[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2021 Edition]
[From the U.S. Government Publishing Office]



[[Page 1]]

          

                                           Title 48

                                 Federal Acquisition Regulations System
                                     ________________________

                                            Chapter 2

                         Revised as of October 1, 2021

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2021
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 48:
          Chapter 2--Defense Acquisition Regulations System, 
          Department of Defense                                      3
  Finding Aids:
      Table of CFR Titles and Chapters........................     719
      Alphabetical List of Agencies Appearing in the CFR......     739
      List of CFR Sections Affected...........................     749

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 48 CFR 201.101 
                       refers to title 48, part 
                       201, section 101.

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

[[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, 2021), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vi]]

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

PAST PROVISIONS OF THE CODE

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

``[RESERVED]'' TERMINOLOGY

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

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

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

REPUBLICATION OF MATERIAL

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

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
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law numbers, Federal Register finding aids, and related information. 
Connect to NARA's website at www.archives.gov/federal-register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register
    October 1, 2021.







[[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, 
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, 2021.

    The Federal acquisition regulations in chapter 1 are those 
government-wide acquisition regulations jointly issued by the General 
Services Administration, the Department of Defense, and the National 
Aeronautics and Space Administration. Chapters 2 through 99 are 
acquisition regulations issued by individual government agencies. Parts 
1 to 69 in each of chapters 2 through 99 are reserved for agency 
regulations implementing the Federal acquisition regulations in chapter 
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2 
through 99 contain agency regulations supplementing the Federal 
acquisition regulations.

    The OMB control numbers for the Federal Acquisition Regulations 
System appear in section 1.106 of chapter 1. For the convenience of the 
user section 1.106 is reprinted in the Finding Aids section of the 
second volume containing chapter 1 (parts 52 to 99).

    The first volume, containing chapter 1 (parts 1 to 51), includes an 
index to the Federal acquisition regulations.

    For this volume, 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 and information matters......          22
                   SUBCHAPTER B--ACQUISITION PLANNING
205             Publicizing contract actions................          44
206             Competition requirements....................          46
207             Acquisition planning........................          49
208             Required sources of supplies and services...          55
209             Contractor qualifications...................          61
210             Market research.............................          72
211             Describing agency needs.....................          73
212             Acquisition of commercial items.............          77
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
213             Simplified acquisition procedures...........          91
214             Sealed bidding..............................          96
215             Contracting by negotiation..................          97
216             Types of contracts..........................         125
217             Special contracting methods.................         133
218             Emergency acquisitions......................         150
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
219             Small business programs.....................         154
222             Application of labor laws to Government 
                    acquisitions............................         163

[[Page 4]]

223             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         173
224             Protection of privacy and freedom of 
                    information.............................         178
225             Foreign acquisition.........................         179
226             Other socioeconomic programs................         236
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
227             Patents, data, and copyrights...............         239
228             Bonds and insurance.........................         282
229             Taxes.......................................         284
230             Cost accounting standards administration....         286
231             Contract cost principles and procedures.....         287
232             Contract financing..........................         292
233             Protests, disputes, and appeals.............         307
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
234             Major system acquisition....................         309
235             Research and development contracting........         314
236             Construction and architect-engineer 
                    contracts...............................         319
237             Service contracting.........................         324
239             Acquisition of information technology.......         340
241             Acquisition of utility services.............         351
                    SUBCHAPTER G--CONTRACT MANAGEMENT
242             Contract administration and audit services..         354
243             Contract modifications......................         367
244             Subcontracting policies and procedures......         370
245             Government property.........................         373
246             Quality assurance...........................         380
247             Transportation..............................         389
249             Termination of contracts....................         395
250             Extraordinary contractual actions and the 
                    Safety Act..............................         398
251             Use of Government sources by contractors....         400
                     SUBCHAPTER H--CLAUSES AND FORMS
252             Solicitation provisions and contract clauses         402
253             Forms.......................................         675
             SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
                Appendix A--Armed Services Board of Contract 
                    Appeals.................................         678


Appendixes B-E [Reserved]

                Appendix F--Material Inspection and 
                    Receiving Report........................         690

[[Page 5]]



Appendix G [Reserved]

                Appendix H--Debarment and Suspension 
                    Procedures..............................         707
                Appendix I--Policy and Procedures for the 
                    DoD Pilot Mentor-Prot[eacute]g[eacute] 
                    Program.................................         708
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)(i) 41 U.S.C. 1908(d) requires the adjustment for inflation of 
all statutory acquisition-related dollar thresholds in the DFARS be 
applied to contracts and subcontracts without regard to the date of 
award of the contract or subcontract, except thresholds based on the 
Wage Rate Requirements statute, the Service Contract Labor Standards 
statute, or established by the United States Trade Representative 
pursuant to the Trade Agreement Act, which are not escalated by the 
statute.
    (ii) 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; 
84 FR 25187, May 31, 2019]



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]

[[Page 9]]



                      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:

    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

[[Page 10]]

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 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

[[Page 11]]

    (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 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;

[[Page 12]]

    (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
    (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;

[[Page 13]]

    (ii) Have at least 2 years experience in a contracting position;
    (iii) Have received a baccalaureate degree from an accredited 
educational institution; 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, Defense Acquisition Workforce Education, Training, 
Experience, 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; 
85 FR 34528, June 5, 2020]



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.
    Department of Defense (DoD), as used in DFARS, means the Department 
of Defense, the military departments, and the defense agencies.
    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 Counterintelligence and 
Security Agency, the Defense Finance and Accounting Service, the Defense 
Health Agency, the Defense Information Systems Agency, the Defense 
Intelligence Agency, the Defense Logistics Agency, the Defense Threat 
Reduction Agency, the Missile Defense Agency, the National Geospatial-
Intelligence Agency, the National Security Agency, the Space Development 
Agency, the United States Cyber Command, the United States Special 
Operations Command, the United States Transportation Command, and the 
Washington Headquarters Service.
    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.
    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.)
    Major defense acquisition program is defined in 10.U.S.C. 2430(a).
    Milestone decision authority, with respect to a major defense 
acquisition

[[Page 15]]

program, major automated information system, or major system, means the 
official within the Department of Defense designated with the overall 
responsibility and authority for acquisition decisions for the program 
or system, including authority to approve entry of the program or system 
into the next phase of the acquisition process (10 U.S.C. 2431a).
    Non-Government sales means sales of the supplies or services to non-
Governmental entities for purposes other than governmental purposes.
    Nontraditional defense contractor means an entity that is not 
currently performing and has not performed any contract or subcontract 
for DoD that is subject to full coverage under the cost accounting 
standards prescribed pursuant to 41 U.S.C. 1502 and the regulations 
implementing such section, for at least the 1-year period preceding the 
solicitation of sources by DoD for the procurement (10 U.S.C. 2302(9)).
    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.
    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

[[Page 16]]

    (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.govinfo.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.
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.

[[Page 17]]

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.
    (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]

[[Page 18]]



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]



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

[[Page 19]]

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.



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.

[[Page 20]]

    (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
    (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;

[[Page 21]]

    (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 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

[[Page 22]]

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, Administrative 
Investigations Contractor Disclosure Program, 4800 Mark Center Drive, 
Suite 14L25, Arlington, VA 22350-1500.
Toll-Free Telephone: 866-429-8011. Website: https://www.dodig.mil/
Programs/ Contractor-Disclosure -Program/.
    (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; 
84 FR 39202, Aug. 9, 2019]



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 
$6 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; 85 FR 61504, Sept. 29, 2020]



PART 204_ADMINISTRATIVE AND INFORMATION MATTERS--Table of Contents



                    Subpart 204.1_Contract Execution

Sec.
204.101 Contracting officer's signature.

                   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.

[[Page 23]]

204.804-70 Contract clause.
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 and contract clause.

        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 204.17_SERVICE CONTRACTS INVENTORY

204.1700 Scope of subpart.
204.1701 Definitions.
204.1703 Reporting requirements.
204.1705 Contract clauses.

          Subpart 204.18_Commercial and Government Entity Code

204.1870 Procedures.

Subpart 204.21_Prohibition on contracting for certain telecommunications 
              and video surveillance services or equipment

204.2100 Scope of subpart.
204.2101 Definitions.
204.2102 Prohibition.
204.2103 Procedures.
204.2104 Waivers.
204.2105 Solicitation provisions and contract clause.

            Subpart 204.70_Procurement Acquisition Lead Time

204.7001 Procedures.

       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 Contract clauses.

             SUBPART 204.72_ANTITERRORISM AWARENESS TRAINING

204.7200 Scope of subpart.
204.7201 Definition.
204.7202 Policy.
204.7203 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 provisions 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 Contract clauses.

        Subpart 204.75_Cybersecurity Maturity Model Certification

204.7500 Scope of subpart.
204.7501 Policy.
204.7502 Procedures.
204.7503 Contract clause.

    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]

[[Page 24]]



                   Subpart 204.2_Contract Distribution



204.201  Procedures.

    Follow the procedures at PGI 204.201 for the distribution of 
contracts and modifications.
    (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 Data 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, as amended at 84 FR 48510, Sept. 13, 2019]



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]

[[Page 25]]



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 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.

[57 FR 14992, Apr. 23, 1992, as amended at 64 FR 45197, Aug. 19, 1999; 
84 FR 12139, Apr. 1, 2019]



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

[[Page 26]]

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 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 Data 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, as amended at 84 FR 48510, Sept. 13, 2019]



204.804  Closeout of contract files.

    (1) Except as provided in paragraph (3) of this section, 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 shall 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).
    (3)(i) In accordance with section 836 of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328) and section 824 
of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 
115-91), contracting officers may close out contracts or groups of 
contracts through issuance of one or more modifications to such 
contracts without completing a reconciliation audit or other corrective 
action in accordance with FAR 4.804-5(a)(3) through (15), as 
appropriate, if each contract--
    (A) Was entered into on a date that is at least 17 fiscal years 
before the current fiscal year;
    (B) Has no further supplies or services due under the terms of the 
contract; and
    (C) Has been determined by a contracting official, at least one 
level above the contracting officer, to be not otherwise reconcilable, 
because--
    (1) The contract or related payment records have been destroyed or 
lost; or
    (2) Although contract or related payment records are available, the 
time or effort required to establish the exact amount owed to the U.S. 
Government or amount owed to the contractor is disproportionate to the 
amount at issue.
    (ii) Any contract or group of contracts meeting the requirements of 
paragraph (3)(i) of this section may be closed out through a negotiated 
settlement with the contractor. Except as provided in paragraph 
(3)(ii)(B) of this section, the contract closeout process shall include 
a bilateral modification of the affected contract, including those 
contracts that are closed out in

[[Page 27]]

accordance with a negotiated settlement.
    (A) For a contract or groups of contracts, the contracting officer 
shall prepare a negotiation settlement memorandum that describes how the 
requirements of paragraph (3)(i) of this section have been met.
    (B) For a group of contracts, a bilateral modification of at least 
one contract shall be made to reflect the negotiated settlement for a 
group of contracts, and unilateral modifications may be made, as 
appropriate, to other contracts in the group to reflect the negotiated 
settlement.
    (iii) For contract closeout actions under paragraph (3) of this 
section, remaining contract balances--
    (A) May be offset with balances in other contract line items within 
the same contract, regardless of the year or type of appropriation 
obligated to fund each contract line item and regardless of whether the 
appropriation obligated to fund such contract line item has closed; and
    (B) May be offset with balances on other contracts, regardless of 
the year or type of appropriations obligated to fund each contract and 
regardless of whether such appropriations have closed.
    (iv) USD(A&S) is authorized to waive any provision of acquisition 
law or regulation in order to carry out the closeout procedures 
authorized in paragraph (3)(i) of this section (see procedures at PGI 
204.804(3)(iv).
    (4) When using the clause at 252.204-7022, Expediting Contract 
Closeout, to expedite contract closeout, determine the residual dollar 
amount upon completion of all applicable closeout requirements of FAR 
4.804.

[77 FR 30367, May 22, 2012, as amended at 80 FR 36901, June 26, 2015; 84 
FR 18155, Apr. 30, 2019; 86 FR 27277, May 20, 2021]



204.804-70  Contract clause.

    Use the clause at 252.204-7022, Expediting Contract Closeout, in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, when the 
contracting officer intends to expedite contract closeout through the 
mutual waiver of entitlement to a residual dollar amount of $1,000 or 
less determined at the time of contract closeout.

[86 FR 27277, May 20, 2021]



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]



        Subpart 204.9_Taxpayer Identification Number Information

    Source: 64 FR 43099, Aug. 9, 1999, unless otherwise noted.

[[Page 28]]



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 and contract clause.

    When using the provision at FAR 52.204-8, Annual Representations and 
Certifications--
    (1) 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) 252.204-7016, Covered Defense Telecommunications Equipment or 
Services--Representation.
    (ii) 252.209-7002, Disclosure of Ownership or Control by a Foreign 
Government.
    (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 Certain Foreign 
Commercial Satellite Services--Representations.
    (x) 252.225-7050, Disclosure of Ownership or Control by the 
Government of a Country that is a State Sponsor of Terrorism.
    (xi) 252.226-7002, Representation for Demonstration Project for 
Contractors Employing Persons with Disabilities.
    (xii) 252.229-7012, Tax Exemptions (Italy)--Representation.
    (xiii) 252.229-7013, Tax Exemptions (Spain)--Representation.
    (xiv) 252.232-7015, Performance-Based Payments--Representation.

[[Page 29]]

    (xv) 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; 83 FR 66071, Dec. 21, 2018; 84 FR 30947, June 28, 2019; 84 FR 
72236, 72559, Dec. 31, 2019; 85 FR 19687, Apr. 8, 2020; 85 FR 74611, 
Nov. 23, 2020]



        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.

[[Page 30]]

    (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 
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 Data Access system to data elements reported in 
the Federal Procurement Data System can be found in PGI 204.1670.

[81 FR 9785, Feb. 26, 2016, as amended at 84 FR 48510, Sept. 13, 2019]



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 204.17_SERVICE CONTRACTS INVENTORY

    Source: 86 FR 36236, July 9, 2021, unless otherwise noted.



204.1700  Scope of subpart.

    This subpart prescribes the requirement to report certain contracted 
services in accordance with 10 U.S.C. 2330a.



204.1701  Definitions.

    As used in this subpart--
    First-tier subcontract means a subcontract awarded directly by the 
contractor for the purpose of acquiring services for performance of a 
prime contract. It does not include the contractor's supplier agreements 
with vendors, such as long-term arrangements for materials or supplies 
or services that benefit multiple contracts and/or the costs of which 
are normally applied to a contractor's general and administrative 
expenses or indirect costs.



204.1703  Reporting requirements.

    (a) Thresholds. Service contractor reporting of information is 
required in the System for Award Management (SAM) when a contract or 
order--

[[Page 31]]

    (i) Has a total estimated value, including options, that exceeds $3 
million; and
    (ii) Is for services in the following service acquisition portfolio 
groups (see PGI 204.1703 for a list of applicable product and service 
codes):
    (A) Logistics management services.
    (B) Equipment-related services.
    (C) Knowledge-based services.
    (D) Electronics and communications services.
    (b) Agency reporting responsibilities. In the event the agency 
believes that revisions to the contractor-reported information are 
warranted, the agency shall notify the contractor.
    (S-70) Contractor reporting. (1) The basic and the alternate of the 
clause at 252.204-7023, Reporting Requirements for Contracted Services, 
require contractors to report annually, by October 31, on the services 
performed under the contract or order, including any first-tier 
subcontracts, during the preceding Government fiscal year.
    (2) For indefinite-delivery contracts, basic ordering agreements, 
and blanket purchase agreements--
    (i) Contractor reporting is required for each order issued under the 
contract or agreement that meets the requirements of paragraph (a) of 
this section; and
    (ii) Service contract reporting is not required for the basic 
contract or agreement.



204.1705  Contract clauses.

    (a)(i) Use the basic or the alternate of the clause 252.204-7023, 
Reporting Requirements for Contracted Services, in solicitations, 
contracts, agreements, and orders, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that--
    (A) Have a total estimated value, including options, that exceeds $3 
million; and
    (B) Are for services in the following service acquisition portfolio 
groups:
    (1) Logistics management services.
    (2) Equipment-related services.
    (3) Knowledge-based services.
    (4) Electronics and communications services.
    (ii) Use the basic clause in solicitations and contracts, except 
solicitations and resultant awards of indefinite-delivery contracts, and 
orders placed under non-DoD contracts that meet the criteria in 
paragraph (a)(i) of this section.
    (iii) Use the alternate I clause in solicitations and resultant 
awards of indefinite-delivery contracts, basic ordering agreements, and 
blanket purchase agreements, when one or more of the orders under the 
contract or agreement are expected to meet the criteria in paragraph 
(a)(i) of this section.



          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 204.21_Prohibition on Contracting for Certain Telecommunications 
                   and Video Surveillance or Equipment

    Source: 84 FR 72236, Dec. 31, 2019, unless otherwise noted.



204.2100  Scope of subpart.

    This subpart implements section 1656 of the National Defense 
Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) and section 
889(a)(1)(A) of the National Defense Authorization Act for Fiscal Year 
2019 (Pub. L. 115-232).



204.2101  Definitions.

    As used in this subpart--
    Covered defense telecommunications equipment or services means--
    (1) Telecommunications equipment produced by Huawei Technologies 
Company or ZTE Corporation, or any subsidiary or affiliate of such 
entities;
    (2) Telecommunications services provided by such entities or using 
such equipment; or
    (3) Telecommunications equipment or services produced or provided by 
an entity that the Secretary of Defense reasonably believes to be an 
entity owned or controlled by, or otherwise

[[Page 32]]

connected to, the government of a covered foreign country.
    Covered foreign country means--
    (1) The People's Republic of China; or
    (2) The Russian Federation.
    Covered missions means--
    (1) The nuclear deterrence mission of DoD, including with respect to 
nuclear command, control, and communications, integrated tactical 
warning and attack assessment, and continuity of Government; or
    (2) The homeland defense mission of DoD, including with respect to 
ballistic missile defense.



204.2102  Prohibition.

    (a) Prohibited equipment, systems, or services. In addition to the 
prohibition at FAR 4.2102(a), unless the covered defense 
telecommunications equipment or services are subject to a waiver 
described in 204.2104, the contracting officer shall not procure or 
obtain, or extend or renew a contract (e.g., exercise an option) to 
procure or obtain, any equipment, system, or service to carry out 
covered missions that uses covered defense telecommunications equipment 
or services as a substantial or essential component of any system, or as 
critical technology as part of any system.



204.2103  Procedures.

    (a) Representations.
    (1)(i) If the offeror selects ``does not'' in response to the 
provision at DFARS 252.204-7016, the contracting officer may rely on the 
representation, unless the contracting officer has an independent reason 
to question the representation. If the contracting officer has a reason 
to question the ``does not'' representation in FAR 52.204-26, FAR 
52.212-3(v), or 252.204-7016, then the contracting officer shall consult 
with the requiring activity and legal counsel.
    (ii) If the offeror selects ``does'' in paragraph (c) of the 
provision at DFARS 252.204-7016, the offeror must complete the 
representation at DFARS 252.204-7017.
    (2)(i) If the offeror selects ``will not'' in paragraph (d) of the 
provision at DFARS 252.204-7017, the contracting officer may rely on the 
representation, unless the contracting officer has an independent reason 
to question the representation. If the contracting officer has a reason 
to question the ``will not'' representation in FAR 52.204-24 or DFARS 
252.204-7017, then the contracting officer shall consult with the 
requiring activity and legal counsel.
    (ii) If an offeror selects ``will'' in paragraph (d) of the 
provision at DFARS 252.204-7017, the offeror must provide the 
information required by paragraph (e) of the provision. When an offeror 
completes paragraph (e) of either of the provisions at FAR 52.204-24 or 
DFARS 252.204-7017, the contracting officer shall--
    (A) Forward the offeror's representation and disclosure information 
to the requiring activity; and
    (B) Not award to the offeror unless the requiring activity advises--
    (1) For equipment, systems, or services that use covered 
telecommunications equipment or services as a substantial or essential 
component of any system, or as critical technology as part of any 
system, that a waiver as described at FAR 4.2104 has been granted; or
    (2) For equipment, systems, or services to be used to carry out 
covered missions that use covered defense telecommunications equipment 
or services as a substantial or essential component of any system, or as 
critical technology as part of any system, that a waiver as described at 
DFARS 204.2104 has been granted.
    (b) Reporting. If a contractor reports information to https://
dibnet.dod.mil in accordance with the clause at FAR 52.204-25 or DFARS 
252.204-7018, the Defense Cyber Crime Center will notify the contracting 
officer, who will consult with the requiring activity on how to proceed 
with the contract.



204.2104  Waivers.

    The Secretary of Defense may waive the prohibition in 204.2102(a) on 
a case-by-case basis for a single, one-year period, if the Secretary--
    (a) Determines such waiver to be in the national security interests 
of the United States; and
    (b) Certifies to the Congressional defense committees that--
    (1) There are sufficient mitigations in place to guarantee the 
ability of the Secretary to carry out the covered missions; and

[[Page 33]]

    (2) The Secretary is removing the use of covered defense 
telecommunications equipment or services in carrying out such missions.



204.2105  Solicitation provisions and contract clause.

    (a) Use the provision at 252.204-7016, Covered Defense 
Telecommunications Equipment or Services--Representation, in all 
solicitations, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items and, solicitations for task and 
delivery orders, basic ordering agreements (BOAs), orders against BOAs, 
blanket purchase agreements (BPAs), and calls against BPAs.
    (b) Use the provision at 252.204-7017, Prohibition on the 
Acquisition of Covered Defense Telecommunications Equipment or 
Services--Representation, in all solicitations, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items, 
and solicitations for task and delivery orders, BOAs, orders against 
BOAs, BPAs, and calls against BPAs.
    (c) Use the clause at 252.204-7018, Prohibition on the Acquisition 
of Covered Defense Telecommunications Equipment or Services, in all 
solicitations and resultant awards, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of commercial 
items, and solicitations and awards for task and delivery orders, BOAs, 
orders against BOAs, BPAs, and calls against BPAs.



            Subpart 204.70_Procurement Acquisition Lead Time

    Source: 84 FR 72563, Dec. 31, 2019, unless otherwise noted.



204.7001  Procedures.

    Follow the procedures at PGI 204.7001 for reporting procurement 
acquisition lead time milestones in the Procurement Integrated 
Enterprise Environment module.



       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 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;

[[Page 34]]

    (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 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

[[Page 35]]

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 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]

[[Page 36]]



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 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.

[[Page 37]]

    (iii) The two methods in paragraphs (b)(3) (i) and (ii) of this 
section 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 contract line or subline item, it may be necessary 
to withhold payment on the priced contract line or subline item until 
the included line or subline items that are not separately priced have 
been delivered. See the clause at 252.204-7002, Payment for Contract 
Line or 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; 85 FR 19692, Apr. 8, 2020]



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--
    (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

[[Page 38]]

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 clauses.

    (a) Use the clause at 252.204-7002, Payment for Contract Line or 
Subline Items Not Separately Priced, in solicitations and contracts when 
the price for items not separately priced is included in the price of 
another contract line or subline item.
    (b) Use the clause at 252.204-7006, Billing Instructions, in 
solicitations and contracts if Section G includes--
    (1) Any of the standard payment instructions at PGI 204.7108(b)(2); 
or
    (2) 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.

[85 FR 19692, Apr. 8, 2020]



             Subpart 204.72_Antiterrorism Awareness Training

    Source: 84 FR 4363, Feb. 15, 2019, unless otherwise noted.



204.7200  Scope of subpart.

    This subpart provides policy and guidance related to antiterrorism 
awareness training for contractor personnel who require routine physical 
access to a Federally-controlled facility or military installation.



204.7201  Definition.

    As used in this subpart--
    Military installation means a base, camp, post, station, yard, 
center, or other activity under the jurisdiction of the Secretary of a 
military department or, in the case of an activity in a foreign country, 
under the operational control of the Secretary of a military department 
or the Secretary of Defense (see 10 U.S.C. 2801(c)(4)).



204.7202  Policy.

    It is DoD policy that--
    (a) Contractor personnel who, as a condition of contract 
performance, require routine physical access to a Federally-controlled 
facility or military installation are required to complete Level I 
antiterrorism awareness training within 30 days of requiring access and 
annually thereafter; and
    (b) In accordance with Department of Defense Instruction O-2000.16, 
Volume 1, DoD Antiterrorism (AT) Program Implementation: DoD AT 
Standards, Level I antiterrorism awareness training may be completed--
    (1) Through a DoD-sponsored and certified computer or web-based 
distance learning instruction for Level I antiterrorism awareness; or
    (2) Under the instruction of a qualified Level I antiterrorism 
awareness instructor.



204.7203  Contract clause.

    Include the clause at 252.204-7004, DoD Antiterrorism Awareness 
Training for Contractors, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial

[[Page 39]]

items, when contractor personnel require routine physical access to a 
Federally-controlled facility or military installation.



   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, 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

[[Page 40]]

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)(1) Contractors and subcontractors are required to provide 
adequate security on all covered contractor information systems.
    (2) Contractors required to implement NIST SP 800-171, in accordance 
with the clause at 252.204-7012, Safeguarding Covered Defense 
Information and Cyber incident Reporting, are required at time of award 
to have at least a Basic NIST SP 800-171 DoD Assessment that is current 
(i.e., not more than 3 years old unless a lesser time is specified in 
the solicitation) (see 252.204-7019).
    (3) The NIST SP 800-171 DoD Assessment Methodology is located at 
https://www.acq.osd.mil/ dpap/pdi/cyber/strategically 
_assessing_contractor_ implementation_of_ NIST_SP_800-171.html.
    (4) High NIST SP 800-171 DoD Assessments will be conducted by 
Government personnel using NIST SP 800-171A, ``Assessing Security 
Requirements for Controlled Unclassified Information.''
    (5) The NIST SP 800-171 DoD Assessment will not duplicate efforts 
from any other DoD assessment or the Cybersecurity Maturity Model 
Certification (CMMC) (see subpart 204.75), except for rare circumstances 
when a re-assessment may be necessary, such as, but not limited to, when 
cybersecurity risks, threats, or awareness have changed, requiring a re-
assessment to ensure current compliance.
    (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.
    (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

[[Page 41]]

on use and disclosure of reported information.

[80 FR 51742, Aug. 26, 2015, as amended at 81 FR 72998, Oct. 21, 2016; 
85 FR 61519, Sept. 29, 2020]



204.7303  Procedures.

    (a) Follow the procedures relating to safeguarding covered defense 
information at PGI 204.7303.
    (b) The contracting officer shall verify that the summary level 
score of a current NIST SP 800-171 DoD Assessment (i.e., not more than 3 
years old, unless a lesser time is specified in the solicitation) (see 
252.204-7019) for each covered contractor information system that is 
relevant to an offer, contract, task order, or delivery order are posted 
in Supplier Performance Risk System (SPRS) (https://
www.sprs.csd.disa.mil/), prior to--
    (1) Awarding a contract, task order, or delivery order to an offeror 
or contractor that is required to implement NIST SP 800-171 in 
accordance with the clause at 252.204-7012; or
    (2) Exercising an option period or extending the period of 
performance on a contract, task order, or delivery order with a 
contractor that is that is required to implement the NIST SP 800-171 in 
accordance with the clause at 252.204-7012.

[85 FR 61519, Sept. 29, 2020]



204.7304  Solicitation provisions 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.
    (d) Use the provision at 252.204-7019, Notice of NIST SP 800-171 DoD 
Assessment Requirements, 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.
    (e) Use the clause at 252.204-7020, NIST SP 800-171 DoD Assessment 
Requirements, in all solicitations and contracts, task orders, or 
delivery orders, including those using FAR part 12 procedures for the 
acquisition of commercial items, except for those that are 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; 85 FR 61519, 
Sept. 29, 2020]



     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.



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

[[Page 42]]

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  Contract clauses.

    (a) 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.
    (b) 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, as amended at 84 FR 58332, Oct. 31, 2019]



        Subpart 204.75_Cybersecurity Maturity Model Certification

    Source: 85 FR 61519, Sept. 29, 2020, unless otherwise noted.



204.7500  Scope of subpart.

    (a) This subpart prescribes policies and procedures for including 
the Cybersecurity Maturity Model Certification (CMMC) level requirements 
in DoD contracts. CMMC is a framework that measures a contractor's 
cybersecurity maturity to include the implementation of cybersecurity 
practices and institutionalization of processes (see https://
www.acq.osd.mil/cmmc/index.html).

[[Page 43]]

    (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, nor does it affect requirements of the 
National Industrial Security Program.



204.7501  Policy.

    (a) The contracting officer shall include in the solicitation the 
required CMMC level, if provided by the requiring activity. Contracting 
officers shall not award a contract, task order, or delivery order to an 
offeror that does not have a current (i.e., not more than 3 years old) 
CMMC certificate at the level required by the solicitation.
    (b) Contractors are required to achieve, at time of award, a CMMC 
certificate at the level specified in the solicitation. Contractors are 
required to maintain a current (i.e., not more than 3 years old) CMMC 
certificate at the specified level, if required by the statement of work 
or requirement document, throughout the life of the contract, task 
order, or delivery order. Contracting officers shall not exercise an 
option period or extend the period of performance on a contract, task 
order, or delivery order, unless the contract has a current (i.e., not 
more than 3 years old) CMMC certificate at the level required by the 
contract, task order, or delivery order.
    (c) The CMMC Assessments shall not duplicate efforts from any other 
comparable DoD assessment, except for rare circumstances when a re-
assessment may be necessary such as, but not limited to when there are 
indications of issues with cybersecurity and/or compliance with CMMC 
requirements.



204.7502  Procedures.

    (a) When a requiring activity identifies a requirement for a 
contract, task order, or delivery order to include a specific CMMC 
level, the contracting officer shall not--
    (1) Award to an offeror that does not have a CMMC certificate at the 
level required by the solicitation; or
    (2) Exercise an option or extend any period of performance on a 
contract, task order, or delivery order unless the contractor has a CMMC 
certificate at the level required by the contract.
    (b) Contracting officers shall use Supplier Performance Risk System 
(SPRS) (https://www.sprs.csd.disa.mil/) to verify an offeror or 
contractor's CMMC level.



204.7503  Contract clause.

    Use the clause at 252.204-7021, Cybersecurity Maturity Model 
Certification Requirements, as follows:
    (a) Until September 30, 2025, in solicitations and contracts or task 
orders or delivery orders, including those using FAR part 12 procedures 
for the acquisition of commercial items, except for solicitations and 
contracts or orders solely for the acquisition of commercially available 
off-the-shelf (COTS) items, if the requirement document or statement of 
work requires a contractor to have a specific CMMC level. In order to 
implement a phased rollout of CMMC, inclusion of a CMMC requirement in a 
solicitation during this time period must be approved by OUSD(A&S).
    (b) On or after October 1, 2025, in all solicitations and contracts 
or task orders or delivery orders, including those using FAR part 12 
procedures for the acquisition of commercial items, except for 
solicitations and contracts or orders solely for the acquisition of COTS 
items.

[[Page 44]]



                    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).
    (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--

[[Page 45]]

    (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 $7.5 
million. Report all contractual actions, including modifications, that 
have a face value, excluding unexercised options, of more than $7.5 
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 $7.5 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 $7.5 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 $7.5 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);
    (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; 85 FR 61504, Sept. 29, 2020]

[[Page 46]]



                  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 $1.5 
million. 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; 85 FR 61504, Sept. 29, 2020]



                    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 206.1_Full and Open Competition

206.102 Use of competitive procedures.

   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.
206.303-1 Requirements.
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 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 206.1_Full and Open Competition

    Source: 84 FR 4365, Feb. 15, 2019, unless otherwise noted.



206.102  Use of competitive procedures.

    (d) Other competitive procedures.

[[Page 47]]

    (2) In lieu of FAR 6.102(d)(2), competitive selection of science and 
technology proposals resulting from a broad agency announcement with 
peer or scientific review, as described in 235.016(a) (10 U.S.C. 
2302(2)(B)).



   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) Application for brand-name descriptions.
    (2) Notwithstanding FAR 6.302-1(c)(2), in accordance with section 
888(a) of the National Defense Authorization Act for Fiscal Year 2017 
(Pub. L. 114-328), the justification and approval addressed in FAR 6.303 
is required in order to use brand name or equal descriptions.
    (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.
    (S-70) Application for proprietary specifications or standards. In 
accordance with section 888(a) of the National Defense Authorization Act 
for Fiscal Year 2017 (Pub. L. 114-328), the justification and approval 
addressed in FAR 6.303 is required in order to use proprietary 
specifications and standards.

[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; 84 FR 25192, May 31, 2019]



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]

[[Page 48]]



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 
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.



206.303-1  Requirements.

    (a) In accordance with section 823 of the National Defense 
Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), no 
justification and approval is required for a sole-source contract under 
the 8(a) authority (15 U.S.C. 637(a)) for an amount not exceeding $100 
million.
    (b) In lieu of FAR 6.303-1(b), in accordance with section 823 of the 
National Defense Authorization Act for

[[Page 49]]

Fiscal Year 2020 (Pub. L. 116-92), contracting officers shall not award 
a sole source contract under the 8(a) authority (15 U.S.C. 637(a)) for 
an amount exceeding $100 million unless--
    (1) The contracting officer justifies the use of a sole source 
contract in writing in accordance with FAR 6.303-2;
    (2) The justification is approved in accordance with 206.304(a)(S-
71); and
    (3) The justification and related information are made public after 
award in accordance with FAR 6.305.

[85 FR 34529, June 5, 2020]



206.303-2  Content.

    (b)(i) In lieu of the threshold at FAR 6.303-2(b), each 
justification shall include the information at FAR 6.303-2(b), except 
for sole-source 8(a) contracts over $100 million (see paragraph (d) of 
this section).
    (ii) Include the information required by PGI 206.303-2(b)(i) in 
justifications citing the authority at FAR 6.302-1.
    (d) In lieu of the threshold at FAR 6.303-2(d), each justification 
for a sole-source 8(a) contract over $100 million shall include the 
information at FAR 6.303-2(d).

[80 FR 21657, Apr. 20, 2015, as amended at 85 FR 34529, June 5, 2020]



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
    (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).
    (S-71) In accordance with section 823 of the National Defense 
Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), the head of the 
procuring activity is the approval authority for a proposed sole-source 
8(a) contract exceeding $100 million. This authority may only be 
delegated to an officer or employee who--
    (1) If a member of the armed forces, is serving in a rank above 
brigadier general or rear admiral (lower half); or
    (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.

[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; 85 FR 34529, 
June 5, 2020]



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.

[[Page 50]]

207.171-4 Procedures.
207.172 Human research.

         Subpart 207.3_Contractor Versus Government Performance

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 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]

[[Page 51]]



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) In accordance with 10 U.S.C. 2443, to emphasize reliability and 
maintainability in weapon system design, ensure that reliability and 
maintainability are included in the performance attributes of the key 
performance parameters on sustainment during the development of 
capabilities requirements. For additional guidance see PGI 
207.105(b)(14)(ii)(2);
    (iii) 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;
    (iv) Address the potential for changes in the sustainment plan over 
the life cycle of the weapon system or subsystem; and
    (v) 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.

[[Page 52]]

    (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).
    (5) In accordance with 10 U.S.C. 2443, acquisition plans for 
engineering manufacturing and development and production of major 
systems as defined in 10 U.S.C. 2302 and 2302d and for major defense 
acquisition programs as defined in 202.101, shall include performance 
measures that are developed using best practices for responding to the 
positive or negative performance of a contractor for the engineering and 
manufacturing development or production of a weapon system, including 
embedded software. At a minimum the contracting officer shall--
    (i) Encourage the use of incentive fees and penalties as 
appropriate; and
    (ii) Allow the program manager or comparable requiring activity 
official exercising program management responsibilities, to base 
determinations of a contractor's performance on reliability and 
maintainability data collected during the program. Such data collection 
and associated evaluation metrics shall be described in detail in the 
contract; and to the maximum extent practicable, the data shall be 
shared with appropriate contractor and Government organizations.
    (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 53]]

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; 84 FR 
58333, Oct. 31, 2019; 86 FR 27277, May 20, 2021]



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 54]]



                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 55]]

    (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 mandatory Government 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 56]]

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 mandatory Government sources.

    (a)(1) Supplies. (i) See the guidance at PGI 208.002(a)(1)(i) to 
obtain information on available items in DoD's property inventories.
    (v) See subpart 208.70, Coordinated Acquisition, and subpart 208.74, 
Enterprise Software Agreements.

[85 FR 34530, June 5, 2020]



                 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.

    (1) 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.
    (2) See 215.101-2-70 for the limitations and prohibitions on the use 
of the lowest price technically acceptable source selection process, 
which are applicable to orders placed under Federal Supply Schedules.
    (3) See 217.7801 for the prohibition on the use of reverse auctions 
for personal protective equipment and aviation critical safety items.

[80 FR 67251, Oct. 30, 2015, as amended at 84 FR 50788, Sept. 26, 2019]



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]

[[Page 57]]



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).
    (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.htmlfederal 
_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.

[[Page 58]]



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).
    (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

[[Page 59]]

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.
    (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]

[[Page 60]]



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.



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]

[[Page 61]]



              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);
    (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]

[[Page 62]]

         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.

Subpart 209.470 [Reserved]

209.471 Congressional Medal of Honor.

    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.

[[Page 63]]

    (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, 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]

[[Page 64]]



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 Contractor 
Performance Assessment Reporting System (CPARS) available at https://
www.cpars.gov/. Information relating to contract terminations for cause 
and for default is also available through the Federal Awardee 
Performance and Integrity Information System (FAPIIS) module of CPARS, 
available at https://www.fapiis.gov (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; 84 FR 48508, Sept. 
13, 2019]



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]



209.106  Preaward surveys.

    When requesting a preawared survey, follow the procedures at PGI 
209.106.

[69 FR 65089, Nov. 10, 2004]



                Subpart 209.2_Qualifications Requirements



209.202  Policy.

    (a)(1) Except for aviation or ship critical safety items, obtain 
approval in accordance with PGI 209.202(a)(1) when establishing 
qualification requirements. See 209.270 for approval of qualification 
requirements for aviation or ship critical safety items.

[73 FR 1827, Jan. 10, 2008]



209.270  Aviation and ship critical safety items.



209.270-1  Scope.

    This section--
    (a) Implements--
    (1) Section 802 of the National Defense Authorization Act for Fiscal 
Year 2004 (Pub. L. 108-136); and
    (2) Section 130 of the National Defense Authorization Act for Fiscal 
Year 2007 (Pub. L. 109-364); and
    (b) Prescribes policy and procedures for qualification requirements 
in the procurement of aviation and ship critical safety items and the 
modification, repair, and overhaul of those items.

[73 FR 1827, Jan. 10, 2008]



209.270-2  Definitions.

    As used in this section--
    Aviation critical safety item means a part, an assembly, 
installation equipment, launch equipment, recovery equipment, or support 
equipment for an aircraft or aviation weapon system if the part, 
assembly, or equipment contains a characteristic any failure, 
malfunction, or absence of which could cause--
    (1) A catastrophic or critical failure resulting in the loss of or 
serious damage to the aircraft or weapon system;

[[Page 65]]

    (2) An unacceptable risk of personal injury or loss of life; or
    (3) An uncommanded engine shutdown that jeopardizes safety.
    Design control activity--(1) With respect to an aviation critical 
safety item, means the systems command of a military department that is 
specifically responsible for ensuring the air worthiness of an aviation 
system or equipment in which an aviation critical safety item is to be 
used; and
    (2) With respect to a ship critical safety item, means the systems 
command of a military department that is specifically responsible for 
ensuring the seaworthiness of a ship or ship equipment in which a ship 
critical safety item is to be used.
    Ship critical safety item means any ship part, assembly, or support 
equipment containing a characteristic the failure, malfunction, or 
absence of which could cause--
    (1) A catastrophic or critical failure resulting in loss of or 
serious damage to the ship; or
    (2) An unacceptable risk of personal injury or loss of life.

[69 FR 55988, Sept. 17, 2004, as amended at 73 FR 1827, Jan. 10, 2008]



209.270-3  Policy.

    (a) The head of the contracting activity responsible for procuring 
an aviation or ship critical safety item may enter into a contract for 
the procurement, modification, repair, or overhaul of such an item only 
with a source approved by the head of the design control activity.
    (b) The approval authorities specified in this section apply instead 
of those otherwise specified in FAR 9.202(a)(1), 9.202(c), or 9.206-
1(c), for the procurement, modification, repair, and overhaul of 
aviation or ship critical safety items.

[73 FR 1827, Jan. 10, 2008]



209.270-4  Procedures.

    (a) The head of the design control activity shall--
    (1) Identify items that meet the criteria for designation as 
aviation or ship critical safety items. See additional information at 
PGI 209.270-4;
    (2) Approve qualification requirements in accordance with procedures 
established by the design control activity; and
    (3) Qualify and identify aviation and ship critical safety item 
suppliers and products.
    (b) The contracting officer shall--
    (1) Ensure that the head of the design control activity has 
determined that a prospective contractor or its product meets or can 
meet the established qualification standards before the date specified 
for award of the contract;
    (2) Refer any offers received from an unapproved source to the head 
of the design control activity for approval. The head of the design 
control activity will determine whether the offeror or its product meets 
or can meet the established qualification standards before the date 
specified for award of the contract; and
    (3) Refer any requests for qualification to the design control 
activity.
    (c) See 246.407 (S-70) and 246.504 for quality assurance 
requirements.

[69 FR 55988, Sept. 17, 2004, as amended at 70 FR 57190, Sept. 30, 2005; 
73 FR 1827, Jan. 10, 2008]



209.270-5  Contract clause.

    The contracting officer shall insert the clause at 252.209-7010, 
Critical Safety Items, in solicitations and contracts when the 
acquisition includes one or more items designated by the design control 
activity as critical safety items.

[76 FR 52139, Aug. 19, 2011]

Subpart 209.3 [Reserved]



         Subpart 209.4_Debarment, Suspension, and Ineligibility



209.402  Policy.

    (d) The uniform suspension and debarment procedures to be followed 
by all debarring and suspending officials are set out in appendix H to 
this chapter.
    (e) The department or agency shall provide a copy of the Debarment 
and Suspension Procedures at DFARS appendix H to this chapter to 
contractors at the time of their suspension or when they are proposed 
for debarment, and

[[Page 66]]

upon request to other interested parties.

[59 FR 27668, May 27, 1994]



209.403  Definitions.

    Debarring and suspending official. (1) For DoD, the designees
    are--

Army--Director, Soldier & Family Legal Services
Navy/Marine Corps--The Assistant General Counsel (Acquisition Integrity)
Air Force--Deputy General Counsel (Contractor Responsibility)
Defense Advanced Research Projects Agency--The Director
Defense Information Systems Agency--The General Counsel
Defense Intelligence Agency--The Senior Procurement Executive
Defense Logistics Agency--The Special Assistant for Contracting 
Integrity
National Geospatial--Intelligence Agency--The General Counsel
Defense Threat Reduction Agency--The Director
National Security Agency--The Senior Acquisition Executive
Missile Defense Agency--The General Counsel
United States Cyber Command--The Staff Judge Advocate
Defense Health Agency--The General Counsel
Overseas installations--as designated by the agency head

    (2) Overseas debarring and suspending officials--
    (i) Are authorized to debar or suspend contractors located within 
the official's geographic area of responsibility under any delegation of 
authority they receive from their agency head.
    (ii) Debar or suspend in accordance with the procedures in FAR 
subpart 9.4 or under modified procedures approved by the agency head 
based on consideration of the laws or customs of the foreign countries 
concerned.
    (iii) In addition to the bases for debarment in FAR 9.406-2, may 
consider the following additional bases--
    (A) The foreign country concerned determines that a contractor has 
engaged in bid-rigging, price-fixing, or other anti-competitive 
behavior; or
    (B) The foreign country concerned declares the contractor to be 
formally debarred, suspended, or otherwise ineligible to contract with 
that foreign government or its instrumentalities.
    (3) The Defense Logistics Agency Special Assistant for Contracting 
Integrity is the exclusive representative of the Secretary of Defense to 
suspend and debar contractors from the purchase of Federal personal 
property under the Federal Property Management Regulations (41 CFR 101-
45.6) and the Defense Materiel Disposition Manual (DoD 4160.21-M).

[56 FR 36313, July 31, 1991, as amended at 56 FR 67212, Dec. 30, 1991; 
59 FR 27669, May 27, 1994; 60 FR 61593, Nov. 30, 1995; 61 FR 50452, 
Sept. 26, 1996; 63 FR 11528, Mar. 9, 1998; 64 FR 51075, Sept. 21, 1999; 
64 FR 62985, Nov. 18, 1999; 68 FR 7439, Feb. 14, 2003; 70 FR 14573, Mar. 
23, 2005; 74 FR 42780, Aug. 25, 2009; 74 FR 52895, Oct. 15, 2009; 76 FR 
11367, Mar. 2, 2011; 76 FR 76319, Dec. 7, 2011; 77 FR 23631, Apr. 20, 
2012; 77 FR 52253, Aug. 29, 2012; 84 FR 18155, Apr. 30, 2019]



209.405  Effect of listing.

    (a) Under 10 U.S.C. 2393(b), when a department or agency determines 
that a compelling reason exists for it to conduct business with a 
contractor that is debarred or suspended from procurement programs, it 
must provide written notice of the determination to the General Services 
Administration (GSA), GSA Suspension and Debarment Official, Office of 
Acquisition Policy, 1275 First Street, NE., Washington, DC 20417. 
Examples of compelling reasons are--
    (i) Only a debarred or suspended contractor can provide the supplies 
or services;
    (ii) Urgency requires contracting with a debarred or suspended 
contractor;
    (iii) The contractor and a department or agency have an agreement 
covering the same events that resulted in the debarment or suspension 
and the agreement includes the department or agency decision not to 
debar or suspend the contractor; or
    (iv) The national defense requires continued business dealings with 
the debarred or suspended contractor.
    (b)(i) The Procurement Cause and Treatment Code ``H'' annotation in 
the Exclusions section of the System for Award Management (SAM 
Exclusions) identifies contractor facilities where no part of a contract 
or subcontract may be performed because of a violation of the Clean Air 
Act (42 U.S.C.

[[Page 67]]

7606) or the Clean Water Act (33 U.S.C. 1368).
    (ii) Under the authority of Section 8 of Executive Order 11738, the 
agency head may grant an exemption permitting award to a contractor 
using a Code ``H'' ineligible facility if the agency head determines 
that such an exemption is in the paramount interest of the United 
States.
    (A) The agency head may delegate this exemption authority to a level 
no lower than a general or flag officer or a member of the Senior 
Executive Service.
    (B) The official granting the exemption--
    (1) Shall promptly notify the Environmental Protection Agency 
suspending and debarring official of the exemption and the corresponding 
justification; and
    (2) May grant a class exemption only after consulting with the 
Environmental Protection Agency suspending and debarring official.
    (C) Exemptions shall be for a period not to exceed one year. The 
continuing necessity for each exemption shall be reviewed annually and, 
upon the making of a new determination, may be extended for periods not 
to exceed one year.
    (D) All exemptions must be reported annually to the Environmental 
Protection Agency suspending and debarring official.
    (E) See PGI 209.405 for additional procedures and information.

[74 FR 2414, Jan. 15, 2009, as amended at 76 FR 27274, May 11, 2011; 79 
FR 73489, Dec. 11, 2014]



209.405-2  Restrictions on subcontracting.

    (a) The contracting officer shall not consent to any subcontract 
with a firm, or a subsidiary of a firm, that is identified by the 
Secretary of Defense in SAM Exclusions as being owned or controlled by 
the government of a country that is a state sponsor of terrorism unless 
the agency head states in writing the compelling reasons for the 
subcontract. (See also 225.771.)

[79 FR 73489, Dec. 11, 2014]



209.406  Debarment.



209.406-1  General.

    (a)(i) When the debarring official decides that debarment is not 
necessary, the official may require the contractor to enter into a 
written agreement which includes--
    (A) A requirement for the contractor to establish, if not already 
established, and to maintain the standards of conduct and internal 
control systems prescribed by FAR subpart 3.10; and
    (B) Other requirements the debarring official considers appropriate.
    (ii) Before the debarring official decides not to suspend or debar 
in the case of an indictment or conviction for a felony, the debarring 
official must determine that the contractor has addressed adequately the 
circumstances that gave rise to the misconduct, and that appropriate 
standards of ethics and integrity are in place and are working.

[57 FR 14992, Apr. 23, 1992, as amended at 76 FR 76319, Dec. 7, 2011]



209.406-2  Causes for debarment.

    (1) Any person shall be considered for debarment if criminally 
convicted of intentionally affixing a label bearing a ``Made in 
America'' inscription to any product sold in or shipped to the United 
States or its outlying areas that was not made in the United States or 
its outlying areas (10 U.S.C. 2410f).
    (i) The debarring official will make a determination concerning 
debarment not later than 90 days after determining that a person has 
been so convicted.
    (ii) In cases where the debarring official decides not to debar, the 
debarring official will report that decision to the Director of Defense 
Procurement and Acquisition Policy who will notify Congress within 30 
days after the decision is made.
    (2) Any contractor that knowingly provides compensation to a former 
DoD official in violation of section 847 of the National Defense 
Authorization

[[Page 68]]

Act for Fiscal Year 2008 may face suspension and debarment proceedings 
in accordance with 41 U.S.C. 2105(c)(1)(C).

[58 FR 28464, May 13, 1993, as amended at 68 FR 7439, Feb. 14, 2003; 70 
FR 35544, June 21, 2005; 74 FR 2409, Jan. 15, 2009; 76 FR 58136, Sept. 
20, 2011]



209.406-3  Procedures.

    Refer all matters appropriate for consideration by an agency 
debarring and suspending official as soon as practicable to the 
appropriate debarring and suspending official identified in 209.403. Any 
person may refer a matter to the debarring and suspending official. 
Follow the procedures at PGI 209.406-3.

[69 FR 74990, Dec. 15, 2004]



209.407  Suspension.



209.407-3  Procedures.

    Refer all matters appropriate for consideration by an agency 
debarring and suspending official as soon as practicable to the 
appropriate debarring and suspending official identified in 209.403. Any 
person may refer a matter to the debarring and suspending official. 
Follow the procedures at PGI 209.407-3.

[69 FR 74990, Dec. 15, 2004]



209.409  Solicitation provision and contract clause.

    Use the clause at 252.209-7004, Subcontracting with Firms that are 
Owned or Controlled by the Government of a Country that is a State 
Sponsor of Terrorism, in solicitations and contracts with a value of 
$150,000 or more.

[79 FR 73489, Dec. 11, 2014]



209.470  [Reserved]



209.471  Congressional Medal of Honor.

    In accordance with Section 8118 of Pub. L. 105-262, do not award a 
contract to, extend a contract with, or approve the award of a 
subcontract to any entity that, within the preceding 15 years, has been 
convicted under 18 U.S.C. 704 of the unlawful manufacture or sale of the 
Congressional Medal of Honor. Any entity so convicted will be listed as 
ineligible on the List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs published by the General Services 
Administration.

[64 FR 31733, June 14, 1999]



    Subpart 209.5_Organizational and Consultant Conflicts of Interest

    Source: 73 FR 1824, Jan. 10, 2008, unless otherwise noted.



209.505  General rules.



209.505-4  Obtaining access to proprietary information.

    (b)(i) For contractors, other than litigation support contractors, 
accessing third party proprietary technical data or computer software, 
non-disclosure requirements are addressed at 227.7103-7(b), through use 
of the clause at 252.227-7025 as prescribed at 227.7103-6(c) and 
227.7203-6(d). Pursuant to that clause, covered Government support 
contractors may be required to enter into non-disclosure agreements 
directly with the third party asserting restrictions on limited rights 
technical data, commercial technical data, or restricted rights computer 
software. The contracting officer is not required to obtain copies of 
these agreements or to ensure that they are properly executed.
    (ii) For litigation support contractors accessing litigation 
information, including that originating from third parties, use and non-
disclosure requirements are addressed through the use of the clause at 
252.204-7014, as prescribed at 204.7403(a). Pursuant to the clause, 
litigation support contractors are not required to enter into non-
disclosure agreements directly with any third party asserting 
restrictions on any litigation information.

[78 FR 30238, May 22, 2013, as amended at 81 FR 28728, May 10, 2016; 81 
FR 36473, June 7, 2016; 84 FR 58332, Oct. 31, 2019]



209.570  Limitations on contractors acting as lead system integrators.



209.570-1  Definitions.

    Lead system integrator, as used in this section, is defined in the 
clause at 252.209-7007, Prohibited Financial Interests for Lead System 
Integrators. See

[[Page 69]]

PGI 209.570-1 for additional information.



209.570-2  Policy.

    (a) Except as provided in paragraph (b) of this subsection, 10 
U.S.C. 2410p prohibits any entity performing lead system integrator 
functions in the acquisition of a major system by DoD from having any 
direct financial interest in the development or construction of any 
individual system or element of any system of systems.
    (b) The prohibition in paragraph (a) of this subsection does not 
apply if--
    (1) The Secretary of Defense certifies to the Committees on Armed 
Services of the Senate and the House of Representatives that--
    (i) The entity was selected by DoD as a contractor to develop or 
construct the system or element concerned through the use of competitive 
procedures; and
    (ii) DoD took appropriate steps to prevent any organizational 
conflict of interest in the selection process; or
    (2) The entity was selected by a subcontractor to serve as a lower-
tier subcontractor, through a process over which the entity exercised no 
control.
    (c) In accordance with Section 802 of the National Defense 
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), DoD may award 
a new contract for lead system integrator functions in the acquisition 
of a major system only if--
    (1) The major system has not yet proceeded beyond low-rate initial 
production; or
    (2) The Secretary of Defense determines in writing that it would not 
be practicable to carry out the acquisition without continuing to use a 
contractor to perform lead system integrator functions and that doing so 
is in the best interest of DoD. The authority to make this determination 
may not be delegated below the level of the Under Secretary of Defense 
for Acquisition, Technology, and Logistics. (Also see 209.570-3(b).)
    (d) Effective October 1, 2010, DoD is prohibited from awarding a new 
contract for lead system integrator functions in the acquisition of a 
major system to any entity that was not performing lead system 
integrator functions in the acquisition of the major system prior to 
January 28, 2008.

[73 FR 1824, Jan. 10, 2008, as amended at 74 FR 34268, July 15, 2009]



209.570-3  Procedures.

    (a) In making a responsibility determination before awarding a 
contract for the acquisition of a major system, the contracting officer 
shall--
    (1) Determine whether the prospective contractor meets the 
definition of ``lead system integrator'';
    (2) Consider all information regarding the prospective contractor's 
direct financial interests in view of the prohibition at 209.570-2(a); 
and
    (3) Follow the procedures at PGI 209.570-3.
    (b) A determination to use a contractor to perform lead system 
integrator functions in accordance with 209.570-2(c)(2)--
    (1) Shall specify the reasons why it would not be practicable to 
carry out the acquisition without continuing to use a contractor to 
perform lead system integrator functions, including a discussion of 
alternatives, such as use of the DoD workforce or a system engineering 
and technical assistance contractor;
    (2) Shall include a plan for phasing out the use of contracted lead 
system integrator functions over the shortest period of time consistent 
with the interest of the national defense; and
    (3) Shall be provided to the Committees on Armed Services of the 
Senate and the House of Representatives at least 45 days before the 
award of a contract pursuant to the determination.

[74 FR 34268, July 15, 2009]



209.570-4  Solicitation provision and contract clause.

    (a) Use the provision at 252.209-7006, Limitations on Contractors 
Acting as Lead System Integrators, in solicitations for the acquisition 
of a major system when the acquisition strategy envisions the use of a 
lead system integrator.
    (b) Use the clause at 252.209-7007, Prohibited Financial Interests 
for Lead System Integrators--
    (1) In solicitations that include the provision at 252.209-7006; and

[[Page 70]]

    (2) In contracts when the contractor will fill the role of a lead 
system integrator for the acquisition of a major system.



209.571  Organizational conflicts of interest in major defense 
acquisition programs.



209.571-0  Scope of subpart.

    This subpart implements section 207 of the Weapons System 
Acquisition Reform Act of 2009 (Pub. L. 111-23).

[75 FR 81913, Dec. 29, 2010]



209.571-1  Definitions.

    As used in this section--
    ``Lead system integrator'' includes lead system integrator with 
system responsibility and lead system integrator without system 
responsibility.
    (i) Lead system integrator with system responsibility means a prime 
contractor for the development or production of a major system, if the 
prime contractor is not expected at the time of award to perform a 
substantial portion of the work on the system and the major subsystems.
    (ii) Lead system integrator without system responsibility means a 
prime contractor under a contract for the procurement of services, the 
primary purpose of which is to perform acquisition functions closely 
associated with inherently governmental functions (see section 7.503(d) 
of the Federal Acquisition Regulation) with respect to the development 
or production of a major system.
    ``Major subcontractor'' means a subcontractor that is awarded a 
subcontract that equals or exceeds--
    (i) Both the certified cost or pricing data threshold and 10 percent 
of the value of the contract under which the subcontract is awarded; or
    (ii) $55 million.
    ``Pre-Major Defense Acquisition Program'' means a program that is in 
the Materiel Solution Analysis or Technology Development Phases 
preceding Milestone B of the Defense Acquisition System and has been 
identified to have the potential to become a major defense acquisition 
program.
    ``Systems engineering and technical assistance.''
    (1) ``Systems engineering'' means an interdisciplinary technical 
effort to evolve and verify an integrated and total life cycle balanced 
set of system, people, and process solutions that satisfy customer 
needs.
    (2) ``Technical assistance'' means the acquisition support, program 
management support, analyses, and other activities involved in the 
management and execution of an acquisition program.
    (3) ``Systems engineering and technical assistance''--
    (i) Means a combination of activities related to the development of 
technical information to support various acquisition processes. Examples 
of systems engineering and technical assistance activities include, but 
are not limited to, supporting acquisition efforts such as--
    (A) Deriving requirements;
    (B) Performing technology assessments;
    (C) Developing acquisition strategies;
    (D) Conducting risk assessments;
    (E) Developing cost estimates;
    (F) Determining specifications;
    (G) Evaluating contractor performance and conducting independent 
verification and validation;
    (H) Directing other contractors' (other than subcontractors) 
operations;
    (I) Developing test requirements and evaluating test data;
    (J) Developing work statements (but see paragraph (ii)(B) of this 
definition).
    (ii) Does not include--
    (A) Design and development work of design and development 
contractors, in accordance with FAR 9.505-2(a)(3) or FAR 9.505-2(b)(3), 
and the guidance at PGI 209.571-7; or
    (B) Preparation of work statements by contractors, acting as 
industry representatives, under the supervision and control of 
Government representatives, in accordance with FAR 9.505-2(b)(1)(ii).

[75 FR 81913, Dec. 29, 2010, as amended at 79 FR 4632, Jan. 29, 2014; 84 
FR 25187, May 31, 2019]



209.571-2  Applicability.

    (a) This subsection applies to major defense acquisition programs.

[[Page 71]]

    (b) To the extent that this section is inconsistent with FAR subpart 
9.5, this section takes precedence.

[75 FR 81913, Dec. 29, 2010]



209.571-3  Policy.

