreements Between the United States of America and the
International Atomic Energy Agency for the Application of Safeguards in
the United States of America.
[74 FR 2412, Jan. 15, 2009]
204.470-3 Contract clause.
Use the clause at 252.204-7010, Requirement for Contractor to Notify
DoD if the Contractor's Activities are Subject to Reporting Under the
U.S.-International Atomic Energy Agency Additional Protocol, in
solicitations and contracts for research and development or major
defense acquisition programs involving--
(a) Any fissionable materials (e.g., uranium, plutonium, neptunium,
thorium, americium);
(b) Other radiological source materials; or
(c) Technologies directly related to nuclear power production,
including nuclear or radiological waste materials.
[74 FR 2412, Jan. 15, 2009]
Subpart 204.6_Contract Reporting
204.602 General.
See PGI 204.602 for additional information on the Federal
Procurement Data System (FPDS) and procedures for resolving technical or
policy issues relating to FPDS.
[74 FR 37644, July 29, 2009]
204.604 Responsibilities.
(1) The process for reporting contract actions to FPDS should, where
possible, be automated by incorporating it into contract writing
systems.
(2) Data in FPDS is stored indefinitely and is electronically
retrievable. Therefore, the contracting officer may reference the
contract action report (CAR) approval date in the associated Government
contract file instead of including a paper copy of the electronically
submitted CAR in the file. Such reference satisfies contract file
documentation requirements of FAR 4.803(a).
(3) By December 15th of each year, the chief acquisition officer of
each DoD component required to report its
[[Page 26]]
contract actions shall submit to the Director, Defense Procurement and
Acquisition Policy, its annual certification and data validation results
for the preceding fiscal year in accordance with the DoD Data
Improvement Plan requirements at http://www.acq.osd.mil/dpap/pdi/eb. The
Director, Defense Procurement and Acquisition Policy, will submit a
consolidated DoD annual certification to the Office of Management and
Budget by January 5th of each year.
[74 FR 37644, July 29, 2009]
204.606 Reporting data.
In addition to FAR 4.606, follow the procedures at PGI 204.606 for
reporting data to FPDS.
[74 FR 37644, July 29, 2009]
Subpart 204.8_Contract Files
204.802 Contract files.
(a) Any document posted to the Electronic Document Access (EDA)
system is part of the contract file and is accessible by multiple
parties, including the contractor. Do not include in EDA contract
documents that are classified, too sensitive for widespread distribution
(e.g., personally identifiable information and Privacy Act and Health
Insurance Portability and Accountability Act), or attachments that
cannot be practicably converted to electronic format (e.g., samples,
drawings, and models). Inclusion of any document in EDA other than
contracts, modifications, and orders is optional.
(f) A photocopy, facsimile, electronic, mechanically-applied and
printed signature, seal, and date are considered to be an original
signature, seal, and date.
[80 FR 58631, Sept. 30, 2015]
204.804 Closeout of contract files.
(1) Contracting officers shall close out contracts in accordance
with the procedures at PGI 204.804. The closeout date for file purposes
shall be determined and documented by the procuring contracting officer.
(2) The head of the contracting activity shall assign the highest
priority to closeout of contracts awarded for performance in a
contingency area. Heads of contracting activities must monitor and
assess on a regular basis the progress of contingency contract closeout
activities and take appropriate steps if a backlog occurs. For guidance
on the planning and execution of closing out such contracts, see PGI
207.105(b)(20)(C)(8) and PGI 225.373(e).
[77 FR 30367, May 22, 2012, as amended at 80 FR 36901, June 26, 2015]
204.805 Disposal of contract files.
(1) The sources of the period for which contract files must be
retained are General Records Schedule 3 (Procurement, Supply, and Grant
Records) and General Records Schedule 6 (Accountable Officers' Accounts
Records). Copies of the General Records Schedule may be obtained from
the National Archives and Records Administration, Washington, DC 20408.
(2) Deviations from the periods cannot be granted by the Defense
Acquisition Regulatory Council. Forward requests for deviations to both
the Government Accountability Office and the National Archives and
Records Administration.
(3) Hold completed contract files in the office responsible for
maintaining them for a period of 12 months after completion. After the
initial 12 month period, send the records to the local records holding
or staging area until they are eligible for destruction. If no space is
available locally, transfer the files to the General Services
Administration Federal Records Center that services the area.
(4) Duplicate or working contract files should contain no originals
of materials that properly belong in the official files. Destroy working
files as soon as practicable once they are no longer needed.
(5) Retain pricing review files, containing documents related to
reviews of the contractor's price proposals, subject to certified cost
or pricing data (see FAR 15.403-4), for six years. If it is impossible
to determine the final payment date in order to measure the six year
period, retain the files for nine years.
[56 FR 36289, July 31, 1991, as amended at 62 FR 40472, July 29, 1997;
63 FR 11528, Mar. 9, 1998; 71 FR 53044, Sept. 8, 2006; 77 FR 76939, Dec.
31, 2012; 80 FR 58632, Sept. 30, 2015]
[[Page 27]]
Subpart 204.9_Taxpayer Identification Number Information
Source: 64 FR 43099, Aug. 9, 1999, unless otherwise noted.
204.902 General.
(b) DoD uses the Federal Procurement Data System (FPDS) to meet
these reporting requirements.
[74 FR 37645, July 29, 2009]
Subpart 204.11_System For Award Management
Source: 68 FR 64558, Nov. 14, 2003, unless otherwise noted.
204.1103 Procedures.
See PGI 204.1103 for helpful information on navigation and data
entry in the System for Award Management (SAM) database.
(1) On contract award documents, use the contractor's legal or
``doing business as'' name and physical address information as recorded
in the (SAM) database at the time of award.
(2) When making a determination to exercise an option, or at any
other time before issuing a modification other than a unilateral
modification making an administrative change, ensure that--
(i) The contractor's record is active in the SAM database; and
(ii) The contractor's Data Universal Numbering System (DUNS) number,
Commercial and Government Entity (CAGE) code, name, and physical address
are accurately reflected in the contract document.
(3) At any time, if the DUNS number, CAGE code, contractor name, or
physical address on a contract no longer matches the information on the
contractor's record in the SAM database, the contracting officer shall
process a novation or change-of-name agreement, or an address change, as
appropriate.
(4) See PGI 204.1103 for additional requirements relating to use of
information in the SAM database.
(5) On contractual documents transmitted to the payment office,
provide the CAGE code, instead of the DUNS number or DUNS+4 number, in
accordance with agency procedures.
[74 FR 37643, July 29, 2009, as amended at 78 FR 28757, May 16, 2013]
Subpart 204.12_Annual Representations and Certifications
Source: 73 FR 1823, Jan. 10, 2008, unless otherwise noted.
204.1202 Solicitation provision.
(1) When using the provision at FAR 52.204-8, Annual Representations
and Certifications, use the provision with 252.204-7007, Alternate A,
Annual Representations and Certifications; and
(2) When the provision at FAR 52.204-7, System for Award Management,
is included in the solicitation, do not include separately in the
solicitation the following provisions, which are included in DFARS
252.204-7007:
(i) 252.209-7002, Disclosure of Ownership or Control by a Foreign
Government.
(ii) 252.209-7003, Reserve Officer Training Corps and Military
Recruiting on Campus--Representation.
(iii) 252.216-7008, Economic Price Adjustment--Wage Rates or
Material Prices Controlled by a Foreign Government--Representation.
(iv) 252.225-7000, Buy American--Balance of Payments Program
Certificate.
(v) 252.225-7020, Trade Agreements Certificate.
(vi) 252.225-7031, Secondary Arab Boycott of Israel.
(vii) 252.225-7035, Buy American--Free Trade Agreements--Balance of
Payments Program Certificate.
(viii) 252.225-7042, Authorization to Perform.
(ix) 252.225-7049, Prohibition on Acquisition of Commercial
Satellite Services from Certain Foreign Entities--Representations.
(x) 252.225-7050, Disclosure of Ownership or Control by the
Government of a Country that is a State Sponsor of Terrorism.
(xi) 252.229-7012, Tax Exemptions (Italy)--Representation.
(xii) 252.229-7013, Tax Exemptions (Spain)--Representation.
[[Page 28]]
(xiii) 252.247-7022, Representation of Extent of Transportation by
Sea.
[76 FR 58141, Sept. 20, 2011, as amended at 77 FR 19129, Mar. 30, 2012;
77 FR 35879, June 15, 2012; 78 FR 37983, June 25, 2013; 78 FR 40043,
July 3, 2013; 79 FR 45664, Aug. 5, 2014; 79 FR 51264, Aug. 28, 2014; 79
FR 73489, Dec. 11, 2014; 80 FR 5000, Jan. 29, 2015; 83 FR 24888, May 30,
2018]
Subpart 204.16_Uniform Procurement Instrument Identifiers
Source: 81 FR 9785, Feb. 26, 2016, unless otherwise noted.
204.1601 Policy.
(a) Establishment of a Procurement Instrument Identifier (PIID). Do
not reuse a PIID once it has been assigned. Do not assign the same PIID
to more than one task or delivery order, even if they are issued under
different base contracts or agreements.
(b) Transition of PIID numbering. Effective October 1, 2016, all DoD
components shall comply with the PIID numbering requirements of FAR
subpart 4.16 and this subpart for all new solicitations, contracts,
orders, and agreements issued, and any amendments and modifications to
those new actions. See also PGI 204.1601(b).
(c) Change in the PIID after its assignment. When a PIID is changed
after contract award, the new PIID is known as a continued contract.
(i) A continued contract--
(A) Does not constitute a new procurement;
(B) Incorporates all prices, terms, and conditions of the
predecessor contract effective at the time of issuance of the continued
contract;
(C) Operates as a separate contract independent of the predecessor
contract once issued; and
(D) Shall not be used to evade competition requirements, expand the
scope of work, or extend the period of performance beyond that of the
predecessor contract.
(ii) When issuing a continued contract, the contracting officer
shall--
(A) Issue an administrative modification to the predecessor contract
to clearly state that--
(1) Any future awards provided for under the terms of the
predecessor contract (e.g., issuance of orders or exercise of options)
will be accomplished under the continued contract; and
(2) Supplies and services already acquired under the predecessor
contract shall remain solely under that contract for purposes of
Government inspection, acceptance, payment, and closeout; and
(B) Follow the procedures at PGI 204.1601(c).
204.1603 Procedures.
(a) Elements of a PIID. DoD-issued PIIDs are thirteen characters in
length. Use only alpha-numeric characters, as prescribed in FAR 4.1603
and this subpart. Do not use the letter I or O in any part of the PIID.
(3) Position 9.
(A) DoD will use three of the letters reserved for departmental or
agency use in FAR 4.1603(a)(3) in this position as follows:
(1) Use M to identify purchase orders and task or delivery orders
issued by the enterprise FedMall system.
(2) Use S to identify broad agency announcements.
(3) Use T to identify automated requests for quotations by
authorized legacy contract writing systems. See PGI 204.1603(a)(3)(A)(3)
for the list of authorized systems.
(B) Do not use other letters identified in FAR 4.1603(a)(3) as
``Reserved for future Federal Governmentwide use'' or ``Reserved for
departmental or agency use'' in position 9 of the PIID.
(C) Do not use the letter C or H for contracts or agreements with
provisions for orders or calls.
(4) Positions 10 through 17. In accordance with FAR 4.1603(a)(4),
DoD-issued PIIDs shall only use positions 10 through 13 to complete the
PIID. Enter the serial number of the instrument in these positions. A
separate series of serial numbers may be used for any type of instrument
listed in FAR 4.1603(a)(3). DoD components assign such series of PIID
numbers sequentially. A DoD component may reserve blocks of numbers or
alpha-numeric numbers for use by its various activities.
(b) Elements of a supplementary PIID. In addition to the
supplementary PIID numbering procedures in FAR 4.1603(b), follow the
procedures contained in paragraphs (b)(2)(ii)(1) and (2) of this
[[Page 29]]
section. See PGI 204.1603(b) for examples of proper supplementary PIID
numbering.
(2)(ii) Positions 2 through 6. In accordance with FAR
4.1603(b)(2)(ii), DoD-issued supplementary PIIDs shall, for positions 2
through 6 of modifications to contracts and agreements, comply with the
following:
(1) Positions 2 and 3. These two digits may be either alpha or
numeric characters, except--
(i) Use K, L, M, N, P, and Q only in position 2, and only if the
modification is issued by the Air Force and is a provisioned item order;
(ii) Use S only in position 2, and only to identify modifications
issued to provide initial or amended shipping instructions when--
(a) The contract has either FOB origin or destination delivery
terms; and
(b) The price changes;
(iii) Use T, U, V, W, X, or Y only in position 2, and only to
identify modifications issued to provide initial or amended shipping
instructions when--
(a) The contract has FOB origin delivery terms; and
(b) The price does not change; and
(iv) Use Z only in position 2, and only to identify a modification
which definitizes a letter contract or a previously issued undefinitized
modification.
(2) Positions 4 through 6. These positions are always numeric. Use a
separate series of serial numbers for each type of modification listed
in paragraph (b)(2)(ii) of this section.
204.1670 Cross reference to Federal Procurement Data System.
Detailed guidance on mapping PIID and supplementary PIID numbers
stored in the Electronic Document Access system to data elements
reported in the Federal Procurement Data System can be found in PGI
204.1670.
204.1671 Order of application for modifications.
(a) Circumstances may exist in which the numeric order of the
modifications to a contract is not the order in which the changes to the
contract actually take effect.
(b) In order to determine the sequence of modifications to a
contract or order, the modifications will be applied in the following
order--
(1) Modifications will be applied in order of the effective date on
the modification;
(2) In the event of two or more modifications with the same
effective date, modifications will be applied in signature date order;
and
(3) In the event of two or more modifications with the same
effective date and the same signature date, procuring contracting office
modifications will be applied in numeric order, followed by contract
administration office modifications in numeric order.
Subpart 204.18_Commercial and Government Entity Code
Source: 79 FR 73492, Dec. 11, 2014, unless otherwise noted.
204.1870 Procedures.
Follow the procedures and guidance at PGI 204-1870 concerning
Commercial and Government Entity (CAGE) codes and CAGE file maintenance.
Subpart 204.70 [Reserved]
Subpart 204.71_Uniform Contract Line Item Numbering System
204.7100 Scope.
This subpart prescribes policies and procedures for assigning
contract line item numbers.
204.7101 Definitions.
Accounting classification reference number (ACRN) means any
combination of a two position alpha/numeric code used as a method of
relating the accounting classification citation to detailed line item
information contained in the schedule.
Attachment means any documentation, appended to a contract or
incorporated by reference, which does not establish a requirement for
deliverables.
Definitized item, as used in this subpart, means an item for which a
firm price has been established in the basic contract or by
modification.
Exhibit means a document, referred to in a contract, which is
attached and
[[Page 30]]
establishes requirements for deliverables. The term shall not be used to
refer to any other kind of attachment to a contract. The DD Form 1423,
Contract Data Requirements List, is always an exhibit, rather than an
attachment.
Nonseverable deliverable, as used in this subpart, means a
deliverable item that is a single end product or undertaking, entire in
nature, that cannot be feasibly subdivided into discrete elements or
phases without losing its identity.
Undefinitized item, as used in this subpart, means an item for which
a price has not been established in the basic contract or by
modification.
[56 FR 36289, July 31, 1991, as amended at 60 FR 34468, July 3, 1995; 70
FR 58982, Oct. 11, 2005]
204.7102 Policy.
(a) The numbering procedures of this subpart shall apply to all--
(1) Solicitations;
(2) Solicitation line and subline item numbers;
(3) Contracts as defined in FAR Subpart 2.1;
(4) Contract line and subline item numbers;
(5) Exhibits;
(6) Exhibit line items; and
(7) Any other document expected to become part of the contract.
(b) The numbering procedures are mandatory for all contracts where
separate contract line item numbers are assigned, unless--
(1) The contract is an indefinite-delivery type for petroleum
products against which posts, camps, and stations issue delivery orders
for products to be consumed by them; or
(2) The contract is a communications service authorization issued by
the Defense Information Systems Agency's Defense Information Technology
Contracting Organization.
[71 FR 9269, Feb. 23, 2006, as amended at 77 FR 76937, Dec. 31, 2012]
204.7103 Contract line items.
Follow the procedures at PGI 204.7103 for establishing contract line
items.
[56 FR 36284, July 31, 1991, as amended at 79 FR 51264, Aug. 28, 2014]
204.7103-1 Criteria for establishing.
Contracts shall identify the items or services to be acquired as
separate contract line items unless it is not feasible to do so.
(a) Contract line items shall have all four of the following
characteristics; however, there are exceptions within the
characteristics, which may make establishing a separate contract line
item appropriate even though one of the characteristics appears to be
missing--
(1) Single unit price. The item shall have a single unit price or a
single total price, except--
(i) If the item is not separately priced (NSP) but the price is
included in the unit price of another contract line item, enter NSP
instead of the unit price;
(ii) When there are associated subline items, established for other
than informational reasons, and those subline items are priced in
accordance with 204.7104;
(iii) When the items or services are being acquired on a cost-
reimbursement contract;
(iv) When the contract is for maintenance and repair services (e.g.,
a labor hour contract) and firm prices have been established for
elements of the total price of an item but the actual number and
quantity of the elements are not known until performance. The
contracting officer may structure these contracts to reflect a firm or
estimated total amount for each line item;
(v) When the contract line item is established to refer to an
exhibit or an attachment (if management needs dictate that a unit price
be entered, the price shall be set forth in the item description block
and enclosed in parentheses); or
(vi) When the contract is an indefinite delivery type contract and
provides that the price of an item shall be determined at the time a
delivery order is placed and the price is influenced by such factors as
the quantity ordered (e.g., 10-99 @ $1.00, 100-249 @ $.98, 250+ @ $.95),
the destination, the FOB point, or the type of packaging required.
(2) Separately identifiable. A contract line item must be identified
separately
[[Page 31]]
from any other items or services on the contract.
(i) Supplies are separately identifiable if they have no more than
one--
(A) National stock number (NSN);
(B) Item description; or
(C) Manufacturer's part number.
(ii) Services are separately identifiable if they have no more than
one--
(A) Scope of work; or
(B) Description of services.
(iii) This requirement does not apply if there are associated
subline items, established for other than informational reasons, and
those subline items include the actual detailed identification in
accordance with 204.7104. Where this exception applies, use a general
narrative description instead of the contract item description.
(3) Separate delivery schedule. Each contract line item or service
shall have its own delivery schedule, period of performance, or
completion date expressly stated (``as required'' constitutes an
expressly stated delivery term).
(i) The fact that there is more than one delivery date, destination,
performance date, or performance point may be a determining factor in
the decision as to whether to establish more than one contract line
item.
(ii) If a contract line item has more than one destination or
delivery date, the contracting officer may create individual contract
line items for the different destinations or delivery dates, or may
specify the different delivery dates for the units by destination in the
delivery schedule.
(4) Single accounting classification citation. (i) Each contract
line item shall reference a single accounting classification citation
except as provided in paragraph (a)(4)(ii) of this subsection.
(ii) The use of multiple accounting classification citations for a
contract line item is authorized in the following situations:
(A) A single, nonseverable deliverable to be paid for with R&D or
other funds properly incrementally obligated over several fiscal years
in accordance with DoD policy;
(B) A single, nonseverable deliverable to be paid for with different
authorizations or appropriations, such as in the acquisition of a
satellite or the modification of production tooling used to produce
items being acquired by several activities; or
(C) A modification to an existing contract line item for a
nonseverable deliverable that results in the delivery of a modified
item(s) where the item(s) and modification are to be paid for with
different accounting classification citations.
(iii) When the use of multiple accounting classification citations
is authorized for a single contract line item, establish informational
subline items for each accounting classification citation in accordance
with 204.7104-1(a).
(b) All subline items and exhibit line items under one contract line
item shall be the same contract type as the contract line item.
(c) For a contract that contains a combination of fixed-price line
items, time-and-materials/labor-hour line items, and/or cost-
reimbursement line items, identify the contract type for each contract
line item in Section B, Supplies or Services and Prices/Costs, to
facilitate appropriate payment.
(d) Exhibits may be used as an alternative to putting a long list of
contract line items in the schedule. If exhibits are used, create a
contract line item citing the exhibit's identifier. See 204.7105.
(e) If the contract involves a test model or a first article which
must be approved, establish a separate contract line item or subline
item for each item of supply or service which must be approved. If the
test model or first article consists of a lot composed of a mixture of
items, a single line item or subline item may be used for the lot.
(f) If a supply or service involves ancillary functions, like
packaging and handling, transportation, payment of state or local taxes,
or use of reusable containers, and these functions are normally
performed by the contractor and the contractor is normally entitled to
reimbursement for performing these functions, do not establish a
separate contract line item solely to account for these functions.
However, do identify the functions in the contract schedule. If the
offeror separately prices these functions, contracting officers may
establish separate contract line items for the functions; however, the
separate
[[Page 32]]
line items must conform to the requirements of paragraph (a) of this
subsection.
(g) Certain commercial items and initial provisioning spares for
weapons systems are requested and subsequently solicited using units of
measure such as kit, set, or lot. However, there are times when
individual items within that kit, set, or lot are not grouped and
delivered in a single shipment. This creates potential contract
administration issues with inspection, acceptance, and payment. In such
cases, solicitations should be structured to allow offerors to provide
information about products that may not have been known to the
Government prior to solicitation and propose an alternate line item
structure as long as the alternate is consistent with the requirements
of 204.71, which provides explicit guidance on the use of contract line
items and subline items, and with PGI 204.71.
[56 FR 36289, July 31, 1991, as amended at 60 FR 34468, July 3, 1995; 60
FR 43191, Aug. 18, 1995; 70 FR 58982, Oct. 11, 2005; 76 FR 58139, Sept.
20, 2011; 79 FR 11342, Feb. 28, 2014]
204.7103-2 Numbering procedures.
Follow the procedures at PGI 204.7103-2 for numbering contract line
items.
[70 FR 58983, Oct. 11, 2005]
204.7104 Contract subline items.
204.7104-1 Criteria for establishing.
Contract subline items provide flexibility to further identify
elements within a contract line item for tracking performance or
simplifying administration. There are only two kinds of subline items:
those which are informational in nature and those which consist of more
than one item that requires separate identification.
(a) Informational subline items. (1) This type of subline item
identifies information that relates directly to the contract line item
and is an integral part of it (e.g., parts of an assembly or parts of a
kit). These subline items shall not be scheduled separately for
delivery, identified separately for shipment or performance, or priced
separately for payment purposes.
(2) The informational subline item may include quantities, prices,
or amounts, if necessary to satisfy management requirements. However,
these elements shall be included within the item description in the
supplies/services column and enclosed in parentheses to prevent
confusing them with quantities, prices, or amounts that have contractual
significance. Do not enter these elements in the quantity and price
columns.
(3) Informational subline items shall be used to identify each
accounting classification citation assigned to a single contract line
item number when use of multiple citations is authorized (see 204.7103-
1(a)(4)(ii)).
(b) Separately identified subline items. (1) Subline items will be
used instead of contract line items to facilitate payment, delivery
tracking, contract funds accounting, or other management purposes. Such
subline items shall be used when items bought under one contract line
item number--
(i) Are to be paid for from more than one accounting classification.
A subline item shall be established for the quantity associated with the
single accounting classification citation. Establish a line item rather
than a subline item if it is likely that a subline item may be assigned
additional accounting classification citations at a later date. Identify
the funding as described in 204.7104-1(a)(3);
(ii) Are to be packaged in different sizes, each represented by its
own NSN;
(iii) Have collateral costs, such as packaging costs, but those
costs are not a part of the unit price of the contract line item;
(iv) Have different delivery dates or destinations or requisitions,
or a combination of the three; or
(v) Identify parts of an assembly or kit which--
(A) Have to be separately identified at the time of shipment or
performance; and
(B) Are separately priced.
(2) Each separately identified contract subline item shall have its
own--
(i) Delivery schedule, period of performance, or completion date;
(ii) Unit price or single total price or amount (not separately
priced (NSP) is acceptable as an entry for price or
[[Page 33]]
amount if the price is included in another subline item or a different
contract line item). This requirement does not apply--
(A) If the subline item was created to refer to an exhibit or an
attachment. If management needs dictate that a unit price be entered,
the price shall be set forth in the item description block of the
schedule and enclosed in parentheses; or
(B) In the case of indefinite delivery contracts described at
204.7103-1(a)(1)(vi).
(iii) Identification (e.g., NSN, item description, manufacturer's
part number, scope of work, description of services).
(3) Unit prices and extended amounts.
(i) The unit price and total amount for all subline items may be
entered at the contract line item number level if the unit price for the
subline items is identical. If there is any variation, the subline item
unit prices shall be entered at the subline item level only.
(ii) The unit price and extended amounts may be entered at the
subline items level.
(iii) The two methods in paragraphs (b)(3) (i) and (ii) of this
subsection shall not be combined in a contract line item.