    It is DoD policy that--
    (a) Agencies shall obtain advice on major defense acquisition 
programs and pre-major defense acquisition programs from sources that 
are objective and unbiased; and
    (b) Contracting officers generally should seek to resolve 
organizational conflicts of interest in a manner that will promote 
competition and preserve DoD access to the expertise and experience of 
qualified contractors. Accordingly, contracting officers should, to the 
extent feasible, employ organizational conflict of interest resolution 
strategies that do not unnecessarily restrict the pool of potential 
offerors in current or future acquisitions. Further, contracting 
activities shall not impose across-the-board restrictions or limitations 
on the use of particular resolution methods, except as may be required 
under 209.571-7 or as may be appropriate in particular acquisitions.

[75 FR 81913, Dec. 29, 2010]



209.571-4  Mitigation.

    (a) Mitigation is any action taken to minimize an organizational 
conflict of interest. Mitigation may require Government action, 
contractor action, or a combination of both.
    (b) If the contracting officer and the contractor have agreed to 
mitigation of an organizational conflict of interest, a Government-
approved Organizational Conflict of Interest Mitigation Plan, reflecting 
the actions a contractor has agreed to take to mitigate a conflict, 
shall be incorporated into the contract.
    (c) If the contracting officer determines, after consultation with 
agency legal counsel, that the otherwise successful offeror is unable to 
effectively mitigate an organizational conflict of interest, then the 
contracting officer, taking into account both the instant contract and 
longer term Government needs, shall use another approach to resolve the 
organizational conflict of interest, select another offeror, or request 
a waiver in accordance with FAR 9.503 (but see statutory prohibition in 
209.571-7, which cannot be waived).
    (d) For any acquisition that exceeds $1 billion, the contracting 
officer shall brief the senior procurement executive before determining 
that an offeror's mitigation plan is unacceptable.

[75 FR 81913, Dec. 29, 2010]



209.571-5  Lead system integrators.

    For limitations on contractors acting as lead systems integrators, 
see 209.570.

[75 FR 81913, Dec. 29, 2010]



209.571-6  Identification of organizational conflicts of interest.

    When evaluating organizational conflicts of interest for major 
defense acquisition programs or pre-major defense acquisition programs, 
contracting officers shall consider--
    (a) The ownership of business units performing systems engineering 
and technical assistance, professional services, or management support 
services to a major defense acquisition program or a pre-major defense 
acquisition program by a contractor who simultaneously owns a business 
unit competing (or potentially competing) to perform as--
    (1) The prime contractor for the same major defense acquisition 
program; or
    (2) The supplier of a major subsystem or component for the same 
major defense acquisition program.
    (b) The proposed award of a major subsystem by a prime contractor to 
business units or other affiliates of the same parent corporate entity, 
particularly the award of a subcontract for software integration or the 
development of a proprietary software system architecture; and
    (c) The performance by, or assistance of, contractors in technical 
evaluation.

[75 FR 81913, Dec. 29, 2010]



209.571-7  Systems engineering and technical assistance contracts.

    (a) Agencies shall obtain advice on systems architecture and systems 
engineering matters with respect to major defense acquisition programs 
or pre-major defense acquisition programs from Federally Funded Research 
and Development Centers or other sources

[[Page 72]]

independent of the major defense acquisition program contractor.
    (b) Limitation on Future Contracting. (1) Except as provided in 
paragraph (c) of this subsection, a contract for the performance of 
systems engineering and technical assistance for a major defense 
acquisition program or a pre-major defense acquisition program shall 
prohibit the contractor or any affiliate of the contractor from 
participating as a contractor or major subcontractor in the development 
or production of a weapon system under such program.
    (2) The requirement in paragraph (b)(1) of this subsection cannot be 
waived.
    (c) Exception. (1) The requirement in paragraph (b)(1) of this 
subsection does not apply if the head of the contracting activity 
determines that--
    (i) An exception is necessary because DoD needs the domain 
experience and expertise of the highly qualified, apparently successful 
offeror; and
    (ii) Based on the agreed-to resolution strategy, the apparently 
successful offeror will be able to provide objective and unbiased 
advice, as required by 209.571-3(a), without a limitation on future 
participation in development and production.
    (2) The authority to make this determination cannot be delegated.

[75 FR 81913, Dec. 29, 2010]



209.571-8  Solicitation provision and contract clause.

    (a) Use the provision at 252.209-7008, Notice of Prohibition 
Relating to Organizational Conflict of Interest--Major Defense 
Acquisition Program, if the solicitation includes the clause at 252.209-
7009, Organizational Conflict of Interest--Major Defense Acquisition 
Program; and
    (b) Use the clause at 252.209-7009, Organizational Conflict of 
Interest--Major Defense Acquisition Program, in solicitations and 
contracts for systems engineering and technical assistance for major 
defense acquisition programs or pre-major defense acquisition programs.

[75 FR 81913, Dec. 29, 2010]



PART 210_MARKET RESEARCH--Table of Contents



Sec.
210.001 Policy.
210.002 Procedures.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 71 FR 53043, Sept. 8, 2006, unless otherwise noted.



210.001  Policy.

    (a) In addition to the requirements of FAR 10.001(a)--
    (i)(A) Agencies shall conduct market research appropriate to the 
circumstances before issuing a solicitation with tiered evaluation of 
offers (section 816 of Pub. L. 109-163); and
    (B) Use the results of market research to determine whether the 
criteria in FAR part 19 are met for setting aside the acquisition for 
small business or, for a task or delivery order, whether there are a 
sufficient number of qualified small business concerns available to 
justify limiting competition under the terms of the contract. If the 
contracting officer cannot determine whether the criteria are met, the 
contracting officer shall include a written explanation in the contract 
file as to why such a determination could not be made (section 816 of 
Pub. L. 109-163); and
    (ii) Contracting officers shall use market research, where 
appropriate, to inform price reasonableness determinations (see 212.209 
and 234.7002).
    (c)(2) In addition to the notification requirements at FAR 
10.001(c)(2)(i) and (ii), see 205.205-70 for the bundling notification 
publication requirement.

[71 FR 53043, Sept. 8, 2006, as amended at 75 FR 40716, July 13, 2010; 
83 FR 15996, Apr. 13, 2018; 85 FR 34531, June 5, 2020]



210.002  Procedures.

    (e)(i) When contracting for services, see PGI 210.070 for the 
``Market Research Report Guide for Improving the Tradecraft in Services 
Acquisition''.
    (ii) See PGI 210.002(e)(ii) regarding potential offerors that 
express an interest in an acquisition.

[[Page 73]]

    (iii) Follow the procedures at PGI 210.002(e)(iii) regarding 
contract file documentation.

[80 FR 21657, Apr. 20, 2015, as amended at 81 FR 65563, Sep. 23, 2016]



PART 211_DESCRIBING AGENCY NEEDS--Table of Contents



Sec.
211.002 Policy.

      Subpart 211.1_Selecting and Developing Requirements Documents

211.104 Use of brand name or equal purchase descriptions.
211.105 Items peculiar to one manufacturer.
211.106 Purchase descriptions for service contracts.
211.107 Solicitation provision.
211.170 Use of proprietary specifications or standards.

       Subpart 211.2_Using and Maintaining Requirements Documents

211.201 Identification and availability of specifications.
211.204 Solicitation provisions and contract clauses.
211.270 [Reserved]
211.271 Elimination of use of class I ozone-depleting substances.
211.272 [Reserved]
211.273 [Reserved]
211.274 Item identification and valuation requirements.
211.274-1 General.
211.274-2 Policy for item unique identification.
211.274-3 Policy for valuation.
211.274-4 Policy for reporting of Government-furnished property.
211.274-5 Policy for assignment of Government-assigned serial numbers.
211.274-6 Contract clauses.
211.275 Passive radio frequency identification.
211.275-1 Definitions.
211.275-2 Policy.
211.275-3 Contract clause.

                    Subpart 211.5_Liquidated Damages

211.500 Scope.
211.503 Contract clauses.

                Subpart 211.6_Priorities and Allocations

211.602 General.

Subpart 211.70--Purchase Requests

211.7001 [Reserved].

    Authority: 41 U.S.C. 1303 and 48 CFR Chapter 1.

    Source: 60 FR 61594, Nov. 30, 1995, unless otherwise noted.



211.002  Policy.

    All defense technology and acquisition programs in DoD are subject 
to the policies and procedures in DoDD 5000.01, The Defense Acquisition 
System, and DoDI 5000.02, Operation of the Defense Acquisition System.

[71 FR 27641, May 12, 2006, as amended at 76 FR 76319, Dec. 7, 2011]



      Subpart 211.1_Selecting and Developing Requirements Documents



211.104  Use of brand name or equal purchase descriptions.

    A justification and approval is required to use brand name or equal 
purchase descriptions--
    (1) When using sealed bidding or negotiated acquisition procedures 
(see 206.302-1(c)(2) for justification requirements); or
    (2) When using the simplified procedures for certain commercial 
items at FAR 13.5 (see 213.501(a)(ii) for justification requirement).

[84 FR 25192, May 31, 2019]



211.105  Items peculiar to one manufacturer.

    Follow the publication requirements at PGI 211.105.

[70 FR 23804, May 5, 2005]



211.106  Purchase descriptions for service contracts.

    Agencies shall require that purchase descriptions for service 
contracts and resulting requirements documents, such as statements of 
work or performance work statements, include language to provide a clear 
distinction between Government employees and contractor employees. 
Agencies shall be guided by the characteristics and descriptive elements 
of personal-services

[[Page 74]]

contracts at FAR 37.104. Service contracts shall require contractor 
employees to identify themselves as contractor personnel by introducing 
themselves or being introduced as contractor personnel and displaying 
distinguishing badges or other visible identification for meetings with 
Government personnel. In addition, contracts shall require contractor 
personnel to appropriately identify themselves as contractor employees 
in telephone conversations and in formal and informal written 
correspondence.

[76 FR 25566, May 5, 2011]



211.107  Solicitation provision.

    (b) To comply with section 875(c) of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), use the 
provision at FAR 52.211-7, Alternatives to Government-Unique Standards, 
in DoD solicitations that include military or Government-unique 
specifications and standards.

[84 FR 4368, Feb. 15, 2019]



211.170  Use of proprietary specifications or standards.

    A justification and approval is required to use proprietary 
specifications and standards--
    (1) When using sealed bidding or negotiated acquisition procedures 
(see 206.302-1(S-70) for justification requirements); or,
    (2) When using the simplified procedures for certain commercial 
items at FAR 13.5 (see 213.501(a)(ii) for justification requirements).

[84 FR 25192, May 31, 2019]



       Subpart 211.2_Using and Maintaining Requirements Documents



211.201  Identification and availability of specifications.

    Follow the procedures at PGI 211.201 for obtaining specifications, 
standards, and data item descriptions from the ASSIST database, 
including DoD adoption notices on voluntary consensus standards.

[84 FR 4368, Feb. 15, 2019]



211.204  Solicitation provisions and contract clauses.

    (c) When contract performance requires use of specifications, 
standards, and data item descriptions that are not listed in the 
Acquisition Streamlining and Standardization Information System 
database, use a provision, as appropriate, substantially the same as 
252.211-7002, Availability for Examination of Specifications, Standards, 
Plans, Drawings, Data Item Descriptions, and Other Pertinent Documents.

[84 FR 25193, May 31, 2019]



211.270  [Reserved]



211.271  Elimination of use of class I ozone-depleting substances.

    See subpart 223.8 for restrictions on contracting for ozone-
depleting substances.

[70 FR 73150, Dec. 9, 2005]



211.272  [Reserved]



211.273  [Reserved]



211.274  Item identification and valuation requirements.



211.274-1  General.

    Item unique identification and valuation is a system of marking, 
valuing, and tracking items delivered to DoD that enhances logistics, 
contracting, and financial business transactions supporting the United 
States and coalition troops. Through item unique identification policy, 
which capitalizes on leading practices and embraces open standards, 
DoD--
    (a) Achieves lower life-cycle cost of item management and improves 
life-cycle property management;
    (b) Improves operational readiness;
    (c) Provides reliable accountability of property and asset 
visibility throughout the life cycle;
    (d) Reduces the burden on the workforce through increased 
productivity and efficiency; and
    (e) Ensures item level traceability throughout lifecycle to 
strengthen supply chain integrity, enhance cyber security, and combat 
counterfeiting.

[78 FR 76071, Dec. 16, 2013]

[[Page 75]]



211.274-2  Policy for item unique identification.

    (a) It is DoD policy that DoD item unique identification, or a DoD 
recognized unique identification equivalent, is required for all 
delivered items, including items of contractor-acquired property 
delivered on contract line items (see PGI 245.402-71 for guidance when 
delivery of contractor acquired property is required)--
    (1) For which the Government's unit acquisition cost is $5,000 or 
more;
    (2) For which the Government's unit acquisition cost is less than 
$5,000 when the requiring activity determines that item unique 
identification is required for mission essential or controlled inventory 
items; or
    (3) Regardless of value for any--
    (i) DoD serially managed item (reparable or nonreparable) or 
subassembly, component, or part embedded within a subassembly, 
component, or part;
    (ii) Parent item (as defined in 252.211-7003(a)) that contains the 
embedded subassembly, component, or part;
    (iii) Warranted serialized item;
    (iv) Item of special tooling or special test equipment, as defined 
at FAR 2.101, for a major defense acquisition program that is designated 
for preservation and storage in accordance with the requirements of 
section 815 of the National Defense Authorization Act for Fiscal Year 
2009 (Pub. L. 110-417); and
    (v) High risk item identified by the requiring activity as 
vulnerable to supply chain threat, a target of cyber threats, or 
counterfeiting.
    (b) Exceptions. The contractor will not be required to provide DoD 
item unique identification if--
    (1) The items, as determined by the head of the contracting 
activity, are to be used to support a contingency or humanitarian or 
peacekeeping operation; to facilitate defense against or recovery from 
nuclear, biological, chemical, or radiological attack; to facilitate the 
provision of international disaster assistance; or to support response 
to an emergency or major disaster; or
    (2) A determination and findings has been executed concluding that 
it is more cost effective for the Government requiring activity to 
assign, mark, and register the unique item identifier after delivery, 
and the item is either acquired from a small business concern, or is a 
commercial item acquired under FAR part 12 or part 8.
    (i) The determination and findings shall be executed by--
    (A) The Component Acquisition Executive for an acquisition category 
(ACAT) I program; or
    (B) The head of the contracting activity for all other programs.
    (ii) The DoD Unique Identification Policy Office must receive a copy 
of the determination and findings required by paragraph (b)(2)(i) of 
this subsection. Follow the procedures at PGI 211.274-2.

[70 FR 20836, Apr. 22, 2005, as amended at 76 FR 33168, June 8, 2011; 77 
FR 52257, Aug. 29, 2012; 78 FR 76071, Dec. 16, 2013; 83 FR 24889, May 
30, 2018]



211.274-3  Policy for valuation.

    (a) It is DoD policy that contractors shall be required to identify 
the Government's unit acquisition cost for all deliverable end items to 
which item unique identification applies.
    (b) The Government's unit acquisition cost is--
    (1) For fixed-price type line, subline, or exhibit line items, the 
unit price identified in the contract at the time of delivery;
    (2) For cost-type or undefinitized line, subline, or exhibit line 
items, the contractor's estimated fully burdened unit cost to the 
Government at the time of delivery; and
    (3) For items delivered under a time-and-materials contract, the 
contractor's estimated fully burdened unit cost to the Government at the 
time of delivery.
    (c) The Government's unit acquisition cost of subassemblies, 
components, and parts embedded in delivered items shall not be 
separately identified.

[70 FR 20836, Apr. 22, 2005, as amended at 78 FR 76072, Dec. 16, 2013]



211.274-4  Policy for reporting of Government-furnished property.

    (a) It is DoD policy that all Government-furnished property be 
recorded in the DoD Item Unique Identification (IUID) Registry, as 
defined in the

[[Page 76]]

clause at 252.211-7007, Reporting of Government-Furnished Property.
    (b) The following items are not required to be reported:
    (1) Contractor-acquired property, as defined in FAR part 45.
    (2) Property under any statutory leasing authority.
    (3) Property to which the Government has acquired a lien or title 
solely because of partial, advance, progress, or performance-based 
payments.
    (4) Intellectual property or software.
    (5) Real property.
    (6) Property released as work in process.
    (7) Non-serial managed items (reporting is limited to receipt 
transactions only).

[77 FR 52257, Aug. 29, 2012]



211.274-5  Policy for assignment of Government-assigned serial numbers.

    It is DoD policy that contractors apply Government-assigned serial 
numbers, such as tail numbers/hull numbers and equipment registration 
numbers, in human-readable format on major end items when required by 
law, regulation, or military operational necessity. The latest version 
of MIL-STD-130, Marking of U.S. Military Property, shall be used for the 
marking of human-readable information.

[75 FR 59103, Sept. 27, 2010]



211.274-6  Contract clauses.

    (a)(1) Use the clause at 252.211-7003, Item Unique Identification 
and Valuation, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, for supplies, and for services involving the 
furnishing of supplies, unless the conditions in 211.274-2(b) apply.
    (2) Identify in paragraph (c)(1)(ii) of the clause the contract 
line, subline, or exhibit line item number and description of any 
item(s) below $5,000 in unit acquisition cost for which DoD item unique 
identification or a DoD recognized unique identification equivalent is 
required in accordance with 211.274-2(a)(2).
    (3) Identify in paragraph (c)(1)(iii) of the clause the applicable 
attachment number, when DoD item unique identification or a DoD 
recognized unique identification equivalent is required in accordance 
with 211.274-2(a)(3)(i) through (v).
    (b) Use the clause at 252.211-7007, Reporting of Government-
Furnished Property, in solicitations and contracts that contain the 
clause at FAR 52.245-1, Government Property.
    (c) Use the clause at 252.211-7008, Use of Government-Assigned 
Serial Numbers, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, that--
    (1) Contain the clause at 252.211-7003, Item Unique Identification 
and Valuation; and
    (2) Require the contractor to mark major end items under the terms 
and conditions of the contract.

[72 FR 52298, Sept. 13, 2007, as amended at 73 FR 70908, Nov. 24, 2008. 
Redesignated and amended at 75 FR 59103, Sept. 27, 2010; 77 FR 52257, 
Aug. 29, 2012; 78 FR 37984, June 25, 2012; 78 FR 76072, Dec. 16, 2013; 
79 FR 44313, July 31, 2014; 80 FR 51750, Aug. 26, 2015]



211.275  Passive radio frequency identification.



211.275-1  Definitions.

    Bulk commodities, case, palletized unit load, passive RFID tag, and 
radio frequency identification are defined in the clause at 252.211-
7006, Passive Radio Frequency Identification.

[70 FR 53968, Sept. 13, 2005, as amended at 76 FR 58143, Sept. 20, 2011]



211.275-2  Policy.

    (a) Except as provided in paragraph (b) of this section, radio 
frequency identification (RFID), in the form of a passive RFID tag, is 
required for cases and palletized unit loads packaging levels and any 
additional consolidation level(s) deemed necessary by the requiring 
activity for shipments of items that--
    (1) Contain items in any of the following classes of supply, as 
defined in DoD Manual 4140.01, Volume 6, DoD Supply Chain Materiel 
Management Procedures: Materiel Returns, Retention, and Disposition:

[[Page 77]]

    (i) Subclass of Class I--Packaged operational rations.
    (ii) Class II--Clothing, individual equipment, tentage, 
organizational tool kits, hand tools, and administrative and 
housekeeping supplies and equipment.
    (iii) Class IIIP--Packaged petroleum, lubricants, oils, 
preservatives, chemicals, and additives.
    (iv) Class IV--Construction and barrier materials.
    (v) Class VI--Personal demand items (non-military sales items).
    (vi) Subclass of Class VIII--Medical materials (excluding 
pharmaceuticals, biologicals, and reagents--suppliers should limit the 
mixing of excluded and non-excluded materials).
    (vii) Class IX--Repair parts and components including kits, 
assemblies and subassemblies, reparable and consumable items required 
for maintenance support of all equipment, excluding medical-peculiar 
repair parts; and
    (2) Will be shipped to one of the locations listed at https://
www.acq.osd.mil/log/sci/RFID_ship-to-locations.html or to--
    (i) A location outside the contiguous United States when the 
shipment has been assigned Transportation Priority 1; or
    (ii) Any additional location(s) deemed necessary by the requiring 
activity.
    (b) The following are excluded from the requirements of paragraph 
(a) of this subsection:
    (1) Shipments of bulk commodities.
    (2) Shipments to locations other than Defense Distribution Depots 
when the contract includes the clause at FAR 52.213-1, Fast Payment 
Procedures.

[72 FR 6483, Feb. 12, 2007, as amended at 76 FR 58143, Sept. 20, 2011; 
81 FR 36473, June 7, 2016; 82 FR 61480, Dec. 28, 2017; 83 FR 12681, Mar. 
23, 2018]



211.275-3  Contract clause.

    Use the clause at 252.211-7006, Passive Radio Frequency 
Identification, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, that will require shipment of items meeting the 
criteria at 211.275-2, and complete paragraph (b)(1)(ii) of the clause 
at 252.211-7006 as appropriate.

[76 FR 58143, Sept. 20, 2011, as amended at 78 FR 37984, June 25, 2013]



                    Subpart 211.5_Liquidated Damages



211.500  Scope.

    This subpart and FAR subpart 11.5 do not apply to liquidated damages 
for comprehensive subcontracting plans under the Test Program for 
Negotiation of Comprehensive Small Business Subcontracting Plans. See 
219.702-70 for coverage of liquidated damages for comprehensive 
subcontracting plans.

[83 FR 15998, Apr. 13, 2018]



211.503  Contract clauses.

    (b) Use the clause at FAR 52.211-12, Liquidated Damages--
Construction, in all construction contracts exceeding $750,000, except 
cost-plus-fixed-fee contracts or contracts where the contractor cannot 
control the pace of the work. Use of the clause in contracts of $750,000 
or less is optional.

[60 FR 61594, Nov. 30, 1995. Redesignated at 66 FR 49861, Oct. 1, 2001; 
71 FR 75892, Dec. 19, 2006; 75 FR 45073, Aug. 2, 2010; 80 FR 36904, June 
26, 2015; 85 FR 61504, Sept. 29, 2020]



                Subpart 211.6_Priorities and Allocations



211.602  General.

    DoD implementation of the Defense Priorities and Allocations System 
is in DoDD 4400.1, Defense Production Act Programs.

[64 FR 51075, Sept. 21, 1999]



                    Subpart 211.70_Purchase Requests



211.7001  [Reserved]



PART 212_ACQUISITION OF COMMERCIAL ITEMS--Table of Contents



212.001 Definitions.

[[Page 78]]

          Subpart 212.1_Acquisition of Commercial Items_General

Sec.
212.102 Applicability.

  Subpart 212.2_Special Requirements for the Acquisition of Commercial 
                                  Items

212.203 Procedures for solicitation, evaluation, and award.
212.205 Offers.
212.207 Contract type.
212.209 Determination of price reasonableness.
212.211 Technical data.
212.212 Computer software.
212.270 Major weapon systems as commercial items.
212.271 Limitation on acquisition of right-hand drive passenger sedans.
212.272 Preference for certain commercial products and services.

   Subpart 212.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items

212.301 Solicitation provisions and contract clauses for the acquisition 
          of commercial items.
212.302 Tailoring of provisions and clauses for the acquisition of 
          commercial items.

   Subpart 212.5_Applicability of Certain Laws to the Acquisition of 
                            Commercial Items

212.503 Applicability of certain laws to executive agency contracts for 
          the acquisition of commercial items.
212.504 Applicability of certain laws to subcontracts for the 
          acquisition of commercial items.
212.570 Applicability of certain laws to contracts and subcontracts for 
          the acquisition of commercially available off-the-shelf items.

Subpart 212.6_Streamlined Procedures for Evaluation and Solicitation for 
                            Commercial Items

212.602 Streamlined evaluation of offers.

 Subpart 212.70_Limitation on Conversion of Procurement from Commercial 
                         Acquisition Procedures

212.7000 Scope.
212.7001 Procedures.

    Subpart 212.71_Pilot Program for Acquisition of Military-Purpose 
                         Nondevelopmental Items

212.7100 Scope.
212.7101 Definitions.
212.7102 Pilot program.
212.7102-1 Contracts under the program.
212.7102-2 Reporting requirements.
212.7102-3 Sunset of the pilot authority.
212.7103 Solicitation provision.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 60 FR 61595, Nov. 30, 1995, unless otherwise noted.



212.001  Definitions.

    As used in this part--
    Market research means a review of existing systems, subsystems, 
capabilities, and technologies that are available or could be made 
available to meet the needs of DoD in whole or in part. The review shall 
include, at a minimum, contacting knowledgeable individuals in 
Government and industry regarding existing market capabilities and 
pricing information, and may include any of the techniques for 
conducting market research provided in FAR 10.002(b)(2) (section 855 of 
the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 
114-92)).

[83 FR 4442, Jan. 31, 2018, as amended at 85 FR 19688, Apr. 8, 2020]



          Subpart 212.1_Acquisition of Commercial Items_General

    Source: 73 FR 4114, Jan. 24, 2008, unless otherwise noted.



212.102  Applicability.

    (a)(i) Commercial item determination. When using FAR part 12 
procedures for acquisitions exceeding $1 million in value, except for 
acquisitions made pursuant to FAR 12.102(f)(1), the contracting officer 
shall--
    (A) Determine in writing that the acquisition meets the commercial 
item definition in FAR 2.101;
    (B) Include the written determination in the contract file; and
    (C) Obtain approval at one level above the contracting officer when 
a commercial item determination relies on subsections (1)(ii), (3), (4), 
or (6) of the ``commercial item'' definition at FAR 2.101.
    (D) Follow the procedures and guidance at PGI 212.102(a)(i) 
regarding file documentation and commercial item determinations.

[[Page 79]]

    (ii) Prior commercial item determination. This section implements 10 
U.S.C. 2306a(b)(4) and 10 U.S.C. 2380(b).
    (A) The contracting officer may presume that a prior commercial item 
determination made by a military department, a defense agency, or 
another component of DoD shall serve as a determination for subsequent 
procurements of such item. See PGI 212.102(a)(ii) for information about 
items that the Department has historically acquired as military unique, 
noncommercial items.
    (B) If the contracting officer does not make the presumption that a 
prior commercial item determination is valid, and instead chooses to 
proceed with a procurement of an item previously determined to be a 
commercial item using procedures other than the procedures authorized 
for the procurement of a commercial item, the contracting officer shall 
request a review of the commercial item determination by the head of the 
contracting activity that will conduct the procurement. Not later than 
30 days after receiving a request for review of a commercial item 
determination, the head of a contracting activity shall--
    (1) Confirm that the prior determination was appropriate and still 
applicable; or
    (2) Issue a determination that the prior use of FAR part 12 
procedures was improper or that it is no longer appropriate to acquire 
the item using FAR part 12 procedures, with a written explanation of the 
basis for the determination (see 212.70).
    (iii) Nontraditional defense contractors. In accordance with 10 
U.S.C. 2380a, contracting officers--
    (A) Except as provided in paragraph (a)(iii)(B) of this section, may 
treat supplies and services provided by nontraditional defense 
contractors as commercial items. This permissive authority is intended 
to enhance defense innovation and investment, enable DoD to acquire 
items that otherwise might not have been available, and create 
incentives for nontraditional defense contractors to do business with 
DoD. It is not intended to recategorize current noncommercial items; 
however, when appropriate, contracting officers may consider applying 
commercial item procedures to the procurement of supplies and services 
from business segments that meet the definition of ``nontraditional 
defense contractor'' even though they have been established under 
traditional defense contractors. The decision to apply commercial item 
procedures to the procurement of supplies and services from 
nontraditional defense contractors does not require a commercial item 
determination and does not mean the item is commercial;
    (B) Shall treat services provided by a business unit that is a 
nontraditional defense contractor as commercial items, to the extent 
that such services use the same pool of employees as used for commercial 
customers and are priced using methodology similar to methodology used 
for commercial pricing; and
    (C) Shall document the file when treating supplies or services from 
a nontraditional defense contractor as commercial items in accordance 
with paragraph (a)(iii)(A) or (B) of this section.

[77 FR 14480, Mar. 12, 2012, as amended at 80 FR 10390, Feb. 26, 2015; 
81 FR 65563, Sept. 23, 2016; 83 FR 4442, Jan. 31, 2018; 85 FR 60921, 
Sept. 29, 2020]



  Subpart 212.2_Special Requirements for the Acquisition of Commercial 
                                  Items



212.203  Procedures for solicitation, evaluation, and award

    (1) See 215.101-2-70 for the limitations and prohibitions on the use 
of the lowest price technically acceptable source selection process, 
which are applicable to the acquisition of commercial items.
    (2) See 217.7801 for the prohibition on the use of reverse auctions 
for personal protective equipment and aviation critical safety items.

[84 FR 50788, Sept. 26, 2019]



212.205  Offers.

    (c) When using competitive procedures, if only one offer is 
received, the contracting officer shall follow the procedures at 
215.371.

[77 FR 39138, June 29, 2012]

[[Page 80]]



212.207  Contract type.

    (b) In accordance with section 805 of the National Defense 
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), use of time-
and-materials and labor-hour contracts for the acquisition of commercial 
items is authorized only for the following:
    (i) Services acquired for support of a commercial item, as described 
in paragraph (5) of the definition of commercial item at FAR 2.101 (41 
U.S.C. 103.
    (ii) Emergency repair services.
    (iii) Any other commercial services only to the extent that the head 
of the agency concerned approves a written determination by the 
contracting officer that--
    (A) The services to be acquired are commercial services as defined 
in paragraph (6) of the definition of commercial item at FAR 2.101 (41 
U.S.C. 103);
    (B) If the services to be acquired are subject to FAR 15.403-
1(c)(3)(ii), the offeror of the services has submitted sufficient 
information in accordance with that subsection;
    (C) Such services are commonly sold to the general public through 
use of time-and-materials or labor-hour contracts; and
    (D) The use of a time-and-materials or labor-hour contract type is 
in the best interest of the Government.

[74 FR 34264, July 15, 2009, as amended at 74 FR 35826, July 21, 2009; 
76 FR 21812, Apr. 19, 2011; 76 FR 58136, Sept. 20, 2011]



212.209  Determination of price reasonableness.

    (a) In accordance with 10 U.S.C. 2377(d), agencies shall conduct or 
obtain market research to support the determination of the 
reasonableness of price for commercial items contained in any bid or 
offer submitted in response to an agency solicitation. To the extent 
necessary to support such market research, the contracting officer--
    (1) In the case of major weapon systems items acquired as commercial 
items in accordance with subpart 234.70, shall use information submitted 
under 234.7002(d); and
    (2) In the case of other items, may require the offeror to submit 
other relevant information.
    (b) If the contracting officer determines that the information 
obtained through market research pursuant to paragraph (a) of this 
section, is insufficient to determine the reasonableness of price, the 
contracting officer shall consider information submitted by the offeror 
of recent purchase prices paid by the Government and commercial 
customers for the same or similar commercial items under comparable 
terms and conditions in establishing price reasonableness on a 
subsequent purchase if the contracting officer is satisfied that the 
prices previously paid remain a valid reference for comparison. In 
assessing whether the prices previously paid remain a valid reference 
for comparison, the contracting officer shall consider the totality of 
other relevant factors such as the time elapsed since the prior purchase 
and any differences in the quantities purchased (10 U.S.C. 2306a(b)).
    (c) If the contracting officer determines that the offeror cannot 
provide sufficient information as described in paragraph (b) of this 
section to determine the reasonableness of price, the contracting 
officer should request the offeror to submit information on--
    (1) Prices paid for the same or similar items sold under different 
terms and conditions;
    (2) Prices paid for similar levels of work or effort on related 
products or services;
    (3) Prices paid for alternative solutions or approaches; and
    (4) Other relevant information that can serve as the basis for 
determining the reasonableness of price.
    (d) Nothing in this section shall be construed to preclude the 
contracting officer from requiring the contractor to supply information 
that is sufficient to determine the reasonableness of price, regardless 
of whether or not the contractor was required to provide such 
information in connection with any earlier procurement. If the 
contracting officer determines that the pricing information submitted is 
not sufficient to determine the reasonableness of price, the contracting 
officer may request other relevant information regarding the basis for 
price or cost, including uncertified cost data such as

[[Page 81]]

labor costs, material costs, and other direct and indirect costs.

[83 FR 4442, Jan. 31, 2018, as amended at 85 FR 34531, June 5, 2020]



212.211  Technical data.

    The DoD policy for acquiring technical data for commercial items is 
at 227.7102.



212.212  Computer software.

    (1) Departments and agencies shall identify and evaluate, at all 
stages of the acquisition process (including concept refinement, concept 
decision, and technology development), opportunities for the use of 
commercial computer software and other non-developmental software in 
accordance with Section 803 of the National Defense Authorization Act 
for Fiscal Year 2009 (Pub. L. 110-417).
    (2) See Subpart 208.74 when acquiring commercial software or 
software maintenance. See 227.7202 for policy on the acquisition of 
commercial computer software and commercial computer software 
documentation.

[74 FR 34270, July 15, 2009]



212.270  Major weapon systems as commercial items.

    The DoD policy for acquiring major weapon systems as commercial 
items is in Subpart 234.70.

[71 FR 58538, Oct. 4, 2006]



212.271  Limitation on acquisition of right-hand drive passenger
sedans.

    10 U.S.C. 2253(a)(2) limits the authority to purchase right-hand 
drive passenger sedans to a cost of not more than $45,000 per vehicle.

[77 FR 19128, Mar. 30, 2012, as amended at 85 FR 61504, Sept. 29, 2020]



212.272  Preference for certain commercial products and services.

    (a) As required by section 855 of the National Defense Authorization 
Act for Fiscal Year 2016 (Pub. L. 114-92), for requirements relating to 
the acquisition of commercial information technology products and 
services, see 239.101.
    (b)(1) As required by section 876 of the National Defense 
Authorization Act of Fiscal Year 2017 (Pub. L. 114-328), a contracting 
officer may not enter into a contract above the simplified acquisition 
threshold for facilities-related services, knowledge-based services 
(except engineering services), medical services, or transportation 
services that are not commercial services, unless the appropriate 
official specified in paragraph (b)(2) of this section determines in 
writing that no commercial services are suitable to meet the agency's 
needs as provided in section 10 U.S.C. 2377(c)(2).
    (2) The following officials are authorized to make the determination 
specified in paragraph (b)(1) of this section:
    (i) For contracts above $10 million, the head of the contracting 
activity, the combatant commander of the combatant command concerned, or 
the Under Secretary of Defense for Acquisition and Sustainment (as 
applicable).
    (ii) For contracts in an amount above the simplified acquisition 
threshold and at or below $10 million, the contracting officer.

[84 FR 39204, Aug. 9, 2019]



   Subpart 212.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



212.301  Solicitation provisions and contract clauses for the
acquisition of commercial items.

    (c) 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.
    (f) The following additional provisions and clauses apply to DoD 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items. If the offeror has completed any of the 
following provisions listed in this paragraph electronically as part of 
its annual representations and certifications at https://
www.acquisition.gov, the contracting officer shall consider this 
information instead of requiring the offeror to complete these 
provisions for a particular solicitation.

[[Page 82]]

    (i) Part 203--Improper Business Practices and Personal Conflicts of 
Interest. (A) Use the FAR clause at 52.203-3, Gratuities, as prescribed 
in FAR 3.202, to comply with 10 U.S.C. 2207.
    (B) Use the clause at 252.203-7000, Requirements Relating to 
Compensation of Former DoD Officials, as prescribed in 203.171-4(a), to 
comply with section 847 of Pub. L. 110-181.
    (C) Use the clause at 252.203-7003, Agency Office of the Inspector 
General, as prescribed in 203.1004(a), to comply with section 6101 of 
Pub. L. 110-252 and 41 U.S.C. 3509.
    (D) Use the provision at 252.203-7005, Representation Relating to 
Compensation of Former DoD Officials, as prescribed in 203.171-4(b).
    (ii) Part 204--Administrative and Information Matters.
    (A) Use the clause at 252.204-7004, Antiterrorism Awareness Training 
for Contractors, as prescribed in 204.7203.
    (B) Use the provision at 252.204-7008, Compliance with Safeguarding 
Covered Defense Information Controls, as prescribed in 204.7304(a).
    (C) Use the clause at 252.204-7009, Limitations on the Use or 
Disclosure of Third-Party Contractor Reported Cyber Incident 
Information, as prescribed in 204.7304(b).
    (D) Use the clause at 252.204-7012, Safeguarding Covered Defense 
Information and Cyber Incident Reporting, as prescribed in 204.7304(c).
    (E) Use the clause at 252.204-7014, Limitations on the Use or 
Disclosure of Information by Litigation Support Contractors, as 
prescribed in204.7403(a), to comply with 10 U.S.C. 129d.
    (F) Use the clause at 252.204-7015, Notice of Authorized Disclosure 
of Information for Litigation Support, as prescribed in 204.7403(b), to 
comply with 10 U.S.C. 129d.
    (G) Use the provision at 252.204-7016, Covered Defense 
Telecommunications Equipment or Services--Representation, as prescribed 
in 204.2105(a), to comply with section 1656 of the National Defense 
Authorization Act for Fiscal Year 2018 (Pub. L. 115-91).
    (H) Use the provision at 252.204-7017, Prohibition on the 
Acquisition of Covered Defense Telecommunications Equipment or 
Services--Representation, as prescribed in 204.2105(b), to comply with 
section 1656 of the National Defense Authorization Act for Fiscal Year 
2018 (Pub. L. 115-91).
    (I) Use the clause at 252.204-7018, Prohibition on the Acquisition 
of Covered Defense Telecommunications Equipment or Services, as 
prescribed in 204.2105(c), to comply with section 1656 of the National 
Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91).
    (J) Use the provision at 252.204-7019, Notice of NIST SP 800-171 DoD 
Assessment Requirements, as prescribed in 204.7304(d).
    (K) Use the clause at 252.204-7020, NIST SP 800-171 DoD Assessment 
Requirements, as prescribed in 204.7304(e).
    (L) Use the clause at 252.204-7021, Cybersecurity Maturity Model 
Certification Requirements, as prescribed in 204.7503(a) and (b).
    (M) Use the clause at 252.204-7022, Expediting Contract Closeout, as 
prescribed in 204.804-70.
    (N) Use the clause at 252.204-7023, Reporting Requirements for 
Contracted Services, to comply with 10 U.S.C. 2330a.
    (1) Use the basic clause as prescribed in 204.1705(a)(i) and (ii).
    (2) Use the alternate I clause as prescribed in 204.1705(a)(i) and 
(iii).
    (iii) Part 205--Publicizing Contract Actions. Use the clause at 
252.205-7000, Provision of Information to Cooperative Agreement Holders, 
as prescribed in 205.470, to comply with 10 U.S.C. 2416.
    (iv) Part 211--Describing Agency Needs. (A) Use the clause at 
252.211-7003, Item Unique Identification and Valuation, as prescribed in 
211.274-6(a)(1).
    (B) Use the provision at 252.211-7006, Passive Radio Frequency 
Identification, as prescribed in 211.275-3.
    (C) Use the clause at 252.211-7007, Reporting of Government-
Furnished Property, as prescribed in 211.274-6.
    (D) Use the clause at 252.211-7008, Use of Government-Assigned 
Serial Numbers, as prescribed in 211.274-6(c).
    (v) Part 213--Simplified Acquisition Procedures. Use the provision 
at 252.213-7000, Notice to Prospective Suppliers on Use of Supplier 
Performance Risk System in Past Performance Evaluations, as prescribed 
in 213.106-2-70.

[[Page 83]]

    (vi) Part 215--Contracting by Negotiation. (A) Use the provision at 
252.215-7003, Requirements for Submission of Data Other Than Certified 
Cost or Pricing Data--Canadian Commercial Corporation, as prescribed at 
215.408(2)(i).
    (B) Use the clause at 252.215-7004, Requirement for Submission of 
Data other Than Certified Cost or Pricing Data--Modifications--Canadian 
Commercial Corporation, as prescribed at 215.408(2)(ii).
    (C) Use the provision at 252.215-7007, Notice of Intent to 
Resolicit, as prescribed in 215.371-6.
    (D) Use the provision 252.215-7008, Only One Offer, as prescribed at 
215.408(3).
    (E) Use the provision 252.215-7010, Requirements for Certified Cost 
or Pricing Data and Data Other Than Certified Cost or Pricing Data, as 
prescribed at 215.408(5)(i) to comply with section 831 of the National 
Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and 
sections 851 and 853 of the National Defense Authorization Act for 
Fiscal Year 2016 (Pub. L. 114-92).
    (1) Use the basic provision as prescribed at 215.408(5)(i)(A).
    (2) Use the alternate I provision as prescribed at 215.408(5)(i)(B).
    (vii) Part 219--Small Business Programs. (A) Use the clause at 
252.219-7003, Small Business Subcontracting Plan (DoD Contracts), to 
comply with 15 U.S.C. 637.
    (1) Use the basic clause as prescribed in 219.708(b)(1)(A)(1).
    (2) Use the alternate I clause as prescribed in 219.708(b)(1)(A)(2).
    (3) Use the alternate II clause as prescribed in 
219.708(b)(1)(A)(3).
    (B) Use the clause at 252.219-7004, Small Business Subcontracting 
Plan (Test Program), as prescribed in 219.708(b)(1)(B), to comply with 
15 U.S.C. 637 note.
    (C) Use the provision at 252.219-7000, Advancing Small Business 
Growth, as prescribed in 219.309(1), to comply with 10 U.S.C. 2419.
    (D) Use the provision at 252.219-7012, Competition for Religious-
Related Services, as prescribed in 219.270-3.
    (viii) Part 223--Environment, Energy and Water Efficiency, Renewable 
Energy Technologies, Occupational Safety, and Drug-Free Workplace. Use 
the clause at 252.223-7008, Prohibition of Hexavalent Chromium, as 
prescribed in 223.7306.
    (ix) Part 225--Foreign Acquisition. (A) Use the provision at 
252.225-7000, Buy American--Balance of Payments Program Certificate, to 
comply with 41 U.S.C. chapter 83 and Executive Order 10582 of December 
17, 1954, Prescribing Uniform Procedures for Certain Determinations 
Under the Buy-American Act.
    (1) Use the basic provision as prescribed in 225.1101(1)(i).
    (2) Use the alternate I provision as prescribed in 225.1101(1)(ii).
    (B) Use the clause at 252.225-7001, Buy American and Balance of 
Payments Program, to comply with 41 U.S.C. chapter 83 and Executive 
Order 10582 of December 17, 1954, Prescribing Uniform Procedures for 
Certain Determinations Under the Buy-American Act.
    (1) Use the basic clause as prescribed in 225.1101(2)(ii).
    (2) Use the alternate I clause as prescribed in 225.1101(2)(iii).
    (C) Use the clause at 252.225-7006, Acquisition of the American 
Flag, as prescribed in 225.7002-3(c), to comply with section 8123 of the 
DoD Appropriations Act, 2014 (Pub. L. 113-76, division C, title VIII), 
and the same provision in subsequent DoD appropriations acts.
    (D) Use the clause at 252.225-7007, Prohibition on Acquisition of 
Certain Items from Communist Chinese Military Companies, as prescribed 
in 225.1103(4), to comply with section 1211 of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2006 (Pub. L. 109-163) as 
amended by the NDAAs for FY 2012 and FY 2017.
    (E) Use the clause at 252.225-7008, Restriction on Acquisition of 
Specialty Metals, as prescribed in 225.7003-5(a)(1), to comply with 10 
U.S.C. 2533b.
    (F) Use the clause at 252.225-7009, Restriction on Acquisition of 
Certain Articles Containing Specialty Metals, as prescribed in 225.7003-
5(a)(2), to comply with 10 U.S.C. 2533b.
    (G) Use the provision at 252.225-7010, Commercial Derivative 
Military Article--Specialty Metals Compliance Certificate, as prescribed 
in 225.7003-5(b), to comply with 10 U.S.C. 2533b.

[[Page 84]]

    (H) Use the clause at 252.225-7012, Preference for Certain Domestic 
Commodities, as prescribed in 225.7002-3(a), to comply with 10 U.S.C. 
2533a.
    (I) Use the clause at 252.225-7015, Restriction on Acquisition of 
Hand or Measuring Tools, as prescribed in 225.7002-3(b), to comply with 
10 U.S.C. 2533a.
    (J) Use the clause at 252.225-7016, Restriction on Acquisition of 
Ball and Roller Bearings, as prescribed in 225.7009-5, to comply with 
section 8065 of Pub. L. 107-117 and the same restriction in subsequent 
DoD appropriations acts.
    (K) Use the clause at 252.225-7017, Photovoltaic Devices, as 
prescribed in 225.7017-4(a), to comply with section 846 of Public Law 
111-383.
    (L) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, as prescribed in 225.7017-4(b), to comply with section 846 
of Public Law 111-383.
    (M) Use the provision at 252.225-7020, Trade Agreements Certificate, 
to comply with 19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note. Alternate I 
also implements section 886 of the National Defense Authorization Act 
for Fiscal Year 2008 (Pub. L. 110-181).
    (1) Use the basic provision as prescribed in 225.1101(5)(i).
    (2) Use the alternate I provision as prescribed in 225.1101(5)(ii).
    (N) Use the clause at 252.225-7021, Trade Agreements to comply with 
19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note.
    (1) Use the basic clause as prescribed in 225.1101(6)(i).
    (2) Use the alternate II clause as prescribed in 225.1101(6)(iii).
    (O) Use the provision at 252.225-7023, Preference for Products or 
Services from Afghanistan, as prescribed in 225.7703-4(a), to comply 
with section 886 of the National Defense Authorization Act for Fiscal 
Year 2008 (Pub. L. 110-181).
    (P) Use the clause at 252.225-7024, Requirement for Products or 
Services from Afghanistan, as prescribed in 225.7703-4(b), to comply 
with section 886 of the National Defense Authorization Act for Fiscal 
Year 2008 (Pub. L. 110-181).
    (Q) Use the clause at 252.225-7026, Acquisition Restricted to 
Products or Services from Afghanistan, as prescribed in 225.7703-4(c), 
to comply with section 886 of the National Defense Authorization Act for 
Fiscal Year 2008 (Pub. L. 110-181).
    (R) Use the clause at 252.225-7027, Restriction on Contingent Fees 
for Foreign Military Sales, as prescribed in 225.7307(a), to comply with 
22 U.S.C. 2779.
    (S) Use the clause at 252.225-7028, Exclusionary Policies and 
Practices of Foreign Governments, as prescribed in 225.7307(b), to 
comply with 22 U.S.C. 2755.
    (T) Use the clause at 252.225-7029, Acquisition of Uniform 
Components for Afghan Military or Afghan National Police, as prescribed 
in 225.7703-4(d).
    (U) Use the provision at 252.225-7031, Secondary Arab Boycott of 
Israel, as prescribed in 225.7605, to comply with 10 U.S.C. 2410i.
    (V) Use the provision at 252.225-7035, Buy American--Free Trade 
Agreements--Balance of Payments Program Certificate, to comply with 41 
U.S.C. chapter 83 and 19 U.S.C. 3301 note. Alternates II, III, and V 
also implement section 886 of the National Defense Authorization Act for 
Fiscal Year 2008 (Pub. L. 110-181).
    (1) Use the basic provision as prescribed in 225.1101(9)(i).
    (2) Use the alternate I provision as prescribed in 225.1101(9)(ii).
    (3) Use the alternate II provision as prescribed in 
225.1101(9)(iii).
    (4) Use the alternate III provision as prescribed in 
225.1101(9)(iv).
    (5) Use the alternate IV provision as prescribed in 225.1101(9)(v).
    (6) Use the alternate V provision as prescribed in 225.1101(9)(vi).
    (W) Use the clause at 252.225-7036, Buy American--Free Trade 
Agreements--Balance of Payments Program to comply with 41 U.S.C. chapter 
83 and 19 U.S.C. 3301 note. Alternates II, III, and V also implement 
section 886 of the National Defense Authorization Act for Fiscal Year 
2008 (Pub. L. 110-181).
    (1) Use the basic clause as prescribed in 225.1101(10)(i)(A).
    (2) Use the alternate I clause as prescribed in 225.1101(10)(i)(B).
    (3) Use the alternate II clause as prescribed in 225.1101(10)(i)(C).
    (4) Use the alternate III clause as prescribed in 
225.1101(10)(i)(D).

[[Page 85]]

    (5) Use the alternate IV clause as prescribed in 225.1101(10)(i)(E).
    (6) Use the alternate V clause as prescribed in 225.1101(10)(i)(F).
    (X) Use the provision at 252.225-7037, Evaluation of Offers for Air 
Circuit Breakers, as prescribed in 225.7006-4(a), to comply with 10 
U.S.C. 2534(a)(3).
    (Y) Use the clause at 252.225-7038, Restriction on Acquisition of 
Air Circuit Breakers, as prescribed in 225.7006-4(b), to comply with 10 
U.S.C. 2534(a)(3).
    (Z) Use the clause at 252.225-7039, Defense Contractors Performing 
Private Security Functions Outside the United States, as prescribed in 
225.302-6, to comply with section 2 of Pub. L. 110-181, as amended.
    (AA) Use the clause at 252.225-7040, Contractor Personnel Supporting 
U.S. Armed Forces Deployed Outside the United States, as prescribed in 
225.371-5(a).
    (BB) Use the clause at 252.225-7043, Antiterrorism/Force Protection 
Policy for Defense Contractors Outside the United States, as prescribed 
in 225.372-2.
    (CC) Use the provision at 252.225-7049, Prohibition on Acquisition 
of Certain Foreign Commercial Satellite Services--Representations, as 
prescribed in 225.772-5(a), to comply with 10 U.S.C. 2279.
    (DD) Use the provision at 252.225-7050, Disclosure of Ownership or 
Control by the Government of a Country that is a State Sponsor of 
Terrorism, as prescribed in 225.771-5, to comply with 10 U.S.C. 2327(b).
    (EE) Use the clause at 252.225-7051, Prohibition on Acquisition for 
Certain Foreign Commercial Satellite Services, as prescribed in 225.772-
5(b), to comply with 10 U.S.C. 2279.
    (FF) Use the clause at 252.225-7052, Restriction on the Acquisition 
of Certain Magnets, Tantalum, and Tungsten, as prescribed in 225.7018-5.
    (GG) Use the provision at 252.225-7053, Representation Regarding 
Prohibition on Use of Certain Energy Sourced from Inside the Russian 
Federation, as prescribed in 225.7019-4(a), to comply with section 2821 
of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 
116-92).
    (HH) Use the clause at 252.225-7054, Prohibition on Use of Certain 
Energy Sourced from Inside the Russian Federation, as prescribed in 
225.7019-4(b), to comply with section 2821 of the National Defense 
Authorization Act for Fiscal Year 2020 (Pub. L. 116-92).
    (x) Part 226--Other Socioeconomic Programs. (A) Use the clause at 
252.226-7001, Utilization of Indian Organizations, Indian-Owned Economic 
Enterprises, and Native Hawaiian Small Business Concerns, as prescribed 
in 226.104, to comply with section 8021 of Pub. L. 107-248 and similar 
sections in subsequent DoD appropriations acts.
    (B) Use the provision at 252.226-7002, Representation for 
Demonstration Project for Contractors Employing Persons with 
Disabilities, as prescribed in 226.7203.
    (xi) Part 227--Patents, Data, and Copyrights. (A) Use the clause at 
252.227-7013, Rights in Technical Data-Noncommercial Items, as 
prescribed in 227.7103-6(a). Use the clause with its Alternate I as 
prescribed in 227.7103-6(b)(1). Use the clause with its Alternate II as 
prescribed in 227.7103-6(b)(2), to comply with 10 U.S.C. 7317 and 17 
U.S.C. 1301, et seq.
    (B) Use the clause at 252.227-7015, Technical Data-Commercial Items, 
as prescribed in 227.7102-4(a)(1), to comply with 10 U.S.C. 2320. Use 
the clause with its Alternate I as prescribed in 227.7102-4(a)(2), to 
comply with 10 U.S.C. 7317 and 17 U.S.C. 1301, et seq.
    (C) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, as prescribed in 227.7102-4(c).
    (xii) Part 232--Contract Financing. (A) Use the clause at 252.232-
7003, Electronic Submission of Payment Requests and Receiving Reports, 
as prescribed in 232.7004, to comply with 10 U.S.C. 2227.
    (B) Use the clause at 252.232-7006, Wide Area WorkFlow Payment 
Instructions, as prescribed in 232.7004(b).
    (C) Use the clause at 252.232-7009, Mandatory Payment by 
Governmentwide Commercial Purchase Card, as prescribed in 232.1110.
    (D) Use the clause at 252.232-7010, Levies on Contract Payments, as 
prescribed in 232.7102.
    (E) Use the clause at 252.232-7011, Payments in Support of 
Emergencies

[[Page 86]]

and Contingency Operations, as prescribed in 232.908.
    (F) Use the provision at 252.232-7014, Notification of Payment in 
Local Currency (Afghanistan), as prescribed in 232.7202.
    (G) Use the clause at 252.232-7017, Accelerating Payments to Small 
Business Subcontractors--Prohibition on Fees and Consideration, as 
prescribed in 232.009-2(2), to comply with 10 U.S.C. 2307(a).
    (xiii) Part 237--Service Contracting. (A) Use the clause at 252.237-
7010, Prohibition on Interrogation of Detainees by Contractor Personnel, 
as prescribed in 237.173-5, to comply with section 1038 of Pub. L. 111-
84.
    (B) Use the clause at 252.237-7019, Training for Contractor 
Personnel Interacting with Detainees, as prescribed in 237.171-4, to 
comply with section 1092 of Pub. L. 108-375.
    (xiv) Part 239--Acquisition of Information Technology. (A) Use the 
provision 252.239-7009, Representation of Use of Cloud Computing, as 
prescribed in 239.7604(a).
    (B) Use the clause 252.239-7010, Cloud Computing Services, as 
prescribed in 239.7604(b).
    (C) Use the provision at 252.239-7017, Notice of Supply Chain Risk, 
as prescribed in 239.7306(a), to comply with 10 U.S.C. 2339a.
    (D) Use the clause at 252.239-7018, Supply Chain Risk, as prescribed 
in 239.7306(b), to comply with 10 U.S.C. 2339a.
    (xv) Part 243--Contract Modifications. Use the clause at 252.243-
7002, Requests for Equitable Adjustment, as prescribed in 243.205-71, to 
comply with 10 U.S.C. 2410.
    (xvi) Part 244--Subcontracting Policies and Procedures. Use the 
clause at 252.244-7000, Subcontracts for Commercial Items, as prescribed 
in 244.403.
    (xvii) Part 246--Quality Assurance. (A) Use the clause at 252.246-
7003, Notification of Potential Safety Issues, as prescribed 
in246.370(a).
    (B) Use the clause at 252.246-7004, Safety of Facilities, 
Infrastructure, and Equipment for Military Operations, as prescribed in 
246.270-4, to comply with section 807 of Pub. L. 111-84.
    (C) Use the clause at 252.246-7008, Sources of Electronic Parts, as 
prescribed in 246.870-3(b), to comply with section 818(c)(3) of Public 
Law 112-81, as amended by section 817 of the National Defense 
Authorization Act for Fiscal Year 2015 (Pub. L. 113-291 and section 885 
of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 
114-92).
    (xviii) Part 247--Transportation. (A) Use the clause at 252.247-
7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the 
Cost Bearer, as prescribed in 247.207, to comply with section 884 of 
Pub. L. 110-417.
    (B) Use the provision at 252.247-7022, Representation of Extent of 
Transportation by Sea, as prescribed in 247.574(a).
    (C) Use the basic or one of the alternates of the clause at 252.247-
7023, Transportation of Supplies by Sea, as prescribed in 247.574(b), to 
comply with the Cargo Preference Act of 1904 (10 U.S.C. 2631(a)).
    (1) Use the basic clause as prescribed in 247.574(b)(1).
    (2) Use the alternate I clause as prescribed in 247.574(b)(2).
    (3) Use the alternate II clause as prescribed in 247.574(b)(3).
    (D) Use the clause 252.247-7025, Reflagging or Repair Work, as 
prescribed in 247.574(c), to comply with 10 U.S.C. 2631(b).
    (E) Use the provision at 252.247-7026, Evaluation Preference for Use 
of Domestic Shipyards--Applicable to Acquisition of Carriage by Vessel 
for DoD Cargo in the Coastwise or Noncontiguous Trade, as prescribed in 
247.574(d), to comply with section 1017 of Pub. L. 109-364.
    (F) Use the clause at 252.247-7027, Riding Gang Member Requirements, 
as prescribed in 247.574(e), to comply with section 3504 of the National 
Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417).

[[Page 87]]

    (G) Use the clause at 252.247-7028, Application for U.S. Government 
Shipping Documentation/Instructions, as prescribed in 247.207.

[80 FR 2019, Jan. 15, 2015, as amended at 80 FR 4999, Jan. 29, 2015; 80 
FR 30116, 30118, May 26, 2015; 80 FR 36901, June 26, 2015; 80 FR 51743, 
51749, Aug. 26, 2015; 80 FR 56929, Sept. 21, 2015; 80 FR 67251, Oct. 30, 
2015; 80 FR 72603, Nov. 20, 2015; 80 FR 81469, Dec. 30, 2015; 81 FR 
17046, Mar. 25, 2016; 81 FR 28728, 28730, May 10, 2016; 81 FR 50647, 
Aug. 2, 2016; 82 FR 61480, Dec. 28, 2017; 83 FR 4443, Jan. 31, 2018; 83 
FR 16002, Apr. 13, 2018; 83 FR 19645, May 4, 2018; 83 FR 24887, 24888, 
May 30, 2018; 83 FR 30825, June 29, 2018; 83 FR 62499, Dec. 4, 2018; 83 
FR 66063, 66071, Dec. 21, 2018; 84 FR 4363, 4369, 4371, Feb. 15, 2019; 
84 FR 18158, Apr. 30, 2019; 84 FR 48508, 48510, Sept. 13, 2019; 84 FR 
58332, Oct. 31, 2019; 84 FR 72237, 72559, Dec. 31, 2019; 85 FR 19697, 
Apr. 8, 2020; 85 FR 61501, 61520, Sept. 29, 2020; 85 FR 74612, Nov. 23, 
2020; 85 FR 61520, Sept. 29, 2020; 86 FR 3836, Jan. 15, 2021; 86 FR 
27277, May 20, 2021; 86 FR 36236, July 9, 2021; 86 FR 48338, Aug. 30, 
2021]



212.302  Tailoring of provisions and clauses for the acquisition 
of commercial items.

    (c) Tailoring inconsistent with customary commercial practice. The 
head of the contracting activity is the approval authority within the 
DoD for waivers under FAR 12.302(c).