(iv) When the price for items not separately priced is included in
the price of another subline item or contract line item, it may be
necessary to withhold payment on the priced subline item until all the
related subline items that are not separately priced have been
delivered. In those cases, use the clause at 252.204-7002, Payment for
Subline Items Not Separately Priced.
[56 FR 36289, July 31, 1991, as amended at 60 FR 34468, July 3, 1995; 68
FR 75200, Dec. 30, 2003]
204.7104-2 Numbering procedures.
Follow the procedures at PGI 204.7104-2 for numbering contract
subline items.
[70 FR 58983, Oct. 11, 2005]
204.7105 Contract exhibits and attachments.
Follow the procedures at PGI 204.7105 for use and numbering of
contract exhibits and attachments.
[71 FR 9269, Feb. 23, 2006]
204.7106 Contract modifications.
(a) If new items are added, assign new contract line or subline item
numbers or exhibit line item numbers, in accordance with the procedures
established at 204.7103, 204.7104, and 204.7105.
(b) Modifications to existing contract line items or exhibit line
items. (1) If the modification relates to existing contract line items
or exhibit line items, the modification shall refer to those item
numbers.
(2) If the contracting officer decides to assign new identifications
to existing contract or exhibit line items, the following rules apply--
(i) Definitized and undefinitized items. (A) The original line item
or subline item number may be used if the modification applies to the
total quantity of the original line item or subline.
(B) The original line item or subline item number may be used if the
modification makes only minor changes in the specifications of some of
the items ordered on the original line item or subline item and the
resulting changes in unit price can be averaged to provide a new single
unit price for the total quantity. If the changes in the specifications
make the item significantly distinguishable from the original item or
the resulting changes in unit price cannot be averaged, create a new
line item.
(C) If the modification affects only a partial quantity of an
existing contract line item or subline item or exhibit line item and the
change does not involve either the delivery date or the ship-to/mark-for
data, the original contract line item or subline item or exhibit line
item number shall remain with the unchanged quantity. Assign the changed
quantity the next available number.
(ii) Undefinitized items. In addition to the rules in paragraph
(b)(2)(i), the following additional rules apply to undefinitized items--
[[Page 34]]
(A) If the modification is undefinitized and increases the quantity
of an existing definitized item, assign the undefinitized quantity the
next available number.
(B) If the modification increases the quantity of an existing
undefinitized item, the original contract line item or subline item or
exhibit line item may be used if the unit price for the new quantity is
expected to be the same as the price for the original quantity. If the
unit prices of the two quantities will be different, assign the new
quantity the next available number.
(C) If the modification both affects only a partial quantity of the
existing contract line item or subline item or exhibit line item and
definitizes the price for the affected portion, the definitized portion
shall retain the original item number. If there is any undefinitized
portion of the item, assign it the next available number. However, if
the modification definitizes the price for the whole quantity of the
line item, and price impact of the changed work can be apportioned
equally over the whole to arrive at a new unit price, the quantity with
the changes can be added into the quantity of the existing item.
(D) If the modification affects only a partial quantity of an
existing contract line item or subline item or exhibit line item but
does not change the delivery schedule or definitize price, the unchanged
portion shall retain the original contract line item or subline item or
exhibit line item number. Assign the changed portion the next available
number.
(3) If the modification will decrease the amount obligated--
(i) There shall be coordination between the administrative and
procuring contracting offices before issuance of the modification; and
(ii) The contracting officer shall not issue the modification unless
sufficient unliquidated obligation exists or the purpose is to recover
monies owed to the Government.
[56 FR 36289, July 31, 1991, as amended at 70 FR 58983, Oct. 11, 2005;
77 FR 76937, Dec. 31, 2012; 78 FR 13543, Feb. 28, 2013]
204.7107 Contract accounting classification reference number (ACRN)
and agency accounting identifier (AAI).
Traceability of funds from accounting systems to contract actions is
accomplished using ACRNs and AAIs. Follow the procedures at PGI 204.7107
for use of ACRNs and AAIs.
[74 FR 52895, Oct. 15, 2009]
204.7108 Payment instructions.
Follow the procedures at PGI 204.7108 for inclusion of payment
instructions in contracts.
[70 FR 58983, Oct. 11, 2005]
204.7109 Contract clause.
Use the clause at 252.204-7006, Billing Instructions, in
solicitations and contracts if Section G includes--
(a) Any of the standard payment instructions at PGI 204.7108)(d)(1)
through (6); or
(b) Other payment instructions, in accordance with PGI
204.7108(d)(12), that require contractor identification of the contract
line item(s) on the payment request.
[83 FR 24887, May 30, 2018]
Subpart 204.73_Safeguarding Covered Defense Information and Cyber
Incident Reporting
Source: 78 FR 69279, Nov. 18, 2013, unless otherwise noted.
204.7300 Scope.
(a) This subpart applies to contracts and subcontracts requiring
contractors and subcontractors to safeguard covered defense information
that resides in or transits through covered contractor information
systems by applying specified network security requirements. It also
requires reporting of cyber incidents.
(b) This subpart does not abrogate any other requirements regarding
contractor physical, personnel, information, technical, or general
administrative security operations governing the protection of
unclassified information,
[[Page 35]]
nor does it affect requirements of the National Industrial Security
Program.
[80 FR 51742, Aug. 26, 2015, as amended at 81 FR 72998, Oct. 21, 2016]
204.7301 Definitions.
As used in this subpart--
Adequate security means protective measures that are commensurate
with the consequences and probability of loss, misuse, or unauthorized
access to, or modification of information.
Contractor attributional/proprietary information means information
that identifies the contractor(s), whether directly or indirectly, by
the grouping of information that can be traced back to the contractor(s)
(e.g., program description, facility locations), personally identifiable
information, as well as trade secrets, commercial or financial
information, or other commercially sensitive information that is not
customarily shared outside of the company.
Controlled technical information means technical information with
military or space application that is subject to controls on the access,
use, reproduction, modification, performance, display, release,
disclosure, or dissemination. Controlled technical information would
meet the criteria, if disseminated, for distribution statements B
through F using the criteria set forth in DoD Instruction 5230.24,
Distribution Statements on Technical Documents. The term does not
include information that is lawfully publicly available without
restrictions.
Covered contractor information system means an unclassified
information system that is owned, or operated by or for, a contractor
and that processes, stores, or transmits covered defense information.
Covered defense information means unclassified controlled technical
information or other information (as described in the Controlled
Unclassified Information (CUI) Registry at http://www.archives.gov/cui/
registry/category-list.html) that requires safeguarding or dissemination
controls pursuant to and consistent with law, regulations, and
Governmentwide policies, and is--
(1) Marked or otherwise identified in the contract, task order, or
delivery order and provided to the contractor by or on behalf of DoD in
support of the performance of the contract; or
(2) Collected, developed, received, transmitted, used, or stored by
or on behalf of the contractor in support of the performance of the
contract.
Information system means a discrete set of information resources
organized for the collection, processing, maintenance, use, sharing,
dissemination, or disposition of information.
Media means physical devices or writing surfaces including, but not
limited to, magnetic tapes, optical disks, magnetic disks, large-scale
integration memory chips, and printouts onto which covered defense
information is recorded, stored, or printed within a covered contractor
information system.
Rapidly report means within 72 hours of discovery of any cyber
incident.
Technical information means technical data or computer software, as
those terms are defined in the clause at DFARS 252.227-7013, Rights in
Technical Data--Non Commercial Items, regardless of whether or not the
clause is incorporated in this solicitation or contract. Examples of
technical information include research and engineering data, engineering
drawings, and associated lists, specifications, standards, process
sheets, manuals, technical reports, technical orders, catalog-item
identifications, data sets, studies and analyses and related
information, and computer software executable code and source code.
[78 FR 69279, Nov. 18, 2013, as amended at 80 FR 51742, Aug. 26, 2015;
81 FR 72998, Oct. 21, 2016]
204.7302 Policy.
(a) Contractors and subcontractors are required to provide adequate
security on all covered contractor information systems.
(b) Contractors and subcontractors are required to rapidly report
cyber incidents directly to DoD at http://dibnet.dod.mil. Subcontractors
provide the incident report number automatically assigned by DoD to the
prime contractor. Lower-tier subcontractors likewise report the incident
report number automatically assigned by DoD to their higher-tier
subcontractor, until the prime contractor is reached.
[[Page 36]]
(1) If a cyber incident occurs, contractors and subcontractors
submit to DoD--
(i) A cyber incident report;
(ii) Malicious software, if detected and isolated; and
(iii) Media (or access to covered contractor information systems and
equipment) upon request.
(2) Contracting officers shall refer to PGI 204.7303-4(c) for
instructions on contractor submissions of media and malicious software.
(c) Information shared by the contractor may include contractor
attributional/proprietary information that is not customarily shared
outside of the company, and that the unauthorized use or disclosure of
such information could cause substantial competitive harm to the
contractor that reported the information. The Government shall protect
against the unauthorized use or release of information that includes
contractor attributional/proprietary information.
(d) A cyber incident that is reported by a contractor or
subcontractor shall not, by itself, be interpreted as evidence that the
contractor or subcontractor has failed to provide adequate security on
their covered contractor information systems, or has otherwise failed to
meet the requirements of the clause at 252.204-7012, Safeguarding
Covered Defense Information and Cyber Incident Reporting. When a cyber
incident is reported, the contracting officer shall consult with the DoD
component Chief Information Officer/cyber security office prior to
assessing contractor compliance (see PGI 204.7303-3(a)(3)). The
contracting officer shall consider such cyber incidents in the context
of an overall assessment of a contractor's compliance with the
requirements of the clause at 252.204-7012.
(e) Support services contractors directly supporting Government
activities related to safeguarding covered defense information and cyber
incident reporting (e.g., forensic analysis, damage assessment,, or
other services that require access to data from another contractor) are
subject to restrictions on use and disclosure of reported information.
[80 FR 51742, Aug. 26, 2015, as amended at 81 FR 72998, Oct. 21, 2016]
204.7303 Procedures.
Follow the procedures relating to safeguarding covered defense
information at PGI 204.7303.
[79 FR 74652, Dec. 16, 2014, as amended at 80 FR 51743, Aug. 26, 2015]
204.7304 Solicitation provision and contract clauses.
(a) Use the provision at 252.204-7008, Compliance with Safeguarding
Covered Defense Information Controls, in all solicitations, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items, except for solicitations solely for the acquisition of
commercially available off-the-shelf (COTS) items.
(b) Use the clause at 252.204-7009, Limitations on the Use or
Disclosure of Third-Party Contractor Reported Cyber Incident
Information, in all solicitations and contracts, including solicitations
and contracts using FAR part 12 procedures for the acquisition of
commercial items, for services that include support for the Government's
activities related to safeguarding covered defense information and cyber
incident reporting.
(c) Use the clause at 252.204-7012, Safeguarding Covered Defense
Information and Cyber Incident Reporting, in all solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, except for
solicitations and contracts solely for the acquisition of COTS items.
[80 FR 51743, Aug. 26, 2015, as amended at 80 FR 56929, Sept. 21, 2015;
81 FR 72999, Oct. 21, 2016; 82 FR 61480, Dec. 28, 2017]
Subpart 204.74_Disclosure of information to litigation support
contractors
Source: 79 FR 11339, Feb. 28, 2014, unless otherwise noted.
204.7400 Scope of subpart.
This subpart prescribes policies and procedures for the release and
safeguarding of information to litigation support contractors. It
implements the requirements at 10 U.S.C. 129d.
[[Page 37]]
204.7401 Definitions.
As used in this subpart--
Computer software means computer programs, source code, source code
listings, object code listings, design details, algorithms, processes,
flow charts, formulae, and related material that would enable the
software to be reproduced, recreated, or recompiled. Computer software
does not include computer data bases or computer software documentation.
Litigation information means any information, including sensitive
information, that is furnished to the contractor by or on behalf of the
Government, or that is generated or obtained by the contractor in the
performance of litigation support under a contract. The term does not
include information that is lawfully, publicly available without
restriction, including information contained in a publicly available
solicitation.
Litigation support means administrative, technical, or professional
services provided in support of the Government during or in anticipation
of litigation.
Litigation support contractor means a contractor (including its
experts, technical consultants, subcontractors, and suppliers) providing
litigation support under a contract that contains the clause at 252.204-
7014, Limitations on the Use or Disclosure of Information by Litigation
Support Contractors.
Sensitive information means controlled unclassified information of a
commercial, financial, proprietary, or privileged nature. The term
includes technical data and computer software, but does not include
information that is lawfully, publicly available without restriction.