   Subpart 212.5_Applicability of Certain Laws to the Acquisition of 
                            Commercial Items



212.503  Applicability of certain laws to executive agency contracts
for the acquisition of commercial items.

    (a) The following laws are not applicable to contracts for the 
acquisition of commercial items:
    (i) 10 U.S.C. 2306(b), Prohibition on Contingent Fees.
    (ii) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts.
    (iii) 10 U.S.C. 2384(b), Requirement to Identify Suppliers.
    (iv) 10 U.S.C. 2397(a)(1), Reports by Employees or Former Employees 
of Defense Contractors.
    (v) 10 U.S.C. 2397b(f), Limits on Employment for Former DoD 
Officials.
    (vi) 10 U.S.C. 2397c, Defense Contractor Requirements Concerning 
Former DoD Officials.
    (vii) 10 U.S.C. 2408(a), Prohibition on Persons Convicted of Defense 
Related Felonies.
    (viii) 10 U.S.C. 2410b, Contractor Inventory Accounting System 
Standards (see 252.242-7004).
    (ix) 107 Stat 1720 (Section 843(a), Public Law 103-160), Reporting 
Requirement Regarding Dealings with Terrorist Countries.
    (x) Domestic Content Restrictions in the National Defense 
Appropriations Acts for Fiscal Years 1996 and Subsequent Years, unless 
the restriction specifically applies to commercial items. For the 
restriction that specifically applies to commercial ball or roller 
bearings as end items, see 225.7009-3 (section 8065 of Pub. L. 107-117).
    (xi) Section 8116 of the Defense Appropriations Act for Fiscal Year 
2010 (Pub. L. 111-118) and similar sections in subsequent DoD 
appropriations acts.
    (c) The applicability of the following laws has been modified in 
regard to contracts for the acquisition of commercial items:
    (i) 10 U.S.C. 2402, Prohibition on Limiting Subcontractor Direct 
Sales to the United States (see FAR 3.503 and 52.203-6).
    (ii) 10 U.S.C. 2306a, Truth in Negotiations Act (see FAR 15.403-
1(b)(3)).

[60 FR 61595, Nov. 30, 1995, as amended at 63 FR 11851, Mar. 11, 1998; 
63 FR 55040, Oct. 14, 1998; 65 FR 77828, Dec. 13, 2000; 67 FR 4208, Jan. 
29, 2002; 69 FR 65089, Nov. 10, 2004; 73 FR 76970, Dec. 18, 2008; 75 FR 
27947, May 19, 2010; 76 FR 38047, June 29, 2011; 76 FR 76319, Dec. 7, 
2011; 79 FR 73489, Dec. 11, 2014]



212.504  Applicability of certain laws to subcontracts for the
acquisition of commercial items.

    (a) The following laws are not applicable to subcontracts at any 
tier for the acquisition of commercial items or commercial components:
    (i) 10 U.S.C. 2306(b) Prohibition on Contingent Fees.
    (ii) 10 U.S.C. 2313(c), Examination of Records of a Contractor.
    (iii) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts.
    (iv) 10 U.S.C. 2327, Reporting Requirement Regarding Dealings with 
Terrorist Countries.
    (v) 10 U.S.C. 2384(b), Requirement to Identify Suppliers.

[[Page 88]]

    (vi) 10 U.S.C. 2391 note, Notification of Substantial Impact on 
Employment.
    (vii) 10 U.S.C. 2393, Prohibition Against Doing Business with 
Certain Offerors or Contractors.
    (viii) 10 U.S.C. 2397(a)(1), Reports by Employees or Former 
Employees of Defense Contractors.
    (ix) 10 U.S.C. 2397b(f), Limits on Employment for Former DoD 
Officials.
    (x) 10 U.S.C. 2397c, Defense Contractor Requirements Concerning 
Former DoD Officials.
    (xi) 10 U.S.C. 2408(a) Prohibition on Persons Convicted of Defense 
Related Felonies.
    (xii) 10 U.S.C. 2410b, Contractor Inventory Accounting System 
Standards.
    (xiii) 10 U.S.C. 2501 note, Notification of Proposed Program 
Termination.
    (xiv) 10 U.S.C. 2534, Miscellaneous Limitations on the Procurement 
of Goods Other Than United States Goods.
    (xv) 10 U.S.C. 2631, Transportation of Supplies by Sea (except as 
provided in the clause at 252.247-7023, Transportation of Supplies by 
Sea).
    (xvi) Domestic Content Restrictions in the National Defense 
Appropriations Acts for Fiscal Years 1996 and Subsequent Years, unless 
the restriction specifically applies to commercial items. For the 
restriction that specifically applies to commercial ball or roller 
bearings as end items, see 225.7009-3 (section 8065 of Pub. L. 107-117).
    (xvii) Section 8116 of the Defense Appropriations Act for Fiscal 
Year 2010 (Pub. L. 111-118) and similar sections in subsequent DoD 
appropriations acts.
    (b) Certain requirements of the following laws have been eliminated 
for subcontracts at any tier for the acquisition of commercial items or 
commercial components:
    (i) 10 U.S.C. 2393(d), Subcontractor Reports Under Prohibition 
Against Doing Business with Certain Offerors (see FAR 52.209-6).
    (ii) 10 U.S.C. 2402, Prohibition on Limiting Subcontractor Direct 
Sales to the United States (see FAR 3.503 and 52.203-6).

[60 FR 61595, Nov. 30, 1995, as amended at 61 FR 58488, Nov. 15, 1996; 
62 FR 5780, Feb. 7, 1997; 65 FR 14401, Mar. 16, 2000; 65 FR 39704, June 
27, 2000; 65 FR 77828, Dec. 13, 2000; 69 FR 63331, Nov. 1, 2004; 73 FR 
76970, Dec. 18, 2008; 75 FR 27947, May 19, 2010; 76 FR 38048, June 29, 
2011; 76 FR 58146, Sept. 20, 2011; 76 FR 76319, Dec. 7, 2011]



212.570  Applicability of certain laws to contracts and subcontracts
for the acquisition of commercially available off-the-shelf items.

    Paragraph (a)(1) of 10 U.S.C. 2533b, Requirement to buy strategic 
materials critical to national security from American sources, is not 
applicable to contracts and subcontracts for the acquisition of 
commercially available off-the-shelf items, except as provided at 
225.7003-3(b)(2)(i).

[74 FR 37636, July 29, 2009]



Subpart 212.6_Streamlined Procedures for Evaluation and Solicitation for 
                            Commercial Items



212.602  Streamlined evaluation of offers.

    (b)(i) For the acquisition of transportation and transportation-
related services, also consider evaluating offers in accordance with the 
criteria at 247.206(1).
    (ii) For the acquisition of transportation in supply contracts that 
will include a significant requirement for transportation of items 
outside the contiguous United States, also evaluate offers in accordance 
with the criterion at 247.301-71.
    (iii) For the direct purchase of ocean transportation services, also 
evaluate offers in accordance with the criteria at 247.573-2(c).

[65 FR 50143, Aug. 17, 2000, as amended at 70 FR 35544, June 21, 2005; 
72 FR 49205, Aug. 28, 2007]

[[Page 89]]



 Subpart 212.70_Limitation on Conversion of Procurement from Commercial 
                         Acquisition Procedures

    Source: 83 FR 4443, Jan. 31, 2018, unless otherwise noted.



212.7000  Scope.

    This subpart implements section 856 of the National Defense 
Authorization Act for Fiscal Year 2016 (Pub. L. 114-92).



212.7001  Procedures.

    (a) Limitation. (1) For a procurement valued at more than $1 
million, but less than $100 million, previously procured under a prime 
contract using FAR part 12 procedures based on a commercial item 
determination made by a military department, a defense agency, or 
another DoD component, prior to converting the procurement from 
commercial acquisition procedures to noncommercial acquisition 
procedures under FAR part 15, the head of the contracting activity shall 
determine in writing, upon recommendation from the contracting officer 
for the procurement that--
    (i) The earlier use of commercial acquisition procedures under FAR 
part 12 was in error or based on inadequate information; and
    (ii) DoD will realize a cost savings compared to the cost of 
procuring a similar quantity or level of such item or service using 
commercial acquisition procedures.
    (2) In the case of a procurement valued at $100 million or more, a 
contract may not be awarded pursuant to a conversion of the procurement 
described in paragraph (a)(1) of this section until a copy of the head 
of contracting activity determination is provided to the Office of the 
Under Secretary of Defense for Acquisition, Technology, and Logistics.
    (b) In making a determination under paragraph (a) of this section, 
the determining official shall, at a minimum, consider the following 
factors:
    (1) The estimated cost of research and development to be performed 
by the existing contractor to improve future products or services.
    (2) The costs for DoD and the contractor in assessing and responding 
to data requests to support a conversion to noncommercial acquisition 
procedures.
    (3) Changes in purchase quantities.
    (4) Costs associated with potential procurement delays resulting 
from the conversion.
    (c) The requirements of this subpart terminate November 25, 2020.



    Subpart 212.71_Pilot Program for Acquisition of Military-Purpose 
                         Nondevelopmental Items

    Source: 76 FR 38049, June 29, 2011, unless otherwise noted.



212.7100  Scope.

    This subpart establishes the pilot program authorized by section 866 
of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 
111-383), as modified by section 892 of the National Defense 
Authorization Act for Fiscal Year 2016 (Pub. L. 114-92) .

[76 FR 38049, June 29, 2011, as amended at 81 FR 42559, June 30, 2016]



212.7101  Definitions.

    As used in this subpart--
    Military-purpose nondevelopmental item means a nondevelopmental item 
that meets a validated military requirement, as determined in writing by 
the responsible program manager, and has been developed exclusively at 
private expense. An item shall not be considered to be developed at 
private expense if development of the item was paid for in whole or in 
part through--
    (1) Independent research and development costs or bid and proposal 
costs, per the definition in FAR 31.205-18, that have been reimbursed 
directly or indirectly by a Federal agency or have been submitted to a 
Federal agency for reimbursement; or
    (2) Foreign government funding.
    Nondevelopmental item is defined in FAR 2.101 and also includes 
previously developed items of supply that require

[[Page 90]]

modifications other than those customarily available in the commercial 
marketplace if such modifications are consistent with the requirement at 
212.7102-1(c)(1).

[81 FR 42559, June 30, 2016]



212.7102  Pilot program.



212.7102-1  Contracts under the program.

    The contracting officer may utilize this pilot program to enter into 
contracts for the acquisition of military-purpose nondevelopmental 
items. See PGI 212.7102 for file documentation requirements. Each 
contract entered into under the pilot program shall--
    (a) Be a firm-fixed-price contract, or a fixed-price contract with 
an economic price adjustment clause;
    (b) Be in an amount not in excess of $100 million;
    (c) Provide--
    (1) For the delivery of an initial lot of production quantities of 
completed items not later than nine months after the date of the award 
of such contract; and
    (2) That failure to make delivery as provided for under paragraph 
(c)(1) may result in termination for cause; and
    (d) Be--
    (1) Exempt from the requirement to submit certified cost or pricing 
data;
    (2) Exempt from the cost accounting standards under 41 U.S.C. 1502; 
and
    (3) Subject to the requirement to provide data other than certified 
cost or pricing data for the purpose of price reasonableness 
determinations.

[76 FR 38049, June 29, 2011, as amended at 77 FR 35880, June 15, 2012; 
80 FR 36904, June 26, 2015; 81 FR 42559, June 30, 2016]



212.7102-2  Reporting requirements.

    Departments and agencies shall prepare a consolidated annual report 
to provide information about contracts awarded under this pilot 
authority. The report shall be submitted to the Office of the Deputy 
Director, Defense Procurement and Acquisition Policy (Contract Policy 
and International Contracting), by October 31 each year in accordance 
with the procedures at PGI 212.7102. See PGI 212.7102 for annual 
reporting format.



212.7102-3  Sunset of the pilot authority.

    (a) The authority to carry out the pilot program described in this 
subpart expires on December 31, 2019.
    (b) The expiration under paragraph (a) of this section of the 
authority to carry out the pilot program will not affect the validity of 
any contract awarded under the pilot program before the expiration of 
the pilot program under that paragraph.

[76 FR 38049, June 29, 2011, as amended at 79 FR 17447, Mar. 28, 2014]



212.7103  Solicitation provision.

    Use the provision at 252.212-7002, Pilot Program for Acquisition of 
Military-Purpose Nondevelopmental Items, in solicitations when use of 
the pilot program is planned and the applicability criteria of 212.7102-
1 are met.

[81 FR 78013, Nov. 4, 2016]

[[Page 91]]



           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES





PART 213_SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents



                        Subpart 213.1_Procedures

Sec.
213.101 General.
213.104 Promoting competition.
213.106-1 Soliciting competition.
213.106-1-70 Soliciting competition--tiered evaluation of offers.
213.106-2 Evaluation of quotations or offers.
213.106-2-70 Solicitation provision.

     Subpart 213.2_Actions at or Below the Micro-Purchase Threshold

213.201 General.
213.270 Use of the Governmentwide commercial purchase card.

              Subpart 213.3_Simplified Acquisition Methods

213.301 Governmentwide commercial purchase card.
213.302 Purchase orders.
213.302-3 Obtaining contractor acceptance and modifying purchase orders.
213.302-5 Clauses.
213.303 Blanket purchase agreements (BPAs).
213.303-5 Purchases under BPAs.
213.305 Imprest funds and third party drafts.
213.305-3 Conditions for use.
213.306 SF 44, Purchase Order-Invoice-Voucher.
213.307 Forms.

                  Subpart 213.4_Fast Payment Procedure

213.402 Conditions for use.

    Subpart 213.5_Simplified Procedures for Certain Commercial Items

213.500-70 Only one offer.
213.501 Special documentation requirement.

 Subpart 213.70_Simplified Acquisition Procedures Under the 8(a) Program

213.7001 Procedures.
213.7002 Purchase orders.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 64 FR 2596, Jan. 15, 1999, unless otherwise noted.



                        Subpart 213.1_Procedures



213.101  General.

    Structure awards valued above the micro-purchase threshold (e.g., 
contract line items, delivery schedule, and invoice instructions) in a 
manner that will minimize the generation of invoices valued at or below 
the micro-purchase threshold.

[65 FR 46625, July 31, 2000]



213.104  Promoting competition.

    For information on the various approaches that may be used to 
competitively fulfill DoD requirements, see PGI 213.104.

[80 FR 21657, Apr. 20, 2015]



213.106-1  Soliciting competition.

    (a) Considerations.
    (2)(i) 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.
    (ii) See 215.101-2-70 for limitations and prohibitions on the use of 
the lowest price technically acceptable source selection process, which 
are applicable to simplified acquisitions.
    (iii) See 217.7801 for the prohibition on the use of reverse 
auctions for personal protective equipment and aviation critical safety 
items.

[84 FR 50788, Sept. 26, 2019]



213.106-1-70  Soliciting competition--tiered evaluation of offers.

    See limitations on the use of tiered evaluation of offers at 
215.203-70.

[72 FR 42314, Aug. 2, 2007]



213.106-2  Evaluation of quotations or offers.

    (b)(i) For competitive solicitations for supplies using FAR part 13 
simplified acquisition procedures, including acquisitions valued at less 
than or

[[Page 92]]

equal to $1 million under the authority at FAR subpart 13.5, the 
contracting officer shall--
    (A) Consider data available in the statistical reporting module of 
the Supplier Performance Risk System (SPRS) regarding the supplier's 
past performance history for the Federal supply class (FSC) and product 
or service code (PSC) of the supplies being purchased. Procedures for 
the use of SPRS in the evaluation of quotations or offers are provided 
in the SPRS User's Manual available under the references section of the 
SPRS website at https://www.sprs.csd.disa.mil/reference.htm.
    (B) Ensure the basis for award includes an evaluation of each 
supplier's past performance history in SPRS for the FSC and PSC of the 
supplies being purchased; and
    (C) In the case of a supplier without a record of relevant past 
performance history in SPRS for the FSC or PSC of the supplies being 
purchased, the supplier may not be evaluated favorably or unfavorably 
for its past performance history.

[80 FR 30118, May 26, 2015, as amended at 83 FR 12681, Mar. 23, 2018; 84 
FR 48508, Sept. 13, 2019]



213.106-2-70  Solicitation provision.

    Use the provision at 252.213-7000, Notice to Prospective Suppliers 
on Use of Supplier Performance Risk System in Past Performance 
Evaluations, in competitive solicitations for supplies when using FAR 
part 13 simplified acquisition procedures, including competitive 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items and acquisitions valued at less than or equal to $1 
million under the authority at FAR subpart 13.5.

[80 FR 30118, May 26, 2015, as amended at 84 FR 48508, Sept. 13, 2019]



     Subpart 213.2_Actions at or Below the Micro-Purchase Threshold



213.201  General.

    (g) See PGI 213.201(g) for guidance on use of the higher micro-
purchase thresholds prescribed in FAR 13.201(g) to support a declared 
contingency operation or to facilitate defense against or recovery from 
nuclear, biological, chemical, or radiological attack.
    (j) Do not procure or obtain, or extend or renew a contract to 
procure or obtain, any equipment, system, or service to carry out 
covered missions that use covered defense telecommunications equipment 
or services as a substantial or essential component of any system, or as 
critical technology as part of any system, unless a waiver is granted. 
(See subpart 204.21.)

[81 FR 53045, Aug. 11, 2016, as amended at 84 FR 72237, Dec. 31, 2019]



213.270  Use of the Governmentwide commercial purchase card.

    Use the Governmentwide commercial purchase card as the method of 
purchase and/or method of payment for purchases valued at or below the 
micro-purchase threshold. This policy applies to all types of contract 
actions authorized by the FAR unless--
    (a) The Deputy Secretary of Defense has approved an exception for an 
electronic commerce/electronic data interchange system or operational 
requirement that results in a more cost-effective payment process;
    (b)(1) A general or flag officer or a member of the Senior Executive 
Service (SES) makes a written determination that--
    (i) The source or sources available for the supply or service do not 
accept the purchase card; and
    (ii) The contracting office is seeking a source that accepts the 
purchase card.
    (2) To prevent mission delays, if an activity does not have a 
resident general or flag officer of SES member, delegation of this 
authority to the level of the senior local commander or director is 
permitted; or
    (c) The purchase or payment meets one or more of the following 
criteria:
    (1) The place of performance is entirely outside the United States 
and its outlying areas.
    (2) The purchase is a Standard Form 44 purchase for aviation fuel or 
oil.

[[Page 93]]

    (3) The purchase is an overseas transaction by a contracting officer 
in support of a contingency operation as defined in 10 U.S.C. 101(a)(13) 
or a humanitarian or peacekeeping operation as defined in 10 U.S.C. 
2302(8).
    (4) The purchase is a transaction in support of intelligence or 
other specialized activities addressed by Part 2.7 of Executive Order 
12333.
    (5) The purchase is for training exercises in preparation for 
overseas contingency, humanitarian, or peacekeeping operations.
    (6) The payment is made with an accommodation check.
    (7) The payment is for a transportation bill.
    (8) The purchase is under a Federal Supply Schedule contract that 
does not permit use of the Governmentwide commercial purchase card.
    (9) The purchase is for medical services and--
    (i) It involves a controlled substance or narcotic;
    (ii) It requires the submission of a Health Care Summary Record to 
document the nature of the care purchased;
    (iii) The ultimate price of the medical care is subject to an 
independent determination that changes the price paid based on 
application of a mandatory CHAMPUS Maximum Allowable Charge 
determination that reduces the Government liability below billed 
charges;
    (iv) The Government already has entered into a contract to pay for 
the services without the use of a purchase card;
    (v) The purchaser is a beneficiary seeking medical care; or
    (vi) The senior local commander or director of a hospital or 
laboratory determines that use of the purchase card is not appropriate 
or cost-effective. The Medical Prime Vendor Program and the DoD Medical 
Electronic Catalog Program are two examples where use of the purchase 
card may not be cost-effective.

[65 FR 46626, July 31, 2000, as amended at 70 FR 35544, June 21, 2005]



              Subpart 213.3_Simplified Acquisition Methods



213.301  Governmentwide commercial purchase card.

    Follow the procedures at PGI 213.301 for authorizing, establishing, 
and operating a Governmentwide commercial purchase card program.
    (1) ``United States,'' as used in this section, means the 50 States 
and the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, the Commonwealth of the Northern Mariana Islands, Guam, 
American Samoa, Wake Island, Johnston Island, Canton Island, the outer 
Continental Shelf, and any other place subject to the jurisdiction of 
the United States (but not including leased bases).
    (2) An individual appointed in accordance with 201.603-3(a) also may 
use the Governmentwide commercial purchase card to make a purchase that 
exceeds the micro-purchase threshold but does not exceed $25,000, if--
    (i) The purchase--
    (A) Is made outside the United States for use outside the United 
States; and
    (B) Is for a commercial item; but
    (C) Is not for work to be performed by employees recruited within 
the United States;
    (D) Is not for supplies or services originating from, or transported 
from or through, sources identified in FAR Subpart 25.7;
    (E) Is not for ball or roller bearings as end items;
    (F) Does not require access to classified or Privacy Act 
information; and
    (G) Does not require transportation of supplies by sea; and
    (ii) The individual making the purchase--
    (A) Is authorized and trained in accordance with agency procedures;
    (B) Complies with the requirements of FAR 8.002 in making the 
purchase; and
    (C) Seeks maximum practicable competition for the purchase in 
accordance with FAR 13.104(b).
    (3) A contracting officer supporting a contingency operation as 
defined in 10 U.S.C. 101(a)(13) or a humanitarian or peacekeeping 
operation as defined in 10 U.S.C. 2302(8) also may use the 
Governmentwide commercial purchase card to

[[Page 94]]

make a purchase that exceeds the micro-purchase threshold but does not 
exceed the simplified acquisition threshold, if--
    (i) The supplies or services being purchased are immediately 
available;
    (ii) One delivery and one payment will be made; and
    (iii) The requirements of paragraphs (2)(i) and (ii) of this section 
are met.
    (4) Guidance on DoD purchase, travel, and fuel card programs is 
available in the ``Department of Defense Government Charge Card 
Guidebook for Establishing and Managing Purchase, Travel, and Fuel Card 
Programs'' at https://www.acq.osd.mil/dpap/pdi/pc/policy_documents.html. 
Additional guidance on the fuel card programs is available at https://
www.dla.mil/Energy/Offers/Products/GovernmentFuel/.

[64 FR 56705, Oct. 21, 1999; 64 FR 63380, Nov. 19, 1999, as amended at 
66 FR 55123, Nov. 1, 2001; 66 FR 56902, Nov. 13, 2001; 67 FR 38021, May 
31, 2002; 68 FR 56561, Oct. 1, 2003; 70 FR 75411, Dec. 20, 2005; 72 FR 
6484, Feb. 12, 2007; 73 FR 70906, Nov. 24, 2008; 76 FR 76319, Dec. 7, 
2011; 77 FR 23631, Apr. 20, 2012; 77 FR 35880, June 15, 2012; 79 FR 
56278, Sept. 19, 2014; 86 FR 27277, May 20, 2021]



213.302  Purchase orders.



213.302-3  Obtaining contractor acceptance and modifying purchase orders.

    (1) Require written acceptance of purchase orders for classified 
acquisitions.
    (2) See PGI 213.302-3 for guidance on the use of unilateral 
modifications.
    (3) A supplemental agreement converts a unilateral purchase order to 
a bilateral agreement. If not previously included in the purchase order, 
incorporate the clause at 252.243-7001, Pricing of Contract 
Modifications, in the Standard Form 30, and obtain the contractor's 
acceptance by signature on the Standard Form 30.

[64 FR 2596, Jan. 15, 1999, as amended at 71 FR 3413, Jan. 23, 2006]



213.302-5  Clauses.

    (a) Use the clause at 252.243-7001, Pricing of Contract 
Modifications, in all bilateral purchase orders.
    (d) When using the clause at FAR 52.213-4, delete the reference to 
the clause at FAR 52.225-1, Buy American--Supplies. Instead, if the Buy 
American Act applies to the acquisition, use the clause at--
    (i) 252.225-7001, Buy American Act and Balance of Payments Program, 
as prescribed at 225.1101(2); or
    (ii) 252.225-7036, Buy American Act--Free Trade Agreements--Balance 
of Payments Program, as prescribed at 225.1101(10).

[64 FR 24528, May 7, 1999, as amended at 65 FR 19850, Apr. 13, 2000; 65 
FR 39704, June 27, 2000; 68 FR 56561, Oct. 1, 2003; 69 FR 1927, Jan. 13, 
2004; 77 FR 35880, June 15, 2012]



213.303  Blanket purchase agreements (BPAs).



213.303-5  Purchases under BPAs.

    (b) Individual purchases for subsistence may be made at any dollar 
value; however, the contracting officer must satisfy the competition 
requirements of FAR Part 6 for any action not using simplified 
acquisition procedures.



213.305  Imprest funds and third party drafts.



213.305-3  Conditions for use.

    (d)(i) On a very limited basis, installation commanders and 
commanders of other activities with contracting authority may be granted 
authority to establish imprest funds and third party draft 
(accommodation check) accounts. Use of imprest funds and third party 
drafts must comply with--
    (A) DoD 7000.14-R, DoD Financial Management Regulation, Volume 5, 
Disbursing Policy and Procedures; and
    (B) The Treasury Financial Manual, Volume I, Part 4, Chapter 3000.
    (ii) Use of imprest funds requires approval by the Director for 
Financial Commerce, Office of the Deputy Chief Financial Officer, Office 
of the Under Secretary of Defense (Comptroller), except as provided in 
paragraph (d)(iii) of this subsection.
    (iii) Imprest funds are authorized for use without further approval 
for--
    (A) Overseas transactions at or below the micro-purchase threshold 
in support of a contingency operation as defined in 10 U.S.C. 101(a)(13) 
or a humanitarian or peacekeeping operation as defined in 10 U.S.C. 
2302(8); and

[[Page 95]]

    (B) Classified transactions.

[71 FR 3413, Jan. 23, 2006]



213.306  SF 44, Purchase Order-Invoice-Voucher.

    (a)(1) The micro-purchase limitation applies to all purchases, 
except that purchases not exceeding the simplified acquisition threshold 
may be made for--
    (A) Fuel and oil. U.S. Government fuel cards may be used in lieu of 
an SF 44 for fuel, oil, and authorized refueling-related items (see PGI 
213.306 for procedures on use of fuel cards);
    (B) Overseas transactions by contracting officers in support of a 
contingency operation as defined in 10 U.S.C. 101(a)(13) or a 
humanitarian or peacekeeping operation as defined in 10 U.S.C. 2302(8); 
and
    (C) Transactions in support of intelligence and other specialized 
activities addressed by Part 2.7 of Executive Order 12333.

[64 FR 2596, Jan. 15, 1999, as amended at 71 FR 3413, Jan. 23, 2006; 72 
FR 6484, Feb. 12, 2007; 76 FR 58150, Sept. 20, 2011]



213.307  Forms.

    See PGI 213.307 for procedures on use of forms for purchases made 
using simplified acquisition procedures.

[71 FR 3413, Jan. 23, 2006]



                  Subpart 213.4_Fast Payment Procedure



213.402  Conditions for use.

    (a) Individual orders may exceed the simplified acquisition 
threshold for--
    (i) Brand-name commissary resale subsistence; and
    (ii) Medical supplies for direct shipment overseas.



    Subpart 213.5_Simplified Procedures for Certain Commercial Items

    Source: 80 FR 21657, Apr. 20, 2015, unless otherwise noted.



213.500-70  Only one offer.

    If only one offer is received in response to a competitive 
solicitation issued using simplified acquisition procedures authorized 
under FAR subpart 13.5, follow the procedures at 215.371-2.

[80 FR 21657, Apr. 20, 2015, as amended at 80 FR 36718, June 26, 2015]



213.501  Special documentation requirements.

    (a)(i) Sole source (including brand name) acquisitions. For 
noncompetitive follow-on acquisitions of supplies or services previously 
awarded on a noncompetitive basis, include the additional documentation 
required by PGI 206.303-2(b)(i) and follow the procedures at PGI 
206.304(a)(S-70).
    (ii) In accordance with section 888(a) of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the 
justification and approval addressed in FAR 13.501(a) is required in 
order to use brand name or equal descriptions or proprietary 
specifications and standards.

[80 FR 21657, Apr. 20, 2015, as amended at 84 FR 25192, May 31, 2019]



 Subpart 213.70_Simplified Acquisition Procedures Under the 8(a) Program



213.7001  Procedures.

    (a)(1) For acquisitions that are otherwise appropriate to be 
conducted using procedures set forth in this part, and also eligible for 
the 8(a) Program, contracting officers may use--
    (i) For sole source purchase orders not exceeding the simplified 
acquisition threshold, the procedures in PGI 219.804-2(2); or
    (ii) For other types of acquisitions, the procedures in PGI 219.8, 
excluding the procedures in PGI 219.804-2(2); or
    (2) The procedures for award to the Small Business Administration in 
FAR subpart 19.8.
    (b) To comply with section 898 of the National Defense Authorization 
Act for Fiscal Year 2016 (Pub. L. 114-92), contracting officers shall 
not use the sole source authority at FAR 6.302-5(b)(4) to purchase 
religious-related services to be performed on a U.S. military 
installation. For competitive purchases

[[Page 96]]

under the 8(a) program, contracting officers shall not exclude a 
nonprofit organization from the competition. See 219.270 for additional 
procedures.

[64 FR 2596, Jan. 15, 1999. Redesignated at 71 FR 3413, Jan. 23, 2006; 
81 FR 65563, Sept. 23, 2016; 83 FR 16002, Apr. 13, 2018]



213.7002  Purchase orders.

    The contracting officer need not obtain a contractor's written 
acceptance of a purchase order or modification of a purchase order for 
an acquisition under the 8(a) Program pursuant to 219.804-2(2).

[71 FR 3413, Jan. 23, 2006]



PART 214_SEALED BIDDING--Table of Contents



Sec.
214.201-5 Part IV--Representations and instructions.
214.201-6 Solicitation provisions.

                   Subpart 214.2_Solicitation of Bids

214.202 General rules for solicitation of bids.
214.202-5 Descriptive literature.
214.209 Cancellation of invitations before opening.

           Subpart 214.4_Opening of Bids and Award of Contract

214.404 Rejection of bids.
214.404-1 Cancellation of invitations after opening.
214.407 Mistakes in bids.
214.407-3 Other mistakes disclosed before award.
214.408 Award.
214.408-1 General.

                  Subpart 214.5_Two-Step Sealed Bidding

214.503 Procedures.
214.503-1 Step one.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36326, July 31, 1991, unless otherwise noted.



                   Subpart 214.2_Solicitation of Bids



214.201-5  Part IV--Representations and instructions.

    (c) 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]



214.201-6  Solicitation provisions.

    (2) 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 39138, June 29, 2012, as amended at 83 FR 30825, June 29, 2018]



214.202  General rules for solicitation of bids.



214.202-5  Descriptive literature.

    (c) Requirements of invitation for bids. When brand name or equal 
purchase descriptions are used, use of the provision at FAR 52.211-6, 
Brand Name or Equal, satisfies this requirement.

[56 FR 36326, July 31, 1991, as amended at 63 FR 11528, Mar. 9, 1998; 64 
FR 55633, Oct. 14, 1999; 69 FR 65090, Nov. 10, 2004]



214.209  Cancellation of invitations before opening.

    If an invitation for bids allowed fewer than 30 days for receipt of 
offers, and resulted in only one offer, the contracting officer shall 
cancel and resolicit, allowing an additional period of at least 30 days 
for receipt of offers, as provided in 215.371.

[77 FR 39138, June 29, 2012]



           Subpart 214.4_Opening of Bids and Award of Contract



214.404  Rejection of bids.



214.404-1  Cancellation of invitations after opening.

    (1) The contracting officer shall make the written determinations 
required by FAR 14.404-1(c) and (e)(1).
    (2) If only one offer is received, follow the procedures at 215.371 
in lieu of the procedures at FAR 14.404-1(f).

[77 FR 39138, June 29, 2012]

[[Page 97]]



214.407  Mistakes in bids.



214.407-3  Other mistakes disclosed before award.

    (e) Authority for making a determination under FAR 14.407-3(a), (b) 
and (d) is delegated for the defense agencies, without power of 
redelegation, as follows:
    (i) Defense Advanced Research Projects Agency: General Counsel, 
DARPA.
    (ii) Defense Information Systems Agency: General Counsel, DISA.
    (iii) Defense Intelligence Agency: Principal Assistant for 
Acquisition.
    (iv) Defense Logistics Agency:
    (A) General Counsel, DLA; and
    (B) Associate General Counsel, DLA.
    (v) National Geospatial-Intelligence Agency: General Counsel, NGA.
    (vi) Defense Threat Reduction Agency: General Counsel, DTRA.
    (vii) National Security Agency: Director of Procurement, NSA.
    (viii) Missile Defense Agency: General Counsel, MDA.
    (ix) Defense Contract Management Agency: General Counsel, DCMA.

[57 FR 42629, Sept. 15, 1992, as amended at 59 FR 27669, May 27, 1994; 
61 FR 50452, Sept. 26, 1996. Redesignated and amended at 62 FR 34122, 
June 24, 1997; 64 FR 51076, Sept. 21, 1999; 68 FR 7439, Feb. 14, 2003; 
69 FR 65090, Nov. 10, 2004; 74 FR 42780, Aug. 25, 2009]



214.408  Award.



214.408-1  General.

    (b) For acquisitions that exceed the simplified acquisition 
threshold, if only one offer is received, follow the procedures at 
215.371.

[77 FR 39138, June 29, 2012]



                  Subpart 214.5_Two-Step Sealed Bidding

    Source: 80 FR 67251, Oct. 30, 2015, unless otherwise noted.



214.503  Procedures.



214.503-1  Step one.

    (a)(4) 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.



PART 215_CONTRACTING BY NEGOTIATION--Table of Contents



         Subpart 215.1_Source Selection Processes and Techniques

Sec.
215.101 Best value continuum.
215.101-2 Lowest price technically acceptable source selection process.
215.101-2-70 Limitations and prohibitions.
215.101-70 Best value when acquiring tents or other temporary 
          structures.

   Subpart 215.2_Solicitation and Receipt of Proposals and Information

215.203-70 Requests for proposals--tiered evaluation of offers.
215.209 Solicitation provisions and contract clauses.
215.270 Peer Reviews.

                     Subpart 215.3_Source Selection

215.300 Scope of subpart.
215.303 Responsibilities.
215.304 Evaluation factors and significant subfactors.
215.305 Proposal evaluation.
215.306 Exchanges with offerors after receipt of proposals.
215.370 Evaluation factor for employing or subcontracting with members 
          of the Selected Reserve.
215.370-1 Definition.
215.370-2 Evaluation factor.
215.370-3 Solicitation provision and contract clause.
215.371 Only one offer.
215.371-1 Policy.
215.371-2 Promote competition.
215.371-3 Fair and reasonable price and the requirement for additional 
          cost or pricing data.
215.371-4 Exceptions.
215.371-5 Waiver.
215.371-6 Solicitation provision.

                     Subpart 215.4_Contract Pricing

215.401 Definitions.
215.402 Pricing policy.
215.403 Obtaining certified cost or pricing data.
215.403-1 Prohibition on obtaining certified cost or pricing data (10 
          U.S.C. 2306a and 41 U.S.C. chapter 35).
215.403-3 Requiring data other than certified cost or pricing data.

[[Page 98]]

215.403-5 Instructions for submission of certified cost or pricing data 
          and data other than certified cost or pricing data.
215.404 Proposal analysis.
215.404-1 Proposal analysis techniques.
215.404-2 Data to support proposal analysis.
215.404-3 Subcontract pricing considerations.
215.404-4 Profit.
215.404-70 DD Form 1547, Record of Weighted Guidelines Method 
          Application.
215.404-71 Weighted guidelines method.
215.404-71-1 General.
215.404-71-2 Performance risk.
215.404-71-3 Contract type risk and working capital adjustment.
215.404-71-4 Facilities capital employed.
215.404-71-5 Cost efficiency factor.
215.404-72 Modified weighted guidelines method for nonprofit 
          organizations other than FFRDCs.
215.404-73 Alternate structure approaches.
215.404-74 Fee requirements for cost-plus-award-fee contracts.
215.404-75 Fee requirements for FFRDCs.
215.406-1 Prenegotiation objectives.
215.406-2 Certificate of Current Cost or Pricing Data.
215.406-3 Documenting the negotiation.
215.407 Special cost or pricing areas.
215.407-1 Defective certified cost or pricing data.
215.407-2 Make-or-buy programs.
215.407-3 Forward pricing rate agreements.
215.407-4 Should-cost review.
215.407-5 Estimating systems.
215.407-5-70 Disclosure, maintenance, and review requirements.
215.408 Solicitation provisions and contract clauses.
215.470 Estimated data prices.

 Subpart 215.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes

215.503 Notifications to unsuccessful offerors.
215.506 Postaward debriefing of offerors.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 63 FR 55040, Oct. 14, 1998, unless otherwise noted.



215.101  Best value continuum.



215.101-2  Lowest price technically acceptable source selection
process.

[84 FR 50788, Sept. 26, 2019]



215.101-2-70  Limitations and prohibitions.

    The following limitations and prohibitions apply when considering 
the use of the lowest price technically acceptable source selection 
procedures.
    (a) Limitations.
    (1) In accordance with section 813 of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328) as amended by 
section 822 of the National Defense Authorization Act for Fiscal Year 
2018 (Pub. L. 115-91) (see 10 U.S.C. 2305 note), the lowest price 
technically acceptable source selection process shall only be used 
when--
    (i) Minimum requirements can be described clearly and 
comprehensively and expressed in terms of performance objectives, 
measures, and standards that will be used to determine the acceptability 
of offers;
    (ii) No, or minimal, value will be realized from a proposal that 
exceeds the minimum technical or performance requirements;
    (iii) The proposed technical approaches will require no, or minimal, 
subjective judgment by the source selection authority as to the 
desirability of one offeror's proposal versus a competing proposal;
    (iv) The source selection authority has a high degree of confidence 
that reviewing the technical proposals of all offerors would not result 
in the identification of characteristics that could provide value or 
benefit;
    (v) No, or minimal, additional innovation or future technological 
advantage will be realized by using a different source selection 
process;
    (vi) Goods to be procured are predominantly expendable in nature, 
are nontechnical, or have a short life expectancy or short shelf life 
(See PGI 215.101-2-70(a)(1)(vi) for assistance with evaluating whether a 
requirement satisfies this limitation);
    (vii) The contract file contains a determination that the lowest 
price reflects full life-cycle costs (as defined at FAR 7.101) of the 
product(s) or service(s) being acquired (see PGI 215.101-2-70(a)(1)(vii) 
for information on obtaining this determination); and
    (viii) The contracting officer documents the contract file 
describing the circumstances justifying the use of the lowest price 
technically acceptable source selection process.
    (2) In accordance with section 813 of the National Defense 
Authorization

[[Page 99]]

Act for Fiscal Year 2017, as amended by section 822 of the National 
Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) (see 10 
U.S.C. 2305 note), contracting officers shall avoid, to the maximum 
extent practicable, using the lowest price technically acceptable source 
selection process in the case of a procurement that is predominately for 
the acquisition of--
    (i) Information technology services, cybersecurity services, systems 
engineering and technical assistance services, advanced electronic 
testing, or other knowledge-based professional services;
    (ii) Items designated by the requiring activity as personal 
protective equipment (except see paragraph (b)(1) of this section); or
    (iii) Services designated by the requiring activity as knowledge-
based training or logistics services in contingency operations or other 
operations outside the United States, including in Afghanistan or Iraq.
    (b) Prohibitions.
    (1) In accordance with section 814 of the National Defense 
Authorization Act for Fiscal Year 2017 as amended by section 882 of the 
National Defense Authorization Act for Fiscal Year 2018 (see 10 U.S.C. 
2302 note), contracting officers shall not use the lowest price 
technically acceptable source selection process to procure items 
designated by the requiring activity as personal protective equipment or 
an aviation critical safety item, when the requiring activity advises 
the contracting officer that the level of quality or failure of the 
equipment or item could result in combat casualties. See 252.209-7010 
for the definition and identification of critical safety items.
    (2) In accordance with section 832 of the National Defense 
Authorization Act for Fiscal Year 2018 (see 10 U.S.C. 2442 note), 
contracting officers shall not use the lowest price technically 
acceptable source selection process to acquire engineering and 
manufacturing development for a major defense acquisition program for 
which budgetary authority is requested beginning in fiscal year 2019.
    (3) Contracting officers shall make award decisions based on best 
value factors and criteria, as determined by the resource sponsor (in 
accordance with agency procedures), for an auditing contract. The use of 
the lowest price technically acceptable source selection process is 
prohibited (10 U.S.C. 254b).

[84 FR 50788, Sept. 26, 2019]



215.101-70  Best value when acquiring tents or other temporary 
structures.

    (a) In accordance with section 368 of the National Defense 
Authorization Act for Fiscal Year 2012 (Pub. L. 112-81), when acquiring 
tents or other temporary structures for use by the Armed Forces, the 
contracting officer shall award contracts that provide the best value. 
Temporary structures covered by this paragraph are nonpermanent 
buildings, including tactical shelters, nonpermanent modular or pre-
fabricated buildings, or portable or relocatable buildings, such as 
trailers or equipment configured for occupancy (see also 246.270-2). 
Determination of best value includes consideration of the total life-
cycle costs of such tents or structures, including the costs associated 
with any equipment, fuel, or electricity needed to heat, cool, or light 
such tents or structures (see FAR 7.105(a)(3)(i) and PGI 
207.105(a)(3)(i)).
    (b) The requirements of this section apply to any agency or 
department that acquires tents or other temporary structures on behalf 
of DoD (see FAR 17.503(d)(2)).

[78 FR 13545, Feb. 28, 2013]



   Subpart 215.2_Solicitation and Receipt of Proposals and Information



215.203-70  Requests for proposals--tiered evaluation of offers.

    (a) The tiered or cascading order of precedence used for tiered 
evaluation of offers shall be consistent with FAR part 19.
    (b) Consideration shall be given to the tiers of small businesses 
(e.g., 8(a), HUBZone small business, service-disabled veteran-owned 
small business, small business) before evaluating offers from other than 
small business concerns.

[[Page 100]]

    (c) The contracting officer is prohibited from issuing a 
solicitation with a tiered evaluation of offers unless--
    (1) The contracting officer conducts market research, in accordance 
with FAR Part 10 and Part 210, to determine--
    (i) Whether the criteria in FAR part 19 are met for setting aside 
the acquisition for small business; or
    (ii) For a task or delivery order, whether there are a sufficient 
number of qualified small business concerns available to justify 
limiting competition under the terms of the contract; and
    (2) If the contracting officer cannot determine whether the criteria 
in paragraph (c)(1) of this section are met, the contracting officer 
includes a written explanation in the contract file as to why such a 
determination could not be made (Section 816 of Public Law 109-163).

[71 FR 53043, Sept. 8, 2006, as amended at 72 FR 42314, Aug. 2, 2007]



215.209  Solicitation provisions and contract clauses.

    (a) For source selections when the procurement is $100 million or 
more, contracting officers should use the provision at FAR 52.215-1, 
Instructions to Offerors--Competitive Acquisition, with its Alternate I.

[76 FR 58152, Sept. 20, 2011]



215.270  Peer Reviews.

    Agency officials shall conduct Peer Reviews in accordance with 
201.170.

[74 FR 37626, July 29, 2009]



                     Subpart 215.3_Source Selection



215.300  Scope of subpart.

    Contracting officers shall follow the principles and procedures in 
Director, Defense Procurement and Acquisition Policy memorandum dated 
April 1, 2016, entitled ``Department of Defense Source Selection 
Procedures,'' when conducting negotiated, competitive acquisitions 
utilizing FAR part 15 procedures. See PGI 215.300.

[81 FR 28730, May 10, 2016]



215.303  Responsibilities.

    (b)(2) For high-dollar value and other acquisitions, as prescribed 
by agency procedures, the source selection authority shall approve a 
source selection plan before the solicitation is issued. Follow the 
procedures at PGI 215.303(b)(2) for preparation of the source selection 
plan.

[71 FR 3414, Jan. 23, 2006]



215.304  Evaluation factors and significant subfactors.

    (c)(i) In acquisitions that require use of the clause at FAR 52.219-
9, Small Business Subcontracting Plan, other than those based on the 
lowest price technically acceptable source selection process (see FAR 
15.101-2), the extent of participation of small businesses (to include 
service-disabled veteran-owned small business concerns, HUBZone small 
business concerns, small disadvantaged business concerns, and women-
owned small business concerns) in performance of the contract shall be 
addressed in source selection. The contracting officer shall evaluate 
the extent to which offerors identify and commit to small business 
performance of the contract, whether as a joint venture, teaming 
arrangement, or subcontractor.
    (A) See PGI 215.304(c)(i)(A) for examples of evaluation factors.
    (B) Proposals addressing the extent of small business performance 
shall be separate from subcontracting plans submitted pursuant to the 
clause at FAR 52.219-9 and shall be structured to allow for 
consideration of offers from small businesses.
    (C) When an evaluation assesses the extent that small businesses are 
specifically identified in proposals, the small businesses considered in 
the evaluation shall be listed in any subcontracting plan submitted 
pursuant to FAR 52.219-9 to facilitate compliance with 252.219-7003(e).
    (ii) In accordance with 10 U.S.C. 2436, consider the purchase of 
capital assets (including machine tools) manufactured in the United 
States, in source selections for all major defense acquisition programs 
as defined in 10 U.S.C. 2430.

[[Page 101]]

    (iii) See 247.573-2(c) for additional evaluation factors required in 
solicitations for the direct purchase of ocean transportation services.
    (iv) In accordance with section 812 of the National Defense 
Authorization Act for Fiscal Year 2011, consider the manufacturing 
readiness and manufacturing-readiness processes of potential contractors 
and subcontractors as a part of the source selection process for major 
defense acquisition programs.
    (v) 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. 
For additional guidance see PGI 215.304(c)(v).
    (vi) Ensure source selections emphasize sustainment factors and 
objective reliability and maintainability evaluation criteria in 
competitive contracts for the--
    (A) Technical maturation and risk reduction phase of weapon system 
design (see guidance at PGI 207.105(b)(14)(ii)(2));
    (B) Engineering and manufacturing development phase of a weapon 
system, including embedded software (10 U.S.C. 2443); or
    (C) Production and deployment phase of a weapon system, including 
embedded software (10 U.S.C. 2443).
    (vii) See 226.7202 for an additional evaluation factor required in 
solicitations when using the Demonstration Project for Contractors 
Employing Persons with Disabilities.

[71 FR 3414, Jan. 23, 2006, as amended at 71 FR 14109, Mar. 21, 2006; 72 
FR 49205, Aug. 28, 2007; 76 FR 38051, June 29, 2011; 78 FR 69270, Nov. 
18, 2013; 79 FR 61581, Oct. 14, 2014; 80 FR 67251, Oct. 30, 2015; 84 FR 
58333, Oct. 31, 2019; 84 FR 72560, Dec. 31, 2019]



215.305  Proposal evaluation.

    (a)(2)(A) Past performance evaluation. When a past performance 
evaluation is required by FAR 15.304, and the solicitation includes the 
clause at FAR 52.219-8, Utilization of Small Business Concerns, the 
evaluation factors shall include the past performance of offerors in 
complying with requirements of that clause. When a past performance 
evaluation is required by FAR 15.304, and the solicitation includes the 
clause at FAR 52.219-9, Small Business Subcontracting Plan, the 
evaluation factors shall include the past performance of offerors in 
complying with requirements of that clause.
    (B) Contracting officers shall consider an offeror's failure to make 
a good faith effort to comply with its comprehensive subcontracting plan 
under the Test Program described at 219.702-70 as part of the evaluation 
of the past performance.

[71 FR 3414, Jan. 23, 2006, as amended at 83 FR 15998, Apr. 13, 2018]



215.306  Exchanges with offerors after receipt of proposals.

    (c) Competitive range.
    (1) For acquisitions with an estimated value of $100 million or 
more, contracting officers should conduct discussions. Follow the 
procedures at FAR 15.306(c) and (d).

[76 FR 58152, Sept. 20, 2011]



215.370  Evaluation factor for employing or subcontracting with
members of the Selected Reserve.



215.370-1  Definition.

    Selected Reserve, as used in this section, is defined in the 
provision at 252.215-7005, Evaluation Factor for Employing or 
Subcontracting with Members of the Selected Reserve.

[73 FR 62211, Oct. 20, 2008]



215.370-2  Evaluation factor.

    In accordance with Section 819 of the National Defense Authorization 
Act for Fiscal Year 2006 (Pub. L. 109-163), the contracting officer may 
use an evaluation factor that considers whether an offeror intends to 
perform the contract using employees or individual subcontractors who 
are members of the Selected Reserve. See PGI 215.370-2 for guidance on 
use of this evaluation factor.

[73 FR 62211, Oct. 20, 2008]



215.370-3  Solicitation provision and contract clause.

    (a) Use the provision at 252.215-7005, Evaluation Factor for 
Employing or

[[Page 102]]

Subcontracting with Members of the Selected Reserve, in solicitations 
that include an evaluation factor considering whether an offeror intends 
to perform the contract using employees or individual subcontractors who 
are members of the Selected Reserve.
    (b) Use the clause at 252.215-7006, Use of Employees or Individual 
Subcontractors Who are Members of the Selected Reserve, in solicitations 
that include the provision at 252.215-7005. Include the clause in the 
resultant contract only if the contractor stated in its proposal that it 
intends to perform the contract using employees or individual 
subcontractors who are members of the Selected Reserve, and that 
statement was used as an evaluation factor in the award decision.

[73 FR 62211, Oct. 20, 2008]



215.371  Only one offer.



215.371-1  Policy.

    It is DoD policy, if only one offer is received in response to a 
competitive solicitation--
    (a) To take the required actions to promote competition (see 
215.371-2); and
    (b) To ensure that the price is fair and reasonable (see 215.371-3) 
and to comply with the statutory requirement for certified cost or 
pricing data (see FAR 15.403-4).

[77 FR 39138, June 29, 2012]



215.371-2  Promote competition.

    Except as provided in sections 215.371-4 and 215.371-5--
    (a) If only one offer is received when competitive procedures were 
used and the solicitation allowed fewer than 30 days for receipt of 
proposals, the contracting officer shall--
    (1) Consult with the requiring activity as to whether the 
requirements document should be revised in order to promote more 
competition (see FAR 6.502(b) and 11.002); and
    (2) Resolicit, allowing an additional period of at least 30 days for 
receipt of proposals; and
    (b) For competitive solicitations in which more than one potential 
offeror expressed an interest in an acquisition, but only one offer was 
ultimately received, follow the procedures at PGI 215.371-2.

[80 FR 21657, Apr. 20, 2015]



215.371-3  Fair and reasonable price and the requirement for 
additional cost or pricing data.

    For acquisitions that exceed the simplified acquisition threshold, 
if only one offer is received when competitive procedures were used and 
it is not necessary to resolicit in accordance with 215.371-2(a), then 
then the contracting officer shall comply with the following:
    (a) If no additional cost or pricing data are required to determine 
through cost or price analysis that the offered price is fair and 
reasonable, the contracting officer shall require that any cost or 
pricing data provided in the proposal be certified if the acquisition 
exceeds the certified cost or pricing data threshold and an exception to 
the requirement for certified cost or pricing data at FAR 15.403-1(b)(2) 
through (5) does not apply.
    (b) Otherwise, the contracting officer shall obtain additional cost 
or pricing data to determine a fair and reasonable price. If the 
acquisition exceeds the certified cost or pricing data threshold and an 
exception to the requirement for certified cost or pricing data at FAR 
15.403-1(b)(2) through (5) does not apply, the cost or pricing data 
shall be certified.
    (c) If the contracting officer is still unable to determine that the 
offered price is fair and reasonable, the contracting officer shall 
enter into negotiations with the offeror to establish a fair and 
reasonable price. The negotiated price should not exceed the offered 
price.
    (d) If the contracting officer is unable to negotiate a fair and 
reasonable price, see FAR 15.405(d).

[84 FR 30949, June 28, 2019]



215.371-4  Exceptions.

    (a) The requirements at section 215.371-2 do not apply to--
    (1) Acquisitions at or below the simplified acquisition threshold;
    (2) Acquisitions, as determined by the head of the contracting 
activity, in support of contingency or humanitarian or peacekeeping 
operations; to

[[Page 103]]

facilitate defense against or recovery from cyber, nuclear, biological, 
chemical, or radiological attack; to facilitate the provision of 
international disaster assistance; or to support response to an 
emergency or major disaster;
    (3) Small business set-asides under FAR subpart 19.5, set asides 
offered and accepted into the 8(a) Program under FAR subpart 19.8, or 
set-asides under the HUBZone Program (see FAR 19.1305(c)), the Service-
Disabled Veteran-Owned Small Business Procurement Program (see FAR 
19.1405(c)), or the Women-Owned Small Business Program (see FAR 
19.1505(d));
    (4) Acquisitions of science and technology, as specified in 
235.016(a); or
    (5) Acquisitions of architect-engineer services (see FAR 36.601-2).
    (b) The applicability of an exception in paragraph (a) of this 
section does not eliminate the need for the contracting officer to seek 
maximum practicable competition and to ensure that the price is fair and 
reasonable.

[78 FR 65216, Oct. 31, 2013, as amended at 83 FR 24889, May 30, 2018; 84 
FR 4365, Feb. 15, 2019]



215.371-5  Waiver.

    (a) The head of the contracting activity is authorized to waive the 
requirement at 215.371-2 to resolicit for an additional period of at 
least 30 days.
    (b) This waiver authority cannot be delegated below one level above 
the contracting officer.

[77 FR 39138, June 29, 2012]



215.371-6  Solicitation provision.

    Use the provision at 252.215-7007, Notice of Intent to Resolicit, in 
competitive solicitations, including solicitations using FAR part 12 
procedures for the acquisition of commercial items, that will be 
solicited for fewer than 30 days, unless an exception at 215.371-4 
applies or the requirement is waived in accordance with 215.371-5.

[78 FR 65216, Oct. 31, 2013]



                     Subpart 215.4_Contract Pricing



215.401  Definitions.

    As used in this subpart--
    Market prices means current prices that are established in the 
course of ordinary trade between buyers and sellers free to bargain and 
that can be substantiated through competition or from sources 
independent of the offerors.
    Relevant sales data means information provided by an offeror of 
sales of the same or similar items that can be used to establish price 
reasonableness taking into consideration the age, volume, and nature of 
the transactions (including any related discounts, refunds, rebates, 
offsets, or other adjustments).

[83 FR 4443, Jan. 31, 2018]



215.402  Pricing policy.

    (a)(i) Pursuant to section 831 of the National Defense Authorization 
Act for Fiscal Year 2013 (Pub. L. 112-239)--
    (A) The contracting officer is responsible for determining if the 
information provided by the offeror is sufficient to determine price 
reasonableness. This responsibility includes determining whether 
information on the prices at which the same or similar items have 
previously been sold is adequate for evaluating the reasonableness of 
price, and determining the extent of uncertified cost data that should 
be required in cases in which price information is not adequate;
    (B) The contracting officer shall not limit the Government's ability 
to obtain any data that may be necessary to support a determination of 
fair and reasonable pricing by agreeing to contract terms that preclude 
obtaining necessary supporting information; and
    (C) When obtaining uncertified cost data, the contracting officer 
shall require the offeror to provide the information in the form in 
which it is regularly maintained in the offeror's business operations.
    (ii) Follow the procedures at PGI 215.402 when conducting cost or 
price analysis, particularly with regard to acquisitions for sole source 
commercial items.

[72 FR 30278, May 31, 2007, as amended at 83 FR 4443, Jan. 31, 2018]

[[Page 104]]



215.403  Obtaining certified cost or pricing data.



215.403-1  Prohibition on obtaining certified cost or pricing data 
(10 U.S.C. 2306a and 41 U.S.C. chapter 35).

    (b) Exceptions to certified cost or pricing data requirements. (i) 
Follow the procedures at PGI 215.403-1(b).
    (ii) Submission of certified cost or pricing data shall not be 
required in the case of a contract, subcontract, or modification of a 
contract or subcontract to the extent such data relates to an indirect 
offset.
    (c) Standards for exceptions from certified cost or pricing data 
requirements--(1) Adequate price competition.
    (A) For acquisitions under dual or multiple source programs--
    (1) The determination of adequate price competition must be made on 
a case-by-case basis. Even when adequate price competition exists, in 
certain cases it may be appropriate to obtain additional data to assist 
in price analysis; and
    (2) Adequate price competition normally exists when--
    (i) Prices are solicited across a full range of step quantities, 
normally including a 0-100 percent split, from at least two offerors 
that are individually capable of producing the full quantity; and
    (ii) The reasonableness of all prices awarded is clearly established 
on the basis of price analysis (see FAR 15.404-1(b)).
    (B) If only one offer is received in response to a competitive 
solicitation, see 215.371-3.
    (3) Commercial items. (A) Follow the procedures at PGI 215.403-
1(c)(3) for pricing commercial items.
    (B) When applying the commercial item exception under FAR 15.403-
1(b)(3), see 212.102(a)(ii) regarding prior commercial item 
determinations.
    (4) Waivers. (A) The head of the contracting activity may, without 
power of delegation, apply the exceptional circumstances authority when 
a determination is made that--
    (1) The property or services cannot reasonably be obtained under the 
contract, subcontract, or modification, without the granting of the 
waiver;
    (2) The price can be determined to be fair and reasonable without 
the submission of certified cost or pricing data; and
    (3) There are demonstrated benefits to granting the waiver. Follow 
the procedures at PGI 215.403-1(c)(4)(A) for determining when an 
exceptional case waiver is appropriate, for approval of such waivers, 
for partial waivers, and for waivers applicable to unpriced supplies or 
services.
    (B) By November 30th of each year, departments and agencies shall 
provide a report to the Director, Defense Pricing and Contracting, 
Pricing and Contracting Initiatives (DPC/PCI), of all waivers granted 
under FAR 15.403-1(b)(4), during the previous fiscal year, for any 
contract, subcontract, or modification expected to have a value of $20 
million or more. See PGI 215.403-1(c)(4)(B) for the format and guidance 
for the report.
    (C) DoD has waived the requirement for submission of certified cost 
or pricing data for the Canadian Commercial Corporation and its 
subcontractors (but see 215.408(3) and 225.870-4(c)).
    (D) DoD has waived certified cost or pricing data requirements for 
nonprofit organizations (including education institutions) on cost-
reimbursement-no-fee contracts. The contracting officer shall require--
    (1) Submission of data other than certified cost or pricing data to 
the extent necessary to determine reasonableness and cost realism; and
    (2) Certified cost or pricing data from subcontractors that are not 
nonprofit organizations when the subcontractor's proposal exceeds the 
certified cost or pricing data threshold at FAR 15.403-4(a)(1).

[63 FR 55040, Oct. 14, 1998, as amended at 71 FR 69493, Dec. 1, 2006; 72 
FR 30278, May 31, 2007; 76 FR 58137, Sept. 20, 2011; 77 FR 39139, June 
29, 2012; 77 FR 43472, July 24, 2012; 77 FR 52253, Aug. 29, 2012; 77 FR 
76937, 76939, Dec. 31, 2012; 78 FR 13543, Feb. 28, 2013; 78 FR 65216, 
Oct. 31, 2013; 80 FR 36904, June 26, 2015; 83 FR 4444, Jan. 31, 2018; 83 
FR 30828, June 29, 2018; 85 FR 34532, June 5, 2020; 85 FR 61504, Sept. 
29, 2020]



215.403-3  Requiring data other than certified cost or pricing data.

    Follow the procedures at PGI 215.403-3.

[[Page 105]]

    (c) Commercial items. For determinations of price reasonableness of 
major weapon systems acquired as commercial items, see 234.7002(d).

[72 FR 30278, May 31, 2007, as amended at 77 FR 76940, Dec. 31, 2012; 85 
FR 34532, June 5, 2020]



215.403-5  Instructions for submission of certified cost or pricing
data and data other than certified cost or pricing data.

    (b)(3) For contractors following the contract cost principles in FAR 
subpart 31.2, Contracts With Commercial Organizations, pursuant to the 
procedures in FAR 42.1701(b), the administrative contracting officer 
shall require contractors to comply with the submission items in Table 
215.403-1 in order to ensure that their forward pricing rate proposal is 
submitted in an acceptable form in accordance with FAR 15.403-5(b)(3). 
The contracting officer should request that the proposal be submitted to 
the Government at least 90 days prior to the proposed effective date of 
the rates. To ensure the proposal is complete, the contracting officer 
shall request that the contractor complete the Contractor Forward 
Pricing Rate Proposal Adequacy Checklist at Table 215.403-1, and submit 
it with the forward pricing rate proposal.

   Table 215.403-1--Contractor Forward Pricing Rate Proposal Adequacy 
                                Checklist

    Complete the following checklist, providing the location of 
requested information, or an explanation of why the requested 
information is not provided, and submit it with the forward pricing rate 
proposal.

       Contractor Forward Pricing Rate Proposal Adequacy Checklist
------------------------------------------------------------------------
                                                        If not provided,
                                    Proposal page No.   explain (may use
         Submission item             (if applicable)      continuation
                                                             pages)
------------------------------------------------------------------------
                          General Instructions
------------------------------------------------------------------------
1. Is there a properly completed   Proposal Cover
 first page of the proposal as      Page.
 specified by the contracting
 officer?
    Initial proposal elements
     include:
    a. Name and address of
     contractor;
    b. Name and telephone number
     of point of contact;
    c. Period covered;
    d. The page of the proposal
     that addresses--
    1. Whether your organization
     is subject to cost
     accounting standards (CAS);
    2. Whether your organization
     has submitted a CAS
     Disclosure Statement, and
     whether it has been
     determined adequate;
    3. Whether you have been
     notified that you are or may
     be in noncompliance with
     your Disclosure Statement or
     CAS (other than a
     noncompliance that the
     cognizant Federal agency
     official had determined to
     have an immaterial cost
     impact), and if yes, an
     explanation;
    4. Whether any aspect of this
     proposal is inconsistent
     with your disclosed
     practices or applicable CAS,
     and, if so, an explanation;
     and whether the proposal is
     consistent with established
     estimating and accounting
     principles and procedures
     and FAR part 31, Cost
     Principles, and, if not, an
     explanation;
    e. The following statement:
     ``This forward pricing rate
     proposal reflects our
     estimates, as of the date of
     submission entered in (f)
     below and conforms with
     Table 215.403-1. By
     submitting this proposal, we
     grant the Contracting
     Officer and authorized
     representative(s) the right
     to examine those records,
     which include books,
     documents, accounting
     procedures and practices,
     and other data, regardless
     of type and form or whether
     such supporting information
     is specifically referenced
     or included in the proposal
     as the basis for each
     estimate, that will permit
     an adequate evaluation of
     the proposed rates and
     factors.'';
    f. Date of submission; and

[[Page 106]]

 
    g. Name, title, and signature
     of authorized
     representative.
2. Summary of proposed direct and  Immediately
 indirect rates and factors,        following the
 including the proposed pool and    proposal cover
 base costs for each proposed       page.
 indirect rate and factor.
3. Table of Contents or index.
    a. Does the proposal include
     a table of contents or index
     identifying and referencing
     all supporting data
     accompanying or identified
     in the proposal?
    b. For supporting
     documentation not provided
     with the proposal, does the
     basis of each estimate in
     the proposal include the
     location of the
     documentation and the point
     of contact (custodian) name,
     phone number, and email
     address? Does the proposal
     disclose known or
     anticipated changes in
     business activities or
     processes that could
     materially impact the
     proposed rates (if not
     previously provided)? For
     example--
4. a. Management initiatives to
 reduce costs;
    b. Changes in management
     objectives as a result of
     economic conditions and
     increased competitiveness;
    c. Changes in accounting
     policies, procedures, and
     practices including (i)
     reclassification of expenses
     from direct to indirect or
     vice versa; (ii) new methods
     of accumulating and
     allocating indirect costs
     and the related impact; and
     (iii) advance agreements;
    d. Company reorganizations
     (including acquisitions or
     divestitures);
    e. Shutdown of facilities; or
    f. Changes in business volume
     and/or contract mix/type.
5. Do proposed costs based on
 judgmental factors include an
 explanation of the estimating
 processes and methods used,
 including those used in
 projecting from known data?
6. Does the proposal show trends
 and budgetary data? Does the
 proposal provide an explanation
 of how the data, as well as any
 adjustments to the data, were
 used?
7. The proposal should reconcile
 to the supporting data
 referenced. If the proposal does
 not reconcile to the supporting
 data referenced, identify
 applicable page(s) and explain.
8. The proposal should be
 internally consistent. If the
 proposal is not internally
 consistent, identify applicable
 page(s) and explain.
------------------------------------------------------------------------
                              Direct Labor
------------------------------------------------------------------------
    Direct Labor Rates
     Methodology and Basis of
     Each Estimate
9. a. Does the proposal include
 an explanation of the
 methodology used to develop the
 direct labor rates and identify
 the basis of each estimate?
    b. Does the proposal include
     or identify the location of
     the supporting documents for
     the base-period labor rates
     (e.g., payroll records)?
10. Does the proposal identify
 escalation factors for the out-
 year labor rates, the costs to
 which escalation is applicable,
 and the basis of each factor
 used?
11. Does the proposal identify
 planned or anticipated changes
 in the composition of labor
 rates, labor categories, union
 agreements, headcounts, or other
 factors that could significantly
 impact the direct labor rates?
------------------------------------------------------------------------
              Indirect Rates (Fringe, Overhead, G&A, etc.)
------------------------------------------------------------------------
12. Indirect Rates Methodology
 and Basis of Each Estimate.
    a. Does the proposal identify
     the basis of each estimate
     and provide an explanation
     of the methodology used to
     develop the indirect rates?
    b. Does the proposal include
     or identify the location of
     the supporting documents for
     the proposed rates?
13. Does the proposal identify
 indirect expenses by burden
 center, by cost element, by year
 (including any voluntary
 deletions, if applicable) in a
 format that is consistent with
 the accounting system used to
 accumulate actual expenses?

[[Page 107]]

 
14. Does the proposal identify
 any contingencies?
15. Does the proposal identify
 planned or anticipated changes
 in the nature, type, or level of
 indirect costs, including fringe
 benefits?
16. Does the proposal identify
 corporate, home office, shared
 services, or other incoming
 allocated costs and the source
 for those costs, including
 location and point of contact
 (custodian) name, phone number,
 and email address?
17. Does the proposal separately
 identify all intermediate cost
 pools and provide a
 reconciliation to show where the
 costs will be allocated?
18. Does the proposal identify
 the escalation factors used to
 escalate indirect costs for the
 out-years, the costs to which
 escalation is applicable, and
 the basis of each factor used?
19. Does the proposal provide
 details of the development of
 the allocation base?
20. Does the proposal include or
 reference the supporting data
 for the allocation base such as
 program budgets, negotiation
 memoranda, proposals, contract
 values, etc.?
21. Does the proposal identify
 how the proposed allocation
 bases reconcile with its long
 range plans, strategic plan,
 operating budgets, sales
 forecasts, program budgets,
 etc.?
------------------------------------------------------------------------
                           Cost of Money (COM)
------------------------------------------------------------------------
22. Cost of Money.
    a. Are Cost of Money rates
     submitted on Form CASB-CMF,
     with the Treasury Rate used
     to compute COM identified
     and a summary of the net
     book value of assets,
     identified as distributed
     and non-distributed?
    b. Does the proposal identify
     the support for the Form
     CASB-CMF, for example, the
     underlying reports and
     records supporting the net
     book value of assets
     contained in the form?
------------------------------------------------------------------------
                                  Other
------------------------------------------------------------------------
23. Does the proposal include a
 comparison of prior forecasted
 costs to actual results in the
 same format as the proposal and
 an explanation/analysis of any
 differences?
24. If this is a revision to a
 previous rate proposal or a
 forward pricing rate agreement,
 does the new proposal provide a
 summary of the changes in the
 circumstances or the facts that
 the contractor asserts require
 the change to the rates?
------------------------------------------------------------------------


[79 FR 73496, Dec. 11, 2014]



215.404  Proposal analysis.



215.404-1  Proposal analysis techniques.

    (a) General. (i) Follow the procedures at PGI 215.404-1 for proposal 
analysis.
    (ii) For spare parts or support equipment, perform an analysis of--
    (A) Those line items where the proposed price exceeds by 25 percent 
or more the lowest price the Government has paid within the most recent 
12-month period based on reasonably available data;
    (B) Those line items where a comparison of the item description and 
the proposal price indicates a potential for overpricing;
    (C) Significant high-dollar-value items. If there are no obvious 
high-dollar-value items, include an analysis of a random sample of 
items; and
    (D) A random sample of the remaining low-dollar value items. Sample 
size may be determined by subjective judgment, e.g., experience with the 
offeror and the reliability of its estimating and accounting systems.
    (b) Price analysis for commercial and noncommercial items. (i) In 
the absence of adequate price competition in response to the 
solicitation, pricing

[[Page 108]]

based on market prices is the preferred method to establish a fair and 
reasonable price (see PGI 215.404-1(b)(i)).
    (ii) If the contracting officer determines that the information 
obtained through market research is insufficient to determine the 
reasonableness of price, the contracting officer shall consider 
information submitted by the offeror of recent purchase prices paid by 
the Government and commercial customers for the same or similar 
commercial items under comparable terms and conditions in establishing 
price reasonableness on a subsequent purchase if the contracting officer 
is satisfied that the prices previously paid remain a valid reference 
for comparison. The contracting officer shall consider the totality of 
other relevant factors such as the time elapsed since the prior purchase 
and any differences in the quantities purchased (section 853 of the 
National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-
92)).
    (iii) If the contracting officer determines that the offeror cannot 
provide sufficient information as described in paragraph (b)(ii) of this 
section to determine the reasonableness of price, the contracting 
officer should request the offeror to submit information on--
    (A) Prices paid for the same or similar items sold under different 
terms and conditions;
    (B) Prices paid for similar levels of work or effort on related 
products or services;
    (C) Prices paid for alternative solutions or approaches; and
    (D) Other relevant information that can serve as the basis for 
determining the reasonableness of price.
    (iv) If the contracting officer determines that the pricing 
information submitted is not sufficient to determine the reasonableness 
of price, the contracting officer shall request other relevant 
information, to include cost data. However, no cost data may be required 
in any case in which there are sufficient non-Government sales of the 
same item to establish reasonableness of price (section 831 of the 
National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-
239)).
    (v) When evaluating pricing data, the contracting officer shall 
consider materially differing terms and conditions, quantities, and 
market and economic factors. For similar items, the contracting officer 
shall also consider material differences between the similar item and 
the item being procured (see FAR 15.404-1(b)(2)(ii)(B) and PGI 215.404-
1(b)(v)). Material differences are those that could reasonably be 
expected to influence the contracting officer's determination of price 
reasonableness. The contracting officer shall consider the following 
factors when evaluating the relevance of the information available:
    (A) Market prices.
    (B) Age of data.
    (1) Whether data is too old to be relevant depends on the industry 
(e.g., rapidly evolving technologies), product maturity (e.g., stable), 
economic factors (e.g., new sellers in the marketplace), and various 
other considerations.
    (2) A pending sale may be relevant if, in the judgement of the 
contracting officer, it is probable at the anticipated price, and the 
sale could reasonably be expected to materially influence the 
contracting officer's determination of price reasonableness. The 
contracting officer may consult with the cognizant administrative 
contracting officers (ACOs) as they may have information about pending 
sales.
    (C) Volume and completeness of transaction data. Data must include a 
sufficient number of transactions to represent the range of relevant 
sales to all types of customers. The data must also include key 
information, such as date, quantity sold, part number, part 
nomenclature, sales price, and customer. If the number of transactions 
is insufficient or the data is incomplete, the contracting officer shall 
request additional sales data to evaluate price reasonableness. If the 
contractor cannot provide sufficient sales data, the contracting officer 
shall request other relevant information.
    (D) Nature of transactions. The nature of a sales transaction 
includes the information necessary to understand the transaction, such 
as terms and conditions, date, quantity sold, sale price, unique 
requirements, the type of customer (government, distributor, retail end-
user, etc.), and related agreements.

[[Page 109]]

It also includes warranties, key product technical specifications, 
maintenance agreements, and preferred customer rewards.
    (vi) The contracting officer shall consider catalog prices to be 
reliable when they are regularly maintained and supported by relevant 
sales data (including any related discounts, refunds, rebates, offsets, 
or other adjustments). The contracting officer may request that the 
offeror support differences between the proposed price(s), catalog 
price(s), and relevant sales data.
    (vii) The contracting officer may consult with the DoD cadre of 
experts who are available to provide expert advice to the acquisition 
workforce in assisting with commercial item and price reasonableness 
determinations. The DoD cadre of experts is identified at PGI 215.404-
1(b)(vii).
    (h) Review and justification of pass-through contracts. Follow the 
procedures at PGI 215.404-1(h)(2) when considering alternative 
approaches or making the determination that the contracting approach 
selected is in the best interest of the Government, as required by FAR 
15.404-1(h)(2).

[63 FR 55040, Oct. 14, 1998, as amended at 71 FR 69494, Dec. 1, 2006; 72 
FR 30278, May 31, 2007; 77 FR 76940, Dec. 31, 2012; 83 FR 4444, Jan. 31, 
2018; 84 FR 72563, Dec. 31, 2019]



215.404-2  Data to support proposal analysis.

    See PGI 215.404-2 for guidance on obtaining field pricing or audit 
assistance.

[71 FR 69494, Dec. 1, 2006]



215.404-3  Subcontract pricing considerations.

    Follow the procedures at PGI 215.404-3 when reviewing a 
subcontractor's proposal.

[71 FR 69494, Dec. 1, 2006]



215.404-4  Profit.

    (b) Policy. (1) Contracting officers shall use a structured approach 
for developing a prenegotiation profit or fee objective on any 
negotiated contract action when certified cost or pricing data is 
obtained, except for cost-plus-award-fee contracts (see 215.404-74, 
216.405-2, and FAR 16.405-2) or contracts with Federally Funded Research 
and Development Centers (FFRDCs) (see 215.404-75). There are three 
structured approaches--
    (A) The weighted guidelines method;
    (B) The modified weighted guidelines method; and
    (C) An alternate structured approach.
    (c) Contracting officer responsibilities. (1) Also, do not perform a 
profit analysis when assessing cost realism in competitive acquisitions.
    (2) When using a structured approach, the contracting officer--
    (A) Shall use the weighted guidelines method (see 215.404-71), 
except as provided in paragraphs (c)(2)(B) and (c)(2)(C) of this 
subsection.
    (B) Shall use the modified weighted guidelines method (see 215.404-
72) on contract actions with nonprofit organizations other than FFRDCs.
    (C) May use an alternate structured approach (see 215.404-73) when--
    (1) The contract action is--
    (i) At or below the certified cost or pricing data threshold (see 
FAR 15.403-4(a)(1));
    (ii) For architect-engineer or construction work;
    (iii) Primarily for delivery of material from subcontractors; or
    (iv) A termination settlement; or
    (2) The weighted guidelines method does not produce a reasonable 
overall profit objective and the head of the contracting activity 
approves use of the alternate approach in writing.
    (D) Shall use the weighted guidelines method to establish a basic 
profit rate under a formula-type pricing agreement, and may then use the 
basic rate on all actions under the agreement, provided that conditions 
affecting profit do not change.
    (E) Shall document the profit analysis in the contract file.
    (5) Although specific agreement on the applied weights or values for 
individual profit factors shall not be attempted, the contracting 
officer may encourage the contractor to--
    (A) Present the details of its proposed profit amounts in the 
weighted guidelines format or similar structured approached; and
    (B) Use the weighted guidelines method in developing profit 
objectives for negotiated subcontracts.

[[Page 110]]

    (6) The contracting officer must also verify that relevant variables 
have not materially changed (e.g., performance risk, interest rates, 
progress payment rates, distribution of facilities capital).
    (d) Profit-analysis factors--(1) Common factors. The common factors 
are embodied in the DoD structured approaches and need not be further 
considered by the contracting officer.

[63 FR 55040, Oct. 14, 1998, as amended at 63 FR 63799, Nov. 17, 1998; 
65 FR 77829, Dec. 13, 2000; 66 FR 49863, Oct. 1, 2001; 71 FR 69494, Dec. 
1, 2006; 77 FR 76940, Dec. 31, 2012]



215.404-70  DD Form 1547, Record of Weighted Guidelines Method Application.

    Follow the procedures at PGI 215.404-70 for use of DD Form 1547 
whenever a structured approach to profit analysis is required.

[71 FR 69494, Dec. 1, 2006]



215.404-71  Weighted guidelines method.



215.404-71-1  General.

    (a) The weighted guidelines method focuses on four profit factors--
    (1) Performance risk;
    (2) Contract type risk;
    (3) Facilities capital employed; and
    (4) Cost efficiency.
    (b) The contracting officer assigns values to each profit factor; 
the value multiplied by the base results in the profit objective for 
that factor. Except for the cost efficiency special factor, each profit 
factor has a normal value and a designated range of values. The normal 
value is representative of average conditions on the prospective 
contract when compared to all goods and services acquired by DoD. The 
designated range provides values based on above normal or below normal 
conditions. In the price negotiation documentation, the contracting 
officer need not explain assignment of the normal value, but should 
address conditions that justify assignment of other than the normal 
value. The cost efficiency special factor has no normal value. The 
contracting officer shall exercise sound business judgment in selecting 
a value when this special factor is used (see 215.404-71-5).

[67 FR 20689, Apr. 26, 2002]



215.404-71-2  Performance risk.

    (a) Description. This profit factor addresses the contractor's 
degree of risk in fulfilling the contract requirements. The factor 
consists of two parts:
    (1) Technical--the technical uncertainties of performance.
    (2) Management/cost control--the degree of management effort 
necessary--
    (i) To ensure that contract requirements are met; and
    (ii) To reduce and control costs.
    (b) Determination. The following extract from the DD Form 1547 is 
annotated to describe the process.

----------------------------------------------------------------------------------------------------------------
                                                     Assigned                                         Profit
       Item            Contractor risk factors       weighting    Assigned value  Base (item 20)     objective
----------------------------------------------------------------------------------------------------------------
21................  Technical...................             (1)             (2)             N/A             N/A
22................  Management/Cost Control.....             (1)             (2)             N/A             N/A
23................  Performance Risk (Composite)             N/A             (3)             (4)             (5)
----------------------------------------------------------------------------------------------------------------

    (1) Assign a weight (percentage) to each element according to its 
input to the total performance risk. The total of the two weights equals 
100 percent.
    (2) Select a value for each element from the list in paragraph (c) 
of this subsection using the evaluation criteria in paragraphs (d) and 
(e) of this subsection.
    (3) Compute the composite as shown in the following example:

------------------------------------------------------------------------
                                     Assigned     Assigned     Weighted
                                    weighting      value        value
                                    (percent)    (percent)    (percent)
------------------------------------------------------------------------
Technical........................           60          5.0          3.0
Management/Cost Control..........           40          4.0          1.6
Composite Value..................          100  ...........          4.6
------------------------------------------------------------------------


[[Page 111]]

    (4) Insert the amount from Block 20 of the DD Form 1547. Block 20 is 
total contract costs, excluding facilities capital cost of money.
    (5) Multiply (3) by (4).
    (c) Values: Normal and designated ranges.

------------------------------------------------------------------------
                                         Normal
                                         value        Designated range
                                       (percent)
------------------------------------------------------------------------
Standard............................            5  3% to 7%
Technology Incentive................            9  7% to 11%
------------------------------------------------------------------------

    (1) Standard. The standard designated range should apply to most 
contracts.
    (2) Technology incentive. For the technical factor only, contracting 
officers may use the technology incentive range for acquisitions that 
include development, production, or application of innovative new 
technologies. The technology incentive range does not apply to efforts 
restricted to studies, analyses, or demonstrations that have a technical 
report as their primary deliverable.
    (d) Evaluation criteria for technical. (1) Review the contract 
requirements and focus on the critical performance elements in the 
statement of work or specifications. Factors to consider include--
    (i) Technology being applied or developed by the contractor;
    (ii) Technical complexity;
    (iii) Program maturity;
    (iv) Performance specifications and tolerances;
    (v) Delivery schedule; and
    (vi) Extent of a warranty or guarantee.
    (2) Above normal conditions. (i) The contracting officer may assign 
a higher than normal value in those cases where there is a substantial 
technical risk. Indicators are--
    (A) Items are being manufactured using specifications with stringent 
tolerance limits;
    (B) The efforts require highly skilled personnel or require the use 
of state-of-the-art machinery;
    (C) The services and analytical efforts are extremely important to 
the Government and must be performed to exacting standards;
    (D) The contractor's independent development and investment has 
reduced the Government's risk or cost;
    (E) The contractor has accepted an accelerated delivery schedule to 
meet DoD requirements; or
    (F) The contractor has assumed additional risk through warranty 
provisions.
    (ii) Extremely complex, vital efforts to overcome difficult 
technical obstacles that require personnel with exceptional abilities, 
experience, and professional credentials may justify a value 
significantly above normal.
    (iii) The following may justify a maximum value--
    (A) Development or initial production of a new item, particularly if 
performance or quality specifications are tight; or
    (B) A high degree of development or production concurrency.
    (3) Below normal conditions. (i) The contracting officer may assign 
a lower than normal value in those cases where the technical risk is 
low. Indicators are--
    (A) Requirements are relatively simple;
    (B) Technology is not complex;
    (C) Efforts do not require highly skilled personnel;
    (D) Efforts are routine;
    (E) Programs are mature; or
    (F) Acquisition is a follow-on effort or a repetitive type 
acquisition.
    (ii) The contracting officer may assign a value significantly below 
normal for--
    (A) Routine services;
    (B) Production of simple items;
    (C) Rote entry or routine integration of Government-furnished 
information; or
    (D) Simple operations with Government-furnished property.
    (4) Technology incentive range. (i) The contracting officer may 
assign values within the technology incentive range when contract 
performance includes the introduction of new, significant technological 
innovation. Use the technology incentive range only for the most 
innovative contract efforts. Innovation may be in the form of--
    (A) Development or application of new technology that fundamentally 
changes the characteristics of an existing product or system and that 
results in increased technical performance,

[[Page 112]]

improved reliability, or reduced costs; or
    (B) New products or systems that contain significant technological 
advances over the products or systems they are replacing.
    (ii) When selecting a value within the technology incentive range, 
the contracting officer should consider the relative value of the 
proposed innovation to the acquisition as a whole. When the innovation 
represents a minor benefit, the contracting officer should consider 
using values less than the norm. For innovative efforts that will have a 
major positive impact on the product or program, the contracting officer 
may use values above the norm.
    (e) Evaluation criteria for management/cost control. (1) The 
contracting officer should evaluate--
    (i) The contractor's management and internal control systems using 
contracting office data, information and reviews made by field contract 
administration offices or other DoD field offices;
    (ii) The management involvement expected on the prospective contract 
action;
    (iii) The degree of cost mix as an indication of the types of 
resources applied and value added by the contractor;
    (iv) The contractor's support of Federal socioeconomic programs;
    (v) The expected reliability of the contractor's cost estimates 
(including the contractor's cost estimating system);
    (vi) The adequacy of the contractor's management approach to 
controlling cost and schedule; and
    (vii) Any other factors that affect the contractor's ability to meet 
the cost targets (e.g., foreign currency exchange rates and inflation 
rates).
    (2) Above normal conditions. (i) The contracting officer may assign 
a higher than normal value when there is a high degree of management 
effort. Indicators of this are--
    (A) The contractor's value added is both considerable and reasonably 
difficult;
    (B) The effort involves a high degree of integration or 
coordination;
    (C) The contractor has a good record of past performance;
    (D) The contractor has a substantial record of active participation 
in Federal socioeconomic programs;
    (E) The contractor provides fully documented and reliable cost 
estimates;
    (F) The contractor makes appropriate make-or-buy decisions; or
    (G) The contractor has a proven record of cost tracking and control.
    (ii) The contracting officer may justify a maximum value when the 
effort--
    (A) Requires large scale integration of the most complex nature;
    (B) Involves major international activities with significant 
management coordination (e.g., offsets with foreign vendors); or
    (C) Has critically important milestones.
    (iii) If the contractor demonstrates efficient management and cost 
control through the submittal of a timely, qualifying proposal (as 
defined in 217.7401) in furtherance of definitization of an 
undefinitized contract action, and the proposal demonstrates effective 
cost control from the time of award to the present, the contracting 
officer may add 1 percentage point to the value determined for 
management/cost control up to the maximum of 7 percent.
    (3) Below normal conditions. (i) The contracting officer may assign 
a lower than normal value when the management effort is minimal. 
Indicators of this are--
    (A) The program is mature and many end item deliveries have been 
made;
    (B) The contractor adds minimal value to an item;
    (C) The efforts are routine and require minimal supervision;
    (D) The contractor provides poor quality, untimely proposals;
    (E) The contractor fails to provide an adequate analysis of 
subcontractor costs;
    (F) The contractor does not cooperate in the evaluation and 
negotiation of the proposal;
    (G) The contractor's cost estimating system is marginal;
    (H) The contractor has made minimal effort to initiate cost 
reduction programs;
    (I) The contractor's cost proposal is inadequate;

[[Page 113]]

    (J) The contractor has a record of cost overruns or another 
indication of unreliable cost estimates and lack of cost control; or
    (K) The contractor has a poor record of past performance.
    (ii) The following may justify a value significantly below normal--
    (A) Reviews performed by the field contract administration offices 
disclose unsatisfactory management and internal control systems (e.g., 
quality assurance, property control, safety, security); or
    (B) The effort requires an unusually low degree of management 
involvement.

[67 FR 20689, Apr. 26, 2002, as amended at 67 FR 49254, July 30, 2002; 
78 FR 13543, Feb. 28, 2013; 83 FR 30586, June 29, 2018; 84 FR 39205, 
Aug. 9, 2019]



215.404-71-3  Contract type risk and working capital adjustment.

    (a) Description. The contract type risk factor focuses on the degree 
of cost risk accepted by the contractor under varying contract types. 
The working capital adjustment is an adjustment added to the profit 
objective for contract type risk. It only applies to fixed-price 
contracts that provide for progress payments. Though it uses a formula 
approach, it is not intended to be an exact calculation of the cost of 
working capital. Its purpose is to give general recognition to the 
contractor's cost of working capital under varying contract 
circumstances, financing policies, and the economic environment.
    (b) Determination. The following extract from the DD 1547 is 
annotated to explain the process.

----------------------------------------------------------------------------------------------------------------
                                                                                                      Profit
           Item                    Contractor risk factors        Assigned value       Base          objective
----------------------------------------------------------------------------------------------------------------
24a.......................  Contract Type Risk (based on                     (1)          (2)(i)             (3)
                             incurred costs at the time of
                             qualifying proposal submission).
24b.......................  Contract Type Risk (based on                     (1)         (2)(ii)             (3)
                             Government estimated cost to
                             complete).
                                                                 -----------------------------------------------
24c.......................     Totals...........................  ..............             (3)             (3)
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                                      Profit
       Item            Contractor risk factors    Costs financed   Length factor   Interest rate     objective
----------------------------------------------------------------------------------------------------------------
25................  Working Capital (4).........             (5)             (6)             (7)             (8)
----------------------------------------------------------------------------------------------------------------

    (1) Select a value from the list of contract types in paragraph (c) 
of this section using the evaluation criteria in paragraph (d) of this 
section. See paragraph (d)(2) of this section.
    (2)(i) Insert the amount of costs incurred as of the date the 
contractor submits a qualifying proposal, such as under an undefinitized 
contract action, (excluding facilities capital cost of money) into the 
Block 24a column titled Base.
    (ii) Insert the amount of Government estimated cost to complete 
(excluding facilities capital cost of money) into the Block 24b column 
titled Base.
    (3) Multiply (1) by (2)(i) and (2)(ii), respectively for Blocks 24a 
and 24b. Add Blocks 24a and 24b and insert the totals in Block 24c.
    (4) Only complete this block when the prospective contract is a 
fixed-price contract containing provisions for progress payments.
    (5) Insert the amount computed per paragraph (e) of this subsection.
    (6) Insert the appropriate figure from paragraph (f) of this 
subsection.
    (7) Use the interest rate established by the Secretary of the 
Treasury (see https://www.fiscal.treasury.gov/ fsservices/gov/pmt/ 
promptPayment/rates.htm). Do not use any other interest rate.
    (8) Multiply (5) by (6) by (7). This is the working capital 
adjustment. It shall not exceed 4 percent of the contract costs in Block 
20.
    (c) Values: Normal and designated ranges.

[[Page 114]]



----------------------------------------------------------------------------------------------------------------
                                                               Normal value
                Contract type                      Notes         (percent)        Designated range (percent)
----------------------------------------------------------------------------------------------------------------
Firm-fixed-price, no financing..............             (1)               5  4 to 6
Firm-fixed-price, with performance-based                 (6)               4  2.5 to 5.5
 payments.
Firm-fixed-price, with progress payments....             (2)               3  2 to 4
Fixed-price incentive, no financing.........             (1)               3  2 to 4
Fixed-price incentive, with performance-                 (6)               2  0.5 to 3.5
 based payments.
Fixed-price with redetermination provision..             (3)
Fixed-price incentive, with progress                     (2)               1  0 to 2
 payments.
Cost-plus-incentive-fee.....................             (4)               1  0 to 2
Cost-plus-fixed-fee.........................             (4)             0.5  0 to 1
Time-and-materials (including overhaul                   (5)             0.5  0 to 1
 contracts priced on time-and-materials
 basis).
Labor-hour..................................             (5)             0.5  0 to 1
Firm-fixed-price, level-of-effort...........             (5)             0.5  0 to 1
----------------------------------------------------------------------------------------------------------------

    (1) ``No financing'' means either that the contract does not provide 
progress payments or performance-based payments, or that the contract 
provides them only on a limited basis, such as financing of first 
articles. Do not compute a working capital adjustment.
    (2) When the contract contains provisions for progress payments, 
compute a working capital adjustment (Block 25).
    (3) For the purposes of assigning profit values, treat a fixed-price 
contract with redetermination provisions as if it were a fixed-price 
incentive contract with below normal conditions.
    (4) Cost-plus contracts shall not receive the working capital 
adjustment.
    (5) These types of contracts are considered cost-plus-fixed-fee 
contracts for the purposes of assigning profit values. They shall not 
receive the working capital adjustment in Block 25. However, they may 
receive higher than normal values within the designated range to the 
extent that portions of cost are fixed.
    (6) When the contract contains provisions for performance-based 
payments, do not compute a working capital adjustment.
    (d) Evaluation criteria--(1) General. The contracting officer should 
consider elements that affect contract type risk such as--
    (i) Length of contract;
    (ii) Adequacy of cost data for projections;
    (iii) Economic environment;
    (iv) Nature and extent of subcontracted activity;
    (v) Protection provided to the contractor under contract provisions 
(e.g., economic price adjustment clauses);
    (vi) The ceilings and share lines contained in incentive provisions;
    (vii) Risks associated with contracts for foreign military sales 
(FMS) that are not funded by U.S. appropriations; and
    (viii) When the contract contains provisions for performance-based 
payments--
    (A) The frequency of payments;
    (B) The total amount of payments compared to the maximum allowable 
amount specified at FAR 32.1004(b)(2); and
    (C) The risk of the payment schedule to the contractor.
    (2) Mandatory. (i) The contracting officer shall assess the extent 
to which costs have been incurred prior to definitization of the 
contract action (also see 217.7404-6(a) and 243.204-70-6). When costs 
have been incurred prior to definitization, generally regard the 
contract type risk to be in the low end of the designated range. If a 
substantial portion of the costs have been incurred prior to 
definitization, the contracting officer may assign a value as low as 
zero percent, regardless of contract type. However, if a contractor 
submits a qualifying proposal to definitize an undefinitized contract 
action and the contracting officer for such action definitizes the 
contract after the end of the 180-day period beginning on the date on 
which the contractor submitted the qualifying proposal (as defined in 
217.7401), the profit allowed on the contract shall accurately reflect 
the cost risk of the contractor as such risk existed on the date the 
contractor submitted the qualifying proposal.

[[Page 115]]

    (ii) Contracting officers shall document in the price negotiation 
memorandum the reason for assigning a specific contract type risk value, 
to include the extent to which any reduced cost risk during the 
undefinitized period of performance was considered, in determining the 
negotiation objective.
    (3) Above normal conditions. The contracting officer may assign a 
higher than normal value when there is substantial contract type risk. 
Indicators of this are--
    (i) Efforts where there is minimal cost history;
    (ii) Long-term contracts without provisions protecting the 
contractor, particularly when there is considerable economic 
uncertainty;
    (iii) Incentive provisions (e.g., cost and performance incentives) 
that place a high degree of risk on the contractor;
    (iv) FMS sales (other than those under DoD cooperative logistics 
support arrangements or those made from U.S. Government inventories or 
stocks) where the contractor can demonstrate that there are substantial 
risks above those normally present in DoD contracts for similar items; 
or
    (v) An aggressive performance-based payment schedule that increases 
risk.
    (4) Below normal conditions. The contracting officer may assign a 
lower than normal value when the contract type risk is low. Indicators 
of this are--
    (i) Very mature product line with extensive cost history;
    (ii) Relative short-term contracts;
    (iii) Contractual provisions that substantially reduce the 
contractor's risk;
    (iv) Incentive provisions that place a low degree of risk on the 
contractor;
    (v) Performance-based payments totaling the maximum allowable 
amount(s) specified at FAR 32.1004(b)(2); or
    (vi) A performance-based payment schedule that is routine with 
minimal risk.
    (e) Costs financed. (1) Costs financed equal total costs multiplied 
by the portion (percent) of costs financed by the contractor.
    (2) Total costs equal Block 20 (i.e., all allowable costs excluding 
facilities capital cost of money), reduced as appropriate when--
    (i) The contractor has little cash investment (e.g., subcontractor 
progress payments liquidated late in period of performance);
    (ii) Some costs are covered by special financing provisions, such as 
advance payments; or
    (iii) The contract is multiyear and there are special funding 
arrangements.
    (3) The portion that the contractor finances is generally the 
portion not covered by progress payments, i.e., 100 percent minus the 
customary progress payment rate (see FAR 32.501). For example, if a 
contractor receives progress payments at 80 percent, the portion that 
the contractor finances is 20 percent. On contracts that provide 
progress payments to small businesses, use the customary progress 
payment rate for large businesses.
    (f) Contract length factor. (1) This is the period of time that the 
contractor has a working capital investment in the contract. It--
    (i) Is based on the time necessary for the contractor to complete 
the substantive portion of the work;
    (ii) Is not necessarily the period of time between contract award 
and final delivery (or final payment), as periods of minimal effort 
should be excluded;
    (iii) Should not include periods of performance contained in option 
provisions; and
    (iv) Should not, for multiyear contracts, include periods of 
performance beyond that required to complete the initial program year's 
requirements.
    (2) The contracting officer--
    (i) Should use the following table to select the contract length 
factor;
    (ii) Should develop a weighted average contract length when the 
contract has multiple deliveries; and
    (iii) May use sampling techniques provided they produce a 
representative result.

                                  Table
------------------------------------------------------------------------
                                                             Contract
    Period to perform substantive portion (in months)      length factor
------------------------------------------------------------------------
21 or less..............................................             .40
22 to 27................................................             .65
28 to 33................................................             .90
34 to 39................................................            1.15
40 to 45................................................            1.40
46 to 51................................................            1.65
52 to 57................................................            1.90

[[Page 116]]

 
58 to 63................................................            2.15
64 to 69................................................            2.40
70 to 75................................................            2.65
76 or more..............................................            2.90
------------------------------------------------------------------------

    (3) Example: A prospective contract has a performance period of 40 
months with end items being delivered in the 34th, 36th, 38th, and 40th 
months of the contract. The average period is 37 months and the contract 
length factor is 1.15.

[63 FR 55040, Oct. 14, 1998, as amended at 64 FR 61032, Nov. 9, 1999; 66 
FR 63335, Dec. 6, 2001; 67 FR 20691, Apr. 26, 2002; 67 FR 49255, July 
30, 2002; 72 FR 14239, Mar. 27, 2007; 75 FR 48277, Aug. 10, 2010; 80 FR 
56929, Sept. 21, 2015; 83 FR 30586, June 29, 2018; 84 FR 39205, Aug. 9, 
2019; 86 FR 27278, May 20, 2021]



215.404-71-4  Facilities capital employed.

    (a) Description. This factor focuses on encouraging and rewarding 
capital investment in facilities that benefit DoD. It recognizes both 
the facilities capital that the contractor will employ in contract 
performance and the contractor's commitment to improving productivity.
    (b) Contract facilities capital estimates. The contracting officer 
shall estimate the facilities capital cost of money and capital employed 
using--
    (1) An analysis of the appropriate Forms CASB-CMF and cost of money 
factors (48 CFR 9904.414 and FAR 31.205-10); and
    (2) DD Form 1861, Contract Facilities Capital Cost of Money.
    (c) Use of DD Form 1861. See PGI 215.404-71-4(c) for obtaining field 
pricing support for preparing DD Form 1861.
    (1) Purpose. The DD Form 1861 provides a means of linking the Form 
CASB-CMF and DD Form 1547, Record of Weighted Guidelines Application. 
It--
    (i) Enables the contracting officer to differentiate profit 
objectives for various types of assets (land, buildings, equipment). The 
procedure is similar to applying overhead rates to appropriate overhead 
allocation bases to determine contract overhead costs.
    (ii) Is designed to record and compute the contract facilities 
capital cost of money and capital employed which is carried forward to 
DD Form 1547.
    (2) Completion instructions. Complete a DD Form 1861 only after 
evaluating the contractor's cost proposal, establishing cost of money 
factors, and establishing a prenegotiation objective on cost. Complete 
the form as follows:
    (i) List overhead pools and direct-charging service centers (if 
used) in the same structure as they appear on the contractor's cost 
proposal and Form CASB-CMF. The structure and allocation base units-of-
measure must be compatible on all three displays.
    (ii) Extract appropriate contract overhead allocation base data, by 
year, from the evaluated cost breakdown or prenegotiation cost objective 
and list against each overhead pool and direct-charging service center.
    (iii) Multiply each allocation base by its corresponding cost of 
money factor to get the facilities capital cost of money estimated to be 
incurred each year. The sum of these products represents the estimated 
contract facilities capital cost of money for the year's effort.
    (iv) Total contract facilities cost of money is the sum of the 
yearly amounts.
    (v) Since the facilities capital cost of money factors reflect the 
applicable cost of money rate in Column 1 of Form CASB-CMF, divide the 
contract cost of money by that same rate to determine the contract 
facilities capital employed.
    (d) Preaward facilities capital applications. To establish cost and 
price objectives, apply the facilities capital cost of money and capital 
employed as follows:
    (1) Cost of Money. (i) Cost Objective. Use the imputed facilities 
capital cost of money, with normal, booked costs, to establish a cost 
objective or the target cost when structuring an incentive type 
contract. Do not adjust target costs established at the outset even 
though actual cost of money rates become available during the period of 
contract performance.
    (ii) Profit Objective. When measuring the contractor's effort for 
the purpose of establishing a prenegotiation profit

[[Page 117]]

objective, restrict the cost base to normal, booked costs. Do not 
include cost of money as part of the cost base.
    (2) Facilities Capital Employed. Assess and weight the profit 
objective for risk associated with facilities capital employed in 
accordance with the profit guidelines at 215.404-71-4.
    (e) Determination. The following extract from the DD Form 1547 has 
been annotated to explain the process.

----------------------------------------------------------------------------------------------------------------
                                  Contractor facilities capital                       Amount          Profit
             Item                           employed              Assigned value     employed        objective
----------------------------------------------------------------------------------------------------------------
26............................  Land............................             N/A             (2)             N/A
27............................  Buildings.......................             N/A             (2)             N/A
28............................  Equipment.......................             (1)             (2)             (3)
----------------------------------------------------------------------------------------------------------------

    (1) Select a value from the list in paragraph (f) of this subsection 
using the evaluation criteria in paragraph (g) of this subsection.
    (2) Use the allocated facilities capital attributable to land, 
buildings, and equipment, as derived in DD Form 1861, Contract 
Facilities Capital Cost of Money.
    (i) In addition to the net book value of facilities capital 
employed, consider facilities capital that is part of a formal 
investment plan if the contractor submits reasonable evidence that--
    (A) Achievable benefits to DoD will result from the investment; and
    (B) The benefits of the investment are included in the forward 
pricing structure.
    (ii) If the value of intracompany transfers has been included in 
Block 20 at cost (i.e., excluding general and administrative (G&A) 
expenses and profit), add to the contractor's allocated facilities 
capital, the allocated facilities capital attributable to the buildings 
and equipment of those corporate divisions supplying the intracompany 
transfers. Do not make this addition if the value of intracompany 
transfers has been included in Block 20 at price (i.e., including G&A 
expenses and profit).
    (3) Multiply (1) by (2).
    (f) Values: Normal and designated ranges.

------------------------------------------------------------------------
                                         Normal
             Asset type                  value        Designated range
                                       (percent)
------------------------------------------------------------------------
Land................................            0  N/A
Buildings...........................            0  N/A
Equipment...........................         17.5  10 to 25
------------------------------------------------------------------------

    (g) Evaluation criteria. (1) In evaluating facilities capital 
employed, the contracting officer--
    (i) Should relate the usefulness of the facilities capital to the 
goods or services being acquired under the prospective contract;
    (ii) Should analyze the productivity improvements and other 
anticipated industrial base enhancing benefits resulting from the 
facilities capital investment, including--
    (A) The economic value of the facilities capital, such as physical 
age, undepreciated value, idleness, and expected contribution to future 
defense needs; and
    (B) The contractor's level of investment in defense related 
facilities as compared with the portion of the contractor's total 
business that is derived from DoD; and
    (iii) Should consider any contractual provisions that reduce the 
contractor's risk of investment recovery, such as termination protection 
clauses and capital investment indemnification.
    (2) Above normal conditions. (i) The contracting officer may assign 
a higher than normal value if the facilities capital investment has 
direct, identifiable, and exceptional benefits. Indicators are--
    (A) New investments in state-of-the-art technology that reduce 
acquisition cost or yield other tangible benefits such as improved 
product quality or accelerated deliveries; or
    (B) Investments in new equipment for research and development 
applications.
    (ii) The contracting officer may assign a value significantly above 
normal when there are direct and measurable benefits in efficiency and 
significantly reduced acquisition costs on the effort being priced. 
Maximum values apply only to those cases where the benefits

[[Page 118]]

of the facilities capital investment are substantially above normal.
    (3) Below normal conditions. (i) The contracting officer may assign 
a lower than normal value if the facilities capital investment has 
little benefit to DoD. Indicators are--
    (A) Allocations of capital apply predominantly to commercial item 
lines;
    (B) Investments are for such things as furniture and fixtures, home 
or group level administrative offices, corporate aircraft and hangars, 
gymnasiums; or
    (C) Facilities are old or extensively idle.
    (ii) The contracting officer may assign a value significantly below 
normal when a significant portion of defense manufacturing is done in an 
environment characterized by outdated, inefficient, and labor-intensive 
capital equipment.

[63 FR 55040, Oct. 14, 1998, as amended at 67 FR 20691, Apr. 26, 2002; 
67 FR 49255, July 30, 2002; 71 FR 69494, Dec. 1, 2006; 72 FR 14239, Mar. 
27, 2007; 73 FR 70906, Nov. 24, 2008]



215.404-71-5  Cost efficiency factor.

    (a) This special factor provides an incentive for contractors to 
reduce costs. To the extent that the contractor can demonstrate cost 
reduction efforts that benefit the pending contract, the contracting 
officer may increase the prenegotiation profit objective by an amount 
not to exceed 4 percent of total objective cost (Block 20 of the DD Form 
1547) to recognize these efforts (Block 29).
    (b) To determine if using this factor is appropriate, the 
contracting officer shall consider criteria, such as the following, to 
evaluate the benefit the contractor's cost reduction efforts will have 
on the pending contract:
    (1) The contractor's participation in Single Process Initiative 
improvements;
    (2) Actual cost reductions achieved on prior contracts;
    (3) Reduction or elimination of excess or idle facilities;
    (4) The contractor's cost reduction initiatives (e.g., competition 
advocacy programs, technical insertion programs, obsolete parts control 
programs, spare parts pricing reform, value engineering, outsourcing of 
functions such as information technology). Metrics developed by the 
contractor such as fully loaded labor hours (i.e., cost per labor hour, 
including all direct and indirect costs) or other productivity measures 
may provide the basis for assessing the effectiveness of the 
contractor's cost reduction initiatives over time;
    (5) The contractor's adoption of process improvements to reduce 
costs;
    (6) Subcontractor cost reduction efforts;
    (7) The contractor's effective incorporation of commercial items and 
processes; or
    (8) The contractor's investment in new facilities when such 
investments contribute to better asset utilization or improved 
productivity.
    (c) When selecting the percentage to use for this special factor, 
the contracting officer has maximum flexibility in determining the best 
way to evaluate the benefit the contractor's cost reduction efforts will 
have on the pending contract. However, the contracting officer shall 
consider the impact that quantity differences, learning, changes in 
scope, and economic factors such as inflation and deflation will have on 
cost reduction.

[67 FR 20692, Apr. 26, 2002, as amended at 67 FR 49255, July 30, 2002]



215.404-72  Modified weighted guidelines method for nonprofit 
organizations other than FFRDCs.

    (a) Definition. As used in this subpart, a nonprofit organization is 
a business entity--
    (1) That operates exclusively for charitable, scientific, or 
educational purposes;
    (2) Whose earnings do not benefit any private shareholder or 
individual;
    (3) Whose activities do not involve influencing legislation or 
political campaigning for any candidate for public office; and
    (4) That is exempted from Federal income taxation under section 501 
of the Internal Revenue Code.
    (b) For nonprofit organizations that are entities that have been 
identified by the Secretary of Defense or a Secretary of a Department as 
receiving sustaining support on a cost-plus-fixed-

[[Page 119]]

fee basis from a particular DoD department or agency, compute a fee 
objective for covered actions using the weighted guidelines method in 
215.404-71, with the following modifications:
    (1) Modifications to performance risk (Blocks 21-23 of the DD Form 
1547). (i) If the contracting officer assigns a value from the standard 
designated range (see 215.404-71-2(c)), reduce the fee objective by an 
amount equal to 1 percent of the costs in Block 20 of the DD Form 1547. 
Show the net (reduced) amount on the DD Form 1547.
    (ii) Do not assign a value from the technology incentive designated 
range.
    (2) Modifications to contract type risk (Block 24 of the DD Form 
1547). Use a designated range of -1 percent to 0 percent instead of the 
values in 215.404-71-3. There is no normal value.
    (c) For all other nonprofit organizations except FFRDCs, compute a 
fee objective for covered actions using the weighted guidelines method 
in 215.404-71, modified as described in paragraph (b)(1) of this 
subsection.

[63 FR 63799, Nov. 17, 1998, as amended at 65 FR 77831, Dec. 13, 2000; 
67 FR 20692, Apr. 26, 2002; 67 FR 49255, July 30, 2002]



215.404-73  Alternate structured approaches.

    (a) The contracting officer may use an alternate structured approach 
under 215.404-4(c).
    (b) The contracting officer may design the structure of the 
alternate, but it shall include--
    (1) Consideration of the three basic components of profit--
performance risk, contract type risk (including working capital), and 
facilities capital employed. However, the contracting officer is not 
required to complete Blocks 21 through 30 of the DD Form 1547.
    (2) Offset for facilities capital cost of money.
    (i) The contracting officer shall reduce the overall prenegotiation 
profit objective by the amount of facilities capital cost of money under 
Cost Accounting Standard (CAS) 414, Cost of Money as an Element of the 
Cost of Facilities Capital (48 CFR 9904.414). Cost of money under CAS 
417, Cost of Money as an Element of the Cost of Capital Assets Under 
Construction (48 CFR 9904.417), should not be used to reduce the overall 
prenegotiation profit objective. The profit amount in the negotiation 
summary of the DD Form 1547 must be net of the offset.
    (ii) This adjustment is needed for the following reason: The values 
of the profit factors used in the weighted guidelines method were 
adjusted to recognize the shift in facilities capital cost of money from 
an element of profit to an element of contract cost (see FAR 31.205-10) 
and reductions were made directly to the profit factors for performance 
risk. In order to ensure that this policy is applied to all DoD 
contracts that allow facilities capital cost of money, similar 
adjustments shall be made to contracts that use alternate structured 
approaches.

[63 FR 55040, Oct. 14, 1998, as amended at 67 FR 20692, Apr. 26, 2002; 
71 FR 69494, Dec. 1, 2006]



215.404-74  Fee requirements for cost-plus-award-fee contracts.

    In developing a fee objective for cost-plus-award-fee contracts, the 
contracting officer shall--
    (a) Follow the guidance in FAR 16.405-2 and 216.405-2;
    (b) Not use the weighted guidelines method or alternate structured 
approach;
    (c) Apply the offset policy in 215.404-73(b)(2) for facilities 
capital cost of money, i.e., reduce the base fee by the amount of 
facilities capital cost of money; and
    (d) Not complete a DD Form 1547.

[63 FR 55040, Oct. 14, 1998, as amended at 67 FR 20692, Apr. 26, 2002]



215.404-75  Fee requirements for FFRDCs.

    For nonprofit organizations that are FFRDCs, the contracting 
officer--
    (a) Should consider whether any fee is appropriate. Considerations 
shall include the FFRDC's--
    (1) Proportion of retained earnings (as established under generally 
accepted accounting methods) that relates to DoD contracted effort;
    (2) Facilities capital acquisition plans;
    (3) Working capital funding as assessed on operating cycle cash 
needs; and

[[Page 120]]

    (4) Provision for funding unreimbursed costs deemed ordinary and 
necessary to the FFRDC.
    (b) Shall, when a fee is considered appropriate, establish the fee 
objective in accordance with FFRDC fee policies in the DoD FFRDC 
Management Plan.
    (c) Shall not use the weighted guidelines method or an alternate 
structured approach.

[63 FR 63800, Nov. 17, 1998]



215.406-1  Prenegotiation objectives.

    Follow the procedures at PGI 215.406-1 for establishing 
prenegotiation objectives.

[71 FR 69494, Dec. 1, 2006]



215.406-2  Certificate of Current Cost or Pricing Data.

    See PGI 215.406-2 for additional information and guidance on 
Certificates of Current Cost or Pricing Data.

[84 FR 25194, May 31, 2019]



215.406-3  Documenting the negotiation.

    Follow the procedures at PGI 215.406-3 for documenting the 
negotiation and uploading sole source business clearance documentation 
into the Contract Business Analysis Repository.

[78 FR 21850, Apr. 12, 2013]



215.407  Special cost or pricing areas.



215.407-1  Defective certified cost or pricing data.

    (c)(i) When a contractor voluntarily discloses defective pricing 
after contract award, the contracting officer shall discuss the 
disclosure with the Defense Contract Audit Agency (DCAA). This 
discussion will assist in the contracting officer determining the 
involvement of DCAA, which could be a limited-scope audit (e.g., limited 
to the affected cost elements of the defective pricing disclosure), a 
full-scope audit, or technical assistance as appropriate for the 
circumstances (e.g., nature or dollar amount of the defective pricing 
disclosure). At a minimum, the contracting officer shall discuss with 
DCAA the following:
    (A) Completeness of the contractor's voluntary disclosure on the 
affected contract.
    (B) Accuracy of the contractor's cost impact calculation for the 
affected contract.
    (C) Potential impact on existing contracts, task or deliver orders, 
or other proposals the contractor has submitted to the Government.
    (ii) Voluntary disclosure of defective pricing is not a voluntary 
refund as defined in 242.7100 and does not waive the Government 
entitlement to the recovery of any overpayment plus interest on the 
overpayments in accordance with FAR 15.407-1(b)(7).
    (iii) Voluntary disclosure of defective pricing does not waive the 
Government's rights to pursue defective pricing claims on the affected 
contract or any other Government contract.

[83 FR 19647, May 4, 2018]



215.407-2  Make-or-buy programs.

    (a) General. See PGI 215.407-2 for guidance on factors to consider 
when deciding whether to request a make-or-buy plan and for factors to 
consider when evaluating make-or-buy plan submissions.
    (e) Program requirements--(1) Items and work included. The minimum 
dollar amount is $1.5 million.

[63 FR 55040, Oct. 14, 1998, as amended at 75 FR 45073, Aug. 2, 2010; 76 
FR 76319, Dec. 7, 2011]



215.407-3  Forward pricing rate agreements.

    (b)(i) Use forward pricing rate agreement (FPRA) rates when such 
rates are available, unless waived on a case-by-case basis by the head 
of the contracting activity.
    (ii) Advise the ACO of each case waived.
    (iii) Contact the ACO for questions on FPRAs or recommended rates.



215.407-4  Should-cost review.

    (a) General. See PGI 215.407-4 for guidance on determining whether 
to perform a program or overhead should-cost review.
    (b) Program should-cost review. Major weapon system should-cost 
program reviews shall be conducted in a manner that is transparent, 
objective, and provides for the efficiency of the DoD systems 
acquisition process (section 837 of

[[Page 121]]

the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 
115-91)).
    (i) Major weapon system should-cost reviews may include the 
following features:
    (A) A thorough review of each contributing element of the program 
cost and the justification for each cost.
    (B) An analysis of non-value added overhead and unnecessary 
reporting requirements.
    (C) Benchmarking against similar DoD programs, similar commercial 
programs (where appropriate), and other programs by the same contractor 
at the same facility.
    (D) An analysis of supply chain management to encourage competition 
and incentive cost performance at lower tiers.
    (E) A review of how to restructure the program (Government and 
contractor) team in a streamlined manner, if necessary.
    (F) Identification of opportunities to break out Government-
furnished equipment versus prime contractor-furnished materials.
    (G) Identification of items or services contracted through third 
parties that result in unnecessary pass-through costs.
    (H) Evaluation of ability to use integrated developmental and 
operational testing and modeling and simulation to reduce overall costs.
    (I) Identification of alternative technology and materials to reduce 
developmental or lifecycle costs for a program.
    (J) Identification and prioritization of cost savings opportunities.
    (K) Establishment of measurable targets and ongoing tracking 
systems.
    (ii) The should-cost review shall provide for sufficient analysis 
while minimizing the impact on program schedule by engaging stakeholders 
early, relying on information already available before requesting 
additional data, and establishing a team with the relevant expertise 
early.
    (iii) The should-cost review team shall be comprised of members, 
including third-party experts if necessary, with the training, skills, 
and experience in analysis of cost elements, production or sustainment 
processes, and technologies relevant to the program under review. The 
review team may include members from the Defense Contract Management 
Agency, the department or agency's cost analysis center, and appropriate 
functional organizations, as necessary.
    (iv) The should-cost review team shall establish a process for 
communicating and collaborating with the contractor throughout the 
should-cost review, including notification to the contractor regarding 
which elements of the contractor's operations will be reviewed and what 
information will be necessary to perform the review, as soon as 
practicable, both prior to and during the review.
    (v) The should-cost review team report shall ensure, to the maximum 
extent practicable, review of current, accurate, and complete data, and 
shall identify cost savings opportunities associated with specific 
engineering or business changes that can be quantified and tracked.

[71 FR 69495, Dec. 1, 2006, as amended at 84 FR 65309, Nov. 27, 2019]



215.407-5  Estimating systems.



215.407-5-70  Disclosure, maintenance, and review requirements.

    (a) Definitions. (1) Acceptable estimating system is defined in the 
clause at 252.215-7002, Cost Estimating System Requirements.
    (2) Contractor means a business unit as defined in FAR 2.101.
    (3) Estimating system is as defined in the clause at 252.215-7002, 
Cost Estimating System Requirements.
    (4) Significant deficiency is defined in the clause at 252.215-7002, 
Cost Estimating System Requirements.
    (b) Applicability. (1) DoD policy is that all contractors have 
acceptable estimating systems that consistently produce well-supported 
proposals that are acceptable as a basis for negotiation of fair and 
reasonable prices.
    (2) A large business contractor is subject to estimating system 
disclosure, maintenance, and review requirements if--

[[Page 122]]

    (i) In its preceding fiscal year, the contractor received DoD prime 
contracts or subcontracts totaling $50 million or more for which 
certified cost or pricing data were required; or
    (ii) In its preceding fiscal year, the contractor received DoD prime 
contracts or subcontracts totaling $10 million or more (but less than 
$50 million) for which certified cost or pricing data were required and 
the contracting officer, with concurrence or at the request of the ACO, 
determines it to be in the best interest of the Government (e.g., 
significant estimating problems are believed to exist or the 
contractor's sales are predominantly Government).
    (c) Policy. (1) The contracting officer shall--
    (i) Through use of the clause at 252.215-7002, Cost Estimating 
System Requirements, apply the disclosure, maintenance, and review 
requirements to large business contractors meeting the criteria in 
paragraph (b)(2)(i) of this section;
    (ii) Consider whether to apply the disclosure, maintenance, and 
review requirements to large business contractors under paragraph 
(b)(2)(ii) of this section; and
    (iii) Not apply the disclosure, maintenance, and review requirements 
to other than large business contractors.
    (2) The cognizant contracting officer, in consultation with the 
auditor, for contractors subject to paragraph (b)(2) of this section, 
shall--
    (i) Determine the acceptability of the disclosure and approve or 
disapprove the system: and
    (ii) Pursue correction of any deficiencies.
    (3) The auditor conducts estimating system reviews.
    (4) An acceptable system shall provide for the use of appropriate 
source data, utilize sound estimating techniques and good judgment, 
maintain a consistent approach, and adhere to established policies and 
procedures.
    (5) In evaluating the acceptability of a contractor's estimating 
system, the contracting officer, in consultation with the auditor, shall 
determine whether the contractor's estimating system complies with the 
system criteria for an acceptable estimating system as prescribed in the 
clause at 252.215-7002, Cost Estimating System Requirements.
    (d) Disposition of findings--(1) Reporting of findings. The auditor 
shall document findings and recommendations in a report to the 
contracting officer. If the auditor identifies any significant 
estimating system deficiencies, the report shall describe the 
deficiencies in sufficient detail to allow the contracting officer to 
understand the deficiencies.
    (2) Initial determination. (i) The contracting officer shall review 
all findings and recommendations and, if there are no significant 
deficiencies, shall promptly notify the contractor, in writing, that the 
contractor's estimating system is acceptable and approved; or
    (ii) If the contracting officer finds that there are one or more 
significant deficiencies (as defined in the clause at 252.215-7002, Cost 
Estimating System Requirements) due to the contractor's failure to meet 
one or more of the estimating system criteria in the clause at 252.215-
7002, the contracting officer shall--
    (A) Promptly make an initial written determination on any 
significant deficiencies and notify the contractor, in writing, 
providing a description of each significant deficiency in sufficient 
detail to allow the contractor to understand the deficiency;
    (B) Request the contractor to respond in writing to the initial 
determination within 30 days; and
    (C) Promptly evaluate the contractor's responses to the initial 
determination, in consultation with the auditor or functional 
specialist, and make a final determination.
    (3) Final determination. (i) The contracting officer shall make a 
final determination and notify the contractor in writing that--
    (A) The contractor's estimating system is acceptable and approved, 
and no significant deficiencies remain, or
    (B) Significant deficiencies remain. The notice shall identify any 
remaining significant deficiencies, and indicate the adequacy of any 
proposed or completed corrective action. The contracting officer shall--

[[Page 123]]

    (1) Request that the contractor, within 45 days of receipt of the 
final determination, either correct the deficiencies or submit an 
acceptable corrective action plan showing milestones and actions to 
eliminate the deficiencies;
    (2) Disapprove the system in accordance with the clause at 252.215-
7002, Cost Estimating System Requirements; and
    (3) Withhold payments in accordance with the clause at 252.242-7005, 
Contractor Business Systems, if the clause is included in the contract.
    (ii) Follow the procedures relating to monitoring a contractor's 
corrective action and the correction of significant deficiencies in PGI 
215.407-5-70(e).
    (e) System approval. The contracting officer shall promptly approve 
a previously disapproved estimating system and notify the contractor 
when the contracting officer determines that there are no remaining 
significant deficiencies.
    (f) Contracting officer notifications. The cognizant contracting 
officer shall promptly distribute copies of a determination to approve a 
system, disapprove a system and withhold payments, or approve a 
previously disapproved system and release withheld payments, to the 
auditor; payment office; affected contracting officers at the buying 
activities; and cognizant contracting officers in contract 
administration activities.