Technical data means recorded information, regardless of the form or
method of the recording, of a scientific or technical nature (including
computer software documentation). The term does not include computer
software or data incidental to contract administration, such as
financial and/or management information.
[81 FR 28727, May 10, 2016]
204.7402 Policy.
(a) Any release or disclosure of litigation information that
includes sensitive information to a litigation support contractor, and
the litigation support contractor's use and handling of such
information, shall comply with the requirements of 10 U.S.C. 129d.
(b) To the maximum extent practicable, DoD will provide notice to an
offeror or contractor submitting, delivering, or otherwise providing
information to DoD in connection with an offer or performance of a
contract that such information may be released or disclosed to
litigation support contractors.
(c) Information that is publicly available without restriction,
including publicly available solicitations for litigation support
services, will not be protected from disclosure as litigation
information.
(d) When sharing sensitive information with a litigation support
contractor, contracting officers shall ensure that all other applicable
requirements for handling and safeguarding the relevant types of
sensitive information are included in the contract (e.g., FAR subparts
4.4 and 24.1; DFARS subparts 204.4 and 224.1).
[79 FR 11339, Feb. 28, 2014, as amended at 81 FR 28728, May 10, 2016]
204.7403 Solicitation provision and contract clauses.
(a) Use the provision at 252.204-7013, Limitations on the Use or
Disclosure of Information by Litigation Support Offerors, in all
solicitations for contracts that involve litigation support services,
including solicitations using FAR part 12 procedures for the acquisition
of commercial items.
(b) Use the clause at 252.204-7014, Limitations on the Use or
Disclosure of Information by Litigation Support Contractors, in all
solicitations and contracts that involve litigation support services,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial items.
[[Page 38]]
(c) Use the clause at 252.204-7015, Notice of Authorized Disclosure
of Information for Litigation Support, in all solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items.
[81 FR 28728, May 10, 2016]
SUBCHAPTER B_ACQUISITION PLANNING
PART 205_PUBLICIZING CONTRACT ACTIONS--Table of Contents
Subpart 205.2_Synopses of Proposed Contract Actions
Sec.
205.203 Publicizing and response time.
205.205 Special situations.
205.205-71 Only one responsible source.
205.207 Preparation and transmittal of synopses.
Subpart 205.3_Synopses of Contract Awards
205.301 General.
205.303 Announcement of contract awards.
Subpart 205.4_Release of Information
205.470 Contract clause.
Subpart 205.5_Paid Advertisements
205.502 Authority.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36302, July 31, 1991, unless otherwise noted.
Subpart 205.2_Synopses of Proposed Contract Actions
205.203 Publicizing and response time.
(b) Allow at least 45 days response time when requested by a
qualifying or designated country source (as these terms are used in part
225) and the request is consistent with the Government's requirement.
(S-70) When using competitive procedures, if a solicitation allowed
fewer than 30 days for receipt of offers and resulted in only one offer,
the contracting officer shall resolicit, allowing an additional period
of at least 30 days for receipt of offers, except as provided in
215.371-4 and 215.371-5.
[56 FR 36302, July 31, 1991, as amended at 77 FR 39137, June 29, 2012]
205.205-70 Notification of bundling of DoD contracts.
(a) When a proposed acquisition is funded entirely using DoD funds
and potentially involves bundling, the contracting officer shall, at
least 30 days prior to the release of a solicitation or 30 days prior to
placing an order without a solicitation, publish in FedBizOpps.gov (or
any successor site) a notification of the intent to bundle the
requirement. In addition, if the agency has determined that measurably
substantial benefits are expected to be derived as a result of bundling,
the notification shall include a brief description of those benefits
(see FAR 7.107).
(b) This requirement is in addition to the notification requirements
at FAR 10.001(c)(2)(i) and (ii).
[75 FR 40716, July 13, 2010]
205.205-71 Only one responsible source.
Follow the procedures at PGI 206.302-1(d) prior to soliciting a
proposal without providing for full and open competition under the
authority at FAR 6.302-1.
[80 FR 21657, Apr. 20, 2015]
205.207 Preparation and transmittal of synopses.
(a)(i) For numbering synopsis notices, follow the procedures at PGI
205.207(a)(i).
[[Page 39]]
(d) For special notices for small business events, follow the
procedures at PGI 205.207(d).
[69 FR 63328, Nov. 1, 2004, as amended at 70 FR 73149, Dec. 9, 2005, 76
FR 76319, Dec. 7, 2011; 79 FR 61581, Oct. 14, 2014]
Subpart 205.3_Synopses of Contract Awards
205.301 General.
(a)(S-70) Synopsis of exceptions to domestic source requirements.
(i) In accordance with 10 U.S.C. 2533a(k), contracting officers also
must synopsize through the GPE, awards exceeding the simplified
acquisition threshold that are for the acquisition of any clothing,
fiber, yarn, or fabric items described in 225.7002-1(a)(1)(ii) through
(x), if--
(A) The Secretary concerned has determined that domestic items are
not available, in accordance with 225.7002-2(b); or
(B) The acquisition is for chemical warfare protective clothing, and
the contracting officer has determined that an exception to domestic
source requirements applies because the acquisition furthers an
agreement with a qualifying country, in accordance with 225.7002-2(n).
(ii) The synopsis must be submitted in sufficient time to permit its
publication not later than 7 days after contract award.
(iii) In addition to the information otherwise required in a
synopsis of contract award, the synopsis must include one of the
following statements as applicable:
(A) ``The exception at DFARS 225.7002-2(b) applies to this
acquisition, because the Secretary concerned has determined that items
grown, reprocessed, reused, or produced in the United States cannot be
acquired as and when needed in satisfactory quality and sufficient
quantity at U.S. market prices.''
(B) ``The exception at DFARS 225.7002-2(n) applies to this
acquisition, because the contracting officer has determined that this
acquisition of chemical warfare protective clothing furthers an
agreement with a qualifying country identified in DFARS 225.003(10).''
[71 FR 58536, Oct. 4, 2006, as amended at 74 FR 52895, Oct. 15, 2009; 74
FR 59914, Nov. 19, 2009; 80 FR 51749, Aug. 26, 2015]
205.303 Announcement of contract awards.
(a) Public announcement. (i) The threshold for DoD awards is $7
million. Report all contractual actions, including modifications, that
have a face value, excluding unexercised options, of more than $7
million.
(A) For undefinitized contractual actions, report the not-to-exceed
(NTE) amount. Later, if the definitized amount exceeds the NTE amount by
more than $7 million, report only the amount exceeding the NTE.
(B) For indefinite delivery, time and material, labor hour, and
similar contracts, report the initial award if the estimated face value,
excluding unexercised options, is more than $7 million. Do not report
orders up to the estimated value, but after the estimated value is
reached, report subsequent modifications and orders that have a face
value of more than $7 million.
(C) Do not report the same work twice.
(ii) Departments and agencies submit the information--
(A) To the Office of the Assistant Secretary of Defense (Public
Affairs);
(B) By the close of business the day before the date of the proposed
award;
(C) Using report control symbol DD-LA-(AR) 1279;
(D) Including, as a minimum, the following--
(1) Contract data. Contract number, modification number, or delivery
order number, face value of this action, total cumulative face value of
the contract, description of what is being bought, contract type,
whether any of the buy was for foreign military sales (FMS) and
identification of the FMS customer;
(2) Competition information. Number of solicitations mailed and
number of offers received;
(3) Contractor data. Name, address, and place of performance (if
significant work is performed at a different location);
[[Page 40]]
(4) Funding data. Type of appropriation and fiscal year of the
funds, and whether the contract is multiyear (see FAR Subpart 17.1); and
(5) Miscellaneous data. Identification of the contracting office,
the contracting office point of contact, known congressional interest,
and the information release date.
(iii) Departments and agencies, in accordance with department/agency
procedures and concurrent with the public announcement, shall provide
information similar to that required by paragraph (a)(ii) of this
section to members of Congress in whose state or district the contractor
is located and the work is to be performed.
[56 FR 36302, July 31, 1991, as amended at 56 FR 67212, Dec. 30, 1991;
71 FR 75892, Dec. 19, 2006; 75 FR 45073, Aug. 2, 2010; 80 FR 36904, June
26, 2015]
Subpart 205.4_Release of Information
205.470 Contract clause.
Use the clause at 252.205-7000, Provision of Information to
Cooperative Agreement Holders, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, that are expected to exceed $1,000,000.
This clause implements 10 U.S.C. 2416.
[69 FR 63328, Nov. 1, 2004, as amended at 70 FR 8537, Feb. 22, 2005; 78
FR 37983, June 25, 2013]
Subpart 205.5_Paid Advertisements
205.502 Authority.
(a) Newspapers. Heads of contracting activities are delegated
authority to approve the publication of paid advertisements in
newspapers.
[69 FR 63328, Nov. 1, 2004]
PART 206_COMPETITION REQUIREMENTS--Table of Contents
Sec.
206.000 Scope of part.
206.001 Applicability.
Subpart 206.2_Full and Open Competition After Exclusion of Sources
206.202 Establishing or maintaining alternative sources.
Subpart 206.3_Other Than Full and Open Competition
206.302 Circumstances permitting other than full and open competition.
206.302-1 Only one responsible source and no other supplies or services
will satisfy agency requirements.
206.302-2 Unusual and compelling urgency.
206.302-3 Industrial mobilization, engineering, developmental, or
research capability, or expert services.
206.302-3-70 Solicitation provision.
206.302-4 International agreement.
206.302-5 Authorized or required by statute.
206.302-7 Public interest.
206.303 Justifications.
206.303-2 Content.
206.303-70 Acquisitions in support of operations in Afghanistan.
206.304 Approval of the justification.
206.305 Availability of the justification.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36303, July 31, 1991, unless otherwise noted.
206.000 Scope of part.
For information on the various approaches that may be used to
competitively fulfill DoD requirements, see PGI 206.000.
[80 FR 21657, Apr. 20, 2015]
206.001 Applicability.
(b) As authorized by 10 U.S.C. 1091, contracts awarded to
individuals using the procedures at 237.104(b)(ii) are exempt from the
competitive requirements of FAR part 6.
(S-70) Also excepted from this part are follow-on production
contracts for products developed pursuant to the ``other transactions''
authority of 10 U.S.C. 2371 for prototype projects when--
(1) The other transaction agreement includes provisions for a
follow-on production contract;
(2) The contracting officer receives sufficient information from the
agreements officer and the project manager for the prototype other
transaction agreement, which documents that the conditions set forth in
10 U.S.C. 2371
[[Page 41]]
note, subsections (f)(2) (A) and (B) (see 32 CFR 3.9(d)), have been met;
and
(3) The contracting officer establishes quantities and prices for
the follow-on production contract that do not exceed the quantities and
target prices established in the other transaction agreement.
[70 FR 2361, Jan. 13, 2005]
Subpart 206.2_Full and Open Competition After Exclusion of Sources
206.202 Establishing or maintaining alternative sources.
(a) Agencies may use this authority to totally or partially exclude
a particular source from a contract action.
(b) The determination and findings (D&F) and the documentation
supporting the D&F shall identify the source to be excluded from the
contract action. Include the information at PGI 206.202(b), as
applicable, and any other information that may be pertinent, in the
supporting documentation.
[69 FR 74991, Dec. 15, 2004]
Subpart 206.3_Other Than Full and Open Competition
206.302 Circumstances permitting other than full and open competition.
206.302-1 Only one responsible source and no other supplies or services
will satisfy agency requirements.
(a) Authority. (2)(i) Section 8059 of Pub. L. 101-511 and similar
sections in subsequent defense appropriations acts prohibit departments
and agencies from entering into contracts for studies, analyses, or
consulting services (see FAR subpart 37.2) on the basis of an
unsolicited proposal without providing for full and open competition,
unless--
(1) The head of the contracting activity, or a designee no lower
than chief of the contracting office, determines that--
(i) Following thorough technical evaluation, only one source is
fully qualified to perform the proposed work;
(ii) The unsolicited proposal offers significant scientific or
technological promise, represents the product of original thinking, and
was submitted in confidence; or
(iii) The contract benefits the national defense by taking advantage
of a unique and significant industrial accomplishment or by ensuring
financial support to a new product or idea;
(2) A civilian official of the DoD, whose appointment has been
confirmed by the Senate, determines the award to be in the interest of
national defense; or
(3) The contract is related to improvement of equipment that is in
development or production.
(b) Application. This authority may be used for acquisitions of test
articles and associated support services from a designated foreign
source under the DoD Foreign Comparative Testing Program.
(c) [Reserved]
(d) Limitations. Follow the procedures at PGI 206.302-1(d) prior to
soliciting a proposal without providing for full and open competition
under this authority.