[63 FR 55040, Oct. 14, 1998, as amended at 67 FR 49252, July 30, 2002; 
71 FR 69495, Dec. 1, 2006; 76 FR 28866, May 18, 2011; 77 FR 11365, Feb. 
24, 2012; 77 FR 76940, Dec. 31, 2012]



215.408  Solicitation provisions and contract clauses.

    (1) Use the clause at 252.215-7002, Cost Estimating System 
requirements, in all solicitations and contracts to be awarded on the 
basis of certified cost or pricing data.
    (2) When contracting with the Canadian Commercial Corporation--
    (i)(A) Use the provision at 252.215-7003, Requirement for Submission 
of Data Other Than Certified Cost or Pricing Data--Canadian Commercial 
Corporation--
    (1) In lieu of DFARS 252.215-7010, Requirements for Certified Cost 
or Pricing Data and Data Other Than Certified Cost or Pricing Data, in a 
solicitation, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items, for a sole source acquisition from 
the Canadian Commercial Corporation that is--
    (i) Cost-reimbursement, if the contract value is expected to exceed 
$700,000; or
    (ii) Fixed-price, if the contract value is expected to exceed $500 
million; or
    (2) In lieu of DFARS 252.215-7010, in a solicitation, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, for a sole source acquisition from the Canadian 
Commercial Corporation that does not meet the thresholds specified in 
paragraph (2)(i)(A)(1) of this section, if approval is obtained as 
required at 225.870-4(c)(2)(ii); and
    (B) Do not use 252.225-7003 in lieu of DFARS 252.215-7010 in 
competitive acquisitions; and
    (ii)(A) Use the clause at 252.215-7004, Requirement for Submission 
of Data Other Than Certified Cost or Pricing Data--Modifications--
Canadian Commercial Corporation--
    (1) In a solicitation, including solicitations using FAR part 12 
procedures for the acquisition of commercial items, for a sole source 
acquisition, from the Canadian Commercial Corporation and resultant 
contract that is--
    (i) Cost-reimbursement, if the contract value is expected to exceed 
$700,000; or
    (ii) Fixed-price, if the contract value is expected to exceed $500 
million;
    (2) In a solicitation, including solicitations using FAR part 12 
procedures for the acquisition of commercial items, for a sole source 
acquisition from the Canadian Commercial Corporation and resultant 
contract that does not meet the thresholds specified in paragraph 
(2)(ii)(A)(1) of this section, if approval is obtained as required at 
225.870-4(c)(2)(ii); or
    (3)(i) In a solicitation, including solicitations using FAR part 12 
procedures for the acquisition of commercial items, for a competitive 
acquisition that includes FAR 52.215-21, Requirement for Data Other Than 
Certified Cost or Pricing Data--Modifications, or

[[Page 124]]

that meets the thresholds specified in paragraph (2)(ii)(A)(1) of this 
section.
    (ii) The contracting officer shall then select the appropriate 
clause to include in the contract (52.215-21 only if award is not to the 
Canadian Commercial Corporation; or 252.215-7004 if award is to the 
Canadian Commercial Corporation and necessary approval is obtained in 
accordance with 225.870-4(c)(2)(ii)); and
    (B) The contracting officer may specify a higher threshold in 
paragraph (b) of the clause 252.215-7004.
    (3) Use the provision at 252.215-7008, Only One Offer, in 
competitive solicitations that exceed the simplified acquisition 
threshold, including solicitations using FAR part 12 procedures for the 
acquisition of commercial items.
    (4) When the solicitation requires the submission of certified cost 
or pricing data, the contracting officer should include 252.215-7009, 
Proposal Adequacy Checklist, in the solicitation to facilitate 
submission of a thorough, accurate, and complete proposal.
    (5) When reasonably certain that the submission of certified cost or 
pricing data or data other than certified cost or pricing data will be 
required or when using the provision at 252.215-7008--
    (i) Use the basic or alternate of the provision at 252.215-7010, 
Requirements for Certified Cost or Pricing Data and Data Other Than 
Certified Cost or Pricing Data, in lieu of the provision at FAR 52.215-
20, Requirements for Certified Cost or Pricing Data and Data Other Than 
Certified Cost or Pricing Data, in solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items.
    (A) Use the basic provision when submission of certified cost or 
pricing data is required to be in the FAR Table 15-2 format, or if it is 
anticipated, at the time of solicitation, that the submission of 
certified cost or pricing data may not be required.
    (B) Use the alternate I provision to specify a format for certified 
cost or pricing data other than the format required by FAR Table 15-2;
    (ii) Use the provision at 252.215-7011, Requirements for Submission 
of Proposals to the Administrative Contracting Officer and Contract 
Auditor, when using the basic or alternate of the provision at 252.215-
7010 and copies of the proposal are to be sent to the ACO and contract 
auditor; and
    (iii) Use the provision at 252.215-7012, Requirements for Submission 
of Proposals via Electronic Media, when using the basic or alternate of 
the provision at 252.215-7010 and submission via electronic media is 
required.
    (6) Use the provision at 252.215-7013, Supplies and Services 
Provided by Nontraditional Defense Contractors, in all solicitations.
    (7) Use the clause at 252.215-7014, Exception from Certified Cost or 
Pricing Data Requirements for Foreign Military Sales Indirect Offsets, 
in solicitations and contracts that contain the provision at 252.215-
7010, Requirements for Certified Cost or Pricing Data and Data Other 
Than Certified Cost or Pricing Data, when it is reasonably certain 
that--
    (i) The contract is expected to include costs associated with an 
indirect offset; and
    (ii) The submission of certified cost or pricing data or data other 
than certified cost or pricing data will be required.
    (8) Use the clause at 252.215-7015, Program Should-Cost Review, in 
all solicitations and contracts for the development or production of a 
major weapon system, as defined in 234.7001.

[63 FR 55040, Oct. 14, 1998, as amended at 72 FR 20760, Apr. 26, 2007; 
73 FR 27472, May 13, 2008; 75 FR 48279, Aug. 10, 2010; 77 FR 39139, June 
29, 2012; 77 FR 43472, July 24, 2012; 77 FR 76940, Dec. 31, 2012; 78 FR 
13543, Feb. 28, 2013; 78 FR 18872, Mar. 28, 2013; 78 FR 37986, June 25, 
2013; 78 FR 65216, Oct. 31, 2013; 81 FR 28730, May 10, 2016; 81 FR 
36473, June 7, 2016; 83 FR 4444, Jan. 31, 2018; 83 FR 30825, 30828, June 
29, 2018; 84 FR 30949, June 28, 2019; 84 FR 65309, Nov. 27, 2019]



215.470  Estimated data prices.

    (a) DoD requires estimates of the prices of data in order to 
evaluate the cost to the Government of data items in terms of their 
management, product, or engineering value.
    (b) When data are required to be delivered under a contract, include 
DD Form 1423, Contract Data Requirements List, in the solicitation. See 
PGI 215.470(b) for guidance on the use of DD Form 1423.

[[Page 125]]

    (c) The contracting officer shall ensure that the contract does not 
include a requirement for data that the contractor has delivered or is 
obligated to deliver to the government under another contract or 
subcontract, and that the successful offeror identifies any such data 
required by the solicitation. However, where duplicate data are desired, 
the contract price shall include the costs of duplication, but not of 
preparation, of such data.

[63 FR 55040, Oct. 14, 1998, as amended at 71 FR 69495, Dec. 1, 2006]



 Subpart 215.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes

    Source: 78 FR 69270, Nov. 18, 2013, unless otherwise noted.



215.503  Notifications to unsuccessful offerors.

    If the Government exercises the authority provided in 239.7305(d), 
the notifications to unsuccessful offerors, either preaward or 
postaward, shall not reveal any information that is determined to be 
withheld from disclosure in accordance with 10 U.S.C. 2339a (see subpart 
239.73).

[78 FR 69270, Nov. 18, 2013, as amended at 84 FR 4369, Feb. 15, 2019]



215.506  Postaward debriefing of offerors.

    (e) If the Government exercises the authority provided in 
239.7305(d), the debriefing shall not reveal any information that is 
determined to be withheld from disclosure in accordance with 10 U.S.C. 
2339a (see subpart 239.73).

[78 FR 69270, Nov. 18, 2013, as amended at 84 FR 4369, Feb. 15, 2019]



PART 216_TYPES OF CONTRACTS--Table of Contents



                 Subpart 216.1_Selecting Contract Types

Sec.
216.102 Policies.
216.104 Factors in selecting contract type.
216.104-70 Research and development.

                   Subpart 216.2_Fixed-Price Contracts

216.203 Fixed-price contracts with economic price adjustment.
216.203-4 Contract clauses.
216.203-4-70 Additional provisions and clauses.

               Subpart 216.3_Cost-Reimbursement Contracts

216.301-3 Limitations.
216.306 Cost-plus-fixed-fee contracts.
216.307 Contract clauses.

                    Subpart 216.4_Incentive Contracts

216.401 General.
216.401-71 Objective criteria.
216.402 Application of predetermined, formula-type incentives.
216.402-2 Technical performance incentives.
216.403 Fixed-price incentive contracts.
216.403-1 Fixed-price incentive (firm target) contracts.
216.403-2 Fixed-price incentive (successive targets) contracts.
216.405 Cost-reimbursement incentive contracts.
216.405-1 Cost-plus-incentive-fee contracts.
216.405-2 Cost-plus-award-fee contracts.
216.405-2-70 Award fee reduction or denial for jeopardizing the health 
          or safety of Government personnel.
216.405-2-71 Award fee reduction or denial for failure to comply with 
          requirements relating to performance of private security 
          functions.
216.406 Contract clauses.
216.470 Other applications of award fees.

               Subpart 216.5_Indefinite-Delivery Contracts

216.501-2-70 General.
216.504 Indefinite-quantity contracts.
216.505 Ordering.
216.505-70 Orders under multiple-award contracts.
216.506 Solicitation provisions and contract clauses.

   Subpart 216.6_Time-and-Materials, Labor-Hour, and Letter Contracts

216.601 Time-and-materials contracts.
216.603 Letter contracts.
216.603-2 Application.
216.603-3 Limitations.
216.603-4 Contract clauses.

                        Subpart 216.7_Agreements

216.703 Basic ordering agreements.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36340, July 31, 1991, unless otherwise noted.

[[Page 126]]



                 Subpart 216.1_Selecting Contract Types



216.102  Policies.

    (1) In accordance with section 829 of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the 
contracting officer shall first consider the use of fixed-price 
contracts, including fixed-price incentive contracts, in the 
determination of contract type. See 216.301-3(2) for approval 
requirements for certain cost-reimbursement contracts.
    (2) In accordance with section 811 of the National Defense 
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), use of any 
cost-reimbursement line item for the acquisition of production of major 
defense acquisition programs is prohibited unless the exception at 
234.004(2)(ii) applies.
    (3) See 225.7301-1 for the requirement to use fixed-price contracts 
for acquisitions for foreign military sales.

[79 FR 4632, Jan. 29, 2014, as amended at 84 FR 65307, Nov. 27, 2019]



216.104  Factors in selecting contract type.

    Contracting officers shall follow the principles and procedures in 
Director, Defense Procurement and Acquisition Policy memorandum dated 
April 1, 2016, entitled ``Guidance on Using Incentive and Other Contract 
Types,'' when selecting and negotiating the most appropriate contract 
type for a given procurement. See PGI 216.104.

[81 FR 28730, May 10, 2016]



216.104-70  Research and development.

    Follow the procedures at PGI 216.104-70 for selecting the 
appropriate research and development contract type, and see 235.006(b) 
for additional approval requirements.

[71 FR 39007, July 11, 2006, as amended at 84 FR 65307, Nov. 27, 2019]



                   Subpart 216.2_Fixed-Price Contracts



216.203  Fixed-price contracts with economic price adjustment.



216.203-4  Contract clauses.

    (1) Generally, use the clauses at FAR 52.216-2, Economic Price 
Adjustment--Standard Supplies, FAR 52.216-3, Economic Price Adjustment--
Semistandard Supplies, and FAR 52.216-4, Economic Price Adjustment--
Labor and Material, only when--
    (i) The total contract price exceeds the simplified acquisition 
threshold; and
    (ii) Delivery or performance will not be completed within 6 months 
after contract award.
    (2) Follow the procedures at PGI 216.203-4 when using an economic 
price adjustment clause based on cost indexes of labor or material.

[71 FR 39007, July 11, 2006]



216.203-4-70  Additional provisions and clauses.

    (a) Price adjustment for basic steel, aluminum, brass, bronze, or 
copper mill products. (1)(i) The price adjustment clause at 252.216-
7000, Economic Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, 
or Copper Mill Products, may be used in fixed-price supply solicitations 
and contracts for basic steel, aluminum, brass, bronze, or copper mill 
products, such as sheets, plates, and bars, when an established catalog 
or market price exists for the particular product being acquired.
    (ii) The 10 percent figure in paragraph (d)(1) of the clause shall 
not be exceeded unless approval is obtained at a level above the 
contracting officer.
    (2) Use the price adjustment provision at 252.216-7007, Economic 
Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, or Copper Mill 
Products--Representation, in solicitations that include the clause at 
252.216-7000, Economic Price Adjustment--Basic Steel, Aluminum, Brass, 
Bronze, or Copper Mill Products.
    (b) Price adjustment for nonstandard steel items. (1) The price 
adjustment clause at 252.216-7001, Economic Price Adjustment--
Nonstandard Steel Items,

[[Page 127]]

may be used in fixed-price supply contracts when--
    (i) The contractor is a steel producer and actually manufacture the 
standard steel mill item referred to in the ``base steel index'' 
definition of the clause; and
    (ii) The items being acquired are nonstandard steel items made 
wholly or in part of standard steel mill items.
    (2) When this clause is included in invitations for bids, omit Note 
6 of the clause and all references to Note 6.
    (3) Solicitations shall instruct offerors to complete all blanks in 
accordance with the applicable notes.
    (4) When the clause is to provide for adjustment on a basis other 
than ``established price'' (see Note 6 of the clause), that price must 
be verified.
    (5) The ten percent figure in paragraph (e)(4) of the clause shall 
not be exceeded unless approval is obtained at a level above the 
contracting officer.
    (c) Price adjustment for wage rates or material prices controlled by 
a foreign government. (1)(i) The price adjustment clause at 252.216-
7003, Economic Price Adjustment--Wage Rates or Material Prices 
Controlled by a Foreign Government, may be used in fixed-price supply 
and service solicitations and contracts when--
    (A) The contract is to be performed wholly or in part in a foreign 
country; and
    (B) A foreign government controls wage rates or material prices and 
may, during contract performance, impose a mandatory change in wages or 
prices of material.
    (ii) Verify the base wage rates and material prices prior to 
contract award and prior to making any adjustment in the contract price.
    (2) Use the provision at 252.216-7008, Economic Price Adjustment-
Wage Rates or Material Prices Controlled by a Foreign Government--
Representation, in solicitations that include the clause at 252.216-
7003, Economic Price Adjustment-Wage Rates or Material Prices Controlled 
by a Foreign Government. If the solicitation includes the provision at 
FAR 52.204-7, do not separately list the provision 252.216-7008 in the 
solicitation.

[56 FR 36340, July 31, 1991, as amended at 62 FR 34122, June 24, 1997; 
62 FR 40472, July 29, 1997; 77 FR 19129, Mar. 30, 2012; 78 FR 37986, 
June 25, 2013, 78 FR 40043, July 3, 2013]



               Subpart 216.3_Cost-Reimbursement Contracts



216.301-3  Limitations.

    (1) For contracts in connection with a military construction project 
or a military family housing project, contracting officers shall not use 
cost-plus-fixed-fee, cost-plus-award-fee, or cost-plus-incentive-fee 
contract types (10 U.S.C. 2306(c)). This applies notwithstanding a 
declaration of war or the declaration by the President of a national 
emergency under section 201 of the National Emergencies Act (50 U.S.C. 
1621) that includes the use of the Armed Forces.
    (2) Except as provided in 235.006(b), in accordance with section 829 
of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 
114-328), approval of the head of the contracting activity is required 
prior to awarding cost-reimbursement contracts in excess of $25 million.

[81 FR 65564, Sept. 23, 2016, as amended at 84 FR 65307, Nov. 27, 2019]



216.306  Cost-plus-fixed-fee contracts.

    (c) Limitations. For contracts in connection with a military 
construction project or military family housing project, see the 
prohibition at 216.301-3.
    (i) Except as provided in paragraph (c)(ii) of this section, annual 
military construction appropriations acts prohibit the use of cost-plus-
fixed-fee contracts that--
    (A) Are funded by a military construction appropriations act;
    (B) Are estimated to exceed $25,000; and
    (C) Will be performed within the United States, except Alaska.
    (ii) The prohibition in paragraph (c)(i) of this section does not 
apply to contracts specifically approved in writing, setting forth the 
reasons therefor, in accordance with the following:
    (A) The Secretaries of the military departments are authorized to 
approve

[[Page 128]]

such contracts that are for environmental work only, provided the 
environmental work is not classified as construction, as defined by 10 
U.S.C. 2801.
    (B) The Secretary of Defense or designee must approve such contracts 
that are not for environmental work only or are for environmental work 
classified as construction.

[62 FR 1058, Jan. 8, 1997; 62 FR 1817, Jan. 13, 1997; 62 FR 49305, Sept. 
19, 1997; 71 FR 39007, July 11, 2006; 81 FR 65564, Sept. 23, 2016]



216.307  Contract clauses.

    (a) As required by section 827 of the National Defense Authorization 
Act for Fiscal Year 2013 (Pub. L. 112-239), use the clause at 252.216-
7009, Allowability of Costs Incurred in Connection With a Whistleblower 
Proceeding--
    (1) In task orders entered pursuant to contracts awarded before 
September 30, 2013, that include the clause at FAR 52.216-7, Allowable 
Cost and Payment; and
    (2) In contracts awarded before September 30, 2013, that--
    (i) Include the clause at FAR 52.216-7, Allowable Cost and Payment; 
and
    (ii) Are modified to include the clause at DFARS 252.203-7002, 
Requirement to Inform Employees of Whistleblower Rights, dated September 
2013 or later.

[78 FR 59861, Sept. 30, 2013]



                    Subpart 216.4_Incentive Contracts



216.401  General.

    (c) See PGI 216.401(c) for information on the Defense Acquisition 
University Award and Incentive Fees Community of Practice.
    (d)(i) Except as provided in paragraph (d)(ii), the determination 
and findings justifying that the use of an incentive- or award-fee 
contract is in the best interest of the Government, may be signed by the 
head of contracting activity or a designee--
    (A) No lower than one level below the head of the contracting 
activity for award fee contracts; or
    (B) One level above the contracting officer for incentive fee 
contracts.
    (ii) For cost-reimbursement incentive- or award fee contracts valued 
in excess of $25 million, the determination and findings justifying that 
the use of this type of contract is in the best interest of the 
Government shall be signed by the head of the contracting activity. See 
DFARS 216.301-3(2).
    (e) Award-fee plans required in FAR 16.401(e) shall be incorporated 
into all award-fee type contracts. Follow the procedures at PGI 
216.401(e) when planning to award an award-fee contract.

[75 FR 78619, Dec. 16, 2010, as amended at 76 FR 8305, Feb. 14, 2011, 84 
FR 65307, Nov. 27, 2019]



216.401-71  Objective criteria.

    (1) Contracting officers shall use objective criteria to the maximum 
extent possible to measure contract performance. Objective criteria are 
associated with cost-plus-incentive-fee and fixed-price-incentive 
contracts.
    (2) When objective criteria exist but the contracting officer 
determines that it is in the best interest of the Government also to 
incentivize subjective elements of performance, the most appropriate 
contract type is a multiple-incentive contract containing both objective 
incentives and subjective award-fee criteria (i.e., cost-plus-incentive-
fee/award-fee or fixed-price-incentive/award-fee).
    (3) See PGI 216.401(e) for guidance on the use of award-fee 
contracts.

[76 FR 8305, Feb. 14, 2011]



216.402  Application of predetermined, formula-type incentives.



216.402-2  Technical performance incentives.

    (1) See PGI 216.402-2 for guidance on establishing performance 
incentives.
    (2) Contracting officers shall ensure requirements about the payment 
of incentive fees or the imposition of penalties are included in the 
solicitation for a contract for the engineering and manufacturing 
development or production of a weapon system, including embedded 
software, if the program manager or comparable requiring activity 
official exercising program manager responsibilities includes--

[[Page 129]]

    (i) Provisions for the payment of incentive fees to the contractor, 
based on achievement of design specification requirements for 
reliability and maintainability of weapons systems under the contract; 
or
    (ii) The imposition of penalties to be paid by the contractor to the 
Government for faile to achieve such design specification requirements 
(10 U.S.C. 2443).

[71 FR 39007, July 11, 2006, as amended at 84 FR 58333, Oct. 31, 2019]



216.403  Fixed-price incentive contracts.



216.403-1  Fixed-price incentive (firm target) contracts.

    (b) Application.
    (1) The contracting officer shall give particular consideration to 
the use of fixed-price incentive (firm target) contracts, especially for 
acquisitions moving from development to production.
    (2) The contracting officer shall pay particular attention to share 
lines and ceiling prices for fixed-price incentive (firm target) 
contracts, with a 120 percent ceiling and a 50/50 share ratio as the 
point of departure for establishing the incentive arrangement.
    (3) See PGI 216.403-1 for guidance on the use of fixed-price 
incentive (firm target) contracts.

[76 FR 57679, Sept. 16, 2011]



216.403-2  Fixed-price incentive (successive targets) contracts.

    See PGI 216.403-2 for guidance on the use of fixed-price incentive 
(successive targets) contracts.

[71 FR 39007, July 11, 2006]



216.405  Cost-reimbursement incentive contracts.



216.405-1  Cost-plus-incentive-fee contracts.

    See PGI 216.405-1 for guidance on the use of cost-plus-incentive-fee 
contracts.

[71 FR 39007, July 11, 2006]



216.405-2  Cost-plus-award-fee contracts.

    (1) Award-fee pool. The award-fee pool is the total available award 
fee for each evaluation period for the life of the contract. The 
contracting officer shall perform an analysis of appropriate fee 
distribution to ensure at least 40 percent of the award fee is available 
for the final evaluation so that the award fee is appropriately 
distributed over all evaluation periods to incentivize the contractor 
throughout performance of the contract. The percentage of award fee 
available for the final evaluation may be set below 40 percent if the 
contracting officer determines that a lower percentage is appropriate, 
and this determination is approved by the head of the contracting 
activity (HCA). The HCA may not delegate this approval authority.
    (2) Award-fee evaluation and payments. Award-fee payments other than 
payments resulting from the evaluation at the end of an award-fee period 
are prohibited. (This prohibition does not apply to base-fee payments.) 
The fee-determining official's rating for award-fee evaluations will be 
provided to the contractor within 45 calendar days of the end of the 
period being evaluated. The final award-fee payment will be consistent 
with the fee-determining official's final evaluation of the contractor's 
overall performance against the cost, schedule, and performance outcomes 
specified in the award-fee plan.
    (3) Limitations.
    (i) The cost-plus-award-fee contract shall not be used--
    (A) To avoid--
    (1) Establishing cost-plus-fixed-fee contracts when the criteria for 
cost-plus-fixed-fee contracts apply; or
    (2) Developing objective targets so a cost-plus-incentive-fee 
contract can be used; or
    (B) For either engineering development or operational system 
development acquisitions that have specifications suitable for 
simultaneous research and development and production, except a cost-
plus-award-fee contract may be used for individual engineering 
development or operational system development acquisitions ancillary to 
the development of a major weapon system or equipment, where--
    (1) It is more advantageous; and
    (2) The purpose of the acquisition is clearly to determine or solve 
specific

[[Page 130]]

problems associated with the major weapon system or equipment.
    (ii) Do not apply the weighted guidelines method to cost-plus-award-
fee contracts for either the base (fixed) fee or the award fee.
    (iii) The base fee shall not exceed three percent of the estimated 
cost of the contract exclusive of the fee.
    (4) See PGI 216.405-2 for guidance on the use of cost-plus-award-fee 
contracts.

[76 FR 8305, Feb. 14, 2011]



216.405-2-70  Award fee reduction or denial for jeopardizing the
health or safety of Government personnel.

    (a) Definitions.
    Covered incident and serious bodily injury, as used in this section, 
are defined in the clause at 252.216-7004, Award Fee Reduction or Denial 
for Jeopardizing the Health or Safety of Government Personnel.
    (b) The contracting officer shall include in the evaluation criteria 
of any award-fee plan, a review of contractor and subcontractor actions 
that jeopardized the health or safety of Government personnel, through 
gross negligence or reckless disregard for the safety of such personnel, 
as determined through--
    (1) Conviction in a criminal proceeding, or finding of fault and 
liability in a civil or administrative proceeding (in accordance with 
section 823 of the National Defense Authorization Act for Fiscal Year 
2010 (Pub. L. 111-84)); or
    (2) If a contractor or a subcontractor at any tier is not subject to 
the jurisdiction of the U.S. courts, a final determination of contractor 
or subcontractor fault resulting from a DoD investigation (in accordance 
with section 834 of the National Defense Authorization Act for Fiscal 
Year 2011 (Pub. L. 111-383)).
    (c) In evaluating the contractor's performance under a contract that 
includes the clause at 252.216-7004, Award Fee Reduction or Denial for 
Jeopardizing the Health or Safety of Government Personnel, the 
contracting officer shall consider reducing or denying award fees for a 
period if contractor or subcontractor actions cause serious bodily 
injury or death of civilian or military Government personnel during such 
period. The contracting officer's evaluation also shall consider 
recovering all or part of award fees previously paid for such period.

[75 FR 69361, Nov. 12, 2010. Redesignated at 76 FR 52135, Aug. 19, 2011]



216.405-2-71  Award fee reduction or denial for failure to comply
with requirements relating to performance of private security 
functions.

    (a) In accordance with section 862 of the National Defense 
Authorization Act for Fiscal Year 2008, as amended, the contracting 
officer shall include in any award-fee plan a requirement to review 
contractor compliance with, or violation of, applicable requirements of 
the contract with regard to the performance of private security 
functions in an area of contingency operations, complex contingency 
operations, or other military operations or exercises that are 
designated by the combatant commander (see 225.370).
    (b) In evaluating the contractor's performance under a contract that 
includes the clause at 252.225-7039, Defense Contractors Performing 
Private Security Functions Outside the United States, the contracting 
officer shall consider reducing or denying award fees for a period if 
the contractor fails to comply with the requirements of the clause 
during such period. The contracting officer's evaluation also shall 
consider recovering all or part of award fees previously paid for such 
period.

[76 FR 52135, Aug. 19, 2011, as amended at 78 FR 73450, Dec. 6, 2013; 81 
FR 42560, June 30, 2016]



216.406  Contract clauses.

    (e) Use the clause at 252.216-7004, Award Fee Reduction or Denial 
for Jeopardizing the Health or Safety of Government Personnel, in all 
solicitations and contracts containing award-fee provisions.

[76 FR 8305, Feb. 14, 2011, as amended at 83 FR 49181, Sept. 28, 2018]



216.470  Other applications of award fees.

    See PGI 216.470 for guidance on other applications of award fees.

[71 FR 39008, July 11, 2006]

[[Page 131]]



               Subpart 216.5_Indefinite-Delivery Contracts



216.501-2-70  General.

    (a)(i) For items with a shelf-life of less than 6 months, consider 
the use of indefinite-delivery type contracts with orders to be placed 
either--
    (A) Directly by the users; or
    (B) By central purchasing offices with deliveries direct to users.
    (ii) Whenever an indefinite-delivery contract is issued, the issuing 
office must furnish all ordering offices sufficient information for the 
ordering office to complete its contract reporting responsibilities 
under 204.670-2. This data must be furnished to the ordering activity in 
sufficient time for the activity to prepare its report for the action 
within 3 working days of the order.
    (b) See 217.204(e)(i) for limitations on the period for task order 
or delivery order contracts awarded by DoD pursuant to 10 U.S.C. 2304a.

[56 FR 36340, July 31, 1991, as amended at 57 FR 42630, Sept. 15, 1992; 
63 FR 11529, Mar. 9, 1998. Redesignated and amended at 78 FR 38235, June 
26, 2013]



216.504  Indefinite-quantity contracts.

    (c) Multiple award preference--(1) Planning the acquisition. 
(ii)(D)(1) The senior procurement executive has the authority to make 
the determination authorized in FAR 16.504(c)(1)(ii)(D)(1).
    (i) In accordance with section 816 of the National Defense 
Authorization Act for Fiscal Year 2019 (Pub. L. 115-232), when making 
the determination at FAR 16.504(c)(1)(ii)(D)(1)(i), the senior 
procurement executive shall determine that the task or delivery orders 
expected under the contract are so integrally related that only a single 
source can ``efficiently perform the work,'' instead of ``reasonably 
perform the work'' as required by the FAR.
    (2) The congressional notification requirement at FAR 
16.504(c)(1)(ii)(D)(2) does not apply to DoD.
    (3)(i) In accordance with section 816 of the National Defense 
Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), the 
determination at FAR 16.504(c)(1)(ii)(D) is not required if a 
justification has been executed, in accordance with FAR subpart 6.3 and 
subpart 206.3.

[84 FR 12139, Apr. 1, 2019, as amended at 85 FR 60922, Sept. 29, 2020]



216.505  Ordering.

    (a) General.
    (6) Orders placed under indefinite-delivery contracts may be issued 
on DD Form 1155, Order for Supplies or Services.
    (S-70) Departments and agencies shall comply with the review, 
approval, and reporting requirements established in accordance with 
subpart 217.7 when placing orders under non-DoD contracts in amounts 
exceeding the simplified acquisition threshold.
    (b) Orders under multiple-award contracts.
    (1) Fair opportunity.
    (A) See 215.101-2-70 for the limitations and prohibitions on the use 
of the lowest price technically acceptable source selection process, 
which are applicable to orders placed against multiple award indefinite 
delivery contracts.
    (B) See 217.7801 for the prohibition on the use of reverse auctions 
for personal protective equipment and aviation critical safety items.
    (b)(2) Exceptions to the fair opportunity process. For an order 
exceeding the simplified acquisition threshold, that is a follow-on to 
an order previously issued for the same supply or service based on a 
justification for an exception to fair opportunity citing the authority 
at FAR 16.505(b)(2)(i)(B) or (C), follow the procedures at PGI 
216.505(b)(2).

[63 FR 11529, Mar. 9, 1998, as amended at 70 FR 29642, May 24, 2005; 71 
FR 14103, Mar. 21, 2006; 80 FR 21657, Apr. 20, 2015; 80 FR 67255, Oct. 
30, 2015; 84 FR 50789, Sept. 26, 2019]



216.505-70  Orders under multiple-award contracts.

    (a) If only one offer is received in response to an order exceeding 
the simplified acquisition threshold that is placed on a competitive 
basis, the contracting officer shall follow the procedures at 215.371.

[[Page 132]]

    (b) See PGI 216.505-70 for guidance regarding minimum labor category 
qualifications for orders issued under multiple-award services 
contracts.

[78 FR 38235, June 26, 2013, as amended at 84 FR 48510, Sept. 13, 2019]



216.506  Solicitation provisions and contract clauses.

    (S-70) 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.

[63 FR 11529, Mar. 9, 1998, as amended at 76 FR 25568, May 5, 2011; 77 
FR 23631, Apr. 20, 2012; 77 FR 39139, June 29, 2012; 79 FR 22037, Apr. 
21, 2014; 83 FR 30588, 30825, June 29, 2018; 85 FR 53682, Aug. 31, 2020]



   Subpart 216.6_Time-And-Materials, Labor-Hour, and Letter Contracts



216.601  Time-and-materials contracts.

    (d) Limitations. (i)(A) Approval of determination and findings for 
time-and-materials or labor-hour contracts.
    (1) Base period plus any option periods is three years or less.
    (i) For contracts (including indefinite-delivery contracts) and 
orders in which the portion of the requirement performed on a time-and-
materials or labor-hour basis exceeds $1 million, the approval authority 
for the determination and findings shall be the senior contracting 
official within the contracting activity. This authority may not be 
delegated.
    (ii) For contracts (including indefinite-delivery contracts) and 
orders in which the portion of the requirement performed on a time-and-
materials or labor-hour basis is less than or equal to $1 million, the 
determination and findings shall be approved one level above the 
contracting officer.
    (2) Base period plus any option periods exceeds three years. The 
authority of the head of the contracting activity to approve the 
determination and findings may not be delegated.
    (3) Exception. The approval requirements in paragraphs (d)(i)(A)(1) 
and (2) of this section do not apply to contracts that, as determined by 
the head of the contracting activity--
    (i) Support contingency or humanitarian or peacekeeping operations;
    (ii) Facilitate defense against or recovery from conventional, 
cyber, nuclear, biological, chemical or radiological attack;
    (iii) Facilitate the provision of international disaster assistance; 
or
    (iv) Support response to an emergency or major disaster.
    (B) Content of determination and findings. The determination and 
findings shall contain sufficient facts and rationale to justify that no 
other contract type is suitable. At a minimum, the determination and 
findings shall--
    (1) Include a description of the market research conducted;
    (2) Establish that it is not possible at the time of placing the 
contract or order to accurately estimate the extent or duration of the 
work or to anticipate costs with any reasonable degree of certainty;
    (3) Address why a cost-plus-fixed-fee term or other cost-
reimbursement, incentive, or fixed-price contract or order is not 
appropriate; for contracts (including indefinite-delivery contracts) and 
orders for noncommercial items awarded to contractors with adequate 
accounting systems, a cost-plus-fixed-fee term contract type shall be 
preferred over a time-and-materials or labor-hour contract type;
    (4) Establish that the requirement has been structured to minimize 
the use of time-and-materials and labor-hour requirements (e.g., 
limiting the value or length of the time-and-materials or labor-hour 
portion of the contract or order; establishing fixed prices for portions 
of the requirement); and
    (5) Describe the actions planned to minimize the use of time-and-
materials and labor-hour contracts on future acquisitions for the same 
requirements.
    (C) Indefinite-delivery contracts. For indefinite-delivery 
contracts, the contracting officer shall structure contracts that 
authorize time-and-materials orders or labor-hour orders to also 
authorize orders on a cost-reimbursement, incentive, or fixed-price 
basis, to the maximum extent practicable.

[[Page 133]]

    (e) Solicitation provisions. Use the provision at FAR 52.216-29, 
Time-and-Materials/Labor-Hour Proposal Requirements--Non-Commercial Item 
Acquisition with Adequate Price Competition, with 252.216-7002, 
Alternate A, in solicitations contemplating the use of a time-and-
materials or labor-hour contract type for non-commercial items if the 
price is expected to be based on adequate competition.

[71 FR 74471, Dec. 12, 2006, as amended at 73 FR 70912, Nov. 24, 2008; 
80 FR 29980, May 26, 2015; 83 FR 24890, May 30, 2018]



216.603  Letter contracts.



216.603-2  Application.

    (c)(3) In accordance with 10 U.S.C. 2326, establish definitization 
schedules for letter contracts following the requirements at 217.7404-
3(a) instead of the requirements at FAR 16.603-2(c)(3).

[75 FR 32642, June 8, 2010]



216.603-3  Limitations.

    See subpart 217.74 for additional limitations on the use of letter 
contracts.



216.603-4  Contract clauses.

    (b)(2) See 217.7405(a) for additional guidance regarding use of the 
clause at FAR 52.216-24, Limitation of Government Liability.
    (3) Use the clause at 252.217-7027, Contract Definitization, in 
accordance with its prescription at 217.7406(b), instead of the clause 
at FAR 52.216-25, Contract Definitization.

[61 FR 7743, Feb. 29, 1996, as amended at 71 FR 58537, Oct. 4, 2006; 72 
FR 69159, Dec. 7, 2007; 76 FR 76319, Dec. 7, 2011]



                        Subpart 216.7_Agreements



216.703  Basic ordering agreements.

    (c) Limitations. The period during which orders may be placed 
against a basic ordering agreement may not exceed 5 years.
    (d) Orders. Follow the procedures at PGI 216.703(d) for issuing 
orders under basic ordering agreements.

[71 FR 39008, July 11, 2006]



PART 217_SPECIAL CONTRACTING METHODS--Table of Contents



                   Subpart 217.1_Multiyear Contracting

Sec.
217.103 Definitions.
217.170 General.
217.171 Multiyear contracts for services.
217.172 Multiyear contracts for supplies.
217.173 Multiyear contracts for military family housing.
217.174 Multiyear contracts for electricity from renewable energy 
          sources.

                          Subpart 217.2_Options

217.202 Use of options.
217.204 Contracts.
217.207 Exercise of options.
217.208 Solicitation provisions and contract clauses.
217.208-70 Additional clauses.

                 Subpart 217.5_Interagency Acquisitions

217.500 Scope of subpart.
217.502 Procedures.
217.502-1 General.
217.503 Ordering procedures.

            Subpart 217.6_Management and Operating Contracts

217.600 Scope of subpart.

   Subpart 217.7_Interagency Acquisitions: Acquisitions by Nondefense 
             Agencies on Behalf of the Department of Defense

217.700 Scope of subpart.
217.701 Definitions.
217.770 Procedures.

              Subpart 217.70_Exchange of Personal Property

217.7000 Scope of subpart.
217.7001 Definitions.
217.7002 Policy.
217.7003 Purchase request.
217.7004 Solicitation and award.
217.7005 Solicitation provision.

  Subpart 217.71_Master Agreement for Repair and Alteration of Vessels

217.7100 Scope of subpart.
217.7101 Definitions.
217.7102 General.
217.7103 Master agreements and job orders.
217.7103-1 Content and format of master agreements.
217.7103-2 Period of agreement.
217.7103-3 Solicitations for job orders.
217.7103-4 Emergency work.

[[Page 134]]

217.7103-5 Repair costs not readily ascertainable.
217.7103-6 Modification of master agreements.
217.7104 Contract clauses.

Subpart 217.72 [Reserved]

           Subpart 217.73_Identification of Sources of Supply

217.7300 Scope.
217.7301 Policy.
217.7302 Procedures.
217.7303 Solicitation provision.

              Subpart 217.74_Undefinitized Contract Actions

217.7400 Scope.
217.7401 Definitions.
217.7402 Exceptions.
217.7403 Policy.
217.7404 Limitations.
217.7404-1 Authorization.
217.7404-2 Price ceiling.
217.7404-3 Definitization schedule.
217.7404-4 Limitations on obligations.
217.7404-5 Exceptions.
217.7404-6 Allowable profit.
217.7405 Plans and reports.
217.7406 Contract clauses.

            Subpart 217.75_Acquisition of Replenishment Parts

217.7500 Scope of subpart.
217.7501 Definition.
217.7502 General.
217.7503 Spares acquisition integrated with production.
217.7504 Acquisition of parts when data is not available.
217.7505 Limitations on price increases.
217.7506 Spare parts breakout program.

         Subpart 217.76_Contracts with Provisioning Requirements

217.7601 Provisioning.

                   Subpart 217.77_Over and Above Work

217.7701 Procedures.
217.7702 Contract clause.

                     Subpart 217.78_Reverse Auctions

217.7801 Prohibition.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36345, July 31, 1991, unless otherwise noted.



                   Subpart 217.1_Mulityear Contracting

    Source: 63 FR 11529, Mar. 9, 1998, unless otherwise noted.



217.103  Definitions.

    As used in this subpart--
    Advance procurement means an exception to the full funding policy 
that allows acquisition of long lead time items (advance long lead 
acquisition) or economic order quantities (EOQ) of items (advance EOQ 
acquisition) in a fiscal year in advance of that in which the related 
end item is to be acquired. Advance procurements may include materials, 
parts, components, and effort that must be funded in advance to maintain 
a planned production schedule.
    Congressional defense committees means--
    (1) The Committee on Armed Services of the Senate;
    (2) The Committee on Appropriations of the Senate;
    (3) The Subcommittee on Defense of the Committee on Appropriations 
of the Senate;
    (4) The Committee on Armed Services of the House of Representatives;
    (5) The Committee on Appropriations of the House of Representatives; 
and
    (6) The Subcommittee on Defense of the Committee on Appropriations 
of the House of Representatives.
    Military installation means a base, camp, post, station, yard, 
center, or other activity under the jurisdiction of the Secretary of a 
military department or, in the case of an activity in a foreign country, 
under the operational control of the Secretary of a military department 
or the Secretary of Defense (10 U.S.C. 2801(c)(4)).

[68 FR 43332, July 22, 2003, as amended at 79 FR 35700, June 24, 2014; 
80 FR 29982, May 26, 2015]



217.170  General.

    (a) Before awarding a multiyear contract, the head of the agency 
must compare the cost of that contract to the cost of an annual 
procurement approach, using a present value analysis. Do not award the 
multiyear contract unless the analysis shows that the

[[Page 135]]

multiyear contract will result in the lower cost (10 U.S.C. 2306b(l)(7); 
section 8008(a) of Pub. L. 105-56 and similar sections in subsequent DoD 
appropriations acts).
    (b) The head of the agency must provide written notice to the 
congressional defense committees at least 30 days before termination of 
any multiyear contract (section 8010 of Division C, Title VIII, of the 
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 
113-235) and similar sections in subsequent DoD appropriations acts).
    (c) Every multiyear contract must comply with FAR 17.104(c), unless 
an exception is approved through the budget process in coordination with 
the cognizant comptroller.
    (d)(1) DoD must provide notification to the congressional defense 
committees at least 30 days before entering into a multiyear contract 
for certain procurements, including those expected to--
    (i) Employ an unfunded contingent liability in excess of $20 million 
(see 10 U.S.C. 2306b(l)(1)(B)(i)(II), 10 U.S.C. 2306c(d)(1), and section 
8008(a) of Pub. L. 105-56 and similar sections in subsequent DoD 
appropriations acts);
    (ii) Employ economic order quantity procurement in excess of $20 
million in any one year of the contract (see 10 U.S.C. 
2306b(l)(1)(B)(i)(I) and section 8008(a) of Pub. L. 105-56 and similar 
sections in subsequent DoD appropriations acts);
    (iii) Involve a contract for advance procurement leading to a 
multiyear contract that employs economic order quantity procurement in 
excess of $20 million in any one year (see 10 U.S.C. 2306b(l)(1)(B)(ii) 
and section 8008(a) of Pub. L. 105-56 and similar sections in subsequent 
DoD appropriations acts); or
    (iv) Include a cancellation ceiling in excess of $150 million (see 
10 U.S.C. 2306c(d)(4) and 10 U.S.C. 2306b(g)(1)).
    (2) A DoD component must submit a request for authority to enter 
into a multiyear contract described in paragraphs (d)(1)(i) through (iv) 
of this section as part of the component's budget submission for the 
fiscal year in which the multiyear contract will be initiated. DoD will 
include the request, for each candidate it supports, as part of the 
President's budget for that year and in the Appendix to that budget as 
part of proposed legislative language for the appropriations bill for 
that year (section 8008(b) of Pub. L. 105-56).
    (3) If the advisability of using a multiyear contract becomes 
apparent too late to satisfy the requirements in paragraph (d)(2) of 
this section, the request for authority to enter into a multiyear 
contract must be--
    (i) Formally submitted by the President as a budget amendment; or
    (ii) Made by the Secretary of Defense, in writing, to the 
congressional defense committees (see section 8008(b) of Pub. L. 105-
56).
    (4) Agencies must establish reporting procedures to meet the 
congressional notification requirements of paragraph (d)(1) of this 
section. The head of the agency must submit a copy of each notice to the 
Director of Defense Procurement and Acquisition Policy, Office of the 
Under Secretary of Defense (Acquisition, Technology, and Logistics) 
(OUSD(AT&L)DPAP), and to the Deputy Under Secretary of Defense 
(Comptroller) (Program/Budget) (OUSD(C)(P/B)).
    (5) If the budget for a contract that contains a cancellation 
ceiling in excess of $150 million does not include proposed funding for 
the costs of contract cancellation up to the cancellation ceiling 
established in the contract--
    (i) The notification required by paragraph (d)(1) of this section 
shall include--
    (A) The cancellation ceiling amounts planned for each program year 
in the proposed multiyear contract, together with the reasons for the 
amounts planned;
    (B) The extent to which costs of contract cancellation are not 
included in the budget for the contract; and
    (C) A financial risk assessment of not including budgeting for costs 
of contract cancellation (10 U.S.C. 2306b(g) and 10 U.S.C. 2306c(d)); 
and
    (ii) The head of the agency shall provide copies of the notification 
to the

[[Page 136]]

Office of Management and Budget at least 14 days before contract award.

[66 FR 63337, Dec. 6, 2001, as amended at 68 FR 7439, Feb. 14, 2003; 70 
FR 24324, May 9, 2005; 71 FR 75892, Dec. 19, 2006; 75 FR 9115, Mar. 1, 
2010; 75 FR 54526, Sept. 8, 2010; 75 FR 45073, Aug. 2, 2010; 76 FR 
58152, Sept. 20, 2011; 80 FR 29982, May 26, 2015; 80 FR 36904, June 26, 
2015; 81 FR 28731, May 10, 2016; 85 FR 61504, Sept. 29, 2020]



217.171  Multiyear contracts for services.

    (a) The head of the agency may enter into a multiyear contract for a 
period of not more than 5 years for the following types of services (and 
items of supply relating to such services), even though funds are 
limited by statute to obligation only during the fiscal year for which 
they were appropriated (10 U.S.C. 2306c(a)) . Covered services are--
    (1) Operation, maintenance, and support of facilities and 
installations;
    (2) Maintenance or modification of aircraft, ships, vehicles, and 
other highly complex military equipment;
    (3) Specialized training requiring high-quality instructor skills 
(e.g., training for pilots and aircrew members or foreign language 
training);
    (4) Base services (e.g., ground maintenance, in-plane refueling, bus 
transportation, and refuse collection and disposal); and
    (5) Environmental remediation services for--
    (i) An active military installation;
    (ii) A military installation being closed or realigned under a base 
closure law as defined in 10 U.S.C. 2667(h)(2); or
    (iii) A site formerly used by DoD (10 U.S.C. 2306c(b)).
    (b) The head of the agency must be guided by the following 
principles when entering into a multiyear contract for services:
    (1) The portion of the cost of any plant or equipment amortized as a 
cost of contract performance should not exceed the ratio between the 
period of contract performance and the anticipated useful commercial 
life of the plant or equipment. As used in this section, ``useful 
commercial life'' means the commercial utility of the facilities rather 
than the physical life, with due consideration given to such factors as 
the location, specialized nature, and obsolescence of the facilities.
    (2) Consider the desirability of obtaining an option to extend the 
term of the contract for a reasonable period not to exceed 3 years at 
prices that do not include charges for plant, equipment, or other 
nonrecurring costs already amortized.
    (3) Consider the desirability of reserving the right to take title, 
under the appropriate circumstances, to the plant or equipment upon 
payment of the unamortized portion of the cost (10 U.S.C. 2306c(c)).
    (c) Before entering into a multiyear contract for services, the head 
of the agency must make a written determination that--
    (1) There will be a continuing requirement for the services 
consistent with current plans for the proposed contract period;
    (2) Furnishing the services will require--
    (i) A substantial initial investment in plant or equipment; or
    (ii) The incurrence of substantial contingent liabilities for the 
assembly, training, or transportation of a specialized work force; and
    (3) Using a multiyear contract will promote the best interests of 
the United States by encouraging effective competition and promoting 
economies in operations (10 U.S.C. 2306c(a)).
    (d) The head of an agency may not initiate a multiyear contract for 
services if the value of the multiyear contract exceeds $750 million 
unless a law specifically provides authority for the contract (10 U.S.C. 
2306c(d)(2))().

[66 FR 63337, Dec. 6, 2001, as amended at 68 FR 43333, July 22, 2003; 70 
FR 24324, May 9, 2005; 71 FR 75892, Dec. 19, 2006; 75 FR 45073, Aug. 2, 
2010; 76 FR 58153, Sept. 20, 2011; 76 FR 76319, Dec. 7, 2011; 80 FR 
29982, May 26, 2015; 80 FR 36904, June 26, 2015; 85 FR 61504, Sept. 29, 
2020]



217.172  Multiyear contracts for supplies.

    (a) This section applies to all multiyear contracts for supplies, 
including weapon systems and other multiyear acquisitions specifically 
authorized by law (10 U.S.C. 2306b).
    (b) The head of the agency may enter into a multiyear contract for 
supplies if, in addition to the conditions listed in FAR 17.105-1(b), 
the use of such a

[[Page 137]]

contract will promote the national security of the United States (10 
U.S.C. 2306b(a)(6)).
    (c) Multiyear contracts in amounts exceeding $750 million must be 
specifically authorized by law in an act other than an appropriations 
act (10 U.S.C. 2306b(i)(1)).
    (d) The head of the agency may not initiate a multiyear procurement 
contract for any system (or component thereof) if the value of the 
multiyear contract would exceed $750 million unless authority for the 
contract is specifically provided in an appropriations act (10 U.S.C. 
2306b(l)(3)).
    (e) The head of the agency shall not enter into a multiyear contract 
unless--
    (1) The Secretary of Defense has submitted to Congress a budget 
request for full funding of units to be procured through the contract;
    (2) In the case of a contract for procurement of aircraft, the 
budget request includes full funding of procurement funds for production 
beyond advance procurement activities of aircraft units to be produced 
in the fiscal year covered by the budget;
    (3) Cancellation provisions in the contract do not include 
consideration of recurring manufacturing costs of the contractor 
associated with the production of unfunded units to be delivered under 
the contract;
    (4) The contract provides that payments to the contractor under the 
contract shall not be made in advance of incurred costs on funded units; 
and
    (5) The contract does not provide for a price adjustment based on a 
failure to award a follow-on contract (section 8010 of Division C, Title 
VIII, of the Consolidated and Further Continuing Appropriations Act, 
2015 (Pub. L. 113-235) and similar sections in subsequent DoD 
appropriations acts).
    (f)(1) The head of the agency must not enter into or extend a 
multiyear contract that exceeds $750 million (when entered into or 
extended) until the Secretary of Defense identifies the contract and any 
extension in a report submitted to the congressional defense committees 
(10 U.S.C. 2306b(l)(5)).
    (2) In addition, for contracts equal to or greater than $750 
million, the head of the contracting activity must determine that the 
conditions required by paragraph (h)(2)(i) through (vii) of this section 
will be met by such contract, in accordance with the Secretary's 
certification and determination required by paragraph (h)(2) of this 
section .
    (g) The head of the agency may enter into a multiyear contract for--
    (1) A weapon system and associated items, services, and logistics 
support for a weapon system (10 U.S.C. 2306b(h)(1)); and
    (2) Advance procurement of components, parts, and materials 
necessary to manufacture a weapon system, including advance procurement 
to achieve economic lot purchases or more efficient production rates 
(see paragraphs (h)(3) and (4) of this section regarding economic order 
quantity procurements) (10 U.S.C. 2306b(h)(2)). Before initiating an 
advance procurement, the contracting officer must verify that it is 
consistent with DoD policy (e.g., the full funding policy in Volume 2A, 
chapter 1, of DoD 7000.14-R, Financial Management Regulation).
    (h) The head of the agency shall ensure that the following 
conditions are satisfied before awarding a multiyear contract for a 
defense acquisition program that has been specifically authorized by law 
to be carried out using multiyear contract authority:
    (1) The multiyear exhibits required by DoD 7000.14-R, Financial 
Management Regulation, are included in the agency's budget estimate 
submission and the President's budget request.
    (2) The Secretary of Defense certifies to Congress in writing, by no 
later than 30 days before entry into such contracts, that each of the 
conditions in paragraphs (h)(2)(i) through (vii) of this section is 
satisfied (10 U.S.C. 2306b(i)(3).
    (i) The Secretary has determined that each of the requirements in 
FAR 17.105-1, paragraphs (b)(1) through (5), will be met by such 
contract and has provided the basis for such determination to the 
congressional defense committees (10 U.S.C. 2306b(i)(3)(A)).
    (ii) The Secretary's determination under paragraph (h)(2)(i) of this 
section was made after the completion of a cost analysis performed by 
the Defense Cost and Resource Center of the Department of Defense and 
such analysis

[[Page 138]]

supports the findings (10 U.S.C. 2306b(i)(3)(B)).
    (iii) The system being acquired pursuant to such contract has not 
been determined to have experienced cost growth in excess of the 
critical cost growth threshold pursuant to 10 USC 2433(d) within 5 years 
prior to the date the Secretary anticipates such contract (or a contract 
for advance procurement entered into consistent with the authorization 
for such contract) will be awarded (10 U.S.C. 2306b(i)(3)(C)).
    (iv) A sufficient number of end items of the system being acquired 
under such contract have been delivered at or within the most current 
estimates of the program acquisition unit cost or procurement unit cost 
for such system to determine that current estimates of such unit costs 
are realistic (10 U.S.C. 2306b(i)(3)(D)).
    (v) Sufficient funds will be available in the fiscal year in which 
the contract is to be awarded to perform the contract, and the future-
years defense program for such fiscal year will include the funding 
required to execute the program without cancellation (10 U.S.C. 
2306b(i)(3)(E)).
    (vi) The contract is a fixed price type contract (10 U.S.C. 
2306b(i)(3)(F)).
    (vii) The proposed multiyear contract provides for production at not 
less than minimum economic rates, given the existing tooling and 
facilities (10 U.S.C. 2306b(i)(3)(G)). The head of the agency shall 
submit to OUSD(C)(P/B) information supporting the agency's determination 
that this requirement has been met .
    (viii) The head of the agency shall submit information supporting 
this certification to OUSD(C)(P/B)& for transmission to Congress through 
the Secretary of Defense.
    (A) The head of the agency shall, as part of this certification, 
give written notification to the congressional defense committees of--
    (1) The cancellation ceiling amounts planned for each program year 
in the proposed multiyear contract, together with the reasons for the 
amounts planned;
    (2) The extent to which costs of contract cancellation are not 
included in the budget for the contract; and
    (3) A financial risk assessment of not including the budgeting for 
costs of contract cancellation (10 U.S.C. 2306b(g)); and
    (B) The head of the agency shall provide copies of the notification 
to the Office of Management and Budget at least 14 days before contract 
award.
    (3) The contract is for the procurement of a complete and usable end 
item (10 U.S.C. 2306b(i)(5)(A)).
    (4) Funds appropriated for any fiscal year for advance procurement 
are obligated only for the procurement of those long-lead items that are 
necessary in order to meet a planned delivery schedule for complete 
major end items that are programmed under the contract to be acquired 
with funds appropriated for a subsequent fiscal year (including an 
economic order quantity of such long-lead items when authorized by law 
(10 U.S.C. 2306b(i)(5)(B)).
    (5) The Secretary may make the certification under paragraph (h)(2) 
of this section notwithstanding the fact that one or more of the 
conditions of such certification are not met if the Secretary determines 
that, due to exceptional circumstances, proceeding with a multiyear 
contract under this section is in the best interest of the Department of 
Defense and the Secretary provides the basis for such determination with 
the certification (10 U.S.C. 2306b(i)(6)).
    (6) The Secretary of Defense may not delegate this authority to make 
the certification under paragraph (h)(2) of this section or the 
determination under paragraph (h)(5) of this section to an official 
below the level of the Under Secretary of Defense for Acquisition, 
Technology, and Logistics (10 U.S.C. 2306b(i)(7)).
    (7) All other requirements of law are met and there are no other 
statutory restrictions on using a multiyear contract for the specific 
system or component . One such restriction may be the achievement of 
specified cost savings. If the agency finds, after negotiations with the 
contractor(s), that the specified savings cannot be achieved, the head 
of the agency shall assess the savings that, nevertheless, could be 
achieved by using a multiyear contract. If the savings are substantial,

[[Page 139]]

the head of the agency may request relief from the law's specific 
savings requirement (10 U.S.C. 2306b(i)(4)). The request shall--
    (i) Quantify the savings that can be achieved;
    (ii) Explain any other benefits to the Government of using the 
multiyear contract;
    (iii) Include details regarding the negotiated contract terms and 
conditions; and
    (iv) Be submitted to OUSD(AT&L)DPAP for transmission to Congress via 
the Secretary of Defense and the President.
    (i) The Secretary of Defense may instruct the head of the agency 
proposing a multiyear contract to include in that contract negotiated 
priced options for varying the quantities of end items to be procured 
over the life of the contract (10 U.S.C. 2306b(j)).
    (j) Any requests for increased funding or reprogramming for 
procurement of a major system under a multiyear contract shall be 
accompanied by an explanation of how the request for increased funding 
affects the determinations made by the Secretary of Defense under 
217.172(h)(2) (10 U.S.C. 2306b(m)).

[76 FR 58153, Sept. 20, 2011, as amended at 80 FR 29982, May 26, 2015; 
80 FR 36904, June 26, 2015; 81 FR 28731, May 10, 2016; 85 FR 61504, 
Sept. 29, 2020]



217.173  Multiyear contracts for military family housing.

    The head of the agency may enter into multiyear contracts for 
periods up to 4 years for supplies and services required for management, 
maintenance, and operation of military family housing and may pay the 
costs of such contracts for each year from annual appropriations for 
that year (10 U.S.C. 2829).

[76 FR 58154, Sept. 20, 2011]



217.174  Multiyear contracts for electricity from renewable energy 
sources.

    (a) The head of the contracting activity may enter into a contract 
for a period not to exceed 10 years for the purchase of electricity from 
sources of renewable energy, as that term is defined in section 
203(b)(2) of the Energy Policy Act of 2005 (42 U.S.C. 15852(b)(2)).
    (b) Limitations. The head of the contracting activity may exercise 
the authority in paragraph (a) of this section to enter into a contract 
for a period in excess of 5 years only if the head of the contracting 
activity determines, on the basis of a business case analysis (see PGI 
217.174 for a business case analysis template and guidance) prepared by 
the requiring activity, that--
    (1) The proposed purchase of electricity under such contract is cost 
effective; and
    (2) It would not be possible to purchase electricity from the source 
in an economical manner without the use of a contract for a period in 
excess of 5 years.
    (c) Nothing in this section shall be construed to preclude the DoD 
from using other multiyear contracting authority of DoD to purchase 
renewable energy.

[75 FR 34943, June 21, 2010. Redesignated and amended at 76 FR 58154, 
Sept. 20, 2011]



                          Subpart 217.2_Options



217.202  Use of options.

    (1) See PGI 217.202 for guidance on the use of options.
    (i) See PGI 217.202(1) for guidance on the use of options with 
foreign military sales (FMS).
    (ii) See PGI 217.202(2) for the use options with sole source major 
systems for U.S. and U.S./FMS combined procurements.
    (2) See 234.005-1 for limitations on the use of contract options for 
the provision of advanced component development, prototype, or initial 
production of technology developed under the contract or the delivery of 
initial or additional items.

[75 FR 32638, June 8, 2010, as amended at 81 FR 17045, Mar. 25, 2016, 84 
FR 65307, Nov. 27, 2019]



217.204  Contracts.

    (e)(i) Notwithstanding FAR 17.204(e), the ordering period of a task 
order or delivery order contract (including a contract for information 
technology) awarded by DoD pursuant to 10 U.S.C. 2304a--
    (A) May be for any period up to 5 years;

[[Page 140]]

    (B) May be subsequently extended for one or more successive periods 
in accordance with an option provided in the contract or a modification 
of the contract; and
    (C) Shall not exceed 10 years unless the head of the agency 
determines in writing that exceptional circumstances require a longer 
ordering period.
    (ii) Paragraph (e)(i) of this section does not apply to the 
following:
    (A) Contracts, including task or delivery order contracts, awarded 
under other statutory authority.
    (B) Advisory and assistance service task order contracts (authorized 
by 10 U.S.C. 2304b that are limited by statute to 5 years, with the 
authority to extend an additional 6 months (see FAR 16.505(c)).
    (C) Definite-quantity contracts.
    (D) GSA schedule contracts.
    (E) Multi-agency contracts awarded by agencies other than NASA, DoD, 
or the Coast Guard.
    (iii) Obtain approval from the senior procurement executive before 
issuing an order against a task or delivery order contract subject to 
paragraph (e)(i) of this section, if performance under the order is 
expected to extend more than 1 year beyond the 10-year limit or extended 
limit described in paragraph (e)(i)(C) of this section (see FAR 37.106 
for funding and term of service contracts).

[70 FR 73152, Dec. 9, 2005, as amended at 79 FR 58696, Sept. 30, 2014]



217.207  Exercise of options.

    (c) In addition to the requirements at FAR 17.207(c), exercise an 
option only after:
    (1) Determining that the contractor's record in the System for Award 
Management database is active and 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. See PGI 217.207 for the requirement to perform cost 
or price analysis of spare parts prior to exercising any option for 
firm-fixed-price contracts containing spare parts.
    (2) Verifying in the Supplier Performance Risk System (SPRS) 
(https://www.sprs.csd.disa.mil/) that--
    (i) The summary level score of a current NIST SP 800-171 DoD 
Assessment (i.e., not more than 3 years old, unless a lesser time is 
specified in the solicitation) for each covered contractor information 
system that is relevant to an offer, contract, task order, or delivery 
order are posted (see 204.7303).
    (ii) The contractor has a CMMC certificate at the level required by 
the contract, and that it is current (i.e., not more than 3 years old) 
(see 204.7502).

[85 FR 61520, Sept. 29, 2020]



217.208  Solicitation provisions and contract clauses.

    Sealed bid solicitations shall not include provisions for 
evaluations of options unless the contracting officer determines that 
there is a reasonable likelihood that the options will be exercised (10 
U.S.C. 2305(a)(5)). This limitation also applies to sealed bid 
solicitations for the contracts excluded by FAR 17.200.

[63 FR 11529, Mar. 9, 1998, as amended at 71 FR 27642, May 12, 2006]



217.208-70  Additional clauses.

    (a) Use the basic or the alternate of the clause at 252.217-7000, 
Exercise of Option to Fulfill Foreign Military Sales Commitments, in 
solicitations and contracts when an option may be used for foreign 
military sales requirements. Do not use the basic or the alternate of 
this clause in contracts for establishment or replenishment of DoD 
inventories or stocks, or acquisitions made under DoD cooperative 
logistics support arrangements.
    (1) Use the basic clause when the foreign military sales country is 
known at the time of solicitation or award.
    (2) Use the alternate I clause when the foreign military sale 
country is not known at the time of solicitation or award.
    (b) When a surge option is needed in support of industrial 
capability production planning, use the clause at 252.217-7001, Surge 
Option, in solicitations and contracts.
    (1) Insert the percentage or quantity of increase the option 
represents in paragraph (a) of the clause to ensure

[[Page 141]]

adequate quantities are available to meet item requirements.
    (2) Change 30 days in paragraphs (b)(2) and (d)(1) to longer 
periods, if appropriate.
    (3) Change the 24-month period in paragraph (c)(3), if appropriate.

[63 FR 11529, Mar. 9, 1998, as amended at 71 FR 27642, May 12, 2006; 79 
FR 65593, Nov. 5, 2014; 83 FR 62503, Dec. 4, 2018]



                 Subpart 217.5_Interagency Acquisitions

    Source: 63 FR 11530, Mar. 9, 1998, unless otherwise noted.



217.500  Scope of subpart.

    (a) Unless more specific statutory authority exists, the procedures 
in FAR subpart 17.5 and this subpart apply to all purchases, except 
micro-purchases, made for DoD by another agency. This includes orders 
under a task or delivery order contract entered into by the other 
agency. (Pub. L. 105-261, Section 814.)
    (b) A contracting activity from one DoD Component may provide 
acquisition assistance to deployed DoD units or personnel from another 
DoD Component. See PGI 217.502-1 for guidance and procedures.

[64 FR 14400, Mar. 25, 1999, as amended at 76 FR 76319, Dec. 7, 2011; 80 
FR 36718, June 26, 2015; 80 FR 74695, Nov. 30, 2015]



217.502  Procedures.



217.502-1  General.

    (a) Written agreement on responsibility for management and 
administration--
    (1) Assisted acquisitions. Follow the procedures at PGI 217.502-
1(a)(1), when a contracting activity from a DoD Component provides 
acquisition assistance to deployed DoD units or personnel from another 
DoD Component.

[83 FR 62502, Dec. 4, 2018]



217.503  Ordering procedures.

    (a) When the requesting agency is within DoD, a copy of the executed 
determination and findings required by FAR 17.502-2 shall be furnished 
to the servicing agency as an attachment to the order. When a DoD 
contracting office is acting as the servicing agency, a copy of the 
executed determination and findings shall be obtained from the 
requesting agency and placed in the contract file for the Economy Act 
order.

[76 FR 76319, Dec. 7, 2011]



            Subpart 217.6_Management and Operating Contracts



217.600  Scope of subpart.

    FAR subpart 17.6 does not apply to DoD.



   Subpart 217.7_Interagency Acquisitions: Acquisitions by Nondefense 
             Agencies on Behalf of the Department of Defense

[80 FR 51751, Aug. 26, 2015]



217.700  Scope of subpart.

    This subpart--
    (a) Implements section 854 of the National Defense Authorization Act 
for Fiscal Year 2005 (Pub. L. 108-375), section 801 of the National 
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), and 
section 806 of the National Defense Authorization Act for Fiscal Year 
2010 (Pub. L. 111-84); and
    (b) Prescribes policy for the acquisition of supplies and services 
through the use of contracts or orders issued by non-DoD agencies.



217.701  Definitions.

    As used in this subpart--
    Assisted acquisition means the type of interagency contracting 
through which acquisition officials of a non-DoD agency award a contract 
or a task or delivery order for the acquisition of supplies or services 
on behalf of DoD.
    Direct acquisition means the type of interagency contracting through 
which DoD orders a supply or service from a Governmentwide acquisition 
contract maintained by a non-DoD agency.
    Governmentwide acquisition contract means a task or delivery order 
contract that--
    (1) Is entered into by a non-defense agency; and
    (2) May be used as the contract under which property or services are 
procured

[[Page 142]]

for one or more other departments or agencies of the Federal Government.



217.770  Procedures.

    Departments and agencies shall establish and maintain procedures for 
reviewing and approving orders placed for supplies and services under 
non-DoD contracts, whether through direct acquisition or assisted 
acquisition, when the amount of the order exceeds the simplified 
acquisition threshold. These procedures shall include--
    (a) Evaluating whether using a non-DoD contract for the acquisition 
is in the best interest of DoD. Factors to be considered include--
    (1) Satisfying customer requirements;
    (2) Schedule;
    (3) Cost effectiveness (taking into account discounts and fees). In 
order to ensure awareness of the total cost of fees associated with use 
of a non-DoD contract, follow the procedures at PGI 217.770(a)(3); and
    (4) Contract administration (including oversight);
    (b) Determining that the tasks to be accomplished or supplies to be 
provided are within the scope of the contract to be used;
    (c) Reviewing funding to ensure that it is used in accordance with 
appropriation limitations; and
    (d) Collecting and reporting data on the use of assisted acquisition 
for analysis. Follow the reporting requirements in subpart 204.6.

[80 FR 51751, Aug. 26, 2015, as amended at 80 FR 56930, Sept. 21, 2015]



              Subpart 217.70_Exchange of Personal Property



217.7000  Scope of subpart.

    This subpart prescribes policy and procedures for exchange of 
nonexcess personal property concurrent with an acquisition. 40 U.S.C. 
503 permits exchange of personal property and application of the 
exchange allowance to the acquisition of similar property. This subpart 
does not authorize the sale of nonexcess personal property.

[63 FR 11529, Mar. 9, 1998, as amended at 77 FR 35880, June 15, 2012]



217.7001  Definitions.

    As used in this subpart--
    (a) Exchange (trade-in) property means property which--
    (1) Is not excess but is eligible for replacement (because of 
obsolescence, unserviceability, or other reason); and
    (2) Is applied as whole or partial payment toward the acquisition of 
similar items (i.e., items designed and constructed for the same 
purpose).
    (b) Property means items that fall within one of the generic 
categories listed in DoD Manual 4140.01, Volume 9, DoD Supply Chain 
Materiel Management Procedures: Materiel Programs.

[56 FR 36345, July 31, 1991, as amended at 65 FR 39705, June 27, 2000; 
77 FR 23631, Apr. 20, 2012; 82 FR 61480, Dec. 28, 2017]



217.7002  Policy.

    DoD policy is to exchange, rather than replace, eligible nonexcess 
property whenever exchange promotes economical and efficient program 
accomplishment. Exchange policy, authority, and applicability are 
governed by--
    (a) The Federal Property Management Regulations issued by the 
Administrator of the General Services Administration; and
    (b) DoD Manual 4140.01, Volume 9, DoD Supply Chain Materiel 
Management Procedures: Materiel Programs.

[56 FR 36345, July 31, 1991, as amended at 65 FR 39705, June 27, 2000; 
77 FR 23631, Apr. 20, 2012; 82 FR 61480, Dec. 28, 2017]



217.7003  Purchase request.

    Ensure that the requiring activity provides all of the following in 
support of the purchase request--
    (a) A certification that the property is eligible for exchange and 
complies with all conditions and limitations of DoD Manual 4140.01, 
Volume 9, DoD Supply Chain Materiel Management Procedures: Materiel 
Programs.
    (b) A written determination of economic advantage indicating--
    (1) The anticipated economic advantage to the Government from use of 
the exchange authority;
    (2) That exchange allowances shall be applied toward, or in partial 
payment of, the items to be acquired; and

[[Page 143]]

    (3) That, if required, the exchange property has been rendered safe 
or innocuous or has been demilitarized;
    (c) All applicable approvals for the exchange; and
    (d) A description of the property available for exchange (e.g., 
nomenclature, location, serial number, estimated travel value).

[56 FR 36345, July 31, 1991, as amended at 65 FR 39705, June 27, 2000; 
77 FR 23632, Apr. 20, 2012; 82 FR 61480, Dec. 28, 2017]



217.7004  Solicitation and award.

    (a) Solicitations shall include a request for offerors to state 
prices--
    (1) For the new items being acquired without any exchange; and
    (2) For the new items with the exchange (trade-in allowance) for the 
exchange property listed.
    (b) The contracting officer is not obligated to award on an exchange 
basis. If the lowest evaluated offer is an offer for the new items 
without any exchange, the contracting officer may award on that basis 
and forgo the exchange.
    (c) Exchanges may be made only with the successful offeror. When the 
successful offer includes an exchange, award one contract for both the 
acquisition of the new property and the trade-in of the exchange 
property. The only exception is when the items must be acquired against 
a mandatory Federal supply schedule contract, in which case, award a 
separate contract for the exchange.



217.7005  Solicitation provision.

    Use the provision at 252.217-7002, Offering Property for Exchange, 
when offering nonexcess personal property for exchange. Allow a minimum 
of 14 calendar days for the inspection period in paragraph (b) of the 
clause if the exchange property is in the contiguous United States. 
Allow at least 21 calendar days outside the contiguous United States.

[70 FR 35544, June 21, 2005]



  Subpart 217.71_Master Agreement for Repair and Alteration of Vessels



217.7100  Scope of subpart.

    This subpart contains acquisition policies and procedures for master 
agreements for repair and alteration of vessels.



217.7101  Definitions.

    (a) Master agreement for repair and alteration of vessels--
    (1) Is a written instrument of understanding, negotiated between a 
contracting activity and a contractor that--
    (A) Contains contract clauses, terms, and conditions applying to 
future contracts for repairs, alterations, and/or additions to vessels; 
and
    (B) Contemplates separate future contracts that will incorporate by 
reference or attachment the required and applicable clauses agreed upon 
in the master agreement.
    (2) Is not a contract.
    (b) Job order--
    (1) Is a fixed price contract incorporating, by reference or 
attachment, a master agreement for repair and alteration of vessels;
    (2) May include clauses pertaining to subjects not covered by the 
master agreement; but applicable to the job order being awarded; and
    (3) Applies to a specific acquisition and sets forth the scope of 
work, price, delivery date, and other appropriate terms that apply to 
the particular job order.



217.7102  General.

    (a) Activities shall enter into master agreements for repair and 
alteration of vessels with all prospective contractors located within 
the United States or its outlying areas, which--
    (1) Request ship repair work; and
    (2) Possess the organization and facilities to perform the work 
satisfactorily. (Issuance of a master agreement does not indicate 
approval of the contractor's facility for any particular acquisition and 
is not an affirmative determination of responsibility under FAR subpart 
9.1 for any particular acquisition.)

[[Page 144]]

    (b) Activities may use master agreements in work with prospective 
contractors located outside the United States and its outlying areas.
    (c) Activities may issue job orders under master agreements to 
effect repairs, alterations, and/or additions to vessels belonging to 
foreign governments.
    (1) Contractors shall treat vessels of a foreign government as if 
they were vessels of the U.S. Government whenever requested to do so by 
the contracting officer.
    (2) Identify the vessel and the foreign government in the 
solicitation and job order.

[56 FR 36345, July 31, 1991, as amended at 70 FR 35544, June 21, 2005]



217.7103  Master agreements and job orders.



217.7103-1  Content and format of master agreements.

    Follow the procedures at PGI 217.7103-1 for preparation of master 
agreements.

[71 FR 27642, May 12, 2006]



217.7103-2  Period of agreement.

    (a) Master agreements remain in effect until canceled by either the 
contractor or the contracting officer.
    (b) Master agreements can be canceled by either the contractor or 
the contracting officer by giving 30 days written notice to the other.
    (c) Cancellation of a master agreement does not affect the rights 
and liabilities under any job order existing at the time of 
cancellation. The contractor must continue to perform all work covered 
by any job order issued before the effective date of cancellation of the 
master agreement.



217.7103-3  Solicitations for job orders.

    (a) When a requirement arises within the United States or its 
outlying areas for the type of work covered by the master agreement, 
solicit offers from prospective contractors that--
    (1) Previously executed a master agreement; or
    (2) Have not previously executed a master agreement, but possess the 
necessary qualifications to perform the work and agree to execute a 
master agreement before award of a job order.
    (b) Follow the procedures at PGI 217.7103-3 when preparing 
solicitations for job orders.

[56 FR 36345, July 31, 1991, as amended at 63 FR 55052, Oct. 14, 1998; 
63 FR 56290, Oct. 21, 1998; 70 FR 35545, June 21, 2005; 71 FR 27642, May 
12, 2006]



217.7103-4  Emergency work.

    (a) The contracting officer, without soliciting offers, may issue a 
written job order to a contractor that has previously executed a master 
agreement when--
    (i) Delay in the performance of necessary repair work would endanger 
a vessel, its cargo or stores; or
    (ii) Military necessity requires immediate work on a vessel.
    (b) Follow the procedures at PGI 217.7103-4 when processing this 
type of undefinitized contract action.

[56 FR 36345, July 31, 1991. Redesignated and amended at 71 FR 27643, 
May 12, 2006]



217.7103-5  Repair costs not readily ascertainable.

    Follow the procedures at PGI 217.7103-5 if the nature of any repairs 
is such that their extent and probable cost cannot be ascertained 
readily.

[71 FR 27643, May 12, 2006]



217.7103-6  Modification of master agreements.

    (a) Review each master agreement at least annually before the 
anniversary of its effective date and revise it as necessary to conform 
to the requirements of the FAR and DFARS. Statutory or other mandatory 
changes may require review and revision earlier than one year.
    (b) A master agreement shall be changed only by modifying the master 
agreement itself. It shall not be changed through a job order.
    (c) A modification to a master agreement shall not affect job orders 
issued before the effective date of the modification.

[63 FR 11529, Mar. 9, 1998. Redesignated at 71 FR 27643, May 12, 2006]

[[Page 145]]



217.7104  Contract clauses.

    (a) Use the following clauses in solicitations for, and in, master 
agreements for repair and alteration of vessels:
    (1) 252.217-7003, Changes.
    (2) 252.217-7004, Job Orders and Compensation.
    (3) 252.217-7005, Inspection and Manner of Doing Work.
    (4) 252.217-7006, Title.
    (5) 252.217-7007, Payments.
    (6) 252.217-7008, Bonds.
    (7) 252.217-7009, Default.
    (8) 252.217-7010, Performance.
    (9) 252.217-7011, Access to Vessel.
    (10) 252.217-7012, Liability and Insurance.
    (11) 252.217-7013, Guarantees.
    (12) 252.217-7014, Discharge of Liens.
    (13) 252.217-7015, Safety and Health.
    (14) 252.217-7016, Plant Protection, as applicable.
    (b)(1) Incorporate in solicitations for, and in, job orders, the 
clauses in the master agreement, and any other clauses on subjects not 
covered by the master agreement, but applicable to the job order to be 
awarded.
    (2) Use the clause at 252.217-7016, Plant Protection, in job orders 
where performance is to occur at the contractor's facility.

Subpart 217.72 [Reserved]



           Subpart 217.73_Identification of Sources of Supply



217.7300  Scope.

    This subpart implements 10 U.S.C. 2384. It contains policy and 
procedures for requiring contractors to identify the actual manufacturer 
of supplies furnished to DoD.



217.7301  Policy.

    Contractors shall identify their sources of supply in contracts for 
supplies. Contractor identification of sources of supply enables 
solicitation, in subsequent acquisitions, of actual manufacturers or 
other suppliers of items. This enhances competition and potentially 
avoids payment of additional costs for no significant added value.



217.7302  Procedures.

    (a) Whenever practicable, include a requirement for contractor 
identification of sources of supply in all contracts for the delivery of 
supplies. The identification shall include--
    (1) The item's actual manufacturer or producer, or all the 
contractor's sources for the item;
    (2) The item's national stock number (if there is one);
    (3) The item identification number used by--
    (i) The actual manufacturer or producer of the item; or
    (ii) Each of the contractor's sources for the item; and
    (4) The source of any technical data delivered under the contract.
    (b) The requirement in paragraph (a) of this section does not apply 
to contracts that are--
    (1) For commercial items; or
    (2) Valued at or below the simplified acquisition threshold.

[56 FR 36345, July 31, 1991, as amended at 64 FR 2597, Jan. 15, 1999]



217.7303  Solicitation provision.

    (a) Use the provision at 252.217-7026, Identification of Sources of 
Supply, or one substantially the same, in all solicitations for supplies 
when the acquisition is being conducted under other than full and open 
competition, except when--
    (1) Using FAR 6.302-5;
    (2) The contracting officer already has the information required by 
the provision (e.g., the information was obtained under other 
acquisitions);
    (3) The contract is for subsistence, clothing or textiles, fuels, or 
supplies purchased and used outside the United States;
    (4) The contracting officer determines that it would not be 
practicable to require offerors/contractors to provide the information, 
e.g., nonrepetitive local purchases; or
    (5) The contracting officer determines that the exception at 
217.7302(b) applies to all items under the solicitation.
    (b) If appropriate, use the provision at 252.217-7026, 
Identification of Sources of Supply, or one substantially

[[Page 146]]

the same, in service contracts requiring the delivery of supplies.



              Subpart 217.74_Undefinitized Contract Actions



217.7400  Scope.

    This subpart prescribes policies and procedures implementing 10 
U.S.C. 2326.



217.7401  Definitions.

    As used in this subpart--
    Contract action means an action which results in a contract.
    (1) It includes contract modifications for additional supplies or 
services.
    (2) It includes task orders and delivery orders.
    (3) It does not include change orders, administrative changes, 
funding modifications, or any other contract modifications that are 
within the scope and under the terms of the contract, e.g., engineering 
change proposals, value engineering change proposals, and over and above 
work requests as described in subpart 217.77. For policy relating to 
definitization of change orders, see 243.204-70.
    Definitization means the agreement on, or determination of, contract 
terms, specifications, and price, which converts the undefinitized 
contract action to a definitive contract.
    Qualifying proposal means a proposal that contains sufficient 
information to enable DoD to conduct meaningful analyses and audits of 
the information contained in the proposal.
    Undefinitized contract action means any contract action for which 
the contract terms, specifications, or price are not agreed upon before 
performance is begun under the action. Examples are letter contracts, 
orders under basic ordering agreements, and provisioned item orders, for 
which the price has not been agreed upon before performance has begun. 
For policy relating to definitization of change orders, see 243.204-70.

[56 FR 36345, July 31, 1991, as amended at 75 FR 10191, Mar. 5, 2010; 75 
FR 48277, Aug. 10, 2010; 77 FR 76940, Dec. 31, 2012; 84 FR 39206, Aug. 
9, 2019]



217.7402  Exceptions.

    (a) The following undefinitized contract actions (UCAs) are not 
subject to this subpart. However, the contracting officer shall apply 
the policy and procedures to them to the maximum extent practicable 
(also see paragraph (b) of this section):
    (1) Purchases at or below the simplified acquisition threshold.
    (2) Special access programs.
    (3) Congressionally mandated long-lead procurement contracts.
    (b) If the contracting officer determines that it is impracticable 
to adhere to the procedures of this subpart for a particular contract 
action that falls within one of the categories in paragraph (a) of this 
section, the contracting officer shall provide prior notice, through 
agency channels, electronically via email to the Principal Director, 
Defense Pricing and Contracting (Contract Policy), at osd.pentagon.ousd-
[email protected].

[75 FR 48277, Aug. 10, 2010, as amended at 80 FR 72607, Nov. 20, 2015; 
84 FR 39206, Aug. 9, 2019; 84 FR 48510, Sept. 13, 2019]



217.7403  Policy.

    DoD policy is that undefinitized contract actions shall--
    (a) Be used only when--
    (1) The negotiation of a definitive contract action is not possible 
in sufficient time to meet the Government's requirements; and
    (2) The Government's interest demands that the contractor be given a 
binding commitment so that contract performance can begin immediately.
    (b) Be as complete and definite as practicable under the particular 
circumstances.



217.7404  Limitations.

    See PGI 217.7404 for additional guidance on obtaining approval to 
authorize use of an undefinitized contact action, documentation 
requirements, and other limitations on their use.
    (a) Foreign military sales contracts.
    (1) A contracting officer may not enter into a UCA for a foreign 
military sale unless--
    (i) The UCA provides for agreement upon contractual terms, 
specifications,

[[Page 147]]

and price by the end of the 180-day period beginning on the date on 
which the contractor submits a qualifying proposal; and
    (ii) The contracting officer obtains approval from the head of the 
contracting activity to enter into a UCA in accordance with 217.7404-1.
    (2) The head of the contracting activity may waive the requirements 
of paragraph (a)(1) of this section, if a waiver is necessary in order 
to support any of the following operations:
    (i) A contingency operation.
    (ii) A humanitarian or peacekeeping operation.
    (b) Unilateral definitization by a contracting officer. Any UCA with 
a value greater than $50 million may not be unilaterally definitized 
until--
    (1) The earlier of--
    (i) The end of the 180-day period, beginning on the date on which 
the contractor submits a qualifying proposal to definitize the 
contractual terms, specifications, and price; or
    (ii) The date on which the amount of funds expended under the 
contractual action is equal to more than 50 percent of the negotiated 
overall not-to-exceed price for the contractual action;
    (2) The head of the contracting activity, without power of 
redelegation, approves the definitization in writing;
    (3) The contracting officer provides a copy of the written approval 
to the contractor; and
    (4) A period of 30 calendar days has elapsed after the written 
approval is provided to the contractor.

[84 FR 39206, Aug. 9, 2019]



217.7404-1  Authorization.

    The contracting officer shall obtain approval from the head of the 
contracting activity before--
    (a) Entering into a UCA. The request for approval must fully explain 
the need to begin performance before definitization, including the 
adverse impact on agency requirements resulting from delays in beginning 
performance.
    (b) Including requirements for non-urgent spare parts and support 
equipment in a UCA. The request should show that inclusion of the non-
urgent items is consistent with good business practices and in the best 
interest of the United States.
    (c) Modifying the scope of a UCA when performance has already begun. 
The request should show that the modification is consistent with good 
business practices and in the best interests of the United States.



217.7404-2  Price ceiling.

    UCAs shall include a not-to-exceed price.



217.7404-3  Definitization schedule.

    (a) UCAs shall contain definitization schedules that provide for 
definitization by the earlier of--
    (1) The date that is 180 days after the contractor submits a 
qualifying proposal. This date may not be extended beyond an additional 
90 days without a written determination by the head of the contracting 
activity without power of redelegation, the commander of the combatant 
command concerned, or the Under Secretary of Defense for Acquisition and 
Sustainment that it is in the best interests of the military department 
or the defense agency, the combatant command, or the Department of 
Defense, respectively, to continue the action; or
    (2) The date on which the amount of funds obligated under the 
contract action is equal to more than 50 percent of the not-to-exceed 
price.
    (b) Submission of a qualifying proposal in accordance with the 
definitization schedule is a material element of the contract. If the 
contractor does not submit a timely qualifying proposal, the contracting 
officer may suspend or reduce progress payments under FAR 32.503-6, or 
take other appropriate action.

[56 FR 36345, July 31, 1991, as amended at 60 FR 29498, June 5, 1995; 63 
FR 67803, Dec. 9, 1998; 84 FR 39206, Aug. 9, 2019]



217.7404-4  Limitations on obligations.

    (a) The Government shall not obligate more than 50 percent of the 
not-to-exceed price before definitization. However, if a contractor 
submits a qualifying proposal before 50 percent of the not-to-exceed 
price has been obligated by the Government, then the limitation on 
obligations before definitization may be increased to no

[[Page 148]]

more than 75 percent (see 232.102-70 for coverage on provisional 
delivery payments).
    (b) In determining the appropriate amount to obligate, the 
contracting officer shall assess the contractor's proposal for the 
undefinitized period and shall obligate funds only in an amount 
consistent with the contractor's requirements for the undefinitized 
period.

[60 FR 29498, June 5, 1995, as amended at 74 FR 37650, July 29, 2009]



217.7404-5  Exceptions.

    (a) The limitations in 217.7404-2, 217.7404-3, and 217.7404-4 do not 
apply to UCAs for the purchase of initial spares.
    (b) The head of an agency may waive the limitations in 217.7404(a), 
217.7404-2, 217.7404-3, and 217.7404-4 for UCAs if the head of the 
agency determines that the waiver is necessary to support--
    (1) A contingency operation; or
    (2) A humanitarian or peacekeeping operation.

[60 FR 29498, June 5, 1995, as amended at 63 FR 67804, Dec. 9, 1998; 71 
FR 27643, May 12, 2006; 84 FR 39206, Aug. 9, 2019]



217.7404-6  Allowable profit.

    When the final price of a UCA is negotiated after a substantial 
portion of the required performance has been completed, the head of the 
contracting activity shall ensure the profit allowed reflects--
    (a) Any reduced cost risk to the contractor for costs incurred 
during contract performance before negotiation of the final price. 
However, if a contractor submits a qualifying proposal to definitize a 
UCA, and the contracting officer for such action definitizes the 
contract after the end of the 180-day period beginning on the date on 
which the contractor submitted the qualifying proposal, the profit 
allowed on the contract shall accurately reflect the cost risk of the 
contractor as such risk existed on the date the contractor submitted the 
qualifying proposal;
    (b) Any reduced cost risk to the contractor for costs expected to be 
incurred during performance of the remainder of the contract after 
negotiation of the final price; and
    (c) The requirements at 215.404-71-3(d)(2). The risk assessment 
shall be documented in the price negotiation memorandum.

[74 FR 37650, July 29, 2009, as amended at 83 FR 30586, June 29, 2018; 
84 FR 39206, Aug. 9, 2019]



217.7405  Plans and reports.

    (a) To provide for enhanced management and oversight of UCAs, 
departments and agencies shall--
    (1) Prepare and maintain a Consolidated UCA Management Plan; and
    (2) Prepare semi-annual Consolidated UCA Management Reports 
addressing each UCA with an estimated value exceeding $5 million.
    (b) Consolidated UCA Management Reports and Consolidated UCA 
Management Plan updates shall be submitted to the Office of the 
Director, Defense Procurement and Acquisition Policy, by October 31 and 
April 30 of each year in accordance with the procedures at PGI 217.7405.
    (c) Consolidated UCA Management Reports shall include information 
about all change orders that are not forward priced (i.e., unpriced) and 
have an estimated value exceeding $5 million.

[74 FR 37650, July 29, 2009, as amended at 75 FR 48277, Aug. 10, 2010]



217.7406  Contract clauses.

    (a) Use the clause at FAR 52.216-24, Limitation of Government 
Liability, in--
    (1) All UCAs;
    (2) Solicitations associated with UCAs;
    (3) Basic ordering agreements;
    (4) Indefinite-delivery contracts;
    (5) Any other type of contract providing for the use of UCAs; and
    (6) Unpriced change orders with an estimated value exceeding $5 
million.
    (b)(1) Use the clause at 252.217-7027, Contract Definitization, in--
    (i) All UCAs;
    (ii) Solicitations associated with UCAs;
    (iii) Basic ordering agreements;
    (iv) Indefinite-delivery contracts;
    (v) Any other type of contract providing for the use of UCAs; and
    (vi) Unpriced change orders with an estimated value exceeding $5 
million.

[[Page 149]]

    (2) Insert the applicable information in paragraphs (a), (b), and 
(d) of the clause.
    (3) If, at the time of entering into the UCA or unpriced change 
order, the contracting officer knows that the definitive contract action 
will meet the criteria of FAR 15.403-1, 15.403-2, or 15.403-3 for not 
requiring submission of certified cost or pricing data, the words ``and 
certified cost or pricing data'' may be deleted from paragraph (a) of 
the clause.

[75 FR 48277, Aug. 10, 2010, as amended at 77 FR 76940, Dec. 31, 2012]



            Subpart 217.75_Acquisition of Replenishment Parts



217.7500  Scope of subpart.

    This subpart provides guidance on additional requirements related to 
acquisition of replenishment parts.

[56 FR 36345, July 31, 1991, as amended at 71 FR 27643, May 12, 2006]



217.7501  Definition.

    Replenishment parts, as used in this subpart, means repairable or 
consumable parts acquired after the initial provisioning process.

[71 FR 27643, May 12, 2006]



217.7502  General.

    Departments and agencies--
    (a) May acquire replenishment parts concurrently with production of 
the end item.
    (b) Shall provide for full and open competition when fully adequate 
drawings and any other needed data are available with the right to use 
for acquisition purposes (see part 227). However--
    (1) When data is not available for a competitive acquisition, use 
one of the procedures in PGI 217.7504.
    (2) Replenishment parts must be acquired so as to ensure the safe, 
dependable, and effective operation of the equipment. Where this 
assurance is not possible with new sources, competition may be limited 
to the original manufacturer of the equipment or other sources that have 
previously manufactured or furnished the parts as long as the action is 
justified. See 209.270 for requirements applicable to replenishment 
parts for aviation or ship critical safety items.
    (c) Shall follow the limitations on price increases in 217.7505.

[56 FR 36345, July 31, 1991, as amended at 69 FR 55989, Sept. 17, 2004. 
Redesignated and amended at 71 FR 27643, May 12, 2006; 73 FR 1827, Jan. 
10, 2008]



217.7503  Spares acquisition integrated with production.

    Follow the procedures at PGI 217.7503 for acquiring spare parts 
concurrently with the end item.

[71 FR 27643, May 12, 2006]



217.7504  Acquisition of parts when data is not available.

    Follow the procedures at PGI 217.7504 when acquiring parts for which 
the Government does not have the necessary data.

[71 FR 27643, May 12, 2006]



217.7505  Limitations on price increases.

    This section provides implementing guidance for section 1215 of 
Public Law 98-94 (10 U.S.C. 2452 note).
    (a) The contracting officer shall not award, on a sole source basis, 
a contract for any centrally managed replenishment part when the price 
of the part has increased by 25 percent or more over the most recent 12-
month period.
    (1) Before computing the percentage difference between the current 
price and the prior price, adjust for quantity, escalation, and other 
factors necessary to achieve comparability.
    (2) Departments and agencies may specify an alternate percentage or 
percentages for contracts at or below the simplified acquisition 
threshold.
    (b) The contracting officer may award a contract for a part, the 
price of which exceeds the limitation in paragraph (a) of this section, 
if the contracting officer certifies in writing to the head of the 
contracting activity before award that--
    (1) The contracting officer has evaluated the price of the part and 
concluded that the price increase is fair and reasonable; or

[[Page 150]]

    (2) The national security interests of the United States require 
purchase of the part despite the price increase.
    (c) The fact that a particular price has not exceeded the limitation 
in paragraph (a) of this section does not relieve the contracting 
officer of the responsibility for obtaining a fair and reasonable price.
    (d) Contracting officers may include a provision in sole source 
solicitations requiring that the offeror supply with its proposal, price 
and quantity data on any government orders for the replenishment part 
issued within the most recent 12 months.

[56 FR 36345, July 31, 1991, as amended at 64 FR 2598, Jan. 15, 1999. 
Redesignated at 71 FR 27643, May 12, 2006]



217.7506  Spare parts breakout program.

    See PGI 217.7506 and DoD Manual 4140.01, Volume 9, DoD Supply Chain 
Materiel Management Procedures: Materiel Programs, for spare parts 
breakout requirements.

[71 FR 27643, May 12, 2006, as amended at 82 FR 61480, Dec. 28, 2017]



         Subpart 217.76_Contracts with Provisioning Requirements



217.7601  Provisioning.

    (a) Follow the procedures at PGI 217.7601 for contracts with 
provisioning requirements.
    (b) For technical requirements of provisioning, see DoD Manual 
4140.01, Volume 2, DoD Supply Chain Materiel Management Procedures: 
Demand and Supply Planning.

[71 FR 27643, May 12, 2006, as amended at 82 FR 61480, Dec. 28, 2017]



                   Subpart 217.77_Over and Above Work



217.7701  Procedures.

    Follow the procedures at PGI 217.7701 when acquiring over and above 
work.

[71 FR 27643, May 12, 2006]



217.7702  Contract clause.

    Use the clause at 252.217-7028, Over and Above Work, in 
solicitations and contracts containing requirements for over and above 
work, except as provided for in subpart 217.71.



                         217.78_Reverse Auctions



217.7801  Prohibition.

    In accordance with section 814 of the National Defense Authorization 
Act for Fiscal Year 2017 (Pub. L. 114-328) as amended by section 882 of 
the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 
115-91) (see 10 U.S.C. 2302 note), contracting officers shall not use 
reverse auctions when procuring items designated by the requiring 
activity as personal protective equipment or an aviation critical safety 
item, when the requiring activity advises the contracting officer that 
the level of quality or failure of the equipment or item could result in 
combat casualties. See 252.209-7010 for the definition and 
identification of critical safety items.

[84 FR 50789, Sept. 26, 2019]



PART 218_EMERGENCY ACQUISITIONS--Table of Contents



            Subpart 218.1_Available Acquisition Flexibilities

Sec.
218.170 Additional acquisition flexibilities.

            Subpart 218.2_Emergency Acquisition Flexibilities

218.201 Contingency operation.
218.202 Defense or recovery from certain events.
218.203 Incidents of national significance, emergency declaration, or 
          major disaster declaration.
218.204 Humanitarian or peacekeeping operation.
218.270 Head of contracting activity determinations.
218.271 Use of electronic business tools.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 72 FR 2632, Jan. 22, 2007, unless otherwise noted.

[[Page 151]]



            Subpart 218.1_Available Acquisition Flexibilities



218.170  Additional acquisition flexibilities.

    Additional acquisition flexibilities available to DoD are as 
follows:
    (a) Circumstances permitting other than full and open competition. 
Use of the authority at FAR 6.302-2, Unusual and compelling urgency, may 
be appropriate under certain circumstances. See PGI 206.302-2.
    (b) Use of advance Military Interdepartmental Purchase Request 
(MIPR). For urgent requirements, the advance MIPR may be transmitted 
electronically. See PGI 208.7004-3.
    (c) Use of the Governmentwide commercial purchase card. 
Governmentwide commercial purchase cards do not have to be used for 
purchases valued at or below the micro-purchase threshold if the place 
of performance is entirely outside the United States. See 213.270(c)(1).
    (d) Master agreement for repair and alteration of vessels. The 
contracting officer, without soliciting offers, may issue a written job 
order for emergency work to a contractor that has previously executed a 
master agreement, when delay would endanger a vessel, its cargo or 
stores, or when military necessity requires immediate work on a vessel. 
See 217.7103-4, 252.217-7010, and PGI 217.7103-4.
    (e) Spare parts breakout program. An urgent immediate buy need not 
be delayed if an evaluation of the additional information cannot be 
completed in time to meet the required delivery date. See PGI 217.7506, 
paragraph 1-105(e).
    (f) Storage and disposal of toxic and hazardous materials. Under 
certain emergency situations, exceptions apply with regard to the 
prohibition on storage or disposal of non-DoD-owned toxic or hazardous 
materials on DoD installations. See 223.7102(a)(3) and (7).
    (g) Authorization Acts, Appropriations Acts, and other statutory 
restrictions on foreign acquisition. Acquisitions in the following 
categories are not subject to the restrictions of 225.7002, Restrictions 
on food, clothing, fabrics, specialty metals, and hand or measuring 
tools: (1) Acquisitions at or below the simplified acquisition 
threshold; (2) Acquisitions outside the United States in support of 
combat operations; (3) Acquisitions of perishable foods by or for 
activities located outside the United States for personnel of those 
activities; (4) Acquisitions of food, specialty metals, or hand or 
measuring tools in support of contingency operations, or for which the 
use of other than competitive procedures has been approved on the basis 
of unusual and compelling urgency in accordance with FAR 6.302-2; (5) 
Emergency acquisitions by activities located outside the United States 
for personnel of those activities; and (6) Acquisitions by vessels in 
foreign waters. See 225.7002-2.
    (h) Rights in technical data. The agency head may notify a person 
asserting a restriction that urgent or compelling circumstances (e.g., 
emergency repair or overhaul) do not permit the Government to continue 
to respect the asserted restriction. See 227.7102-2; 227.7103-5; 
227.7103-13; 227.7104; 227.7203-13; 252.227-7013; 252.227-7014; 252.227-
7015; 252.227-7018; and 252.227-7037.
    (i) Tax exemption in Spain. If copies of a contract are not 
available and duty-free import of equipment or materials is urgent, the 
contracting officer may send the Joint United States Military Group 
copies of the Letter of Intent or a similar document indicating the 
pending award. See PGI 229.7001.
    (j) Electronic submission and processing of payment requests. 
Exceptions to the use of Wide Area WorkFlow are at 232.7002(a).
    (k) Mortuary services. In an epidemic or other emergency, the 
contracting activity may obtain services beyond the capacity of the 
contractor's facilities from other sources. See 237.7003(a) and 252.237-
7003.

[72 FR 2632, Jan. 22, 2007, as amended at 77 FR 38733, June 29, 2012; 84 
FR 48505, Sept. 13, 2019]



            Subpart 218.2_Emergency Acquisition Flexibilities



218.201  Contingency operation.

    (1) Selection, appointment, and termination of appointment. 
Contracting officer qualification requirements pertaining to a 
baccalaureate degree do

[[Page 152]]

not apply to DoD employees or members of the armed forces who are in a 
contingency contracting force. See 201.603-2(2).
    (2) Policy for item unique identification. Contractors will not be 
required to provide DoD item unique identification if the items, as 
determined by the head of the contracting activity, are to be used to 
support a contingency operation. See 211.274-2(b).
    (3) Use of the Governmentwide commercial purchase card. 
Governmentwide commercial purchase cards do not have to be used for 
purchases valued at or below the micro-purchase threshold if the 
purchase or payment is for an overseas transaction by a contracting 
officer in support of a contingency operation, or for training exercises 
in preparation for overseas contingency, humanitarian, or peacekeeping 
operations. See 213.201(g) and 213.270(c)(3) and (5).
    (4) Governmentwide commercial purchase card. A contracting office 
supporting a contingency operation or a humanitarian or peacekeeping 
operation may use the Governmentwide commercial purchase card to make a 
purchase that exceeds the micro-purchase threshold but does not exceed 
the simplified acquisition threshold if certain conditions are met. See 
213.301(3).
    (5) Imprest funds and third party drafts. Imprest funds are 
authorized for use without further approval for overseas transactions at 
or below the micro-purchase threshold in support of a contingency 
operation or a humanitarian or peacekeeping operation. See 213.305-
3(d)(iii)(A).
    (6) Standard Form (SF) 44, Purchase Order-Invoice-Voucher. SF 44s 
may be used for purchases not exceeding the simplified acquisition 
threshold for overseas transactions by contracting officers in support 
of a contingency operation or a humanitarian or peacekeeping operation. 
See 213.306(a)(1)(B).
    (7) Only one offer. The requirements at sections 215.371-2 do not 
apply to acquisitions, as determined by the head of the contracting 
activity, in support of a contingency operation. See 215.371-4(a)(2).
    (8) Approval of determination and findings for time-and-materials or 
labor-hour contracts. The approval requirements in paragraphs 
(d)(i)(A)(1) and (2) of this section do not apply to contracts that, as 
determined by the head of the contracting activity, support contingency. 
See 216.601(d)(3).
    (9) Undefinitized contract actions. The head of the agency may waive 
certain limitations for undefinitized contract actions if the head of 
the agency determines that the waiver is necessary to support a 
contingency operation or a humanitarian or peacekeeping operation. See 
217.7404-5(b).
    (10) Prohibited sources. DoD personnel are authorized to make 
emergency acquisitions in direct support of U.S. or allied forces 
deployed in military contingency, humanitarian, or peacekeeping 
operations in a country or region subject to economic sanctions 
administered by the Department of the Treasury, Office of Foreign Assets 
Control. See 225.701-70.
    (11) Authorization Acts, Appropriations Acts, and other statutory 
restrictions on foreign acquisition. Acquisitions in the following 
categories are not subject to the restrictions of 225.7002, Restrictions 
on food, clothing, fabrics, specialty metals, and hand or measuring 
tools: (1) Acquisitions at or below the simplified acquisition 
threshold; (2) Acquisitions outside the United States in support of 
combat operations; (3) Acquisitions of perishable foods by or for 
activities located outside the United States for personnel of those 
activities; (4) Acquisitions of food, specialty metals, or hand or 
measuring tools in support of contingency operations, or for which the 
use of other than competitive procedures has been approved on the basis 
of unusual and compelling urgency in accordance with FAR 6.302-2; (5) 
Emergency acquisitions by activities located outside the United States 
for personnel of those activities; and (6) Acquisitions by vessels in 
foreign waters. See 225.7002-2.
    (12) Electronic submission and processing of payment requests. 
Contractors do not have to submit payment requests in electronic form 
for contracts

[[Page 153]]

awarded by deployed contracting officers in the course of military 
operations, including contingency operations or humanitarian or 
peacekeeping operations. See 232.7002(a)(4).

[72 FR 2632, Jan. 22, 2007, as amended at 78 FR 76072, Dec. 16, 2013; 81 
FR 53045, Aug. 11, 2016; 83 FR 24890, May 30, 2018; 85 FR 34528, June 5, 
2020]



218.202  Defense or recovery from certain events.

    For acquisitions that, as determined by the head of the contracting 
activity, are to facilitate defense against or recovery from cyber, 
nuclear, biological, chemical, or radiological attack; to facilitate 
provision of international disaster assistance; or to support response 
to an emergency or major disaster, the following requirements do not 
apply:
    (1) Policy for unique item identification at 211.274-2(a). 
Contractors are not required to provide DoD unique item identification 
if the items are to be used to facilitate defense against or recovery 
from nuclear, biological, chemical, or radiological attack. However, 
contractors are not exempt from this requirement if the items are to be 
used to facilitate defense against or recovery from cyber attack. See 
211.274-2(b).
    (2) Only one offer requirements at section 215.371-2. See 215.371-
4(a)(2).
    (3) Approval of determination and findings for time-and-materials or 
labor-hour contracts at 216.601(d)(i)(A)(1) and (2). See 216.601(d)(3).

[83 FR 24890, May 30, 2018]



218.203  Incidents of national significance, emergency declaration, 
or major disaster declaration.

    (1) Establishing or maintaining alternative sources. PGI contains a 
sample format for Determination and Findings citing the authority of FAR 
6.202(a), regarding exclusion of a particular source in order to 
establish or maintain an alternative source or sources. Alternate 2 of 
the sample format addresses having a supplier available for furnishing 
supplies or services in case of a national emergency. See PGI 206.202.
    (2) Electronic submission and processing of payment requests. 
Contractors do not have to submit payment requests in electronic form 
for contracts awarded by contracting officers in the conduct of 
emergency operations, such as responses to natural disasters or national 
or civil emergencies. See 232.7002(a)(4).



218.204  Humanitarian or peacekeeping operation.

    The following requirements do not apply to acquisitions that, as 
determined by the head of the contracting activity, are in support of 
humanitarian or peacekeeping operations:
    (1) Policy for item unique identification at 211.274-2(a). See 
211.274-2(b).
    (2) Only one offer requirements at sections 215.371-2. See 215.371-
4(a)(2).
    (3) Approval of determination and findings for time-and-materials or 
labor-hour contracts at 216.601(d)(i)(A)(1) and (2). See 216.601(d)(3).

[83 FR 24890, May 30, 2018]



218.270  Head of contracting activity determinations.

    The term ``head of the agency'' is replaced with ``head of the 
contracting activity,'' as defined in FAR 2.101, in the following 
locations:
    (a) FAR 2.101: definition of ``simplified acquisition threshold.''
    (b) FAR 12.102(f).
    (c) FAR 13.201(g).
    (d) FAR 13.500(c)(1).
    (e) FAR 18.2.

[74 FR 2407, Jan. 15, 2009. Redesignated at 76 FR 44281, July 25, 2011; 
82 FR 61480, Dec. 28, 2017. Redesignated and amended at 83 FR 24890, May 
30, 2018]



218.271  Use of electronic business tools.

    When supporting a contingency operation or humanitarian or 
peacekeeping operation, follow the procedures at PGI 218.271 concerning 
the use of electronic business tools.

[80 FR 10390, Feb. 26, 2015. Redesignated and amended at 83 FR 24890, 
May 30, 2018]

[[Page 154]]



                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS





PART 219_SMALL BUSINESS PROGRAMS--Table of Contents



Sec.

                         Subpart 219.2_Policies

219.201 General policy.
219.202 Specific policies.
219.202-1 Encouraging small business participation in acquisitions.
219.270 Religious-related services--inclusion of nonprofit 
          organizations.
219.270-1 Definition.
219.270-2 Procedures.
219.270-3 Solicitation provision.

Subpart 219.3_Determination of Small Business Status for Small Business 
                                Programs

219.301-2 Rerepresentation by a contractor that represented itself as a 
          small business concern.
219.301-3 Rerepresentation by a contractor that represented itself as 
          other than a small business concern.
219.309 Solicitation provisions and contract clauses.

    Subpart 219.4_Cooperation With the Small Business Administration

219.401 General.
219.402 Small Business Administration procurement center 
          representatives.

 Subpart 219.5_Small Business Total Set-Asides, Partial Set-Asides, and 
                                Reserves

219.502 Setting aside acquisitions.
219.502-1 Requirements for setting aside acquisitions.
219.502-2 Total small business set-asides.
219.502-8 Rejecting Small Business Administration recommendations.

     Subpart 219.6_Certificates of Competency and Determinations of 
                             Responsibility

219.602 Procedures.

         Subpart 219.7_The Small Business Subcontracting Program

219.702-70 Statutory requirements for the Test Program for Negotiation 
          of Comprehensive Small Business Subcontracting Plans.
219.703 Eligibility requirements for participating in the program.
219.704 Subcontracting plan requirements.
219.705 Responsibilities of the contracting officer under the 
          subcontracting assistance program.
219.705-4 Reviewing the subcontracting plan.
219.705-6 Postaward responsibilities of the contracting officer.
219.706 Responsibilities of the cognizant administrative contracting 
          officer.
219.708 Contract clauses.

 Subpart 219.8_Contracting With the Small Business Administration (The 
                              8(a) Program)

219.800 General.
219.803 Selecting acquisitions for the 8(a) Program.
219.804 Evaluation, offering, and acceptance.
219.804-1 Agency evaluation.
219.805 Competitive 8(a).
219.805-1 General.
219.805-2 Procedures.
219.806 Pricing the 8(a) contract.
219.808 Contract negotiation.
219.808-1 Sole source.
219.811 Preparing the contracts.
219.811-3 Contract clauses.

   Subpart 219.13_Historically Underutilized Business Zone (HUBZone) 
                                 Program

219.1307 Price evaluation preference for HUBZone small business 
          concerns.

Subpart 219.70 [Reserved]

        Subpart 219.71_Pilot Mentor-Prot[eacute]g[eacute] Program

219.7100 Scope.
219.7101 Policy.
219.7102 General.
219.7103 Procedures.
219.7103-1 General.
219.7103-2 Contracting officer responsibilities.
219.7104 Developmental assistance costs eligible for reimbursement or 
          credit.
219.7105 Reporting.
219.7106 Performance reviews.

    Authority: 41. U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36353, July 31, 1991, unless otherwise noted.



                         Subpart 219.2_Policies



219.201  General policy.

    (c) For the defense agencies, the director of the Office of Small 
Business

[[Page 155]]

Programs must be appointed by, be responsible to, and report directly to 
the director or deputy director of the defense agency.
    (8) The responsibility for assigning small business technical 
advisors is delegated to the head of the contracting activity.
    (10) Contracting activity small business specialists perform this 
function by--
    (A) Reviewing and making recommendations for all acquisitions 
(including orders placed against Federal Supply Schedule contracts) over 
$10,000, except those under the simplified acquisition threshold that 
are totally set aside for small business concerns in accordance with FAR 
19.502-2. Follow the procedures at PGI 219.201(c)(10) regarding such 
reviews.
    (B) Making the review before issuance of the solicitation or 
contract modification and documenting it on DD Form 2579, Small Business 
Coordination Record (see PGI 253.219-70 for instructions on completing 
the form); and
    (C) Referring recommendations that have been rejected by the 
contracting officer to the Small Business Administration (SBA) 
procurement center representative. If an SBA procurement center 
representative is not assigned, see FAR 19.402(a).
    (11) Also conduct annual reviews to assess--
    (A) The extent of consolidation of contract requirements that has 
occurred (see FAR 7.107); and
    (B) The impact of those consolidations on the availability of small 
business concerns to participate in procurements as both contractors and 
subcontractors.
    (d) For information on the appointment and functions of small 
business specialists, see PGI 219.201(d).

[56 FR 36353, July 31, 1991, as amended at 63 FR 41973, Aug. 6, 1998; 64 
FR 2598, Jan. 15, 1999; 65 FR 39705, June 27, 2000; 65 FR 50149, Aug. 
17, 2000; 65 FR 63807, Oct. 25, 2000; 69 FR 55987, Sept. 17, 2004; 71 FR 
44927, Aug. 8, 2006; 73 FR 46813, Aug. 12, 2008; 75 FR 45074, Aug. 2, 
2010; 79 FR 61582, Oct. 14, 2014; 79 FR 67356, Nov. 13, 2014; 79 FR 
68635, Nov. 18, 2014; 80 FR 56930, Sept. 21, 2015; 83 FR 15996, Apr. 13, 
2018]



219.202  Specific policies.



219.202-1  Encouraging small business participation in acquisitions.

    See PGI 205.207(d) for information on how to advertise a small 
business event on the Government point of entry.

[76 FR 76319, Dec. 7, 2011, as amended at 77 FR 76937, Dec. 31, 2012; 79 
FR 61582, Oct. 14, 2014]



219.270  Religious-related services--inclusion of nonprofit 
organizations.

    Source: 83 FR 16002, Apr. 13, 2018, unless otherwise noted.



219.270-1  Definition.

    As used in this section--
    Nonprofit organization means any organization that is--
    (1) Described in section 501(c) of the Internal Revenue Code of 
1986; and
    (2) Exempt from tax under section 501(a) of that Code.



219.270-2  Procedures.

    (a) To comply with section 898 of the National Defense Authorization 
Act for Fiscal Year 2016 (Pub. L. 114-92), when acquiring religious-
related services to be performed on a U.S. military installation--
    (1) Do not preclude a nonprofit organization from competing, even 
when the acquisition is set aside for small businesses as identified in 
FAR 19.000(a)(3); and
    (2) Do not use any of the sole source exceptions at FAR 6.302-
5(b)(4) through (7) for such acquisitions.
    (b) If the apparently successful offeror has not represented in its 
quotation or offer that it is one of the small business concerns 
identified in FAR 19.000(a)(3), the contracting officer shall verify 
that the offeror is registered in the System for Award Management 
database as a nonprofit organization.



219.270-3  Solicitation provision.

    Use the provision 252.219-7012, Competition for Religious-Related 
Services, in solicitations, including solicitations using FAR part 12 
procedures for the acquisition of commercial items, for the acquisition 
of religious-related

[[Page 156]]

services to be performed on U.S. military installations, when the 
acquisition is set aside for any of the small business concerns 
identified in FAR 19.000(a)(3).



Subpart 219.3_Determination of Small Business Status for Small Business 
                                Programs



219.301-2  Rerepresentation by a contractor that represented
itself as a small business concern.

    Follow the procedures at PGI 204.606(4)(vii) for reporting 
modifications for rerepresentation actions.

[76 FR 76320, Dec. 7, 2011]



219.301-3  Rerepresentation by a contractor that represented 
itself as other than a small business concern.

    Follow the procedures at PGI 204.606(4)(vii) for reporting 
modifications for rerepresentation actions.

[76 FR 76320, Dec. 7, 2011]



219.309  Solicitation provisions and contract clauses.

    (1) Use the provision at 252.219-7000, Advancing Small Business 
Growth, in solicitations, including solicitations using FAR part 12 
procedures for acquisition of commercial items, when the estimated 
annual value of the contract is expected to exceed--
    (i) The small business size standard, if expressed in dollars, for 
the North American Industry Classification System (NAICS) code assigned 
by the contracting officer; or
    (ii) $70 million, if the small business size standard is expressed 
as number of employees for the NAICS code assigned by the contracting 
officer.

[80 FR 30116, May 26, 2015]



    Subpart 219.4_Cooperation With the Small Business Administration



219.401  General.

    (b) The contracting activity small business specialist is the 
primary activity focal point for interface with the SBA.



219.402  Small Business Administration procurement center representatives.

    (c)(i) Authority. This section implements section 1811 of the 
National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-
328).
    (ii) Definition. As used in this section--
    Humanitarian and civic assistance means any of the following 
activities carried out in conjunction with authorized military 
operations in a foreign country:
    (A) Medical, surgical, dental, and veterinary care provided in areas 
of a country that are rural or underserved by professionals in those 
fields, including education, training, and technical assistance related 
to the care provided.
    (B) Construction of rudimentary surface transportation systems.
    (C) Well drilling and construction of basic sanitation facilities.
    (D) Rudimentary construction and repair of public facilities. (10 
U.S.C. 401(e))
    (iii) Exclusions. Unless the contracting activity requests a review, 
SBA procurement center representatives will not review acquisitions 
conducted by or for DoD if the acquisition is--
    (A) For foreign military sales (see 225.7300);
    (B) In support of humanitarian and civic assistance;
    (C) In support of a contingency operation;
    (D) Awarded pursuant to a Status of Forces Agreement or other 
agreement with the government of a foreign country in which U.S. Armed 
Forces are deployed; or
    (E) Both awarded and performed outside the United States and its 
outlying areas.

[84 FR 72562, Dec. 31, 2019]



 Subpart 219.5_Small Business Total Set-Asides, Partial Set-Asides, and 
                                Reserves



219.502  Setting aside acquisitions.



219.502-1  Requirements for setting aside acquisitions.

    Do not set aside acquisitions--

[[Page 157]]

    (1) For supplies that were developed and financed, in whole or in 
part, by Canadian sources under the U.S.-Canadian Defense Development 
Sharing Program; or
    (2) Excluded from procurement center representative review (see 
219.402(c)(iii)).

[84 FR 72563, Dec. 31, 2019]



219.502-2  Total small business set-asides.

    Unless the contracting officer determines that the criteria for set-
aside cannot be met, set aside for small business concerns acquisitions 
for--
    (1) Construction, including maintenance and repairs, under $3 
million;
    (2) Dredging under $1.5 million; and
    (3) Architect-engineer services for military construction or family 
housing projects under $1 million (10 U.S.C. 2855).

[85 FR 53683, Aug. 31, 2020, as amended at 85 FR 61504, Sept. 29, 2020]



219.502-8  Rejecting Small Business Administration recommendations.

    (b) The designee shall be at a level no lower than chief of the 
contracting office.

[56 FR 36353, July 31, 1991. Redesignated at 85 FR 53683, Aug. 31, 2020]



     Subpart 219.6_Certificates of Competency and Determinations of 
                             Responsibility



219.602  Procedures.

    When making a nonresponsibility determination for a small business 
concern, follow the procedures at PGI 219.602.

[72 FR 20762, Apr. 26, 2007]



         Subpart 219.7_The Small Business Subcontracting Program



219.702-70  Statutory requirements for the Test Program for 
Negotiation of Comprehensive Small Business Subcontracting Plans.