[56 FR 36303, July 31, 1991, as amended at 57 FR 14992, Apr. 23, 1992;
58 FR 28463, May 13, 1993; 69 FR 74991, Dec. 15, 2004; 80 FR 21657, Apr.
20, 2015]
206.302-2 Unusual and compelling urgency.
(b) Application. For guidance on circumstances under which use of
this authority may be appropriate, see PGI 206.302-2(b).
[69 FR 74991, Dec. 15, 2004]
206.302-3 Industrial mobilization, engineering, developmental,
or research capability, or expert services.
206.302-3-70 Solicitation provision.
Use the provision at 252.206-7000, Domestic Source Restriction, in
all solicitations that are restricted to domestic sources under the
authority of FAR 6.302-3.
206.302-4 International agreement.
(c) Limitations. Pursuant to 10 U.S.C. 2304(f)(2)(E), the
justifications and approvals described in FAR 6.303 and 6.304 are not
required if the head of the contracting activity prepares a document
[[Page 42]]
that describes the terms of an agreement or treaty or the written
directions, such as a Letter of Offer and Acceptance, that have the
effect of requiring the use of other than competitive procedures for the
acquisition.
[63 FR 67803, Dec. 9, 1998]
206.302-5 Authorized or required by statute.
(b) Application. Agencies may use this authority to--
(i) Acquire supplies and services from military exchange stores
outside the United States for use by the armed forces outside the United
States in accordance with 10 U.S.C. 2424(a) and subject to the
limitations of 10 U.S.C. 2424(b). The limitations of 10 U.S.C. 2424(b)
(1) and (2) do not apply to the purchase of soft drinks that are
manufactured in the United States. For the purposes of 10 U.S.C. 2424,
soft drinks manufactured in the United States are brand name carbonated
sodas, manufactured in the United States, as evidenced by product
markings.
(ii) Acquire police, fire protection, airfield operation, or other
community services from local governments at military installations to
be closed under the circumstances in 237.7401 (Section 2907 of Fiscal
Year 1994 Defense Authorization Act (Pub. L. 103-160)).
(c) Limitations. (i) 10 U.S.C. 2361 precludes use of this exception
for awards to colleges or universities for the performance of research
and development, or for the construction of any research or other
facility, unless--
(A) The statute authorizing or requiring award specifically--
(1) States that the statute modifies or supersedes the provisions of
10 U.S.C. 2361,
(2) Identifies the particular college or university involved, and
(3) States that award is being made in contravention of 10 U.S.C.
2361(a); and
(B) The Secretary of Defense provides Congress written notice of
intent to award. The contract cannot be awarded until 180 days have
elapsed since the date Congress received the notice of intent to award.
Contracting activities must submit a draft notice of intent with
supporting documentation through channels to the Director of Defense
Procurement and Acquisition Policy, Office of the Under Secretary of
Defense (Acquisition, Technology, and Logistics).
(ii) The limitation in paragraph (c)(i) of this subsection applies
only if the statute authorizing or requiring award was enacted after
September 30, 1989.
(iii) Subsequent statutes may provide different or additional
constraints on the award of contracts to specified colleges and
universities. Contracting officers should consult legal counsel on a
case-by-case basis.
[56 FR 36303, July 31, 1991, as amended at 57 FR 14992, Apr. 23, 1992;
58 FR 28463, May 13, 1993; 59 FR 36089, July 15, 1994; 60 FR 29497, June
5, 1995; 60 FR 40107, Aug. 7, 1995; 65 FR 39704, June 27, 2000; 68 FR
7439, Feb. 14, 2003]
206.302-7 Public interest.
(c) Limitations. For the defense agencies, the written determination
to use this authority must be made by the Secretary of Defense.
206.303 Justifications.
206.303-2 Content.
(b)(i) Include the information required by PGI 206.303-2(b)(i) in
justifications citing the authority at FAR 6.302-1.
[80 FR 21657, Apr. 20, 2015]
206.303-70 Acquisitions in support of operations in Afghanistan.
The justification and approval addressed in FAR 6.303 is not
required for acquisitions conducted using a procedure specified in
225.7703-1(a).
[73 FR 53152, Sept. 15, 2008, as amended at 78 FR 59856, Sept. 30, 2013]
206.304 Approval of the justification.
(a)(4) The Under Secretary of Defense (Acquisition, Technology, and
Logistics) may delegate this authority to--
(A) An Assistant Secretary of Defense; or
(B) For a defense agency, an officer or employee serving in,
assigned, or detailed to that agency who--
(1) If a member of the armed forces, is serving in a rank above
brigadier general or rear admiral (lower half); or
[[Page 43]]
(2) If a civilian, is serving in a position with a grade under the
General Schedule (or any other schedule for civilian officers or
employees) that is comparable to or higher than the grade of major
general or rear admiral.
(S-70) For a noncompetitive follow-on acquisition to a previous
award for the same supply or service supported by a justification for
other than full and open competition citing the authority at FAR 6.302-
1, follow the procedures at PGI 206.304(a)(S-70).
[61 FR 10285, Mar. 13, 1995, as amended at 61 FR 50451, Sept. 26, 1996;
65 FR 39704, June 27, 2000; 80 FR 21657, Apr. 20, 2015]
206.305 Availability of the justification.
See PGI 206.305 for further guidance on the requirements for
preparing, obtaining approval, and posting justification and approval
documents for contracts awarded using the authority of FAR 6.302-2.
[80 FR 67255, Oct. 30, 2015]
PART 207_ACQUISITION PLANNING--Table of Contents
Subpart 207.1_Acquisition Plans
Sec.
207.102 Policy.
207.103 Agency-head responsibilities.
207.104 General procedures.
207.105 Contents of written acquisition plans.
207.106 Additional requirements for major systems.
207.170 [Reserved]
207.171 Component breakout.
207.171-1 Scope.
207.171-2 Definition.
207.171-3 Policy.
207.171-4 Procedures.
207.172 Human research.
Subpart 207.3_Contractor Versus Government Performance
Sec.
207.302 Policy.
Subpart 207.4_Equipment Lease or Purchase
207.401 Acquisition considerations.
207.470 Statutory requirements.
207.471 Funding requirements.
Subpart 207.5_Inherently Governmental Functions
207.500 Scope of subpart.
207.503 Policy.
Subpart 207.70_Buy-to-Budget_Additional Quantities of End Items
207.7001 Definition.
207.7002 Authority to acquire additional quantities of end items.
207.7003 Limitation.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36305, July 31, 1991, unless otherwise noted.
Subpart 207.1_Acquisition Plans
207.102 Policy.
(a)(1) See 212.102 regarding requirements for a written
determination that the commercial item definition has been met when
using FAR Part 12 procedures.
[73 FR 4114, Jan. 24, 2008]
207.103 Agency-head responsibilities.
(d)(i) Prepare written acquisition plans for--
(A) Acquisitions for development, as defined in FAR 35.001, when the
total cost of all contracts for the acquisition program is estimated at
$10 million or more;
(B) Acquisitions for production or services when the total cost of
all contracts for the acquisition program is estimated at $50 million or
more for all years or $25 million or more for any fiscal year; and
(C) Any other acquisition considered appropriate by the department
or agency.
(ii) Written plans are not required in acquisitions for a final buy
out or one-time buy. The terms ``final buy out'' and ``one-time buy''
refer to a single contract that covers all known present and future
requirements. This exception does not apply to a multiyear contract or a
contract with options or phases.
(e) Prepare written acquisition plans for acquisition programs
meeting the thresholds of paragraphs (d)(i)(A) and (B) of this section
on a program basis. Other acquisition plans may be written
[[Page 44]]
on either a program or an individual contract basis.
(g) The program manager, or other official responsible for the
program, has overall responsibility for acquisition planning.
(h) For procurement of conventional ammunition, as defined in DoDD
5160.65, Single Manager for Conventional Ammunition (SMCA), the SMCA
will review the acquisition plan to determine if it is consistent with
retaining national technology and industrial base capabilities in
accordance with 10 U.S.C. 2304(c)(3) and Section 806 of Public Law 105-
261. The department or agency--
(i) Shall submit the acquisition plan to the address in PGI
207.103(h); and
(ii) Shall not proceed with the procurement until the SMCA provides
written concurrence with the acquisition plan. In the case of a non-
concurrence, the SMCA will resolve issues with the Army Office of the
Executive Director for Conventional Ammunition.
[71 FR 53045, Sept. 8, 2006, as amended at 71 FR 58537, Oct. 4, 2006]
207.104 General procedures.
In developing an acquisition plan, agency officials shall take into
account the requirement for scheduling and conducting a Peer Review in
accordance with 201.170.
[74 FR 37626, July 29, 2009]
207.105 Contents of written acquisition plans.
In addition to the requirements of FAR 7.105, planners shall follow
the procedures at PGI 207.105.
[71 FR 53045, Sept. 8, 2006]
207.106 Additional requirements for major systems.
(b)(1)(A) The contracting officer is prohibited by 10 U.S.C.
2305(d)(4)(A) from requiring offers for development or production of
major systems that would enable the Government to use technical data to
competitively reprocure identical items or components of the system if
the item or component were developed exclusively at private expense,
unless the contracting officer determines that--
(1) The original supplier of the item or component will be unable to
satisfy program schedule or delivery requirements;
(2) Proposals by the original supplier of the item or component to
meet mobilization requirements are insufficient to meet the agency's
mobilization needs; or
(3) The Government is otherwise entitled to unlimited rights in
technical data.
(B) If the contracting officer makes a determination, under
paragraphs (b)(1)(A) (1) and (2) of this section, for a competitive
solicitation, 10 U.S.C. 2305(d)(4)(B) requires that the evaluation of
items developed at private expense be based on an analysis of the total
value, in terms of innovative design, life-cycle costs, and other
pertinent factors, of incorporating such items in the system.
(S-70)(1) In accordance with Section 802(a) of the National Defense
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) and DoD policy
requirements, acquisition plans for major weapon systems and subsystems
of major weapon systems shall--
(i) Assess the long-term technical data and computer software needs
of those systems and subsystems; and
(ii) Establish acquisition strategies that provide for the technical
data and computer software deliverables and associated license rights
needed to sustain those systems and subsystems over their life cycle.
The strategy may include--
(A) The development of maintenance capabilities within DoD; or
(B) Competition for contracts for sustainment of the systems or
subsystems.
(2) Assessments and corresponding acquisition strategies developed
under this section shall--
(i) Be developed before issuance of a solicitation for the weapon
system or subsystem;
(ii) Address the merits of including a priced contract option for
the future delivery of technical data and computer software, and
associated license rights, that were not acquired upon initial contract
award;
(iii) Address the potential for changes in the sustainment plan over
[[Page 45]]
the life cycle of the weapon system or subsystem; and
(iv) Apply to weapon systems and subsystems that are to be supported
by performance-based logistics arrangements as well as to weapon systems
and subsystems that are to be supported by other sustainment approaches.
(S-71) See 209.570 for policy applicable to acquisition strategies
that consider the use of lead system integrators.
(S-72)(1) In accordance with section 202 of the Weapon Systems
Acquisition Reform Act of 2009 (Pub. L. 111-23), acquisition plans for
major defense acquisition programs as defined in 10 U.S.C. 2430, shall
include measures that--
(i) Ensure competition, or the option of competition, at both the
prime contract level and subcontract level (at such tier or tiers as are
appropriate) throughout the program life cycle as a means to improve
contractor performance; and
(ii) Document the rationale for the selection of the appropriate
subcontract tier or tiers under paragraph (S-72)(1)(i) of this section,
and the measures which will be employed to ensure competition, or the
option of competition.
(2) Measures to ensure competition, or the option of competition,
may include, but are not limited to, cost-effective measures intended to
achieve the following:
(i) Competitive prototyping.
(ii) Dual-sourcing.
(iii) Unbundling of contracts.
(iv) Funding of next-generation prototype systems or subsystems.
(v) Use of modular, open architectures to enable competition for
upgrades.
(vi) Use of build-to-print approaches to enable production through
multiple sources.
(vii) Acquisition of complete technical data packages.
(viii) Periodic competitions for subsystem upgrades.
(ix) Licensing of additional suppliers.
(x) Periodic system or program reviews to address long-term
competitive effects of program decisions.
(3) In order to ensure fair and objective ``make-or-buy'' decisions
by prime contractors, acquisition strategies and resultant solicitations
and contracts shall--
(i) Require prime contractors to give full and fair consideration to
qualified sources other than the prime contractor for the development or
construction of major subsystems and components of major weapon systems;
(ii) Provide for Government surveillance of the process by which
prime contractors consider such sources and determine whether to conduct
such development or construction in-house or through a subcontract; and
(iii) Provide for the assessment of the extent to which the prime
contractor has given full and fair consideration to qualified sources in
sourcing decisions as a part of past performance evaluations.