    (a) Test Program. In accordance with 15 U.S.C. 637 note, DoD has 
established a test program to determine whether comprehensive 
subcontracting plans on a corporate, division, or plant-wide basis will 
reduce administrative burdens while enhancing subcontracting 
opportunities for small and small disadvantaged business concerns. This 
program is referred to as the Test Program for Negotiation of 
Comprehensive Small Business Subcontracting Plans (Test Program).
    (b) Eligibility requirements. To become and remain eligible to 
participate in the Test Program, a business concern is required to have 
furnished supplies or services (including construction) under at least 
three DoD contracts during the preceding fiscal year, having an 
aggregate value of at least $100 million.
    (c) Comprehensive subcontracting plans. (1) The Defense Contract 
Management Agency will designate the contracting officer who shall 
negotiate and approve comprehensive subcontracting plans with eligible 
participants on an annual basis.
    (2) Test Program participants use their comprehensive subcontracting 
plans, in lieu of individual subcontracting plans, when performing any 
DoD contract or subcontract that requires a subcontracting plan.
    (d) Assessment. The contracting officer designated to manage the 
comprehensive subcontracting plan shall conduct a compliance review 
during the fiscal year after the close of the fiscal year for which the 
plan is applicable. The contracting officer shall compare the approved 
percentage or dollar goals to the total, actual subcontracting dollars 
covered by the comprehensive subcontracting plan.
    (1) If the contractor has failed to meet its approved subcontracting 
goal(s), the contracting officer shall give the contractor written 
notice specifying the failure, advising of the potential for assessment 
of liquidated damages, permitting the contractor to demonstrate what 
good faith efforts have been made, and providing a period of 15 working 
days (or longer period at the contracting officer's discretion) within 
which to respond. The contracting officer may take the contractor's 
failure to respond to the notice as an admission that no valid 
explanation exists.
    (2) The contracting officer shall review all available information 
to determine whether the contractor has failed

[[Page 158]]

to make a good faith effort to comply with the plan.
    (3) If, after consideration of all relevant information, the 
contracting officer determines that the contractor failed to make a good 
faith effort to comply with the comprehensive subcontracting plan, the 
contracting officer shall issue a final decision. The contracting 
officer's final decision shall include the right of the contractor to 
appeal under the Disputes clause. The contracting officer shall 
distribute a copy of the final decision to all cognizant contracting 
officers for the contracts covered under the plan.
    (e) Liquidated damages. The amount of liquidated damages shall be 
the amount of anticipated damages sustained by the Government, including 
but not limited to additional expenses of administration, reporting, and 
contract monitoring, and shall be identified in the comprehensive 
subcontracting plan. Liquidated damages shall be in addition to any 
other remedies the Government may have.
    (f) Expiration date. The Test Program expires on December 31, 2017.

[83 FR 15998, Apr. 13, 2018]



219.703  Eligibility requirements for participating in the program.

    (a) Qualified nonprofit agencies for the blind and other severely 
disabled, that have been approved by the Committee for Purchase from 
People Who Are Blind or Severely Disabled under 41 U.S.C. chapter 85, 
are eligible to participate in the program as a result of 10 U.S.C. 
2410d and section 9077 of Pub. L. 102-396 and similar sections in 
subsequent Defense appropriations acts. Under this authority, 
subcontracts awarded to such entities may be counted toward the prime 
contractor's small business subcontracting goal.
    (b) A contractor may also rely on the written representation as to 
status of--
    (i) A historically black college or university or minority 
institution; or
    (ii) A qualified nonprofit agency for the blind or other severely 
disabled approved by the Committee for Purchase from People Who Are 
Blind or Severely Disabled.

[57 FR 42630, Sept. 15, 1992, as amended at 58 FR 28465, May 13, 1993; 
60 FR 13075, Mar. 10, 1995; 60 FR 41157, Aug. 11, 1995; 60 FR 61596, 
Nov. 30, 1995; 61 FR 50535, Sept. 26, 1996; 63 FR 11530, Mar. 9, 1998; 
63 FR 41974, Aug. 6, 1998; 64 FR 51076, Sept. 21, 1999; 64 FR 62986, 
Nov. 18, 1999; 72 FR 20762, Apr. 26, 2007; 76 FR 58137, Sept. 20, 2011; 
77 FR 35880, June 15, 2012; 79 FR 61582, Oct. 14, 2014]



219.704  Subcontracting plan requirements.

    (1) In those subcontracting plans which specifically identify small 
businesses, prime contractors shall notify the administrative 
contracting officer of any substitutions of firms that are not small 
business firms, for the small business firms specifically identified in 
the subcontracting plan. Notifications shall be in writing and shall 
occur within a reasonable period of time after award of the subcontract. 
Contractor-specified formats shall be acceptable.
    (2) See 215.304 for evaluation of offers in acquisitions that 
require a subcontracting plan.

[72 FR 20762, Apr. 26, 2007, as amended at 79 FR 61582, Oct. 14, 2014]



219.705  Responsibilities of the contracting officer under the
subcontracting assistance program.



219.705-4  Reviewing the subcontracting plan.

    (d)(i) Challenge any subcontracting plan that does not contain 
positive goals. A small disadvantaged business goal of less than five 
percent must be approved one level above the contracting officer.
    (ii) The contracting officer may use the checklist at PGI 219.705-4 
when reviewing subcontracting plans in accordance with FAR 19.705-4.

[82 FR 61480, Dec. 28, 2017]



219.705-6  Postaward responsibilities of the contracting officer.

    (f) See PGI 219.705-6(f) for guidance on reviewing subcontracting 
reports.

[82 FR 61480, Dec. 28, 2017]

[[Page 159]]



219.706  Responsibilities of the cognizant administrative contracting
officer.

    (a)(i) The contract administration office also is responsible for 
reviewing, evaluating, and approving master subcontracting plans.
    (ii) The small business specialist supports the administrative 
contracting officer in evaluating a contractor's performance and 
compliance with its subcontracting plan.



219.708  Contract clauses.

    (b)(1)(A) Use the basic, alternate I, or alternate II clause at 
252.219-7003, Small Business Subcontracting Plan (DoD Contracts), in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, that 
contain the clause at FAR 52.219-9, Small Business Subcontracting Plan.
    (1) Use the basic clause at 252.219-7003, when using the basic, 
alternate I, or alternate II of FAR 52.219-9.
    (2) Use the alternate I clause at 252.219-7003, when using Alternate 
III of FAR 52.219-9.
    (3) Use the alternate II clause at 252.219-7003 when using the 
Demonstration Project described at 226.72.
    (B) In contracts with contractors that have comprehensive 
subcontracting plans approved under the Test Program described in 
219.702-70, including contracts using FAR part 12 procedures for the 
acquisition of commercial items, use the clause at 252.219-7004, Small 
Business Subcontracting Plan (Test Program), instead of the clauses at 
252.219-7003, Small Business Subcontracting Plan (DoD Contracts), FAR 
52.219-9, Small Business Subcontracting Plan, and FAR 52.219-16, 
Liquidated Damages--Subcontracting Plan.
    (2) In contracts with contractors that have comprehensive 
subcontracting plans approved under the Test Program described in 
219.702-70, do not use the clause at FAR 52.219-16, Liquidated Damages--
Subcontracting Plan.
    (c)(1) Do not use the clause at FAR 52.219-10, Incentive 
Subcontracting Program, in contracts with contractors that have 
comprehensive subcontracting plans approved under the Test Program 
described in 219.702-70.

[78 FR 37986, June 25, 2013, as amended at 81 FR 17046, Mar. 25, 2016; 
83 FR 15999, Apr. 13, 2018; 84 FR 72560, Dec. 31, 2019]



 Subpart 219.8_Contracting With the Small Business Administration (The 
                              8(a) Program)



219.800  General.

    (a) By Partnership Agreement (PA) between the Small Business 
Administration (SBA) and the Department of Defense (DoD), the SBA has 
delegated to the Under Secretary of Defense (Acquisition, Technology, 
and Logistics) its authority under paragraph 8(a)(1)(A) of the Small 
Business Act (15 U.S.C. 637(a)) to enter into 8(a) prime contracts, and 
its authority under 8(a)(1)(B) of the Small Business Act to award the 
performance of those contracts to eligible 8(a) Program participants. 
However, the SBA remains the prime contractor on all 8(a) contracts, 
continues to determine eligibility of concerns for contract award, and 
retains appeal rights under FAR 19.810. The SBA delegates only the 
authority to sign contracts on its behalf. Consistent with the 
provisions of the PA, this authority is hereby redelegated to DoD 
contracting officers. A copy of the PA, which includes the PA's 
expiration date, is available at PGI 219.800.
    (b) Contracts awarded under the PA may be awarded directly to the 
8(a) participant on either a sole source or competitive basis. An SBA 
signature on the contract is not required.
    (c) Notwithstanding the PA, the contracting officer may elect to 
award a contract pursuant to the provisions of FAR Subpart 19.8.

[67 FR 11436, Mar. 14, 2002, as amended at 72 FR 20762, Apr. 26, 2007]



219.803  Selecting acquisitions for the 8(a) Program.

    When selecting acquisitions for the 8(a) Program, follow the 
procedures at PGI 219.803.

[72 FR 20762, Apr. 26, 2007]

[[Page 160]]



219.804  Evaluation, offering, and acceptance.

    When processing requirements under the PA, follow the procedures at 
PGI 219.804.

[72 FR 20762, Apr. 26, 2007]



219.804-1  Agency evaluation.

    (f) The 8(a) firms should be offered the opportunity to give a 
technical presentation.

[63 FR 41974, Aug. 6, 1998]



219.805  Competitive 8(a).



219.805-1  General.

    (b)(2)(A) For acquisitions that exceed the competitive threshold, 
the SBA also may accept the requirement for a sole source 8(a) award on 
behalf of a small business concern owned by a Native Hawaiian 
Organization (Section 8020 of Pub. L. 109-148).
    (B) Native Hawaiian Organization, as used in this subsection and as 
defined by 15 U.S.C. 637(a)(15) and 13 CFR 124.3, means any community 
service organization serving Native Hawaiians in the State of Hawaii--
    (1) That is a not-for-profit organization chartered by the State of 
Hawaii;
    (2) That is controlled by Native Hawaiians; and
    (3) Whose business activities will principally benefit such Native 
Hawaiians.

[70 FR 43073, July 26, 2005, as amended at 71 FR 34832, June 16, 2006]



219.805-2  Procedures.

    When processing requirements under the PA, follow the procedures at 
PGI 219.805-2 for requesting eligibility determinations.

[72 FR 20762, Apr. 26, 2007]



219.806  Pricing the 8(a) contract.

    For requirements processed under the PA cited in 219.800--
    (1) The contracting officer shall obtain certified cost or pricing 
data from the 8(a) contractor, if required by FAR subpart 15.4; and
    (2) SBA concurrence in the negotiated price is not required. 
However, except for purchase orders not exceeding the simplified 
acquisition threshold, the contracting officer shall notify the SBA 
prior to withdrawing a requirement from the 8(a) Program due to failure 
to agree on price or other terms and conditions.

[63 FR 33588, June 19, 1998, as amended at 67 FR 11437, Mar. 14, 2002; 
67 FR 49256, July 30, 2002; 77 FR 76940, Dec. 31, 2012]



219.808  Contract negotiation.



219.808-1  Sole source.

    For sole source requirements processed under the PA, follow the 
procedures at PGI 219.808-1.
    (a) In lieu of the threshold at FAR 19.808-1(a), the SBA may not 
accept for negotiation a DoD sole-source 8(a) contract exceeding $100 
million unless DoD has completed a justification in accordance with FAR 
6.303 and 206.303-1(b).

[72 FR 20762, Apr. 26, 2007, as amended at 85 FR 34530, June 5, 2020]



219.811  Preparing the contracts.

    When preparing awards under the PA, follow the procedures at PGI 
219.811.

[72 FR 20762, Apr. 26, 2007]



219.811-3  Contract clauses.

    (1) Use the clause at 252.219-7009, Section 8(a) Direct Award, 
instead of the clauses at FAR 52.219-11, Special 8(a) Contract 
Conditions, FAR 52.219-12, Special 8(a) Subcontract Conditions, and FAR 
52.219-17, Section 8(a) Award, in solicitations and contracts processed 
in accordance with the PA cited in 219.800.
    (2) Use the clause at 252.219-7010, Notification of Competition 
Limited to Eligible 8(a) Participants--Partnership Agreement, in lieu of 
the clause at FAR 52.219-18, Notification of Competition Limited to 
Eligible 8(a) Participants, in competitive solicitations and contracts 
when the acquisition is accomplished using the procedures of FAR 19.805 
and processed in accordance with the PA cited in 219.800.

[[Page 161]]

    (3) Use the clause at 252.219-7011, Notification to Delay 
Performance, in solicitations and purchase orders issued under the PA 
cited in 219.800.

[63 FR 33588, June 19, 1998, as amended at 67 FR 11437, Mar. 14, 2002; 
72 FR 20762, Apr. 26, 2007; 81 FR 17046, Mar. 25, 2016; 84 FR 58336, 
Oct. 31, 2019]



   Subpart 219.13_Historically Underutilized Business Zone (HUBZone) 
                                 Program



219.1307  Price evaluation preference for HUBZone small business 
concerns.

    (a) Also, do not use the price evaluation preference in acquisitions 
that use tiered evaluation of offers, until a tier is reached that 
considers offers from other than small business concerns.

[71 FR 53043, Sept. 8, 2006]

Subpart 219.70 [Reserved]



        Subpart 219.71_Pilot Mentor-Prot[eacute]g[eacute] Program

    Source: 65 FR 6555, Feb. 10, 2000, unless otherwise noted.



219.7100  Scope.

    This subpart implements the Pilot Mentor-Prot[eacute]g[eacute] 
Program (hereafter referred to as the ``Program'') established under 
section 831 of the National Defense Authorization Act for Fiscal Year 
1991 (Public Law 101-510; 10 U.S.C. 2302 note), as amended through 
December 23, 2016. The purpose of the Program is to provide incentives 
for DoD contractors to assist prot[eacute]g[eacute] firms in enhancing 
their capabilities and to increase participation of such firms in 
Government and commercial contracts.

[66 FR 47108, Sept. 11, 2001, as amended at 69 FR 74995, Dec. 15, 2004; 
83 FR 12683, Mar. 23, 2018; 83 FR 54678, Oct. 31, 2018]



219.7101  Policy.

    DoD policy and procedures for implementation of the Program are 
contained in Appendix I, Policy and Procedures for the DoD Pilot Mentor-
Prot[eacute]g[eacute] Program.



219.7102  General.

    The Program includes--
    (a) Mentor firms and prot[eacute]g[eacute] firms that meet the 
criteria in Appendix I, section I-102.
    (b) Mentor-prot[eacute]g[eacute] agreements that establish a 
developmental assistance program for a prot[eacute]g[eacute] firm.
    (c) Incentives that DoD may provide to mentor firms, including--
    (1) Reimbursement for developmental assistance costs through--
    (i) A separately priced contract line item on a DoD contract; or
    (ii) A separate contract, upon written determination by the 
cognizant Component Director, Small Business Programs (SBP), that 
unusual circumstances justify reimbursement using a separate contract; 
or
    (2) Credit toward applicable subcontracting goals, established under 
a subcontracting plan negotiated under FAR subpart 19.7 or under the DoD 
Comprehensive Subcontracting Test Program, for developmental assistance 
costs that are not reimbursed.

[65 FR 6555, Feb. 10, 2000; 65 FR 30191, May 10, 2000, as amended at 66 
FR 47108, Sept. 11, 2001; 69 FR 74995, Dec. 15, 2004; 70 FR 29645, May 
24, 2005; 73 FR 46813, Aug. 12, 2008; 83 FR 12683, Mar. 23, 2018]



219.7103  Procedures.



219.7103-1  General.

    The procedures for application, acceptance, and participation in the 
Program are in Appendix I, Policy and Procedures for the DoD Pilot 
Mentor-Prot[eacute]g[eacute] Program. The Director, SBP, of each 
military department or defense agency has the authority to approve 
contractors as mentor firms, approve mentor-prot[eacute]g[eacute] 
agreements, and forward approved mentor-prot[eacute]g[eacute] agreements 
to the contracting officer when funding is available.

[69 FR 74995, Dec. 15, 2004, as amended at 73 FR 46813, Aug. 12, 2008]



219.7103-2  Contracting officer responsibilities.

    Contracting officers must--
    (a) Negotiate an advance agreement on the treatment of developmental 
assistance costs for either credit or reimbursement if the mentor firm 
proposes

[[Page 162]]

such an agreement, or delegate authority to negotiate to the 
administrative contracting officer (see FAR 31.109).
    (b) Modify (without consideration) applicable contract(s) to 
incorporate the clause at 252.232-7005, Reimbursement of Subcontractor 
Advance Payments--DoD Pilot Mentor-Prot[eacute]g[eacute] Program, when a 
mentor firm provides advance payments to a prot[eacute]g[eacute] firm 
under the Program and the mentor firm requests reimbursement of advance 
payments.
    (c) Modify (without consideration) applicable contract(s) to 
incorporate other than customary progress payments for 
prot[eacute]g[eacute] firms in accordance with FAR 32.504(c) if a mentor 
firm provides such payments to a prot[eacute]g[eacute] firm and the 
mentor firm requests reimbursement.
    (d) Modify applicable contract(s) to establish a contract line item 
for reimbursement of developmental assistance costs if--
    (1) A DoD program manager or the cognizant Component Director, SBP, 
has made funds available for that purpose; and
    (2) The contractor has an approved mentor-prot[eacute]g[eacute] 
agreement.
    (e) Negotiate and award a separate contract for reimbursement of 
developmental assistance costs only if--
    (1) Funds are available for that purpose;
    (2) The contractor has an approved mentor-prot[eacute]g[eacute] 
agreement; and
    (3) The cognizant Component Director, SBP, has made a determination 
in accordance with 219.7102(c)(1)(ii).
    (f) Not authorize reimbursement for costs of assistance furnished to 
a prot[eacute]g[eacute] firm in excess of $1,000,000 in a fiscal year 
unless a written determination from the cognizant Component Director, 
SBP, is obtained.
    (g) Advise contractors of reporting requirements in Appendix I.
    (h) Provide a copy of the approved Mentor-Prot[eacute]g[eacute] 
agreement to the Defense Contract Management Agency administrative 
contracting officer responsible for conducting the annual performance 
review (see appendix I, section I-113).

[65 FR 6555, Feb. 10, 2000; 65 FR 30191, May 10, 2000, as amended at 65 
FR 50150, Aug. 17, 2000; 66 FR 47109, Sept. 11, 2001; 69 FR 74995, Dec. 
15, 2004; 73 FR 46814, Aug. 12, 2008; 83 FR 12683, Mar. 23, 2018]



219.7104  Developmental assistance costs eligible for reimbursement
or credit.

    (a) Developmental assistance provided under an approved mentor-
prot[eacute]g[eacute] agreement is distinct from, and must not 
duplicate, any effort that is the normal and expected product of the 
award and administration of the mentor firm's subcontracts. The mentor 
firm must accumulate and charge costs associated with the latter in 
accordance with its approved accounting practices. Mentor firm costs 
that are eligible for reimbursement are set forth in appendix I.
    (b) Before incurring any costs under the Program, mentor firms must 
establish the accounting treatment of developmental assistance costs 
eligible for reimbursement or credit. To be eligible for reimbursement 
under the Program, the mentor firm must incur the costs not later than 
September 30, 2021.
    (c) If the mentor firm is suspended or debarred while performing 
under an approved mentor-prot[eacute]g[eacute] agreement, the mentor 
firm may not be reimbursed or credited for developmental assistance 
costs incurred more than 30 days after the imposition of the suspension 
or debarment.
    (d) Developmental assistance costs incurred by a mentor firm not 
later than September 30, 2021, that are eligible for crediting under the 
Program, may be credited toward subcontracting plan goals as set forth 
in appendix I.

[65 FR 6555, Feb. 10, 2000; 65 FR 30191, May 10, 2000, as amended at 67 
FR 77937, Dec. 20, 2002; 70 FR 29645, May 24, 2005; 76 FR 71467, Nov. 
18, 2011; 77 FR 11367, Feb. 24, 2012; 83 FR 12683, Mar. 23, 2018]



219.7105  Reporting.

    Mentor and prot[eacute]g[eacute] firms must report on the progress 
made under mentor-prot[eacute]g[eacute] agreements as indicated in 
appendix I, section I-112.

[65 FR 6555, Feb. 10, 2000, as amended at 69 FR 74996, Dec. 15, 2004]

[[Page 163]]



219.7106  Performance reviews.

    The Defense Contract Management Agency will conduct annual 
performance reviews of all mentor-prot[eacute]g[eacute] agreements as 
indicated in appendix I, section I-113. The determinations made in these 
reviews should be a major factor in determinations of amounts of 
reimbursement, if any, that the mentor firm is eligible to receive in 
the remaining years of the Program participation term under the 
agreement.

[65 FR 50150, Aug. 17, 2000, as amended at 69 FR 74996, Dec. 15, 2004]



PART 222_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS--
Table of Contents



Sec.
222.001 Definitions.

                   Subpart 222.1_Basic Labor Policies

222.101 Labor relations.
222.101-1 General.
222.101-3 Reporting labor disputes.
222.101-3-70 Impact of labor disputes on defense programs.
222.101-4 Removal of items from contractors' facilities affected by work 
          stoppages.
222.101-70 Acquisition of stevedoring services during labor disputes.
222.102 Federal and State labor requirements.
222.102-1 Policy.
222.103 Overtime.
222.103-4 Approvals.

         Subpart 222.3_Contract Work Hours and Safety Standards

222.302 Liquidated damages and overtime pay.

   Subpart 222.4_Labor Standards for Contracts Involving Construction

222.402 Applicability.
222.402-70 Installation support contracts.
222.403 Statutory and regulatory requirements.
222.403-4 Department of Labor regulations.
222.404 Construction Wage Rate Requirements statute wage determinations.
222.404-2 General requirements.
222.406 Administration and enforcement.
222.406-1 Policy.
222.406-6 Payrolls and statements.
222.406-8 Investigations.
222.406-9 Withholding from or suspension of contract payments.
222.406-10 Disposition of disputes concerning construction contract 
          labor standards enforcement.
222.406-13 Semiannual enforcement reports.

Subpart 222.6_Contracts for Materials, Supplies, Articles, and Equipment 
                            Exceeding $15,000

222.604 Exemptions.
222.604-2 Regulatory exemptions.

               Subpart 222.8_Equal Employment Opportunity

222.806 Inquiries.
222.807 Exemptions.

             Subpart 222.10_Service Contract Labor Standards

222.1003 Applicability.
222.1003-1 General.
222.1008 Procedures for obtaining wage determinations.
222.1008-1 Obtaining wage determinations.

              Subpart 222.13_Equal Opportunity for Veterans

222.1305 Waivers.
222.1308 Complaint procedures.
222.1310 Solicitation provision and contract clauses.

         Subpart 222.14_Employment of Workers with Disabilities

222.1403 Waivers.
222.1406 Complaint procedures.

             Subpart 222.17_Combating Trafficking in Persons

222.1703 Policy.
222.1704 Violations and remedies.
222.1770 Procedures.

 Subpart 222.70_Restrictions on the Employment of Personnel for Work on 
       Construction and Service Contracts in Noncontiguous States

222.7000 Scope of subpart.
222.7001 Definition.
222.7002 General.
222.7003 Waivers.
222.7004 Contract clause.

Subpart 222.71 [Reserved]

    Subpart 222.72_Compliance with Labor Laws of Foreign Governments

222.7201 Contract clauses.

[[Page 164]]

  Subpart 222.73_Limitations Applicable to Contracts Performed on Guam

222.7300 Scope of subpart.
222.7301 Prohibition on use of nonimmigrant aliens.
222.7302 Contract clause.

    Subpart 222.74_Restrictions on the Use of Mandatory Arbitration 
                               Agreements

222.7400 Scope of subpart.
222.7401 Definition.
222.7402 Policy.
222.7403 Applicability.
222.7404 Waiver.
222.7405 Contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36358, July 31, 1991, unless otherwise noted.



222.001  Definitions.

    Labor advisor, as used in this part, means the departmental or 
agency headquarters labor advisor.

[56 FR 36358, July 31, 1991, as amended at 72 FR 20763, Apr. 26, 2007]



                   Subpart 222.1_Basic Labor Policies



222.101  Labor relations.



222.101-1  General.

    Follow the procedures at PGI 222.101-1 for referral of labor 
relations matters to the appropriate authorities.

[71 FR 18670, Apr. 12, 2006]



222.101-3  Reporting labor disputes.

    Follow the procedures at PGI 222.101-3 for reporting labor disputes.

[71 FR 18670, Apr. 12, 2006]



222.101-3-70  Impact of labor disputes on defense programs.

    (a) Each department and agency shall determine the degree of impact 
of potential or actual labor disputes on its own programs and 
requirements. For guidance on determining the degree of impact, see PGI 
222.101-3-70(a).
    (b) Each contracting activity shall obtain and develop data 
reflecting the impact of a labor dispute on its requirements and 
programs. Upon determining that the impact of the labor dispute is 
significant, the head of the contracting activity shall submit a report 
of findings and recommendations to the labor advisor in accordance with 
departmental procedures.

[71 FR 18670, Apr. 12, 2006, as amended at 80 FR 67255, Oct. 30, 2015]



222.101-4  Removal of items from contractors' facilities affected by
work stoppages.

    (a) When a contractor is unable to deliver urgent and critical items 
because of a work stoppage at its facility, the contracting officer, 
before removing any items from the facility, shall--
    (i) Before initiating any action, contact the labor advisor to 
obtain the opinion of the national office of the Federal Mediation and 
Conciliation Service or other mediation agency regarding the effect 
movement of the items would have on labor negotiations. Normally 
removals will not be made if they will adversely affect labor 
negotiations.
    (ii) Upon the recommendation of the labor advisor, provide a written 
request for removal of the material to the cognizant contract 
administration office. Include in the request the information specified 
at PGI 222.101-4(a)(ii).
    (iii) With the assistance of the labor advisor or the commander of 
the contract administration office, attempt to have both the management 
and the labor representatives involved agree to shipment of the material 
by normal means.
    (iv) If agreement for removal of the needed items cannot be reached 
following the procedures in paragraphs (a) (i) through (iii) of this 
subsection, the commander of the contract administration office, after 
obtaining approval from the labor advisor, may seek the concurrence of 
the parties to the dispute to permit movement of the material by 
military vehicles with military personnel. On receipt of such 
concurrences, the commander may proceed to make necessary arrangements 
to move the material.
    (v) If agreement for removal of the needed items cannot be reached 
following any of the procedures in paragraphs (a) (i) through (iv) of 
this subsection, refer the matter to the labor advisor with the 
information required by 222.101-3-70(b). If the labor advisor is

[[Page 165]]

unsuccessful in obtaining concurrence of the parties for the movement of 
the material and further action to obtain the material is deemed 
necessary, refer the matter to the agency head. Upon review and 
verification that the items are urgently or critically needed and cannot 
be moved with the consent of the parties, the agency head, on a 
nondelegable basis, may order removal of the items from the facility.

[56 FR 36358, July 31, 1991, as amended at 71 FR 18670, Apr. 12, 2006]



222.101-70  Acquisition of stevedoring services during labor disputes.

    (a) Use the following procedures only in the order listed when a 
labor dispute delays performance of a contract for stevedoring services 
which are urgently needed.
    (1) Attempt to have management and labor voluntarily agree to exempt 
military supplies from the labor dispute by continuing the movement of 
such material.
    (2) Divert vessels to alternate ports able to provide necessary 
stevedoring services.
    (3) Consider contracting with reliable alternative sources of supply 
within the stevedoring industry.
    (4) Utilize civil service stevedores to perform the work performed 
by contract stevedores.
    (5) Utilize military personnel to handle the cargo which was being 
handled by contract stevedores prior to the labor dispute.
    (b) Notify the labor advisor when a deviation from the procedures in 
paragraph (a) of this subsection is required.



222.102  Federal and State labor requirements.



222.102-1  Policy.

    (1) Direct all inquiries from contractors or contractor employees 
regarding the applicability or interpretation of Occupational Safety and 
Health Act (OSHA) regulations to the Department of Labor.
    (2) Upon request, provide the address of the appropriate field 
office of the Occupational Safety and Health Administration of the 
Department of Labor.
    (3) Do not initiate any application for the suspension or relaxation 
of labor requirements without prior coordination with the labor advisor. 
Any requests for variances or alternative means of compliance with OSHA 
requirements must be approved by the Occupational Safety and Health 
Administration of the Department of Labor.

[71 FR 18670, Apr. 12, 2006]



222.103  Overtime.



222.103-4  Approvals.

    (a) The department/agency approving official shall--
    (i) Obtain the concurrence of other appropriate approving officials; 
and
    (ii) Seek agreement as to the contracts under which overtime 
premiums will be approved when--
    (A) Two or more contracting offices have current contracts at the 
same contractor facility; and
    (B) The approval of overtime by one contracting office will affect 
the performance or cost of contracts of another office. In the absence 
of evidence to the contrary, a contracting officer may rely on a 
contractor's statement that approval of overtime premium pay for one 
contract will not affect performance or payments under any other 
contract.



         Subpart 222.3_Contract Work Hours and Safety Standards



222.302  Liquidated damages and overtime pay.

    Upon receipt of notification of Contract Work Hours and Safety 
Standards violations, the contracting officer shall--
    (1) Immediately withhold such funds as are available;
    (2) Give the contractor written notification of the withholding and 
a statement of the basis for the liquidated damages assessment. The 
written notification shall also inform the contractor of its 60 days 
right to appeal the assessment, through the contracting officer, to the 
agency official responsible for acting on such appeals; and
    (3) If funds available for withholding are insufficient to cover 
liquidated damages, ask the contractor to pay voluntarily such funds as 
are necessary

[[Page 166]]

to cover the total liquidated damage assessment.
    (d)(i) The assessment shall become the final administrative 
determination of contractor liability for liquidated damages when--
    (A) The contractor fails to appeal to the contracting agency within 
60 days from the date of the withholding of funds;
    (B) The department agency, following the contractor's appeals, 
issues a final order which affirms the assessment of liquidated damages 
or waives damages of $500 or less; or
    (C) The Secretary of Labor takes final action on a recommendation of 
the agency head to waive or adjust liquidated damages in excess of $500.
    (ii) Upon final administrative determination of the contractor's 
liability for liquidated damages, the contracting officer shall transmit 
withheld or collected funds determined to be owed the Government as 
liquidated damages to the servicing finance and accounting officer for 
crediting to the appropriate Government Treasury account. The 
contracting officer shall return any excess withheld funds to the 
contractor.

[56 FR 36358, July 31, 1991, as amended at 77 FR 35880, June 15, 2012]



   Subpart 222.4_Labor Standards for Contracts Involving Construction



222.402  Applicability.



222.402-70  Installation support contracts.

    (a) Apply both the Service Contract Labor Standards statute and the 
Construction Wage Rate Requirements statute to installation support 
contracts if--
    (1) The contract is principally for services but also requires a 
substantial and segregable amount of construction, alteration, 
renovation, painting, or repair work; and
    (2) The aggregate dollar value of such construction work exceeds or 
is expected to exceed $2,000.
    (b) Service Contract Labor Standards statute coverage under the 
contract. Contract installation support requirements, such as plant 
operation and installation services (i.e., custodial, snow removal, 
etc.) are subject to the Service Contract Labor Standards. Apply Service 
Contract Labor Standards clauses and minimum wage and fringe benefit 
requirements to all contract service calls or orders for such 
maintenance and support work.
    (c) Construction Wage Rate Requirements statute coverage under the 
contract. Contract construction, alteration, renovation, painting, and 
repair requirements (i.e., roof shingling, building structural repair, 
paving repairs, etc.) are subject to the Construction Wage Rate 
Requirements statute. Apply Construction Wage Rate Requirements clauses 
and minimum wage requirements to all contract service calls or orders 
for construction, alteration, renovation, painting, or repairs to 
buildings or other works.
    (d) Repairs versus maintenance. Some contract work may be 
characterized as either Construction Wage Rate Requirements painting/
repairs or Service Contract Labor Standards maintenance. For example, 
replacing broken windows, spot painting, or minor patching of a wall 
could be covered by either the Construction Wage Rate Requirements or 
the Service Contract Labor Standards. In those instances where a 
contract service call or order requires construction trade skills (i.e., 
carpenter, plumber, painter, etc.), but it is unclear whether the work 
required is Service Contract Labor Standards maintenance or Construction 
Wage Rate Requirements painting/repairs, apply the following rules:
    (1) Individual service calls or orders which will require a total of 
32 or more work hours to perform shall be considered to be repair work 
subject to the Construction Wage Rate Requirements.
    (2) Individual service calls or orders which will require less than 
32 work hours to perform shall be considered to be maintenance subject 
to the Service Contract Labor Standards.
    (3) Painting work of 200 square feet or more to be performed under 
an individual service call or order shall be considered to be subject to 
the Construction Wage Rate Requirements statute regardless of the total 
work hours required.

[[Page 167]]

    (e) The determination of labor standards application shall be made 
at the time the solicitation is prepared in those cases where 
requirements can be identified. Otherwise, the determination shall be 
made at the time the service call or order is placed against the 
contract. The service call or order shall identify the labor standards 
law and contract wage determination which will apply to the work 
required.
    (f) Contracting officers may not avoid application of the 
Construction Wage Rate Requirements statute by splitting individual 
tasks between orders or contracts.

[56 FR 36358, July 31, 1991, as amended at 77 FR 35880, June 15, 2012]



222.403  Statutory and regulatory requirements.



222.403-4  Department of Labor regulations.

    Direct all questions regarding Department of Labor regulations to 
the labor advisor.



222.404  Construction Wage Rate Requirements statute wage determinations.

    Not later than April 1 of each year, each department and agency 
shall furnish the Administrator, Wage and Hour Division, with a general 
outline of its proposed construction program for the coming fiscal year. 
The Department of Labor uses this information to determine where general 
wage determination surveys will be conducted.
    (1) Indicate by individual project of $500,000 or more--
    (i) The anticipated type of construction;
    (ii) The estimated dollar value; and
    (iii) The location in which the work is to be performed (city, town, 
village, county, or other civil subdivision of the state).
    (2) The report format is contained in Department of Labor All Agency 
Memo 144, December 27, 1985.
    (3) The report control number is 1671-DOL-AN.

[56 FR 36358, July 31, 1991, as amended at 77 FR 35880, June 15, 2012]



222.404-2  General requirements.

    (c)(5) Follow the procedures at PGI 222.404-2(c)(5) when seeking 
clarification of the proper application of construction wage rate 
schedules.

[72 FR 20764, Apr. 26, 2007]



222.406  Administration and enforcement.



222.406-1  Policy.

    (a) General. The program shall also include--
    (i) Training appropriate contract administration, labor relations, 
inspection, and other labor standards enforcement personnel in their 
responsibilities; and
    (ii) Periodic review of field enforcement activities to ensure 
compliance with applicable regulations and instructions.
    (b) Preconstruction letters and conferences. (1) Promptly after 
award of the contract, the contracting officer shall provide a 
preconstruction letter to the prime contractor. This letter should 
accomplish the following, as appropriate--
    (A) Indicate that the labor standards requirements contained in the 
contract are based on the following statutes and regulations--
    (1) Construction Wage Rate Requirements statute.
    (2) Contract Work Hours and Safety Standards statute;
    (3) Copeland (Anti-Kickback) Act;
    (4) Parts 3 and 5 of the Secretary of Labor's Regulations (parts 3 
and 5, subtitle A, title 29, CFR); and
    (5) Executive Order 11246 (Equal Employment Opportunity);
    (B) Call attention to the labor standards requirements in the 
contract which relate to--
    (1) Employment of foremen, laborers, mechanics, and others;
    (2) Wages and fringe benefits payments, payrolls, and statements;
    (3) Differentiation between subcontractors and suppliers;
    (4) Additional classifications;
    (5) Benefits to be realized by contractors and subcontractors in 
keeping complete work records;
    (6) Penalties and sanctions for violations of the labor standards 
provisions; and

[[Page 168]]

    (7) The applicable provisions of FAR 22.403; and
    (C) Ensure that the contractor sends a copy of the preconstruction 
letter to each subcontractor.
    (2) Before construction begins, the contracting officer shall confer 
with the prime contractor and any subcontractor designated by the prime 
to emphasize their labor standards obligations under the contract when--
    (A) The prime contractor has not performed previous Government 
contracts;
    (B) The prime contractor experienced difficulty in complying with 
labor standards requirements on previous contracts; or
    (C) It is necessary to determine whether the contractor and its 
subcontractors intend to pay any required fringe benefits in the manner 
specified in the wage determination or to elect a different method of 
payment. If the latter, inform the contractor of the requirements of FAR 
22.406-2.

[56 FR 36358, July 31, 1991, as amended at 77 FR 35880, June 15, 2012]



222.406-6  Payrolls and statements.

    (a) Submission. Contractors who do not use Department of Labor Form 
WH 347 or its equivalent must submit a DD Form 879, Statement of 
Compliance, with each payroll report.



222.406-8  Investigations.

    (a) Before beginning an investigation, the investigator shall inform 
the contractor of the general scope of the investigation, and that the 
investigation will include examining pertinent records and interviewing 
employees. In conducting the investigation, follow the procedures at PGI 
222.406-8(a).
    (c) Contractor notification. (4)(A) Notify the contractor by 
certified mail of any finding that it is liable for liquidated damages 
under the Contract Work Hours and Safety Standards (CWHSS) statute. The 
notification shall inform the contractor that--
    (1) It has 60 days after receipt of the notice to appeal the 
assessment of liquidated damages; and
    (2) The appeal must demonstrate either that the alleged violations 
did not occur at all, occurred inadvertently notwithstanding the 
exercise of due care, or the assessment was computed improperly.
    (B) If an appeal is received, the contracting officer shall process 
the appeal in accordance with department or agency regulations.
    (d) Contracting officer's report. Forward a detailed enforcement 
report or summary report to the agency head in accordance with agency 
procedures. Include in the report, as a minimum, the information 
specified at PGI 222.406-8(d).

[56 FR 36358, July 31, 1991, as amended at 71 FR 18670, Apr. 12, 2006; 
77 FR 35880, June 15, 2012]



222.406-9  Withholding from or suspension of contract payments.

    (a) Withholding from contract payments. The contracting officer 
shall contact the labor advisor for assistance when payments due a 
contractor are not available to satisfy that contractor's liability for 
Construction Wage Rate Requirements or CWHSS statute wage underpayments 
or liquidated damages.
    (c) Disposition of contract payments withheld or suspended--(3) 
Limitation on forwarding or returning funds. When disposition of 
withheld funds remains the final action necessary to close out a 
contract, the Department of Labor will retain withheld funds pending 
completion of an investigation or other administrative proceedings.
    (4) Liquidated damages. (A) The agency head may adjust liquidated 
damages of $500 or less when the amount assessed is incorrect or waive 
the assessment when the violations--
    (1) Were nonwillful or inadvertent; and
    (2) Occurred notwithstanding the exercise of due care by the 
contractor, its subcontractor, or their agents.
    (B) The agency head may recommend to the Administrator, Wage and 
Hour Division, that the liquidated damages over $500 be adjusted because 
the amount assessed is incorrect. The agency head may also recommend the 
assessment be waived when the violations--
    (1) Were nonwillful or inadvertent; and

[[Page 169]]

    (2) Occurred notwithstanding the exercise of due care by the 
contractor, the subcontractor, or their agents.

[56 FR 36358, July 31, 1991, as amended at 77 FR 35880, June 15, 2012; 
82 FR 61480, Dec. 28, 2017]



222.406-10  Disposition of disputes concerning construction contract
labor standards enforcement.

    (d) Forward the contracting officer's findings and the contractor's 
statement through the labor advisor.



222.406-13  Semiannual enforcement reports.

    Forward these reports through the head of the contracting activity 
to the labor advisor within 15 days following the end of the reporting 
period. These reports shall not include information from investigations 
conducted by the Department of Labor. These reports shall contain the 
following information, as applicable, for construction work subject to 
the Construction Wage Rate Requirements statute and the CWSS statute--
    (1) Period covered;
    (2) Number of prime contracts awarded;
    (3) Total dollar amount of prime contracts awarded;
    (4) Number of contractors/subcontractors against whom complaints 
were received;
    (5) Number of investigations conducted;
    (6) Number of contractors/subcontractors found in violation;
    (7) Amount of wage restitution found due under--
    (i) Construction Wage Rate Requirements statute; and
    (ii) CWSS statute;
    (8) Number of employees due wage restitution under--
    (i) Construction Wage Rate Requirements statute; and
    (ii) CWHSS statute;
    (9) Amount of liquidated damages assessed under the CWSS statute--
    (i) Total amount; and
    (ii) Number of contracts involved;
    (10) Number of employees and amount paid/withheld under--
    (i) Construction Wage Rate Requirements statute;
    (ii) CWSS statute;
    (iii) Copeland Act; and
    (11) Preconstruction activities--
    (i) Number of compliance checks performed
    (ii) Preconstruction letters sent.

[56 FR 36358, July 31, 1991, as amended at 77 FR 35880, June 15, 2012]



Subpart 222.6_Contracts for Materials, Supplies, Articles, and Equipment 
                            Exceeding $15,000



222.604  Exemptions.



222.604-2  Regulatory exemptions.

    (b) Submit all applications for such exemptions through contracting 
channels to the labor advisor.

[56 FR 36358, July 31, 1991, as amended at 65 FR 14398, Mar. 16, 2000]



               Subpart 222.8_Equal Employment Opportunity



222.806  Inquiries.

    (b) Refer inquiries through the labor advisor.



222.807  Exemptions.

    (c) Follow the procedures at PGI 222.807(c) when submitting a 
request for an exemption.

[71 FR 18670, Apr. 12, 2006]



             Subpart 222.10_Service Contract Labor Standards



222.1003  Applicability.



222.1003-1  General.

    For contracts having a substantial amount of construction, 
alteration, renovation, painting, or repair work, see 222.402-70.



222.1008  Procedures for obtaining wage determinations.



222.1008-1  Obtaining wage determinations.

    Follow the procedures at PGI 222.1008-1 regarding use of the Service 
Contract Act Directory of Occupations when preparing the e98.

[72 FR 20764, Apr. 26, 2007]

[[Page 170]]



              Subpart 222.13_Equal Opportunity for Veterans

    Source: 71 FR 18670, Apr. 12, 2006, unless otherwise noted.



222.1305  Waivers.

    (c) Follow the procedures at PGI 222.1305(c) for submission of 
waiver requests.



222.1308  Complaint procedures.

    The contracting officer shall--
    (1) Forward each complaint received as indicated in FAR 22.1308; and
    (2) Notify the complainant of the referral. The contractor in 
question shall not be advised in any manner or for any reason of the 
complainant's name, the nature of the complaint, or the fact that the 
complaint was received.



222.1310  Solicitation provision and contract clauses.

    (a)(1) Use of the clause at FAR 52.222-35, Equal Opportunity for 
Veterans, with its paragraph (c), Listing Openings, also satisfies the 
requirement of 10 U.S.C. 2410k.

[71 FR 18670, Apr. 12, 2006, as amended at 80 FR 67255, Oct. 30, 2015]



         Subpart 222.14_Employment of Workers with Disabilities



222.1403  Waivers.

    (c) The contracting officer shall submit a waiver request through 
contracting channels to the labor advisor. If the request is justified, 
the labor advisor will endorse the request and forward it for action 
to--
    (i) The agency head for waivers under FAR 22.1403(a). For the 
defense agencies, waivers must be approved by the Under Secretary of 
Defense for Acquisition.
    (ii) The Secretary of Defense, without the power of redelegation, 
for waivers under FAR 22.1403(b).



222.1406  Complaint procedures.

    The contracting officer shall notify the complainant of such 
referral. The contractor in question shall not be advised in any manner 
or for any reason of the complainant's name, the nature of the 
complaint, or the fact that the complaint was received.

[71 FR 18671, Apr. 12, 2006]



             Subpart 222.17_Combating Trafficking in Persons

    Source: 71 FR 62563, Oct. 26, 2006, unless otherwise noted.



222.1703  Policy.

    See PGI 222.1703 for additional information regarding DoD policy for 
combating trafficking in persons outside the United States.

[73 FR 4115, Jan. 24, 2008]



222.1704  Violations and remedies.

    Follow the procedures at PGI 222.1704 for notifying the Combatant 
Commander if a violation occurs.

[73 FR 4115, Jan. 24, 2008]



222.1770  Procedures.

    For a sample checklist for auditing compliance with Combating 
Trafficking in Persons policy, see the Defense Contract Management 
Agency checklist, Afghanistan Universal Examination Record Combating 
Trafficking in Persons, available at DFARS Procedures Guidance and 
Information 222.17.

[80 FR 5001, Jan. 29, 2015]



 Subpart 222.70_Restrictions on the Employment of Personnel for Work on 
       Construction and Service Contracts in Noncontiguous States

    Source: 65 FR 14403, Mar. 16, 2000, unless otherwise noted.



222.7000  Scope of subpart.

    (a) This subpart implements Section 8071 of the Fiscal Year 2000 
Defense Appropriations Act, Public Law 106-79, and similar sections in 
subsequent Defense Appropriations Acts.
    (b) This subpart applies only--
    (1) To construction and service contracts to be performed in whole 
or in part within a noncontiguous State; and
    (2) When the unemployment rate in the noncontiguous State is in 
excess of

[[Page 171]]

the national average rate of unemployment as determined by the Secretary 
of Labor.



222.7001  Definition.

    ``Noncontiguous State,'' as used in this subpart, means Alaska, 
Hawaii, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, 
the U.S. Virgin Islands, Baker Island, Howland Island, Jarvis Island, 
Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra 
Atoll, and Wake Island.

[65 FR 50151, Aug. 17, 2000]



222.7002  General.

    A contractor awarded a contract subject to this subpart must employ, 
for the purpose of performing that portion of the contract work within 
the noncontiguous State, individuals who are residents of that 
noncontiguous State and who, in the case of any craft or trade, possess 
or would be able to acquire promptly the necessary skills to perform 
this contract.



222.7003  Waivers.

    The head of the agency may waive the requirements of 222.7002 on a 
case-by-case basis in the interest of national security.

[65 FR 50151, Aug. 17, 2000]



222.7004  Contract clause.

    Use the clause at 252.222-7000, Restrictions on Employment of 
Personnel, in all solicitations and contracts subject to this subpart. 
Insert the name of the appropriate noncontiguous State in paragraph (a) 
of the clause.

Subpart 222.71 [Reserved]



    Subpart 222.72_Compliance with Labor Laws of Foreign Governments



222.7201  Contract clauses.

    (a) Use the clause at 252.222-7002, Compliance with Local Labor Laws 
(Overseas), in solicitations and contracts for services or construction 
to be performed outside the United States and its outlying areas.
    (b) Use the clause at 252.222-7003, Permit from Italian Inspectorate 
of Labor, in solicitations and contracts for porter, janitorial, or 
ordinary facility and equipment maintenance services to be performed in 
Italy.
    (c) Use the clause at 252.222-7004, Compliance with Spanish Social 
Security Laws and Regulations, in solicitations and contracts for 
services or construction to be performed in Spain.

[62 FR 34122, June 24, 1997, as amended at 70 FR 35545, June 21, 2005]



  Subpart 222.73_Limitations Applicable to Contracts Performed on Guam

    Source: 64 FR 52672, Sept. 30, 1999, unless otherwise noted.



222.7300  Scope of subpart.

    This subpart--
    (a) Implements Section 390 of the National Defense Authorization Act 
for Fiscal Year 1998 (Pub. L. 105-85); and
    (b) Applies to contracts for base operations support on Guam that--
    (1) Are awarded as a result of a competition conducted under OMB 
Circular A-76; and
    (2) Are entered into or modified on or after November 18, 1997.

[72 FR 20764, Apr. 26, 2007]



222.7301  Prohibition on use of nonimmigrant aliens.

    (a) Any alien who is issued a visa or otherwise provided 
nonimmigrant status under Section 101(a)(15)(H)(ii) of the Immigration 
and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is prohibited from 
performing work under a contract for base operations support on Guam.
    (b) Lawfully admitted citizens of the freely associated states of 
the Republic of the Marshall Islands, the Federated States of 
Micronesia, or the Republic of Palau are not subject to the prohibition 
in paragraph (a) of this section.

[64 FR 52672, Sept. 30, 1999, as amended at 72 FR 20764, Apr. 26, 2007]



222.7302  Contract clause.

    Use the clause at 252.222-7005, Prohibition on Use of Nonimmigrant

[[Page 172]]

Aliens--Guam, in solicitations and contracts subject to this subpart.

[72 FR 20764, Apr. 26, 2007]



    Subpart 222.74_Restrictions on the Use of Mandatory Arbitration 
                               Agreements

    Source: 75 FR 27947, May 19, 2010, unless otherwise noted.



222.7400  Scope of subpart.

    This subpart implements section 8116 of the Defense Appropriations 
Act for Fiscal Year 2010 (Pub. L. 111-118) and similar sections in 
subsequent DoD appropriations acts.

[76 FR 38048, June 29, 2011]



222.7401  Definition.

    Covered subcontractor, as used in this subpart, is defined in the 
clause at 252.222-7006, Restrictions on the Use of Mandatory Arbitration 
Agreements.

[75 FR 76297, Dec. 8, 2010]



222.7402  Policy.

    (a) Departments and agencies are prohibited from using funds 
appropriated or otherwise made available by the Fiscal Year 2010 Defense 
Appropriations Act (Pub. L. 111-118) or subsequent DoD appropriations 
acts for any contract (including task or delivery orders and bilateral 
modifications adding new work) in excess of $1 million, unless the 
contractor agrees not to--
    (1) Enter into any agreement with any of its employees or 
independent contractors that requires, as a condition of employment, 
that the employee or independent contractor agree to resolve through 
arbitration--
    (i) Any claim under title VII of the Civil Rights Act of 1964; or
    (ii) Any tort related to or arising out of sexual assault or 
harassment, including assault and battery, intentional infliction of 
emotional distress, false imprisonment, or negligent hiring, 
supervision, or retention; or
    (2) Take any action to enforce any provision of an existing 
agreement with an employee or independent contractor that mandates that 
the employee or independent contractor resolve through arbitration--
    (i) Any claim under title VII of the Civil Rights Act of 1964; or
    (ii) Any tort related to or arising out of sexual assault or 
harassment, including assault and battery, intentional infliction of 
emotional distress, false imprisonment, or negligent hiring, 
supervision, or retention.
    (b) No funds appropriated or otherwise made available by the Fiscal 
Year 2010 Defense Appropriations Act (Pub. L. 111-118) or subsequent DoD 
appropriations acts may be expended unless the contractor certifies that 
it requires each covered subcontractor to agree not to enter into, and 
not to take any action to enforce, any provision of any agreement, as 
described in paragraph (a) of this section, with respect to any employee 
or independent contractor performing work related to such subcontract.

[75 FR 27947, May 19, 2010. Redesignated at 75 FR 76297, Dec. 8, 2010; 
76 FR 38048, June 29, 2011]



222.7403  Applicability.

    This requirement does not apply to the acquisition of commercial 
items (including commercially available off-the-shelf items).

[75 FR 76297, Dec. 8, 2010]



222.7404  Waiver.

    (a) The Secretary of Defense may waive, in accordance with 
paragraphs (b) through (d) of this section, the applicability of 
paragraphs (a) or (b) of 222.7402 to a particular contract or 
subcontract, if the Secretary or the Deputy Secretary personally 
determines that the waiver is necessary to avoid harm to national 
security interests of the United States, and that the term of the 
contract or subcontract is not longer than necessary to avoid such harm.
    (b) The waiver determination shall set forth the grounds for the 
waiver with specificity, stating any alternatives considered, and 
explain why each of the alternatives would not avoid harm to national 
security interests.
    (c) The contracting officer shall submit requests for waivers in 
accordance with agency procedures and PGI 222.7404(c).

[[Page 173]]

    (d) The Secretary of Defense will transmit the determination to 
Congress and simultaneously publish it in the Federal Register, not less 
than 15 business days before the contract or subcontract addressed in 
the determination may be awarded.

[75 FR 76297, Dec. 8, 2010, as amended at 78 FR 36113, June 17, 2013]



222.7405  Contract clause.

    Use the clause at 252.222-7006, Restrictions on the Use of Mandatory 
Arbitration Agreements, in all solicitations and contracts (including 
task or delivery orders and bilateral modifications adding new work) 
valued in excess of $1 million utilizing funds appropriated or otherwise 
made available by the Defense Appropriations Act for Fiscal Year 2010 
(Pub. L. 111-118) or subsequent DoD appropriations acts, except in 
contracts for the acquisition of commercial items, including 
commercially available off-the-shelf items.

[76 FR 38048, June 29, 2011]



PART 223_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE--
Table of Contents



Subpart 223.3_Hazardous Material Identification and Material Safety Data

Sec.
223.302 Policy.
223.303 Contract clause.
223.370 Safety precautions for ammunition and explosives.
223.370-1 Scope.
223.370-2 Definition.
223.370-3 Policy.
223.370-4 Procedures.
223.370-5 Contract clauses.

                Subpart 223.4_Use of Recovered Materials

223.405 Procedures.

                    Subpart 223.5_Drug-Free Workplace

223.570 Drug-free work force.
223.570-1 Policy.
223.570-2 Contract clause.

                Subpart 223.8_Ozone-Depleting Substances

223.803 Policy.

Subpart 223.70 [Reserved]

 Subpart 223.71_Storage, Treatment, and Disposal of Toxic or Hazardous 
                                Materials

223.7101 Definitions.
223.7102 Policy.
223.7103 Procedures.
223.7104 Exceptions.
223.7105 Reimbursement.
223.7106 Contract clause.

Subpart 223.72_Safeguarding Sensitive Conventional Arms, Ammunition, and 
                               Explosives

223.7200 Definition.
223.7201 Policy.
223.7202 Preaward responsibilities.
223.7203 Contract clause.

  Subpart 223.73_Minimizing the Use of Materials Containing Hexavalent 
                                Chromium

223.7300 Definition.
223.7301 Policy.
223.7302 [Reserved]
223.7303 Prohibition.
223.7304 Exceptions.
223.7305 Authorization and approval.
223.7306 Contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36365, July 31, 1991, unless otherwise noted.



Subpart 223.3_Hazardous Material Identification and Material Safety Data



223.302  Policy.

    (e) The contracting officer shall also provide hazard warning 
labels, that are received from apparent successful offerors, to the 
cognizant safety officer.

[70 FR 73150, Dec. 9, 2005]



223.303  Contract clause.

    Use the clause at 252.223-7001, Hazard Warning Labels, in 
solicitations and contracts which require submission of hazardous 
material data sheets (see FAR 23.302(c)).

[56 FR 67215, Dec. 30, 1991]

[[Page 174]]



223.370  Safety precautions for ammunition and explosives.



223.370-1  Scope.

    (a) This section applies to all acquisitions involving the use of 
ammunition and explosives, including acquisitions for--
    (1) Development;
    (2) Testing;
    (3) Research;
    (4) Manufacturing;
    (5) Handling or loading;
    (6) Assembling;
    (7) Packaging;
    (8) Storage;
    (9) Transportation;
    (10) Renovation;
    (11) Demilitarization;
    (12) Modification;
    (13) Repair;
    (14) Disposal;
    (15) Inspection; or
    (16) Any other use, including acquisitions requiring the use or the 
incorporation of materials listed in paragraph (b) of this subsection 
for initiation, propulsion, or detonation as an integral or component 
part of an explosive, an ammunition, or explosive end item or weapon 
system.
    (b) This section does not apply to acquisitions solely for--
    (1) Inert components containing no explosives, propellants, or 
pyrotechnics;
    (2) Flammable liquids;
    (3) Acids;
    (4) Oxidizers;
    (5) Powdered metals; or
    (6) Other materials having fire or explosive characteristics.



223.370-2  Definition.

    Ammunition and explosives, as used in this section, is defined in 
the clause at 252.223-7002, Safety Precautions for Ammunition and 
Explosives.



223.370-3  Policy.

    (a) DoD policy is to ensure that its contractors take reasonable 
precautions in handling ammunition and explosives so as to minimize the 
potential for mishaps.
    (b) This policy is implemented by DoD Manual 4145.26-M, DoD 
Contractors' Safety Manual for Ammunition and Explosives, which is 
incorporated into contracts under which ammunition and explosives are 
handled. The manual contains mandatory safety requirements for 
contractors. When work is to be performed on a Government-owned 
installation, the contracting officer may use the ammunition and 
explosives regulation of the DoD component or installation as a 
substitute for, or supplement to, DoD Manual 4145.26-M, as long as the 
contract cites these regulations.

[56 FR 36365, July 31, 1991, as amended at 70 FR 73150, Dec. 9, 2005]



223.370-4  Procedures.

    Follow the procedures at PGI 223.370-4.

[70 FR 73151, Dec. 9, 2005]



223.370-5  Contract clauses.

    Use the clauses at 252.223-7002, Safety Precautions for Ammunition 
and Explosives, and 252.223-7003, Change in Place of Performance--
Ammunition and Explosives, in all solicitations and contracts for 
acquisition to which this section applies.



                Subpart 223.4_Use of Recovered Materials



223.405  Procedures.

    Follow the procedures at PGI 223.405.

[70 FR 73151, Dec. 9, 2005]



                    Subpart 223.5_Drug-Free Workplace

    Source: 57 FR 32737, July 23, 1992, unless otherwise noted.



223.570  Drug-free work force.



223.570-1  Policy.

    DoD policy is to ensure that its contractors maintain a program for 
achieving a drug-free work force.

[57 FR 32737, July 23, 1992. Redesignated at 70 FR 73151, Dec. 9, 2005]



223.570-2  Contract clause.

    (a) Use the clause at 252.223-7004, Drug-Free Work Force, in all 
solicitations and contracts--
    (1) That involve access to classified information; or

[[Page 175]]

    (2) When the contracting officer determines that the clause is 
necessary for reasons of national security or for the purpose of 
protecting the health or safety of those using or affected by the 
product of, or performance of, the contract.
    (b) Do not use the clause in solicitations and contracts--
    (1) For commercial items;
    (2) When performance or partial performance will be outside the 
United States and its outlying areas, unless the contracting officer 
determines such inclusion to be in the best interest of the Government; 
or
    (3) When the value of the acquisition is at or below the simplified 
acquisition threshold.

[57 FR 32737, July 23, 1992, as amended at 64 FR 2598, Jan. 15, 1999; 70 
FR 35545, June 21, 2005. Redesignated at 70 FR 73151, Dec. 9, 2005]



                Subpart 223.8_Ozone-Depleting Substances



223.803  Policy.

    No DoD contract may include a specification or standard that 
requires the use of a class I ozone-depleting substance or that can be 
met only through the use of such a substance unless the inclusion of the 
specification or standard is specifically authorized at a level no lower 
than a general or flag officer or a member of the Senior Executive 
Service of the requiring activity in accordance with Section 326, Public 
Law 102-484 (10 U.S.C. 2301 (repealed) note). This restriction is in 
addition to any imposed by the Clean Air Act and applies after June 1, 
1993, to all DoD contracts, regardless of place of performance.

[71 FR 75892, Dec. 19, 2006]

Subpart 223.70 [Reserved]



 Subpart 223.71_Storage, Treatment, and Disposal of Toxic or Hazardous 
                                Materials

    Source: 79 FR 58697, Sept. 30, 2014, unless otherwise noted.



223.7101  Definitions.

    As used in this subpart, the terms storage and toxic or hazardous 
materials are defined in the clause at 252.223-7006, Prohibition on 
Storage, Treatment, and Disposal of Toxic or Hazardous Materials.