(4) Whenever a source-of-repair decision results in a plan to award
a contract for the performance of maintenance and sustainment services
on a major weapon system, to the maximum extent practicable and
consistent with statutory requirements, the acquisition plan shall
prescribe that award will be made on a competitive basis after giving
full consideration to all sources (including sources that partner or
subcontract with public or private sector repair activities).
(S-73) In accordance with section 815 of the National Defense
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417) and DoD policy
requirements, acquisition plans for major weapons systems shall include
a plan for the preservation and storage of special tooling associated
with the production of hardware for major defense acquisition programs
through the end of the service life of the related weapons system. The
plan shall include the identification of any contract clauses,
facilities, and funding required for the preservation and storage of
such tooling. The Undersecretary of Defense for Acquisition, Technology,
and Logistics (USD (AT&L)) may waive this requirement if USD (AT&L)
determines that it is in the best interest of DoD.
(S-74) When selecting contract type, see 234.004 (section 811 of the
National
[[Page 46]]
Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239)).
[56 FR 36305, July 31, 1991, as amended at 72 FR 51188, Sept. 6, 2007;
73 FR 1824, Jan. 10, 2008; 74 FR 68701, Dec. 29, 2009; 75 FR 8273, Feb.
24, 2010; 76 FR 11363, Mar. 2, 2011; 79 FR 4632, Jan. 29, 2014]
207.170 [Reserved]
207.171 Component breakout.
207.171-1 Scope.
(a) This section provides policy for breaking out components of end
items for future acquisitions so that the Government can purchase the
components directly from the manufacturer or supplier and furnish them
to the end item manufacturer as Government-furnished material.
(b) This section does not apply to--
(1) The initial decisions on Government-furnished equipment or
contractor-furnished equipment that are made at the inception of an
acquisition program; or
(2) Breakout of parts for replenishment (see appendix E).
[71 FR 14102, Mar. 21, 2006]
207.171-2 Definition.
Component, as used in this section, includes subsystems, assemblies,
subassemblies, and other major elements of an end item; it does not
include elements of relatively small annual acquisition value.
[71 FR 14102, Mar. 21, 2006]
207.171-3 Policy.
DoD policy is to break out components of weapons systems or other
major end items under certain circumstances.
(a) When it is anticipated that a prime contract will be awarded
without adequate price competition, and the prime contractor is expected
to acquire any component without adequate price competition, the agency
shall break out that component if--
(1) Substantial net cost savings probably will be achieved; and
(2) Breakout action will not jeopardize the quality, reliability,
performance, or timely delivery of the end item.
(b) Even when either or both the prime contract and the component
will be acquired with adequate price competition, the agency shall
consider breakout of the component if substantial net cost savings will
result from--
(1) Greater quantity acquisitions; or
(2) Such factors as improved logistics support (through reduction in
varieties of spare parts) and economies in operations and training
(through standardization of design).
(c) Breakout normally is not justified for a component that is not
expected to exceed $1 million for the current year's requirement.
[71 FR 14102, Mar. 21, 2006]
207.171-4 Procedures.
Agencies shall follow the procedures at PGI 207.171-4 for component
breakout.
[71 FR 14102, Mar. 21, 2006]
207.172 Human research.
Any DoD component sponsoring research involving human subjects--
(a) Is responsible for oversight of compliance with 32 CFR Part 219,
Protection of Human Subjects; and
(b) Must have a Human Research Protection Official, as defined in
the clause at 252.235-7004, Protection of Human Subjects, and identified
in the DoD component's Human Research Protection Management Plan. This
official is responsible for the oversight and execution of the
requirements of the clause at 252.235-7004 and shall be identified in
acquisition planning.
[74 FR 37648, July 29, 2009]
Subpart 207.3_Contractor Versus Government Performance
Source: 81 FR 36473, June 7, 2016, unless otherwise noted.
207.302 Policy.
See PGI 207.302 for information on the Governmentwide moratorium and
restrictions on public-private competitions conducted pursuant to Office
of Management and Budget (OMB) Circular A-76.
[[Page 47]]
Subpart 207.4_Equipment Lease or Purchase
207.401 Acquisition considerations.
If the equipment will be leased for more than 60 days, the requiring
activity must prepare and provide the contracting officer with the
justification supporting the decision to lease or purchase.
207.470 Statutory requirements.
(a) Requirement for authorization of certain contracts relating to
vessels, aircraft, and combat vehicles. The contracting officer shall
not enter into any contract for the lease or charter of any vessel,
aircraft, or combat vehicle, or any contract for services that would
require the use of the contractor's vessel, aircraft, or combat vehicle,
unless the Secretary of the military department concerned has satisfied
the requirements of 10 U.S.C. 2401, when--
(1) The contract will be a long-term lease or charter as defined in
10 U.S.C. 2401(d)(1); or
(2) The terms of the contract provide for a substantial termination
liability as defined in 10 U.S.C. 2401(d)(2). Also see PGI 207.470.
(b) Limitation on contracts with terms of 18 months or more. As
required by 10 U.S.C. 2401a, the contracting officer shall not enter
into any contract for any vessel, aircraft, or vehicle, through a lease,
charter, or similar agreement with a term of 18 months or more, or
extend or renew any such contract for a term of 18 months or more,
unless the head of the contracting activity has--
(1) Considered all costs of such a contract (including estimated
termination liability); and
(2) Determined in writing that the contract is in the best interest
of the Government.
(c) Leasing of commercial vehicles and associated equipment. Except
as provided in paragraphs (a) and (b) of this section, the contracting
officer may use leasing in the acquisition of commercial vehicles and
associated equipment whenever the contracting officer determines that
leasing of such vehicles is practicable and efficient (10 US.C. 2401a).
[61 FR 16879, Apr. 18, 1996, as amended at 61 FR 50451, Sept. 26, 1996;
74 FR 34266, July 15, 2009]
207.471 Funding requirements.
(a) Fund leases in accordance with DoD Financial Management
Regulation (FMR) 7000.14-R, Volume 2A, Chapter 1.
(b) DoD leases are either capital leases or operating leases. See
FMR 7000.14-R, Volume 4, Chapter 6, section 060206.
(c) Use procurement funds for capital leases, as these are
essentially installment purchases of property.
[64 FR 31732, June 14, 1999, as amended at 66 FR 55121, Nov. 1, 2001; 71
FR 53045, Sept. 8, 2006; 76 FR 76319, Dec. 7, 2011]
Subpart 207.5_Inherently Governmental Functions
Source: 70 FR 14573, Mar. 23, 2005, unless otherwise noted.
207.500 Scope of subpart.
This subpart also implements 10 U.S.C. 2383.
207.503 Policy.
(e) The written determination required by FAR 7.503(e), that none of
the functions to be performed by contract are inherently governmental--
(i) Shall be prepared using DoD Instruction 1100.22, Guidance for
Determining Workforce Mix; and
(ii) Shall include a determination that none of the functions to be
performed are exempt from private sector performance, as addressed in
DoD Instruction 1100.22.
(S-70) Contracts for acquisition functions.
(1) In accordance with 10 U.S.C. 2383, the head of an agency may
enter into a contract for performance of the acquisition functions
closely associated with inherently governmental functions that are
listed at FAR 7.503(d) only if--
(i) The contracting officer determines that appropriate military or
civilian DoD personnel--
(A) Cannot reasonably be made available to perform the functions;
[[Page 48]]
(B) Will oversee contractor performance of the contract; and
(C) Will perform all inherently governmental functions associated
with the functions to be performed under the contract; and
(ii) The contracting officer ensures that the agency addresses any
potential organizational conflict of interest of the contractor in the
performance of the functions under the contract (see FAR Subpart 9.5).
(2) See related information at PGI 207.503(S-70).
[70 FR 14573, Mar. 23, 2005, as amended at 71 FR 14101, Mar. 21, 2006;
73 FR 1826, Jan. 10, 2008]
Subpart 207.70_Buy-to-Budget_Additional Quantities of End Items
Source: 68 FR 43331, July 22, 2003, unless otherwise noted.
207.7001 Definition.
End item, as used in this subpart, means a production product
assembled, completed, and ready for issue or deployment.
207.7002 Authority to acquire additional quantities of end items.
10 U.S.C. 2308 authorizes DoD to use funds available for the
acquisition of an end item to acquire a higher quantity of the end item
than the quantity specified in a law providing for the funding of that
acquisition, if the head of an agency determines that--
(a) The agency has an established requirement for the end item that
is expected to remain substantially unchanged throughout the period of
the acquisition;
(b) It is possible to acquire the higher quantity of the end item
without additional funding because of production efficiencies or other
cost reductions;
(c) The amount of funds used for the acquisition of the higher
quantity of the end item will not exceed the amount provided under that
law for the acquisition of the end item; and
(d) The amount provided under that law for the acquisition of the
end item is sufficient to ensure that each unit of the end item acquired
within the higher quantity is fully funded as a complete end item.
207.7003 Limitation.
For noncompetitive acquisitions, the acquisition of additional
quantities is limited to not more than 10 percent of the quantity
approved in the justification and approval prepared in accordance with
FAR part 6 for the acquisition of the end item.
PART 208_REQUIRED SOURCES OF SUPPLIES AND SERVICES--Table of Contents
Sec.
208.002 Priorities for use of Government supply sources.
Subpart 208.4_Federal Supply Schedules
208.404 Use of Federal Supply Schedules.
208.405 Ordering procedures for Federal Supply Schedules.
208.405-6 Limiting sources.
208.406 Ordering activity responsibilities.
208.406-1 Order placement.
Subpart 208.6_Acquisition From Federal Prison Industries, Inc.
208.602-70 Acquisition of items for which FPI has a significant market
share.
Subpart 208.7_Acquisition From Nonprofit Agencies Employing People Who
Are Blind or Severely Disabled
208.705 Procedures.
Subpart 208.70_Coordinated Acquisition
208.7000 Scope of subpart.
208.7001 Definitions.
208.7002 Assignment authority.
208.7002-1 Acquiring department responsibilities.
208.7002-2 Requiring department responsibilities.
208.7003 Applicability.
208.7003-1 Assignments under integrated materiel management (IMM).
208.7003-2 Assignments under coordinated acquisition.
208.7004 Procedures.
208.7005 Military interdepartmental purchase requests.
208.7006 Coordinated acquisition assignments.
Subpart 208.71_Acquisition for National Aeronautics and Space
Administration (NASA)
208.7100 Authorization.
[[Page 49]]
208.7101 Policy.
208.7102 Procedures.
Subpart 208.72 [Reserved]
208.7201 Definitions.
208.7202 General.
208.7203 Authority.
208.7204 Procedures.
Subpart 208.73_Use of Government-Owned Precious Metals
208.7301 Definitions.
208.7302 Policy.
208.7303 Procedures.
208.7304 Refined precious metals.
208.7305 Contract clause.
Subpart 208.74_Enterprise Software Agreements
208.7400 Scope of subpart.
208.7401 Definitions.
208.7402 General.
208.7403 Acquisition procedures.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36306, July 31, 1991, unless otherwise noted.
208.002 Priorities for use of Government supply sources.
(a)(1)(v) See Subpart 208.70, Coordinated Acquisition, and Subpart
208.74, Enterprise Software Agreements.
[71 FR 39004, July 11, 2006]
Subpart 208.4_Federal Supply Schedules
208.404 Use of Federal Supply Schedules.
(a)(i) If only one offer is received in response to an order
exceeding the simplified acquisition threshold that is placed on a
competitive basis, the procedures at 215.371 apply.
(ii) Departments and agencies shall comply with the review,
approval, and reporting requirements established in accordance with
subpart 217.7 when placing orders for supplies or services in amounts
exceeding the simplified acquisition threshold.
(iii) When a schedule lists both foreign and domestic items that
will meet the needs of the requiring activity, the ordering office must
apply the procedures of part 225 and FAR part 25, Foreign Acquisition.
When purchase of an item of foreign origin is specifically required, the
requiring activity must furnish the ordering office sufficient
information to permit the determinations required by part 225 and FAR
part 25 to be made.
(iv) Use the provisions at 252.215-7007, Notice of Intent to
Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.371-6
and 215.408(3), respectively.
[77 FR 39137, June 29, 2012, as amended at 78 FR 38235, June 26, 2013;
80 FR 67255, Oct. 30, 2015; 83 FR 30825, June 29, 2018]
208.405 Ordering procedures for Federal Supply Schedules.
Include an evaluation factor regarding supply chain risk (see
subpart 239.73) when acquiring information technology, whether as a
service or as a supply, that is a covered system, is a part of a covered
system, or is in support of a covered system, as defined in 239.7301.
[80 FR 67251, Oct. 30, 2015]
208.405-6 Limiting sources.
For an order or blanket purchase agreement (BPA) exceeding the
simplified acquisition threshold that is a follow-on to an order or BPA
for the same supply or service previously issued based on a limiting
sources justification citing the authority at FAR 8.405-6(a)(1)(i)(B) or
(C), follow the procedures at PGI 208.405-6.
[80 FR 21657, Apr. 20, 2015]
Sec. 208.406 Ordering activity responsibilities.
Sec. 208.406-1 Order placement.
Follow the procedures at PGI 208.406-1 when ordering from schedules.
[71 FR 14107, Mar. 21, 2006]
Subpart 208.6_Acquisition From Federal Prison Industries, Inc.
208.602-70 Acquisition of items for which FPI has a significant market share.
(a) Scope. This subsection implements Section 827 of the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
[[Page 50]]
(b) Definition. Item for which FPI has a significant market share,
as used in this subsection, means an item for which FPI's share of the
DoD market for the federal supply class including that item is greater
than 5 percent, as determined by DoD in consultation with the Office of
Federal Procurement Policy. A list of the federal supply classes of
items for which FPI has a significant market share is maintained at
http://www.acq.osd.mil/dpap/cpic/cp/specific_ policy_
areas.htmlfederal_ prison.
(c) Policy. (1) When acquiring an item for which FPI has a
significant market share--
(i) Acquire the item using--
(A) Competitive procedures (e.g., the procedures in FAR 6.102, the
set-aside procedures in FAR Subpart 19.5, or competition conducted in
accordance with FAR Part 13); or
(B) The fair opportunity procedures in FAR 16.505, if placing an
order under a multiple award delivery-order contract; and
(ii) Include FPI in the solicitation process, consider a timely
offer from FPI, and make an award in accordance with the policy at FAR
8.602(a)(4)(ii) through (v).
(2) When acquiring an item for which FPI does not have a significant
market share, acquire the item in accordance with the policy at FAR
8.602.
[73 FR 46817, Aug. 12, 2008]
Subpart 208.7_Acquisition From Nonprofit Agencies Employing People Who
Are Blind or Severely Disabled
208.705 Procedures.
Follow the procedures at PGI 208.705 when placing orders with
central nonprofit agencies.
[71 FR 39004, July 11, 2006]
Subpart 208.70_Coordinated Acquisition
208.7000 Scope of subpart.
This subpart prescribes policy and procedures for acquisition of
items for which contracting responsibility is assigned to one or more of
the departments/agencies or the General Services Administration.
Contracting responsibility is assigned through--
(a) The Coordinated Acquisition Program (commodity assignments are
listed in PGI 208.7006); or
(b) The Integrated Materiel Management Program (assignments are in
DoD 4140.26-M, Defense Integrated Materiel Management Manual for
Consumable Items).
[56 FR 36306, July 31, 1991, as amended at 67 FR 77936, Dec. 20, 2002;
71 FR 39004, July 11, 2006]
208.7001 Definitions.
For purposes of this subpart--
Acquiring department means the department, agency, or General
Services Administration which has contracting responsibility under the
Coordinated Acquisition Program.
Integrated materiel management means assignment of acquisition
management responsibility to one department, agency, or the General
Services Administration for all of DoD's requirements for the assigned
item. Acquisition management normally includes computing requirements,
funding, budgeting, storing, issuing, cataloging, standardizing, and
contracting functions.
Requiring department means the department or agency which has the
requirement for an item.
208.7002 Assignment authority.
(a) Under the DoD Coordinated Acquisition Program, contracting
responsibility for certain commodities is assigned to a single
department, agency, or the General Services Administration (GSA).
Commodity assignments are made--
(1) To the departments and agencies, by the Deputy Under Secretary
of Defense (Logistics);
(2) To GSA, through agreement with GSA, by the Deputy Under
Secretary of Defense (Logistics);
(3) Outside the contiguous United States, by the Unified Commanders;
and
(4) For acquisitions to be made in the contiguous United States for
commodities not assigned under paragraphs (a)(1), (2), or (3) of this
section, by agreement of agency heads (10 U.S.C. 2311).
[[Page 51]]
(i) Agreement may be on either a one-time or a continuing basis. The
submission of a military interdepartmental purchase request (MIPR) by a
requiring activity and its acceptance by the contracting activity of
another department, even though based on an oral communication,
constitutes a one-time agreement.
(ii) Consider repetitive delegated acquisition responsibilities for
coordinated acquisition assignment. If not considered suitable for
coordinated acquisition assignment, formalize continuing agreements and
distribute them to all activities concerned.
(b) Under the Integrated Materiel Management Program, assignments
are made by the Deputy Under Secretary of Defense (Logistics)--
(1) To the departments and agencies; and
(2) To GSA, through agreement with GSA.
[56 FR 36306, July 31, 1991, as amended at 64 FR 51075, Sept. 21, 1999;
70 FR 35544, June 21, 2005]
208.7002-1 Acquiring department responsibilities.
See PGI 208.7002-1 for the acquiring department's responsibilities.
[71 FR 39004, July 11, 2006]
208.7002-2 Requiring department responsibilities.
See PGI 208.7002-2 for the requiring department's responsibilities.
[71 FR 39004, July 11, 2006]
208.7003 Applicability.
208.7003-1 Assignments under integrated materiel management (IMM).
(a) Acquire all items assigned for IMM from the IMM manager except--
(1) Items purchased under circumstances of unusual and compelling
urgency as defined in FAR 6.302-2. After such a purchase is made, the
requiring activity must send one copy of the contract and a statement of
the emergency to the IMM manager;
(2) Items for which the IMM manager assigns a supply system code for
local purchase or otherwise grants authority to purchase locally; or
(3) When purchase by the requiring activity is in the best interest
of the Government in terms of the combination of quality, timeliness,
and cost that best meets the requirement. This exception does not apply
to items--
(i) Critical to the safe operation of a weapon system;
(ii) With special security characteristics; or
(iii) Which are dangerous (e.g., explosives, munitions).
(b) Follow the procedures at PGI 208.7003-1(b) when an item assigned
for IMM is to be acquired by the requiring department in accordance with
paragraph (a)(3) of this subsection.
[60 FR 61593, Nov. 30, 1995, as amended at 64 FR 51075, Sept. 21, 1999;
64 FR 61031, Nov. 9, 1999; 71 FR 39004, July 11, 2006]
208.7003-2 Assignments under coordinated acquisition.
Requiring departments must submit to the acquiring department all
contracting requirements for items assigned for coordinated acquisition,
except--
(a) Items obtained through the sources in FAR 8.002(a)(1) (i)
through (vii);
(b) Items obtained under 208.7003-1(a);
(c) Requirements not in excess of the simplified acquisition
threshold in FAR part 2, when contracting by the requiring department is
in the best interest of the Government;
(d) In an emergency. When an emergency purchase is made, the
requiring department must send one copy of the contract and a statement
of the emergency to the contracting activity of the acquiring
department;
(e) Requirements for which the acquiring department's contracting
activity delegates contracting authority to the requiring department;
(f) Items in a research and development stage (as described in FAR
part 35). Under this exception, the military departments may contract
for research and development requirements, including quantities for
testing purposes and items undergoing in-service evaluation (not yet in
actual production, but beyond prototype). Generally, this exception
applies only when research and development funds are used.
[[Page 52]]
(g) Items peculiar to nuclear ordnance material where design
characteristics or test-inspection requirements are controlled by the
Department of Energy (DoE) or by DoD to ensure reliability of nuclear
weapons.
(1) This exception applies to all items designed for and peculiar to
nuclear ordnance regardless of agency control, or to any item which
requires test or inspection conducted or controlled by DoE or DoD.
(2) This exception does not cover items used for both nuclear
ordnance and other purposes if the items are not subject to the special
testing procedures.
(h) Items to be acquired under FAR 6.302-6 (national security
requires limitation of sources);
(i) Items to be acquired under FAR 6.302-1 (supplies available only
from the original source for follow-on contract);
(j) Items directly related to a major system and which are design
controlled by and acquired from either the system manufacturer or a
manufacturer of a major subsystem;
(k) Items subject to rapid design changes, or to continuous redesign
or modification during the production and/or operational use phases,
which require continual contact between industry and the requiring
department to ensure that the item meets the requirements:
(1) This exception permits the requiring department to contract for
items of highly unstable design. For use of this exception, it must be
clearly impractical, both technically and contractually, to refer the
acquisition to the acquiring department. Anticipation that contracting
by negotiation will be appropriate, or that a number of design changes
may occur during contract performance is not in itself sufficient reason
for using this exception.
(2) This exception also applies to items requiring compatibility
testing, provided such testing requires continual contact between
industry and the requiring department;
(l) Containers acquired only with items for which they are designed;
(m) One-time buy of a noncataloged item.
(1) This exception permits the requiring departments to contract for
a nonrecurring requirement for a noncataloged item. This exception could
cover a part or component for a prototype which may be stock numbered at
a later date.
(2) This exception does not permit acquisitions of recurring
requirements for an item, based solely on the fact that the item is not
stock numbered, nor may it be used to acquire items which have only
slightly different characteristics than previously cataloged items.
[56 FR 36306, July 31, 1991, as amended at 60 FR 61593, Nov. 30, 1995;
64 FR 51075, Sept. 21, 1999; 71 FR 69489, Dec. 1, 2006]
208.7004 Procedures.
Follow the procedures at PGI 208.7004 for processing coordinated
acquisition requirements.
[71 FR 39005, July 11, 2006]
208.7005 Military interdepartmental purchase requests.
Follow the procedures at--
(a) PGI 253.208-1 when using DD Form 448, Military Interdepartmental
Purchase Request; and
(b) PGI 253.208-2 when using DD Form 448-2, Acceptance of MIPR.
[71 FR 39005, July 11, 2006]
208.7006 Coordinated acquisition assignments.
See PGI 208.7006 for coordinated acquisition assignments.
[71 FR 39005, July 11, 2006]
Subpart 208.71_Acquisition for National Aeronautics and Space
Administration (NASA)
208.7100 Authorization.
NASA is authorized by Public Law 85-568 to use the acquisition
services, personnel, equipment, and facilities of DoD departments and
agencies with their consent, with or without reimbursement, and on a
similar basis to cooperate with the departments/agencies in the use of
acquisition services, equipment, and facilities.
[[Page 53]]
208.7101 Policy.
Departments and agencies shall cooperate fully with NASA in making
acquisition services, equipment, personnel, and facilities available on
the basis of mutual agreement.
[71 FR 39005, July 11, 2006]
208.7102 Procedures.
Follow the procedures at PGI 208.7102 when contracting or performing
services for NASA.
[71 FR 39005, July 11, 2006]
Subpart 208.72 [Reserved]
Subpart 208.73_Use of Government-Owned Precious Metals
208.7301 Definitions.
As used in this subpart--
Defense Supply Center, Philadelphia (DSCP) means the Defense
Logistics Agency field activity located at 700 Robbins Avenue,
Philadelphia, PA 19111-5096, which is the assigned commodity integrated
material manager for refined precious metals and is responsible for the
storage and issue of such material.
Refined precious metal means recovered silver, gold, platinum,
palladium, iridium, rhodium, or ruthenium, in bullion, granulation or
sponge form, which has been purified to at least .999 percentage of
fineness.
[56 FR 36306, July 31, 1991, as amended at 65 FR 14398, Mar. 16, 2000;
65 FR 52951, Aug. 31, 2000; 65 FR 58607 Sept. 29, 2000; 71 FR 39005,
July 11, 2006]
208.7302 Policy.
DoD policy is for maximum participation in the Precious Metals
Recovery Program. DoD components shall furnish recovered precious metals
contained in the DSCP inventory to production contractors rather than
use contractor-furnished precious metals whenever the contracting
officer determines it to be in the Government's best interest.
[56 FR 36306, July 31, 1991, as amended at 65 FR 52951, Aug. 31, 2000;
71 FR 39005, July 11, 2006]
208.7303 Procedures.
Follow the procedures at PGI 208.7303 for use of the Precious Metals
Recovery Program.
[71 FR 39005, July 11, 2006]
208.7304 Refined precious metals.
See PGI 208.7304 for a list of refined precious metals managed by
DSCP.
[71 FR 39005, July 11, 2006]
208.7305 Contract clause.
(a) Use the clause at 252.208-7000, Intent to Furnish Precious
Metals as Government-Furnished Material, in all solicitations and
contracts except--
(1) When the contracting officer has determined that the required
precious metals are not available from DSCP;
(2) When the contracting officer knows that the items being acquired
do not require precious metals in their manufacture; or
(3) For acquisitions at or below the simplified acquisition
threshold.
(b) To make the determination in paragraph (a)(1) of this section,
the contracting officer shall consult with the end item inventory
manager and comply with the procedures in Chapter 11, DoD 4160.21-M,
Defense Materiel Disposition Manual.
[56 FR 36306, July 31, 1991, as amended at 64 FR 2596, Jan. 15, 1999; 65
FR 14398, Mar. 16, 2000; 65 FR 52952, Aug. 31, 2000]
Subpart 208.74_Enterprise Software Agreements
Source: 67 FR 65511, Oct. 25, 2002, unless otherwise noted.
208.7400 Scope of subpart.
This subpart prescribes policy and procedures for acquisition of
commercial software and software maintenance, including software and
software maintenance that is acquired--
(a) As part of a system or system upgrade, where practicable;
(b) Under a service contract;
(c) Under a contract or agreement administered by another agency
(e.g., under an interagency agreement);
[[Page 54]]
(d) Under a Federal Supply Schedule contract or blanket purchase
agreement established in accordance with FAR 8.405; or
(e) By a contractor that is authorized to order From a Government
supply source pursuant to FAR 51.101.
[67 FR 65511, Oct. 25, 2002, as amended at 71 FR 62559, Oct. 26, 2006;
78 FR 38235, June 26, 2013]
208.7401 Definitions.
As used in this subpart--
Enterprise software agreement means an agreement or a contract that
is used to acquire designated commercial software or related services
such as software maintenance.
Enterprise Software Initiative means an initiative led by the DoD
Chief Information Officer to develop processes for DoD-wide software
asset management.
Software maintenance means services normally provided by a software
company as standard services at established catalog or market prices,
e.g., the right to receive and use upgraded versions of software,
updates, and revisions.
[67 FR 65511, Oct. 25, 2002, as amended at 71 FR 39005, July 11, 2006]
208.7402 General.
(1) Departments and agencies shall fulfill requirements for
commercial software and related services, such as software maintenance,
in accordance with the DoD Enterprise Software Initiative (ESI) (see Web
site at http://www.don-imit.navy.mil/esi). ESI promotes the use of
enterprise software agreements (ESAs) with contractors that allow DoD to
obtain favorable terms and pricing for commercial software and related
services. ESI does not dictate the products or services to be acquired.
(2) Include an evaluation factor regarding supply chain risk (see
subpart 239.73) when acquiring information technology, whether as a
service or as a supply, that is a covered system, is a part of a covered
system, or is in support of a covered system, as defined in 239.7301.
[67 FR 65511, Oct. 25, 2002, as amended at 78 FR 69270, Nov. 18, 2013;
80 FR 67251, Oct. 30, 2015]
208.7403 Acquisition procedures.
Follow the procedures at PGI 208.7403 when acquiring commercial
software and related services.
[71 FR 39005, July 11, 2006]
PART 209_CONTRACTOR QUALIFICATIONS--Table of Contents
Subpart 209.1_Responsible Prospective Contractors
Sec.
209.101 Definitions.
209.104 Standards.
209.104-1 General standards.
209.104-4 Subcontractor responsibility.
209.104-70 Solicitation provision.
209.105 Procedures.
209.105-1 Obtaining information.
209.105-2 Determinations and documentation.
209.105-2-70 Inclusion of determination of contractor fault in Federal
Awardee Performance and Integrity Information System (FAPIIS).
209.106 Preaward surveys.
Subpart 209.2_Qualifications Requirements
209.202 Policy.
209.270 Aviation critical safety items.
209.270-1 Scope.
209.270-2 Definitions.
209.270-3 Policy.
209.270-4 Procedures.
209.270-5 Contract clause.
Subpart 209.3 [Reserved]
Subpart 209.4_Debarment, Suspension, and Ineligibility
209.402 Policy.
209.403 Definitions.
209.405 Effect of listing.
209.405-2 Restrictions on subcontracting.
209.406 Debarment.
209.406-1 General.
209.406-2 Causes for debarment.
209.406-3 Procedures.
209.407 Suspension.
209.407-3 Procedures.
209.409 Solicitation provision and contract clause.
209.470 Reserve Officer Training Corps and military recruiting on
campus.
209.470-1 Definition.
209.470-2 Policy.
209.470-3 Procedures.
209.470-4 Contract clause.
209.471 Congressional Medal of Honor.
[[Page 55]]
Subpart 209.5_Organizational and Consultant Conflicts of Interest
209.505 General rules.
209.505-4 Obtaining access to proprietary information.
209.570 Limitations on contractors acting as lead system integrators.
209.570-1 Definitions.
209.570-2 Policy.
209.570-3 Procedures.
209.570-4 Solicitation provision and contract clause.
209.571 Organizational conflicts of interest in major defense
acquisition programs.
209.571-0 Scope of subpart.
209.571-1 Definitions.
209.571-2 Applicability.
209.571-4 Mitigation.
209.571-5 Lead system integrators.
209.571-6 Identification of organizational conflicts of interest.
209.571-7 Systems engineering and technical assistance contracts.
209.571-8 Solicitation provision and contract clause.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36313, July 31, 1991, unless otherwise noted.
Subpart 209.1_Responsible Prospective Contractors
209.101 Definitions.
``Entity controlled by a foreign government,'' ``foreign
government,'' and ``proscribed information,'' are defined in the
provision at 252.209-7002, Disclosure of Ownership or Control by a
Foreign Government.
[59 FR 51132, Oct. 7, 1994]
209.104 Standards.
209.104-1 General standards.
(e) For cost-reimbursement or incentive type contracts, or contracts
which provide for progress payments based on costs or on a percentage or
stage of completion, the prospective contractor's accounting system and
related internal controls must provide reasonable assurance that--
(i) Applicable laws and regulations are complied with;
(ii) The accounting system and cost data are reliable;
(iii) Risk of misallocations and mischarges are minimized; and
(iv) Contract allocations and charges are consistent with invoice
procedures.
(g)(i) Ownership or control by the government of a country that is a
state sponsor of terrorism. (See 225.771.)
(1) Either directly or indirectly, has a significant interest--
(i) In the firm; or
(ii) In the subsidiary or the firm that owns the subsidiary; and
(2) Has been determined by the Secretary of State under 50 U.S.C.
App. 2405(j)(1)(A) to be a government of a country that has repeatedly
provided support for acts of international terrorism.
(B) The Secretary of Defense may waive the prohibition in paragraph
(g)(i)(A) of this subsection in accordance with 10 U.S.C. 2327(c). This
waiver authority may not be delegated.
(C) Forward any information indicating that a firm or a subsidiary
of a firm may be owned or controlled by the government of a terrorist
country, through agency channels, to: Deputy Director, Defense
Procurement (Contract Policy and International Contracting,
OUSD(AT&L)DPAP(CPIC)), 3060 Defense Pentagon, Washington, DC 20301-3060.
(ii) Ownership or control by a foreign government when access to
proscribed information is required to perform the contract. (A) Under 10
U.S.C. 2536(a), no DoD contract under a national security program may be
awarded to an entity controlled by a foreign government if that entity
requires access to proscribed information to perform the contract.
(B) Whenever the contracting officer has a question about
application of the provision at 252.209-7002, the contracting officer
may seek advice from the Security Directorate, Office of the Deputy
Under Secretary of Defense, Human Intelligence, Counterintelligence, and
Security.
(C) In accordance with 10 U.S.C. 2536(b)(1)(A), the Secretary of
Defense may waive the prohibition in paragraph (g)(ii)(A) of this
subsection upon determining that the waiver is essential to the national
security interests of the United States. The Secretary has delegated
authority to grant this waiver to the Undersecretary of Defense for
Intelligence. Waiver requests,
[[Page 56]]
prepared by the requiring activity in coordination with the contracting
officer, shall be processed through the Director of Defense Procurement
and Acquisition Policy, Office of the Under Secretary of Defense
(Acquisition, Technology, and Logistics), and shall include a proposed
national interest determination. The proposed national interest
determination, prepared by the requiring activity in coordination with
the contracting officer, shall include:
(1) Identification of the proposed awardee, with a synopsis of its
foreign ownership (include solicitation and other reference numbers to
identify the action);
(2) General description of the acquisition and performance
requirements;
(3) Identification of the national security interests involved and
the ways award of the contract helps advance those interests;
(4) The availability of another entity with the capacity, capability
and technical expertise to satisfy defense acquisition, technology base,
or industrial base requirements; and
(5) A description of any alternate means available to satisfy the
requirement, e.g., use of substitute products or technology or alternate
approaches to accomplish the program objectives.
(D) In accordance with 10 U.S.C. 2536(b)(1)(B), the Secretary of
Defense may, in the case of a contract awarded for environmental
restoration, remediation, or waste management at a DoD facility, waive
the prohibition in paragraph (g)(ii)(A) of this subsection upon--
(1) Determining that--
(i) The waiver will advance the environmental restoration,
remediation, or waste management objectives of DoD and will not harm the
national security interests of the United States; and
(ii) The entity to which the contract is awarded is controlled by a
foreign government with which the Secretary is authorized to exchange
Restricted Data under section 144c. of the Atomic Energy Act of 1954 (42
U.S.C. 2164(c)); and
(2) Notifying Congress of the decision to grant the waiver. The
contract may be awarded only after the end of the 45-day period
beginning on the date the notification is received by the appropriate
Congressional committees.
[58 FR 28464, May 13, 1993, as amended at 59 FR 51131, 51132, Oct. 7,
1994; 60 FR 29497, June 5, 1995; 62 FR 34121, June 24, 1997; 63 FR
11851, Mar. 11, 1998; 63 FR 14837, Mar. 27, 1998; 65 FR 39704, June 27,
2000; 67 FR 4208, Jan. 29, 2002; 68 FR 7439, Feb. 14, 2003; 74 FR 2413,
Jan. 15, 2009; 75 FR 35685, June 23, 2010; 75 FR 45073, Aug. 2, 2010; 79
FR 73489, Dec. 11, 2014]
209.104-4 Subcontractor responsibility.
Generally, the Canadian Commercial Corporation's (CCC) proposal of a
firm as its subcontractor is sufficient basis for an affirmative
determination of responsibility. However, when the CCC determination of
responsibility is not consistent with other information available to the
contracting officer, the contracting officer shall request from CCC and
any other sources whatever additional information is necessary to make
the responsibility determination.
209.104-70 Solicitation provision.
Use the provision at 252.209-7002, Disclosure of Ownership or
Control by a Foreign Government, in all solicitations, including those
subject to the procedures in FAR part 13, when access to proscribed
information is necessary for contract performance. If the solicitation
includes the provision at FAR 52.204-7, do not separately list the
provision 252.209-7002 in the solicitation.
[79 FR 73489, Dec. 11, 2014]
209.105 Procedures.
209.105-1 Obtaining information.
(1) For guidance on using the Exclusions section of the System for
Award Management, see PGI 209.105-1.
(2) A satisfactory performance record is a factor in determining
contractor responsibility (see FAR 9.104-1(c)). One source of
information relating to contractor performance is the Past Performance
Information Retrieval System (PPIRS), available at http://www.ppirs.gov.
Information relating to contract terminations for cause and for default
is also available through
[[Page 57]]
PPIRS (see subpart 42.15). This termination information is just one
consideration in determining contractor responsibility.
[74 FR 2415, Jan. 15, 2009, as amended at 76 FR 76319, Dec. 7, 2011; 78
FR 28757, May 16, 2013; 79 FR 17445, Mar. 28, 2014]
209.105-2 Determinations and documentation.
(a) The contracting officer shall submit a copy of a determination
of nonresponsibility to the appropriate debarring and suspending
official listed in 209.403.
[71 FR 62559, Oct. 26, 2006]
209.105-2-70 Inclusion of determination of contractor fault in Federal Awardee Performance and Integrity Information System (FAPIIS).
If the contractor or a subcontractor at any tier is not subject to
the jurisdiction of the U.S. courts and the DoD appointing official that
requested a DoD investigation makes a final determination that a
contractor's or subcontractor's gross negligence or reckless disregard
for the safety of civilian or military personnel of the Government
caused serious bodily injury or death of such personnel, the contracting
officer shall enter in FAPIIS the appropriate information regarding such
determination within three days of receiving notice of the
determination, pursuant to section 834 of the National Defense
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383). Information
posted in FAPIIS regarding such determinations will be publicly
available.
[76 FR 57677, Sept. 16, 2011]