223.7102  Policy.

    (a) 10 U.S.C. 2692 prohibits storage, treatment, or disposal on DoD 
installations of toxic or hazardous materials that are not owned either 
by DoD or by a member of the armed forces (or a dependent of the member) 
assigned to or provided military housing on the installation, unless an 
exception in 223.7104 applies.
    (b) When storage of toxic or hazardous materials is authorized based 
on an imminent danger, the storage provided shall be temporary and shall 
cease once the imminent danger no longer exists. In all other cases of 
storage or disposal, the storage or disposal shall be terminated as 
determined by the Secretary of Defense.



223.7103  Procedures.

    (a)(1) Storage, treatment, or disposal of toxic or hazardous 
materials not owned by DoD on a DoD installation is prohibited unless--
    (i) One or more of the exceptions set forth in 223.7104(a) is met 
including requisite approvals; or
    (ii) Secretary of Defense authorization is obtained under the 
conditions set forth in 223.7104(b).
    (2) When storage, treatment, or disposal of toxic or hazardous 
materials not owned by DoD is authorized in accordance with this 
subpart, the contract shall specify the types and quantities of toxic or 
hazardous materials that may be temporarily stored, treated, or disposed 
of in connection with the contract or as a result of the authorized use 
of a DoD facility or space launch facility. All solicitations and 
contracts shall specify the conditions under which storage, treatment, 
or disposal is authorized.
    (b) If the contracting officer is uncertain as to whether particular 
activities are prohibited or fall under one of the exceptions in 
223.7104, the contracting officer should seek advice from the cognizant 
office of counsel.

[[Page 176]]



223.7104  Exceptions.

    (a) The prohibition of 10 U.S.C. 2692 does not apply to any of the 
following:
    (1) The storage, treatment, or disposal of materials that will be or 
have been used in connection with an activity of DoD or in connection 
with a service to be performed on a DoD installation for the benefit of 
DoD.
    (2) The storage of strategic and critical materials in the National 
Defense Stockpile under an agreement for such storage with the 
Administrator of General Services Administration.
    (3) The temporary storage or disposal of explosives in order to 
protect the public or to assist agencies responsible for Federal, State, 
or local law enforcement in storing or disposing of explosives when no 
alternative solution is available, if such storage or disposal is made 
in accordance with an agreement between the Secretary of Defense and the 
head of the Federal, State, or local agency concerned.
    (4) The temporary storage or disposal of explosives in order to 
provide emergency lifesaving assistance to civil authorities.
    (5) The disposal of excess explosives produced under a DoD contract, 
if the head of the military department concerned determines, in each 
case, that an alternative feasible means of disposal is not available to 
the contractor, taking into consideration public safety, available 
resources of the contractor, and national defense production 
requirements.
    (6) The temporary storage of nuclear materials or nonnuclear 
classified materials in accordance with an agreement with the Secretary 
of Energy.
    (7) The storage of materials that constitute military resources 
intended to be used during peacetime civil emergencies in accordance 
with applicable DoD regulations.
    (8) The temporary storage of materials of other Federal agencies in 
order to provide assistance and refuge for commercial carriers of such 
material during a transportation emergency.
    (9) The storage of any material that is not owned by DoD, if the 
Secretary of the military department concerned determines that the 
material is required or generated in connection with the authorized and 
compatible use of a facility of DoD, including the use of such a 
facility for testing material or training personnel.
    (10) The treatment and disposal of any toxic or hazardous materials 
not owned by DoD, if the Secretary of the military department concerned 
determines that the material is required or generated in connection with 
the authorized and compatible use of a facility of that military 
department and the Secretary enters into a contract or agreement with 
the prospective user that--
    (i) Is consistent with the best interest of national defense and 
environmental security; and
    (ii) Provides for the prospective user's continued financial and 
environmental responsibility and liability with regard to the material.
    (11) The storage of any material that is not owned by DoD if the 
Secretary of the military department concerned determines that the 
material is required or generated in connection with the use of a space 
launch facility located on a DoD installation or on other land 
controlled by the United States.
    (b) The Secretary of Defense may grant an exception to the 
prohibition in 10 U.S.C. 2692 when essential to protect the health and 
safety of the public from imminent danger if the Secretary otherwise 
determines the exception is essential and if the storage or disposal 
authorized does not compete with private enterprise.



223.7105  Reimbursement.

    The Secretary of Defense may assess a charge for any storage or 
disposal provided under this subpart. If a charge is to be assessed, 
then such assessment shall be identified in the contract with payment to 
the Government on a reimbursable cost basis.



223.7106  Contract clause.

    Use the basic or the alternate of the clause at 252.223-7006, 
Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous 
Materials, in all solicitations and contracts which require, may 
require, or permit contractor access to a DoD installation.
    (a) Use the basic clause, unless a determination is made under 
223.7104(a)(10).

[[Page 177]]

    (b) Use the alternate I clause when the Secretary of the military 
department issues a determination under the exception at 
223.7104(a)(10).



Subpart 223.72_Safeguarding Sensitive Conventional Arms, Ammunition, and 
                               Explosives

    Source: 61 FR 7743, Feb. 29, 1996, unless otherwise noted.



223.7200  Definition.

    ``Arms, ammunition, and explosives (AA&E),'' as used in this 
subpart, means those items within the scope (chapter 1, paragraph B) of 
DoD 5100.76-M, Physical Security of Sensitive Conventional Arms, 
Ammunition, and Explosives.



223.7201  Policy.

    (a) The requirements of DoD 5100.76-M, Physical Security of 
Sensitive Conventional Arms, Ammunition, and Explosives, shall be 
applied to contracts when--
    (1) AA&E will be provided to the contractor or subcontractor as 
Government-furnished property; or
    (2) The principal development, production, manufacture, or purchase 
of AA&E is for DoD use.
    (b) The requirements of DoD 5100.76-M need not be applied to 
contracts when--
    (1) The AA&E to be acquired under the contract is a commercial item 
within the meaning of FAR 2.101; or
    (2) The contract will be performed in a Government-owned contractor-
operated ammunition production facility. However, if subcontracts issued 
under such a contract will meet the criteria of paragraph (a) of this 
section, the requirements of DoD 5100.76-M shall apply.



223.7202  Preaward responsibilities.

    When an acquisition involves AA&E, technical or requirements 
personnel shall specify in the purchase request--
    (a) That AA&E is involved; and
    (b) Which physical security requirements of DoD 5100.76-M apply.



223.7203  Contract clause.

    Use the clause at 252.223-7007, Safeguarding Sensitive Conventional 
Arms, Ammunition, and Explosives, in all solicitations and contracts to 
which DoD 5100.76-M applies, in accordance with the policy at 223.7201. 
Complete paragraph (b) of the clause based on information provided by 
cognizant technical or requirements personnel.

[61 FR 7743, Feb. 29, 1996; 61 FR 18195, Apr. 24, 1996]



  Subpart 223.73_Minimizing the Use of Materials Containing Hexavalent 
                                Chromium

    Source: 76 FR 25575, May 5, 2011, unless otherwise noted.



223.7300  Definition.

    Legacy system, as used in this subpart, means any program that has 
passed Milestone A in the defense acquisition management system, as 
defined in DoD Instruction 5000.02.



223.7301  Policy.

    In accordance with the DoD policy memorandum of April 8, 2009, 
Minimizing the Use of Hexavalent Chromium, it is DoD policy to minimize 
hexavalent chromium (an anti-corrosive) in items acquired by DoD 
(deliverables and construction material), due to the serious human 
health and environmental risks related to its use.

[86 FR 27280, May 20, 2021]



223.7302  [Reserved]



223.7303  Prohibition.

    (a) Except as provided in 223.7304 and 223.7305, no contract may 
include a specification or standard that results in a deliverable or 
construction material containing more than 0.1 percent hexavalent 
chromium by weight in any homogeneous material in the deliverable or 
construction material where proven substitutes are available that 
provide acceptable performance for the application.
    (b) This prohibition is in addition to any imposed by the Clean Air 
Act regardless of the place of performance.

[[Page 178]]



223.7304  Exceptions.

    The prohibition in 223.7303 does not apply to--
    (a) Legacy systems and their related parts, subsystems, and 
components that already contain hexavalent chromium. However, 
alternatives to hexavalent chromium shall be considered by the 
appropriate official during system modifications, follow-on procurements 
of legacy systems, or maintenance procedure updates; and
    (b) Additional sustainment related contracts (e.g., parts, services) 
for a system in which use of hexavalent chromium was previously 
approved.



223.7305  Authorization and approval.

    (a) The prohibition in 223.7303 does not apply to critical defense 
applications if no substitute can meet performance requirements. The DoD 
policy of April 8, 2009, ``Minimizing the Use of Hexavalent Chromium,'' 
contains requirements for weighing hexavalent chromium versus 
substitutes. DoD Program Managers must consider the following factors--
    (1) Cost effectiveness of alternative materials or processes;
    (2) Technical feasibility of alternative materials or processes;
    (3) Environment, safety, and occupational health risks associated 
with the use of the hexavalent chromium or substitute materials in each 
specific application;
    (4) Achieving a DoD Manufacturing Readiness Level of at least eight 
for any qualified alternative;
    (5) Materiel availability of hexavalent chromium and the proposed 
alternatives over the projected life span of the system; and
    (6) Corrosion performance difference of alternative materials or 
processes as determined by agency corrosion subject matter experts.
    (b) However, unless an exception in 223.7304 applies, the 
incorporation of hexavalent chromium in items acquired by DoD shall be 
specifically authorized at a level no lower than a general or flag 
officer or a member of the Senior Executive Service from the Program 
Executive Office or equivalent level, in coordination with the component 
Corrosion Control and Prevention Executive. Follow the procedures in PGI 
223.7305.



223.7306  Contract clause.

    Unless an exception in 223.7304 applies, or use has been authorized 
in accordance with 223.7305, use the clause at 252.223-7008, Prohibition 
of Hexavalent Chromium, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for supplies, maintenance and 
repair services, or construction. .

[76 FR 25575, May 5, 2011, as amended at 78 FR 37986, June 25, 2013]



PART 224_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION--
Table of Contents



             Subpart 224.1_Protection of Individual Privacy

Sec.
224.103 Procedures.

                Subpart 224.2_Freedom of Information Act

224.203 Policy.

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

    Source: 56 FR 36367, July 31, 1991, unless otherwise noted.



             Subpart 224.1_Protection of Individual Privacy



224.103  Procedures.

    (b)(2) DoD rules and regulations are contained in DoDD 5400.11, 
Department of Defense Privacy Program, and DoD 5400.11-R, Department of 
Defense Privacy Program.



                Subpart 224.2_Freedom of Information Act



224.203  Policy.

    (a) DoD implementation is in DoDD 5400.7, DoD Freedom of Information 
Act Program, and DoD 5400.7-R, DoD Freedom of Information Act Program.

[56 FR 36367, July 31, 1991. Redesignated at 62 FR 34122, June 24, 1997]

[[Page 179]]



PART 225_FOREIGN ACQUISITION--Table of Contents



Sec.
225.001 General.
225.003 Definitions.
225.070 Reporting of acquisition of end products manufactured outside 
          the United States.

                         Subpart 225.1_Supplies

225.101 General.
225.103 Exceptions.
225.105 Determining reasonableness of cost.
225.170 Acquisition from or through other Government agencies.

                  Subpart 225.2_Construction Materials

225.202 Exceptions.
225.206 Noncompliance.

       Subpart 225.3_Contracts Performed Outside the United States

225.301 Contractor personnel in a designated operational area or 
          supporting a diplomatic or consular mission outside the United 
          States.
225.301-1 Scope.
225.301-4 Contract clause.
225.302 Contractors performing private security functions outside the 
          United States.
225.302-6 Contract clause.
225.370 Contracts requiring performance or delivery in a foreign 
          country.
225.371 Contractor personnel supporting U.S. Armed Forces deployed 
          outside the United States.
225.371-1 Scope.
225.371-2 Definition.
225.371-3 Government support.
225.371-4 Law of war training.
225.371-5 Contract clauses.
225.372 Antiterrorism/force protection.
225.372-1 General.
225.372-2 Contract clause.
225.373 Contract administration in support of contingency operations.
225.374 Use of electronic business tools.

                     Subpart 225.4_Trade Agreements

225.401 Exceptions.
225.401-70 End products subject to trade agreements.
225.401-71 Products or services in support of operations in Afghanistan.
225.402 General.
225.403 World Trade Organization Government Procurement Agreement and 
          Free Trade Agreements.
225.408 Procedures.

        Subpart 225.5_Evaluating Foreign Offers_Supply Contracts

225.502 Application.
225.503 Group offers.
225.504 Evaluation examples.

                    Subpart 225.7_Prohibited Sources

225.701 [Reserved]
225.701-70 Exception.
225.770 Prohibition on acquisition of certain items from Communist 
          Chinese military companies.
225.770-1 Definitions.
225.770-2 Prohibition.
225.770-3 Exceptions.
225.770-4 Identifying items covered by the USML or the 600 series of the 
          CCL.
225.770-5 Waiver of prohibition.
225.771 Prohibition on contracting or subcontracting with a firm that is 
          owned or controlled by the government of a country that is a 
          state sponsor of terrorism.
225.771-0 Scope.
225.771-1 Definition.
225.771-2 Prohibition.
225.771-3 Notification.
225.771-4 Waiver of prohibition.
225.771-5 Solicitation provision.
225.772 Prohibition on acquisition of certain foreign commercial 
          satellite services.
225.772-0 Scope.
225.772-1 Definitions.
225.772-2 Prohibitions.
225.772-3 Procedures.
225.772-4 Exception.
225.772-5 Solicitation provision and contract clauses.

      Subpart 225.8_Other International Agreements and Coordination

225.802 Procedures.
225.802-70 Contracts for performance outside the United States and 
          Canada.
225.802-71 End use certificates.
225.870 Contracting with Canadian contractors.
225.870-1 General.
225.870-2 Solicitation of Canadian contractors.
225.870-3 Submission of offers.
225.870-4 Contracting procedures.
225.870-5 Contract administration.
225.870-6 Termination procedures.
225.870-7 Acceptance of Canadian supplies.
225.870-8 Industrial security.
225.871 North Atlantic Treaty Organization (NATO) cooperative projects.
225.871-1 Scope.
225.871-2 Definitions.
225.871-3 General.
225.871-4 Statutory waivers.
225.871-5 Directed subcontracting.
225.871-6 Disposal of property.
225.871-7 Congressional notification.

[[Page 180]]

225.872 Contracting with qualifying country sources.
225.872-1 General.
225.872-2 Applicability.
225.872-3 Solicitation procedures.
225.872-4 Individual determinations.
225.872-5 Contract administration.
225.872-6 Request for audit services.
225.872-7 Industrial security for qualifying countries.
225.872-8 Subcontracting with qualifying country sources.
225.873 Waiver of United Kingdom commercial exploitation levies.
225.873-1 Policy.
225.873-2 Procedures.

                    Subpart 225.9_Customs and Duties

225.900-70 Definition.
225.901 Policy.
225.902 Procedures.
225.903 Exempted supplies.

        Subpart 225.10_Additional Foreign Acquisition Regulations

225.1070 Clause deviations in overseas contracts.

       Subpart 225.11_Solicitation Provisions and Contract Clauses

225.1100 Scope of subpart.
225.1101 Acquisition of supplies.
225.1103 Other provisions and clauses.

   Subpart 225.70_Authorization Acts, Appropriations Acts, and Other 
              Statutory Restrictions on Foreign Acquisition

225.7000 Scope of subpart.
225.7001 Definitions.
225.7002 Restrictions on food, clothing, fabrics, hand or measuring 
          tools, and flags.
225.7002-1 Restrictions.
225.7002-2 Exceptions.
225.7002-3 Contract clauses.
225.7003 Restrictions on acquisition of specialty metals.
225.7003-1 Definitions.
225.7003-2 Restrictions.
225.7003-3 Exceptions.
225.7003-4 [Reserved]
225.7003-5 Solicitation provision and contract clauses.
225.7004 Restriction on acquisition of foreign buses.
225.7004-1 Restriction.
225.7004-2 Applicability.
225.7004-3 Exceptions.
225.7004-4 Waiver.
225.7005 [Reserved]
225.7006 Restrictions on air circuit breakers for naval vessels.
225.7006-1 Restriction.
225.7006-2 Exceptions.
225.7006-3 Waiver.
225.7006-4 Solicitation provision and contract clause.
225.7007 Restrictions on anchor and mooring chain.
225.7007-1 Restrictions.
225.7007-2 Waiver.
225.7007-3 Contract clause.
225.7008 Waiver of restrictions of 10 U.S.C. 2534.
225.7009 Restriction on ball and roller bearings.
225.7009-1 Scope.
225.7009-2 Restriction.
225.7009-3 Exception.
225.7009-4 Waiver.
225.7009-5 Contract clause.
225.7010 Restriction on certain naval vessel components.
225.7010-1 Restriction.
225.7010-2 Exceptions.
225.7010-3 Waiver.
225.7010-4 Implementation.
225.7011 Restriction on carbon, alloy, and armor steel plate.
225.7011-1 Restriction.
225.7011-2 Waiver.
225.7011-3 Contract clause.
225.7012 Restriction on supercomputers.
225.7012-1 Restriction.
225.7012-2 Waiver.
225.7012-3 Contract clause.
225.7013 Restrictions on construction or repair of vessels in foreign 
          shipyards.
225.7014 Restrictions on military construction.
225.7015 Restriction on overseas architect-engineer services.
225.7017 Utilization of domestic photovoltaic devices.
225.7017-1 Definitions.
225.7017-2 Restriction.
225.7017-3 Exceptions.
225.7017-4 Solicitation provision and contract clause.
225.7018 Restriction on acquisition of certain magnets, tantalum, and 
          tungsten.
225.7018-1 Definitions.
225.7018-2 Restriction.
225.7018-3 Exceptions.
225.7018-4 Nonavailability determination.
225.7018-5 Contract clause.
225.7019 Prohibition on use of certain energy sourced from inside the 
          Russian Federation.
225.7019-1 Definitions.
225.7019-2 Prohibition.
225.7019-3 Waiver.
225.7019-4 Solicitation provision and contract clause.

        Subpart 225.71_Other Restrictions on Foreign Acquisition

225.7100 Scope of subpart.
225.7101 Definitions.
225.7102 Forgings.

[[Page 181]]

225.7102-1 Policy.
225.7102-2 Exceptions.
225.7102-3 Waiver.
225.7102-4 Contract clause.

 Subpart 225.72_Reporting Contract Performance Outside the United States

225.7201 Policy.
225.7202 Exception.
225.7203 Contracting officer distribution of reports.
225.7204 Solicitation provision and contract clauses.

         Subpart 225.73_Acquisitions for Foreign Military Sales

225.7300 Scope of subpart.
225.7301 General.
225.7301-1 [Reserved]
225.7301-2 Solicitation approval for sole source contracts.
225.7302 Preparation of letter of offer and acceptance.
225.7303 Pricing acquisitions for FMS.
225.7303-1 Contractor sales to other foreign customers.
225.7303-2 Cost of doing business with a foreign government or an 
          international organization.
225.7303-3 Government-to-government agreements.
225.7303-4 Contingent fees.
225.7303-5 Acquisitions wholly paid for from nonrepayable funds.
225.7304 FMS customer involvement.
225.7305 Limitation of liability.
225.7306 Offset arrangements.
225.7307 Contract clauses.

Subpart 225.74 [Reserved]

               Subpart 225.75_Balance of Payments Program

225.7500 Scope of subpart.
225.7501 Policy.
225.7502 Procedures.
225.7503 Contract clauses.

             Subpart 225.76_Secondary Arab Boycott of Israel

225.7601 Restriction.
225.7602 Procedures.
225.7603 Exceptions.
225.7604 Waivers.
225.7605 Solicitation provision.

   Subpart 225.77_Acquisitions in Support of Operations in Afghanistan

225.7700 Scope.
225.7701 Definitions.
225.7702 Acquisitions not subject to the enhanced authority to acquire 
          products or services from Afghanistan.
225.7702-1 Acquisition of small arms.
225.7702-2 Acquisition of uniform components for the Afghan military or 
          the Afghan police.
225.7703 Enhanced authority to acquire products or services from 
          Afghanistan.
225.7703-1 Acquisition procedures.
225.7703-2 Determination requirements.
225.7703-3 Evaluating offers.
225.7703-4 Solicitation provisions and contract clauses.
225.7704 Acquisitions of products and services from South Caucasus/
          Central and South Asian (SC/CASA) state in support of 
          operations in Afghanistan.
225.7704-1 Applicability of trade agreements.
225.7704-2 Applicability of Balance of Payments Program.
225.7704-3 Solicitation provisions and contract clauses.
225.7705 Prohibition on use of funds for contracts of certain programs 
          and projects in Afghanistan that cannot be safely accessed.
225.7705-1 Prohibition.
225.7705-2 Waiver of prohibition.
225.7705-3 Procedures.

Subpart 225.78_Acquisitions in Support of Geographic Combatant Command's 
                  Theater Security Cooperation Efforts

225.7801 Policy.

                      Subpart 225.79_EXPORT CONTROL

225.7900 Scope of subpart.
225.7901 Export-controlled items.
225.7901-1 Definitions.
225.7901-2 General.
225.7901-3 Policy.
225.7901-4 Contract clause.
225.7902 Defense Trade Cooperation Treaties.
225.7902-1 Definitions.
225.7902-2 Purpose.
225.7902-3 Policy.
225.7902-4 Procedures.
225.7902-5 Solicitation provision and contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36367, July 31, 1991, unless otherwise noted.



225.001  General.

    For guidance on evaluating offers of foreign end products, see PGI 
225.001.

[70 FR 73154, Dec. 9, 2005]



225.003  Definitions.

    As used in this part--

[[Page 182]]

    600 series of the Commerce Control List means the series of 5-
character export control classification numbers (ECCNs) of the Commerce 
Control List of the Export Administration Regulations in 15 CFR part 
774, supplement no. 1, that have a ``6'' as the third character. The 600 
series constitutes the munitions and munitions-related ECCNs within the 
larger Commerce Control List. (See definition of ``600 series'' in 15 
CFR 772.)
    Caribbean Basin country end product includes petroleum or any 
product derived from petroleum.
    Communist Chinese military company means any entity, regardless of 
geographic location, that is--
    (1) A part of the commercial or defense industrial base of the 
People's Republic of China (including a subsidiary or affiliate of such 
entity); or
    (2) Owned or controlled by, or affiliated with, an element of the 
Government or armed forces of the People's Republic of China.
    Defense equipment means any equipment, item of supply, component, or 
end product purchased by DoD.
    Domestic concern means--
    (1) A concern incorporated in the United States (including a 
subsidiary that is incorporated in the United States, even if the parent 
corporation is a foreign concern; or
    (2) An unincorporated concern having its principal place of business 
in the United States.
    Domestic end product has the meaning given in the clauses at 
252.225-7001, Buy American and Balance of Payments Program; and 252.225-
7036, Buy American --Free Trade Agreements--Balance of Payments Program, 
instead of the meaning in FAR 25.003.
    Eligible product means, instead of the definition in FAR 25.003--
    (1) A foreign end product that--
    (i) Is in a category listed in 225.401-70; and
    (ii) Is not subject to discriminatory treatment, due to the 
applicability of a trade agreement to a particular acquisition;
    (2) A foreign construction material that is not subject to 
discriminatory treatment, due to the applicability of a trade agreement 
to a particular acquisition; or
    (3) A foreign service that is not subject to discriminatory 
treatment, due to the applicability of a trade agreement to a particular 
acquisition.
    Foreign concern means any concern other than a domestic concern.
    Free Trade Agreement country does not include Oman.
    Nonqualifying country means a country other than the United States 
or a qualifying country.
    Nonqualifying country component means a component mined, produced, 
or manufactured in a nonqualifying country.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country component and qualifying country end product are 
defined in the clauses at 252.225-7001, Buy American and Balance of 
Payments Program; and 252.225-7036, Buy American --Free Trade 
Agreements--Balance of Payments Program. Qualifying country end product 
is also defined in the clause at 252.225-7021, Trade Agreements.
    Qualifying country offer means an offer of a qualifying country end 
product, including the price of transportation to destination.

[[Page 183]]

    Source, when restricted by words such as foreign, domestic, or 
qualifying country, means the actual manufacturer or producer of the end 
product or component.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    South Caucasus/Central and South Asian (SC/CASA) state construction 
material means construction material that--
    (1) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (2) In the case of a construction material that consists in whole or 
in part of materials from another country, has been substantially 
transformed in an SC/CASA state into a new and different construction 
material distinct from the material from which it was transformed.
    South Caucasus/Central and South Asian (SC/CASA) state end product 
means an article that--
    (1) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (2) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in an 
SC/CASA state into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product, includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    United States Munitions List means the munitions list of the 
International Traffic in Arms Regulation in 22 CFR part 121.

[68 FR 15618, Mar. 31, 2003, as amended at 69 FR 1927, Jan. 13, 2004; 70 
FR 73153, Dec. 9, 2005; 73 FR 76971, Dec. 18, 2008; 74 FR 37651, July 
29, 2009; 75 FR 34945, June 21, 2010; 75 FR 81916, Dec. 29, 2010; 77 FR 
35880, June 15, 2012; 77 FR 38737, June 29, 2012; 77 FR 76942, Dec. 31, 
2012; 81 FR 50651, Aug. 2, 2016; 81 FR 93840, Dec. 22, 2016; 82 FR 
61484, Dec. 28, 2017; 83 FR 66071, Dec. 21, 2018]



225.070  Reporting of acquisition of end products manufactured outside
the United States.

    Follow the procedures at PGI 225.070 for entering the data on the 
acquisition of end products manufactured outside the United States.

[79 FR 11342, Feb. 28, 2014]



                         Subpart 225.1_Supplies

    Source: 68 FR 15618, Mar. 31, 2003, unless otherwise noted.



225.101  General.

    (a) For DoD, the following two-part test determines whether a 
manufactured end product is a domestic end product:
    (i) The end product is manufactured in the United States; and
    (ii) The cost of its U.S. and qualifying country components exceeds 
50 percent of the cost of all its components. This test is applied to 
end products only and not to individual components.
    (c) Additional exceptions that allow the purchase of foreign end 
products are listed at 225.103.



225.103  Exceptions.

    (a)(i)(A) Public interest exceptions for certain countries are in 
225.872.
    (B) For procurements covered by the World Trade Organization 
Government Procurement Agreement, the Under Secretary of Defense 
(Acquisition, Technology, and Logistics) has determined that it is 
inconsistent with the public interest to apply the Buy American statute 
to end products that are substantially transformed in the United States.
    (ii)(A) Normally, use the evaluation procedures in subpart 225.5, 
but consider recommending a public interest exception if the purposes of 
the Buy American statute are not served, or in order to meet a need set 
forth in 10 U.S.C. 2533. For example, a public interest exception may be 
appropriate--
    (1) If accepting the low domestic offer will involve substantial 
foreign expenditures, or accepting the low foreign offer will involve 
substantial domestic expenditures;

[[Page 184]]

    (2) To ensure access to advanced state-of-the-art commercial 
technology; or
    (3) To maintain the same source of supply for spare and replacement 
parts (also see paragraph (b)(iii)(B) of this section)--
    (i) For an end item that qualifies as a domestic end product; or
    (ii) In order not to impair integration of the military and 
commercial industrial base.
    (B) Except as provided in PGI 225.872-4, process a determination for 
a public interest exception after consideration of the factors in 10 
U.S.C. 2533--
    (1) At a level above the contracting officer for acquisitions valued 
at or below the simplified acquisition threshold;
    (2) By the head of the contracting activity for acquisitions with a 
value greater than the simplified acquisition threshold but less than 
$1.5 million; or
    (3) By the agency head for acquisitions valued at $1.5 million or 
more.
    (b)(i) A determination that an article, material, or supply is not 
reasonably available is required when domestic offers are insufficient 
to meet the requirement and award is to be made on other than a 
qualifying country or eligible end product.
    (ii) Except as provided in FAR 25.103(b)(3), the determination shall 
be approved--
    (A) At a level above the contracting officer for acquisitions valued 
at or below the simplified acquisition threshold;
    (B) By the chief of the contracting office for acquisitions with a 
value greater than the simplified acquisition threshold but less than 
$1.5 million; or
    (C) By the head of the contracting activity or immediate deputy for 
acquisitions valued at $1.5 million or more.
    (iii) A separate determination as to whether an article is 
reasonably available is not required for the following articles. DoD has 
already determined that these articles are not reasonably available from 
domestic sources:
    (A) Spare or replacement parts that must be acquired from the 
original foreign manufacturer or supplier.
    (B) Foreign drugs acquired by the Defense Supply Center, 
Philadelphia, when the Director, Pharmaceuticals Group, Directorate of 
Medical Materiel, determines that only the requested foreign drug will 
fulfill the requirements.
    (iv) Under coordinated acquisition (see Subpart 208.70), the 
determination is the responsibility of the requiring department when the 
requiring department specifies acquisition of a foreign end product.
    (c) The cost of a domestic end product is unreasonable if it is not 
the low evaluated offer when evaluated under Subpart 225.5.

[68 FR 15618, Mar. 31, 2003, as amended at 70 FR 2362, Jan. 13, 2005; 73 
FR 4113, Jan. 24, 2008; 75 FR 45074, Aug. 2, 2010; 77 FR 35880, June 15, 
2012; 80 FR 15912, Mar. 26, 2015]



225.105  Determining reasonableness of cost.

    (b) Use an evaluation factor of 50 percent instead of the factors 
specified in FAR 25.105(b).



225.170  Acquisition from or through other Government agencies.

    Contracting activities must apply the evaluation procedures in 
Subpart 225.5 when using Federal supply schedules.



                  Subpart 225.2_Construction Materials



225.202  Exceptions.

    (a)(2) A nonavailability determination is not required for 
construction materials listed in FAR 25.104(a). For other materials, a 
nonavailability determination shall be approved at the levels specified 
in 225.103(b)(ii). Use the estimated value of the construction materials 
to determine the approval level.

[65 FR 19851, Apr. 13, 2000, as amended at 68 FR 15619, Mar. 31, 2003; 
80 FR 15912, Mar. 26, 2015]



225.206  Noncompliance.

    (c)(4) Prepare any report of noncompliance in accordance with the 
procedures at 209.406-3 or 209.407-3.

[64 FR 62986, Nov. 18, 1999]

[[Page 185]]



       Subpart 225.3_Contracts Performed Outside the United States

    Source: 73 FR 16774, Mar. 31, 2008, unless otherwise noted.



225.301  Contractor personnel in a designated operational area or
supporting a diplomatic or consular mission outside the United States.



225.301-1  Scope.

    (a) Performance in a designated operational area, as used in this 
section, means performance of a service or construction, as required by 
the contract. For supply contracts, the term includes services 
associated with the acquisition of supplies (e.g., installation or 
maintenance), but does not include production of the supplies or 
associated overhead functions.
    (c) For DoD, this section also applies to all personal services 
contracts.



225.301-4  Contract clause.

    (1) Use the clause at FAR 52.225-19, Contractor Personnel in a 
Designated Operational Area or Supporting a Diplomatic or Consular 
Mission Outside the United States, in accordance with the prescription 
at FAR 25.301-4, except that--
    (i) The clause shall also be used in personal services contracts 
with individuals; and
    (ii) The clause shall not be used when all contractor personnel 
performing outside the United States will be covered by the clause at 
252.225-7040.
    (2) When using the clause at FAR 52.225-19, the contracting officer 
shall inform the contractor that the Synchronized Predeployment and 
Operational Tracker (SPOT) is the appropriate automated system to use 
for the list of contractor personnel required by paragraph (g) of the 
clause. Information on the SPOT system is available at  https://
spot.dmdc.mil and http://www.acq.osd.mil/ log/PS/ctr_mgt 
_accountability.html.

[73 FR 16774, Mar. 31, 2008, as amended at 74 FR 34265, July 15, 2009; 
80 FR 67255, Oct. 30, 2015]



225.302  Contractors performing private security functions outside 
the United States.



225.302-6  Contract clause.

    Use the clause at 252.225-7039, Defense Contractors Performing 
Private Security Functions Outside the United States, instead of FAR 
clause 52.225-26, Contractors Performing Private Security Functions 
Outside the United States, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, when private security functions are to 
be performed outside the United States in--
    (1) Contingency operations;
    (2) Combat operations, as designated by the Secretary of Defense;
    (3) Other significant military operations (as defined in 32 CFR part 
159), designated by the Secretary of Defense, and only upon agreement of 
the Secretary of Defense and the Secretary of State;
    (4) Peace operations, consistent with Joint Publication 3-07.3; or
    (5) Other military operations or military exercises, when designated 
by the Combatant Commander.

[80 FR 4999, Jan. 29, 2015, as amended at 81 FR 42560, June 30, 2016]



225.370  Contracts requiring performance or delivery in a foreign 
country.

    (a) If the acquisition requires the performance of services or 
delivery of supplies in an area outside the United States, follow the 
procedures at PGI 225.370(a).
    (b) For work performed in Germany, eligibility for logistics support 
or base privileges of contractor employees is governed by U.S.-German 
bilateral agreements. Follow the procedures at Army in Europe Regulation 
715-9, available at http://www.eur.army.mil/ g1/content/CPD/docper/
docper _germanyLinks.html under ``AE Regs & Resources.''
    (c) For work performed in Japan or Korea, see PGI 225.370(b) for 
information on bilateral agreements and policy relating to contractor 
employees in Japan or Korea.

[[Page 186]]

    (d) For work performed in the U.S. Central Command area of 
responsibility, follow the procedures for theater business clearance/
contract administration delegation instructions at PGI 225.370(d).

[80 FR 36901, June 26, 2015, as amended at 80 FR 56930, Sept. 21, 2015]



225.371  Contractor personnel supporting U.S. Armed Forces deployed
outside the United States.

    For additional information on contractor personnel supporting U.S. 
Armed Forces, see PGI 225.371.

[80 FR 36901, June 26, 2015]



225.371-1  Scope.

    (a) This section applies to contracts that involve contractor 
personnel supporting U.S. Armed Forces deployed outside the United 
States in--
    (1) Contingency operations;
    (2) Humanitarian or peacekeeping operations; or
    (3) Other military operations or military exercises, when designated 
by the combatant commander.
    (b) Any of the types of operations listed in paragraph (a) of this 
section may include stability operations such as--
    (1) Establishment or maintenance of a safe and secure environment; 
or
    (2) Provision of emergency infrastructure reconstruction, 
humanitarian relief, or essential governmental services (until feasible 
to transition to local government).

[80 FR 36901, June 26, 2015]



225.371-2  Definition.

    ``Designated operational area'' is defined in the clause at 252.225-
7040. See PGI 225.371-2 for additional information on designated 
operational areas.

[80 FR 36901, June 26, 2015]



225.371-3  Government support.

    (a) Government support that may be authorized or required for 
contractor personnel performing in a designated operational area may 
include, but is not limited to, the types of support listed in PGI 
225.371-3(a).
    (b) The agency shall provide logistical or security support only 
when the appropriate agency official, in accordance with agency 
guidance, determines in coordination with the combatant commander that--
    (1) Such Government support is available and is needed to ensure 
continuation of essential contractor services; and
    (2) The contractor cannot obtain adequate support from other sources 
at a reasonable cost.
    (c) The contracting officer shall specify in the solicitation and 
contract--
    (1) Valid terms, approved by the combatant commander, that specify 
the responsible party, if a party other than the combatant commander is 
responsible for providing protection to the contractor personnel 
performing in the designated operational area; and
    (2) Any other Government support to be provided, and whether this 
support will be provided on a reimbursable basis, citing the authority 
for the reimbursement.
    (d) Medical support of contractor personnel. The contracting officer 
shall provide direction to the contractor when the contractor is 
required to reimburse the Government for medical treatment or 
transportation of contractor personnel to a selected civilian facility 
in accordance with paragraph (c)(2)(ii) of the clause at 252.225-7040. 
For additional information, see PGI 225.371-3(d).
    (e) Letter of authorization. Contractor personnel must have a 
Synchronized Predeployment and Operational Tracker (SPOT)-generated 
letter of authorization (LOA) signed by the contracting officer in order 
to process through a deployment center or to travel to, from, or within 
the designated operational area. The LOA also will identify any 
additional authorizations, privileges, or Government support that the 
contractor personnel are entitled to under the contract. For additional 
information on LOAs, see PGI 225.371-3(e).

[80 FR 36901, June 26, 2015]



225.371-4  Law of war training.

    (a) Basic training. Basic law of war training is required for all 
contractor personnel supporting U.S. Armed Forces deployed outside the 
United

[[Page 187]]

States. The basic training normally will be provided through a military-
run training center. The contracting officer may authorize the use of an 
alternate basic training source, provided the servicing DoD legal 
advisor concurs with the course content. An example of an alternate 
source of basic training is the web-based training provided by the 
Defense Acquisition University at https://acc.dau.mil/ 
CommunityBrowser.aspx ?id=18014⟨=en-US.
    (b) Advanced law of war training. (1) The types of personnel that 
must obtain advanced law of war training include the following:
    (i) Private security contractors.
    (ii) Security guards in or near areas of military operations.
    (iii) Interrogators, linguists, interpreters, guards, report 
writers, information technology technicians, or others who will come 
into contact with enemy prisoners of war, civilian internees, retained 
persons, other detainees, terrorists, or criminals who are captured, 
transferred, confined, or detained during or in the aftermath of 
hostilities.
    (iv) Other personnel when deemed necessary by the contracting 
officer.
    (2) If contractor personnel will be required to obtain advanced law 
of war training, the solicitation and contract shall specify--
    (i) The types of personnel subject to advanced law of war training 
requirements;
    (ii) Whether the training will be provided by the Government or the 
contractor;
    (iii) If the training will be provided by the Government, the source 
of the training; and
    (iv) If the training will be provided by the contractor, a 
requirement for coordination of the content with the servicing DoD legal 
advisor to ensure that training content is commensurate with the duties 
and responsibilities of the personnel to be trained.

[80 FR 36901, June 26, 2015]



225.371-5  Contract clauses.

    (a) Use the clause at 252.225-7040, Contractor Personnel Supporting 
U.S. Armed Forces Deployed Outside the United States, instead of the 
clause at FAR 52.225-19, Contractor Personnel in a Designated 
Operational Area or Supporting a Diplomatic or Consular Mission Outside 
the United States, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, for performance in a designated 
operational area that authorize contractor personnel (including both 
contractors authorized to accompany the Force (CAAF) and non-CAAF) to 
support U.S. Armed Forces deployed outside the United States in--
    (1) Contingency operations;
    (2) Peace operations consistent with Joint Publication 3-07.3; or
    (3) Other military operations or military exercises, when designated 
by the combatant commander or as directed by the Secretary of Defense.
    (b) For additional guidance on clauses to consider when using the 
clause at 252.225-7040, see PGI 225.371-5(b).

[80 FR 36901, June 26, 2015, as amended at 80 FR 51753, Aug. 26, 2015]



225.372  Antiterrorism/force protection.



225.372-1  General.

    Information and guidance pertaining to DoD antiterrorism/force 
protection policy for contracts that require performance or travel 
outside the United States can be obtained from the offices listed in PGI 
225.372-1.

[80 FR 36902, June 26, 2015]



225.372-2  Contract clause.

    Use the clause at 252.225-7043, Antiterrorism/Force Protection 
Policy for Defense Contractors Outside the United States, in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, that 
require performance or travel outside the United States, except for 
contracts with--
    (a) Foreign governments;
    (b) Representatives of foreign governments; or
    (c) Foreign corporations wholly owned by foreign governments.

[80 FR 36902, June 26, 2015]

[[Page 188]]



225.373  Contract administration in support of contingency operations.

    For additional guidance on contract administration considerations 
when supporting contingency operations, see PGI 225.373.

[80 FR 36902, June 26, 2015]



225.374  Use of electronic business tools.

    See 218.271 concerning the use of electronic business tools in 
support of a contingency operation or humanitarian or peacekeeping 
operation.

[80 FR 36902, June 26, 2015, as amended at 83 FR 24890, May 30, 2018]



                     Subpart 225.4_Trade Agreements

    Source: 65 FR 19852, Apr. 13, 2000, unless otherwise noted.



225.401  Exceptions.

    (a)(2)(A) If a department or agency considers an individual 
acquisition of a product to be indispensable for national security or 
national defense purposes and appropriate for exclusion from the 
provisions of FAR subpart 25.4, it may submit a request with supporting 
rationale to the Director of Defense Procurement and Acquisition Policy 
(OUSD(AT&L)DPAP). Approval by OUSD(AT&L)DPAP is not required if--
    (1) Purchase from foreign sources is restricted by statute (see 
subpart 225.70);
    (2) Another exception in FAR 25.401 applies to the acquisition; or
    (3) Competition from foreign sources is restricted under subpart 
225.71.
    (B) Public interest exceptions for certain countries when acquiring 
products or services in support of operations in Afghanistan are in 
225.7704-1.

[75 FR 81916, Dec. 29, 2010]



225.401-70  End products subject to trade agreements.

    Acquisitions of end products in the following product service groups 
(PSGs) are covered by trade agreements if the value of the acquisition 
is at or above the applicable trade agreement threshold and no exception 
applies. If an end product is not in one of the listed groups, the trade 
agreements do not apply. The definition of Caribbean Basin country end 
products in FAR 25.003 excludes those end products that are not eligible 
for duty-free treatment under 19 U.S.C. 2703(b). Therefore certain 
watches, watch parts, and luggage from certain Caribbean Basin countries 
are not eligible products. However, 225.003 expands the definition of 
Caribbean Basin country end products to include petroleum and any 
product derived from petroleum, in accordance with Section 8094 of Pub. 
L. 103-139.

22                               Railway equipment
23                               Motor vehicles, trailers, and cycles
                                  (except 2305, 2350, and buses under
                                  2310)
24                               Tractors
25                               Vehicular equipment components
26                               Tires and tubes
29                               Engine accessories
30                               Mechanical power transmission equipment
32                               Woodworking machinery and equipment
34                               Metalworking machinery
35                               Service and trade equipment
36                               Special industry machinery (except
                                  3690)
37                               Agricultural machinery and equipment
38                               Construction, mining, excavating, and
                                  highway maintenance equipment
39                               Materials handling equipment
40                               Rope, cable, chain, and fittings
41                               Refrigeration, air conditioning, and
                                  air circulating equipment
42                               Fire fighting, rescue, and safety
                                  equipment; and environmental
                                  protection equipment and materials
43                               Pumps and compressors
44                               Furnace, steam plant, and drying
                                  equipment (except 4470)
45                               Plumbing, heating, and waste disposal
                                  equipment
46                               Water purification and sewage treatment
                                  equipment
47                               Pipe, tubing, hose, and fittings
48                               Valves
49                               Maintenance and repair shop equipment
                                  (except 4920-4927, 4931-4935, 4960,
                                  4970)
53                               Hardware and abrasives
54                               Prefabricated structures and
                                  scaffolding
55                               Lumber, millwork, plywood, and veneer
56                               Construction and building materials
61                               Electric wire, and power and
                                  distribution equipment
62                               Lighting fixtures and lamps

[[Page 189]]

 
63                               Alarm, signal, and security detection
                                  systems
65                               Medical, dental, and veterinary
                                  equipment and supplies
66                               Instruments and laboratory equipment
                                  (except aircraft clocks under 6645)--
                                  See FAR 25.003 exclusion of certain
                                  watches and watch parts for certain
                                  Caribbean Basin countries
67                               Photographic equipment
68                               Chemicals and chemical products
69                               Training aids and devices
70                               Automatic data processing equipment
                                  (including firmware), software,
                                  supplies and support equipment
71                               Furniture
72                               Household and commercial furnishings
                                  and appliances
73                               Food preparation and serving equipment
74                               Office machines, text processing
                                  systems and visible record equipment
75                               Office supplies and devices
76                               Books, maps, and other publications
77                               Musical instruments, phonographs, and
                                  home-type radios
78                               Recreational and athletic equipment
79                               Cleaning equipment and supplies
80                               Brushes, paints, sealers, and adhesives
81                               Containers, packaging, and packing
                                  supplies (except 8140)
83                               Pins, needles, and sewing kits (only
                                  part of 8315) and flagstaffs,
                                  flagpoles, and flagstaff trucks (only
                                  part of 8345)
84                               Luggage (only 8460)--See FAR 25.003 for
                                  exclusion of luggage for Caribbean
                                  Basin countries
85                               Toiletries
87                               Agricultural supplies
88                               Live animals
89                               Tobacco products (only 8975)
91                               Fuels, lubricants, oils, and waxes
93                               Nonmetallic fabricated materials
94                               Nonmetallic crude materials
96                               Ores, minerals, and their primary
                                  products
99                               Miscellaneous
 


[65 FR 19852, Apr. 13, 2000, as amended at 68 FR 15619, Mar. 31, 2003; 
69 FR 1927, Jan. 13, 2004; 70 FR 2363, Jan. 13, 2005; 70 FR 73154, Dec. 
9, 2005; 71 FR 9270, Feb. 23, 2006; 80 FR 4805, Jan. 29, 2015]



225.401-71  Products or services in support of operations in 
Afghanistan.

    When acquiring products or services, other than small arms, in 
support of operations in Afghanistan, if using a procedure specified in 
225.7703-1(a)(2) or (3), the procedures of subpart 25.4 are not 
applicable.

[78 FR 59857, Sept. 30, 2013]



225.402  General.

    To estimate the value of the acquisition, use the total estimated 
value of end products covered by trade agreements (see 225.401-70).

[70 FR 2363, Jan. 13, 2005]



225.403  World Trade Organization Government Procurement Agreement and Free Trade Agreements.

    (c) For acquisitions of supplies covered by the World Trade 
Organization Government Procurement Agreement, acquire only U.S.-made, 
qualifying country, or designated country end products unless--
    (i) The contracting officer determines that offers of U.S.-made, 
qualifying country, or designated country end products from responsive, 
responsible offerors are either--
    (A) Not received; or
    (B) Insufficient to fill the Government's requirements. In this 
case, accept all responsive, responsible offers of U.S.-made, qualifying 
country, and eligible products before accepting any other offers;
    (ii) A national interest waiver under 19 U.S.C. 2512(b)(2) is 
granted on a case-by-case basis. Except as delegated in paragraphs 
(c)(i)(A) and (B) of this section, submit any request for a national 
interest waiver to the Director of Defense Procurement and Acquisition 
Policy in accordance with department or agency procedures. Include 
supporting rationale with the request.
    (A) The head of the contracting activity may approve a national 
interest waiver for a purchase by an overseas purchasing activity, if 
the waiver is supported by a written statement from the requiring 
activity that the products being acquired are critical for the support 
of U.S. forces stationed abroad.
    (B) The Commander or Director, Defense Energy Support Center, may 
approve national interest waivers for purchases of fuel for use by U.S. 
forces overseas; or

[[Page 190]]

    (iii) The acquisition is in support of operations in Afghanistan 
(see 225.7704-1).

[68 FR 15619, Mar. 31, 2003, as amended at 70 FR 2363, Jan. 13, 2005; 75 
FR 81916, Dec. 29, 2010; 76 FR 76320, Dec. 7, 2011]



225.408  Procedures.

    (a)(4) The requirements of FAR 25.408(a)(4), on submission of offers 
in U.S. dollars, do not apply to overseas acquisitions or to Defense 
Energy Support Center post, camp, or station overseas requirements.

[70 FR 73154, Dec. 9, 2005]



        Subpart 225.5_Evaluating Foreign Offers_Supply Contracts

    Source: 68 FR 15620, Mar. 31, 2003, unless otherwise noted.



225.502  Application.

    (a) Whenever the acquisition is in support of operations in 
Afghanistan, treat the offers of end products from South Caucasus or 
Central and South Asian states listed in 225.401-70 the same as 
qualifying country offers.
    (b) Use the following procedures instead of the procedures in FAR 
25.502(b) for acquisitions subject to the World Trade Organization 
Government Procurement Agreement:
    (i) Consider only offers of U.S.-made, qualifying country, or 
designated country end products, except as permitted by 225.403 or 
225.7703-1.
    (ii) If price is the determining factor, award on the low offer.
    (c) Use the following procedures instead of those in FAR 25.502(c) 
for acquisitions subject to the Buy American statute or the Balance of 
Payments Program:
    (i)(A) If the acquisition is subject only to the Buy American or 
Balance of Payments Program, then only qualifying country end products 
are exempt from application of the Buy American or Balance of Payments 
Program evaluation factor.
    (B) If the acquisition is also subject to a Free Trade Agreement, 
then eligible products of the applicable Free Trade Agreement country 
are also exempt from application of the Buy American or Balance of 
Payments Program evaluation factor.
    (ii) If price is the determining factor, use the following 
procedures:
    (A) If the low offer is a domestic offer, award on that offer.
    (B) If there are no domestic offers, award on the low offer (see 
example in 225.504(1)).
    (C) If the low offer is a foreign offer that is exempt from 
application of the Buy American or Balance of Payments Program 
evaluation factor, award on that offer. (If the low offer is a 
qualifying country offer from a country listed at 225.872-1(b), execute 
a determination in accordance with 225.872-4.)
    (D) If the low offer is a foreign offer that is not exempt from 
application of the Buy American or Balance of Payments Program 
evaluation factor, and there is another foreign offer that is exempt and 
is lower than the lowest domestic offer, award on the low foreign offer 
(see example in 225.504(2)).
    (E) Otherwise, apply the 50 percent evaluation factor to the low 
foreign offer.
    (1) If the price of the low domestic offer is less than the 
evaluated price of the low foreign offer, award on the low domestic 
offer (see example in 225.504(3)).
    (2) If the evaluated price of the low foreign offer remains less 
than the low domestic offer, award on the low foreign offer (see example 
in 225.504(4)).
    (iii) If price is not the determining factor, use the following 
procedures:
    (A) If there are domestic offers, apply the 50 percent Buy American 
or Balance of Payments Program evaluation factor to all foreign offers 
unless an exemption applies.
    (B) Evaluate in accordance with the criteria of the solicitation.
    (C) If these procedures will not result in award on a domestic 
offer, reevaluate offers without the 50 percent factor. If this will 
result in award on an offer to which the Buy American statute or Balance 
of Payments Program applies, but evaluation in accordance with paragraph 
(c)(ii) of this section would result in award on a domestic offer, 
proceed with award only after

[[Page 191]]

execution of a determination in accordance with 225.103(a)(ii)(B), that 
domestic preference would be inconsistent with the public interest.
    (iv) If the solicitation includes the provision at 252.225-7023, 
Preference for Products or Services from Afghanistan, use the evaluation 
procedures at 225.7703-3.

[68 FR 15620, Mar. 31, 2003, as amended at 69 FR 1928, Jan. 13, 2004; 69 
FR 74992, Dec. 15, 2004; 70 FR 2363, Jan. 13, 2005; 73 FR 53152, Sept. 
15, 2008; 75 FR 81916, Dec. 29, 2010; 77 FR 35881, June 15, 2012; 78 FR 
59857, Sept. 30, 2013]



225.503  Group offers.

    Evaluate group offers in accordance with FAR 25.503, but apply the 
evaluation procedures of 225.502.



225.504  Evaluation examples.

    For examples that illustrate the evaluation procedures in 
225.502(c)(ii), see PGI 225.504.

[70 FR 73154, Dec. 9, 2005]



                    Subpart 225.7_Prohibited Sources



225.701  [Reserved]



225.701-70  Exception.

    DoD personnel are authorized to make emergency acquisitions in 
direct support of U.S. or allied forces deployed in military 
contingency, humanitarian, or peacekeeping operations in a country or 
region subject to economic sanctions administered by the Department of 
the Treasury, Office of Foreign Assets Control.

[68 FR 7441, Feb. 14, 2003]



225.770  Prohibition on acquisition of certain items from Communist 
Chinese military companies.

    This section implements section 1211 of the National Defense 
Authorization Act for Fiscal Year 2006 (Pub. L. 109-163), section 1243 
of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 
112-81), and section 1296 of the National Defense Authorization Act for 
Fiscal Year 2017 (Pub. L. 114-328). See PGI 225.770 for additional 
information relating to this statute, the terms used in this section, 
the United States Munitions List (USML), and the 600 series of the 
Commerce Control List (CCL).

[83 FR 66071, Dec. 21, 2018]



225.770-1  Definitions.

    As used in this section--
    Component means an item that is useful only when used in conjunction 
with an end item (15 CFR 772.1 and 22 CFR 120.45(b)).
    Item means--
    (1) A USML defense article, as defined at 22 CFR 120.6;
    (2) A USML defense service, as defined at 22 CFR 120.9; or
    (3) A 600 series item, as defined at 15 CFR 772.1.
    Part means any single unassembled element of a major or minor 
component, accessory, or attachment, that is not normally subject to 
disassembly without the destruction or impairment of designed use (15 
CFR 772.1 and 22 CFR 120.45(d)).

[83 FR 66072, Dec. 21, 2018]



225.770-2  Prohibition.

    Do not acquire items covered by the USML or the 600 series of the 
CCL, through a contract or subcontract at any tier, from any Communist 
Chinese military company. This prohibition does not apply to components 
and parts of covered items unless the components and parts are 
themselves covered by the USML or the 600 series of the CCL.

[83 FR 66072, Dec. 21, 2018]



225.770-3  Exceptions.

    The prohibition in 225.770-2 does not apply to items acquired--
    (a) In connection with a visit to the People's Republic of China by 
a vessel or an aircraft of the U.S. armed forces;
    (b) For testing purposes; or
    (c) For the purpose of gathering intelligence.

[71 FR 53046, Sept. 8, 2006, as amended at 83 FR 66072, Dec. 21, 2018]



225.770-4  Identifying items covered by the USML or the 600 series of the CCL.

    (a) Before issuance of a solicitation, the requiring activity will 
notify the contracting officer in writing whether

[[Page 192]]

the items to be acquired are covered by the USML or the 600 series of 
the CCL. The notification will identify any covered item(s) and will 
provide the pertinent USML reference(s) from 22 CFR part 121 or the 600 
series of the CCL references from 15 CFR part 774, supplement no. 1.
    (b) The USML includes defense articles and defense services that 
fall into 21 categories. The CCL includes ten categories and five 
product groups in each category, many of which contain 600 series items. 
Since not all items covered by the USML or 600 series of the CCL are 
themselves munitions (e.g., protective personnel equipment, military 
training equipment), the requiring activity should consult the USML and 
the 600 series of the CCL before concluding that an item is or is not 
covered. See PGI 225.770-4.

[83 FR 66072, Dec. 21, 2018]



225.770-5  Waiver of prohibition.

    (a) The prohibition in 225.770-2 may be waived, on a case-by-case 
basis, if an official identified in paragraph (b) of this subsection 
determines that a waiver is necessary for national security purposes.
    (b) The following officials are authorized, without power of 
delegation, to make the determination specified in paragraph (a) of this 
subsection:
    (1) The Under Secretary of Defense (Acquisition and Sustainment).
    (2) The Secretaries of the military departments.
    (3) The Component Acquisition Executive of the Defense Logistics 
Agency.
    (c)(1) The official granting a waiver shall submit a report to the 
congressional defense committees, with a copy to the Director of Defense 
Procurement and Acquisition Policy (see PGI 225.770-5), not less than 15 
days before issuing the waiver.
    (2) In the report, the official shall--
    (i) Identify the specific reasons for the waiver; and
    (ii) Include recommendations as to what actions may be taken to 
develop alternative sourcing capabilities in the future.

[71 FR 53046, Sept. 8, 2006, as amended at 77 FR 30366, May 22, 2012; 83 
FR 66072, Dec. 21, 2018]



225.771  Prohibition on contracting or subcontracting with a firm that
is owned or controlled by the government of a country that is a state 
sponsor of terrorism.

          
[79 FR 73489, Dec. 11, 2014]



225.771-0  Scope.

    This section implements 10 U.S.C. 2327(b).

[79 FR 73489, Dec. 11, 2014]



225.771-1  Definition.

    ``State sponsor of terrorism,'' as used in this section, is defined 
in the provision at 252.225-7050, Disclosure of Ownership or Control by 
the Government of a Country that is a State Sponsor of Terrorism.

[79 FR 73489, Dec. 11, 2014]



225.771-2  Prohibition.

    (a) The contracting officer shall not award a contract of $150,000 
or more to a firm when a foreign government that is a state sponsor of 
terrorism owns or controls, either directly or indirectly, a significant 
interest in--
    (i) The firm;
    (ii) A subsidiary of the firm; or
    (iii) Any other firm that owns or controls the firm.
    (b) For restrictions on subcontracting with a firm, or a subsidiary 
of a firm, that is identified by the Secretary of Defense as being owned 
or controlled by the government of a country that is a state sponsor of 
terrorism, see 209.405-2.

[79 FR 73489, Dec. 11, 2014]



225.771-3  Notification.

    Any disclosure that the government of a country that is a state 
sponsor of terrorism has a significant interest in an offeror, a 
subsidiary of an offeror, or any other firm that owns or controls an 
offeror shall be forwarded through agency channels to the address at PGI 
225.771-3.

[79 FR 73489, Dec. 11, 2014]

[[Page 193]]



225.771-4  Waiver of prohibition.

    The prohibition in 225.771-2 may be waived if the Secretary of 
Defense determines that a waiver is not inconsistent with the national 
security objectives of the United States in accordance with 10 U.S.C. 
2327(c).

[79 FR 73489, Dec. 11, 2014]



225.771-5  Solicitation provision.

    Use the provision at 252.225-7050, Disclosure of Ownership or 
Control by the Government of a Country that is a State Sponsor of 
Terrorism, in solicitations, including solicitations using FAR part 12 
procedures for the acquisition of commercial items (other than 
commercial satellite services), that are expected to result in contracts 
of $150,000 or more. If the solicitation includes the provision at FAR 
52.204-7, do not separately list the provision 252.225-7050 in the 
solicitation.

[79 FR 73489, Dec. 11, 2014]



225.772  Prohibition on acquisition of certain foreign commercial
satellite services.



225.772-0  Scope.

    This section implements 10 U.S.C. 2279.

[79 FR 45664, Aug. 5, 2014]



225.772-1  Definitions.

    As used in this section--
    Covered foreign country means--
    (1) The People's Republic of China;
    (2) North Korea;
    (3) The Russian Federation; or
    (4) Any country that is a state sponsor of terrorism. (10 U.S.C. 
2279)
    Cybersecurity risk means threats to and vulnerabilities of 
information or information systems and any related consequences caused 
by or resulting from unauthorized access, use, disclosure, degradation, 
disruption, modification, or destruction of such information or 
information systems, including such related consequences caused by an 
act of terrorism. (10 U.S.C. 2279)
    Foreign entity means--
    (1) Any branch, partnership, group or sub-group, association, 
estate, trust, corporation or division of a corporation, or organization 
organized under the laws of a foreign state if either its principal 
place of business is outside the United States or its equity securities 
are primarily traded on one or more foreign exchanges.
    (2) Notwithstanding paragraph (1) of this definition, any branch, 
partnership, group or sub-group, association, estate, trust, corporation 
or division of a corporation, or organization that demonstrates that a 
majority of the equity interest in such entity is ultimately owned by 
U.S. nationals is not a foreign entity. (31 CFR 800.212)
    Government of a covered foreign country includes the state and the 
government of a covered foreign country, as well as any political 
subdivision, agency, or instrumentality thereof.
    Launch vehicle means a fully integrated space launch vehicle. (10 
U.S.C. 2279)
    Satellite services means communications capabilities that utilize an 
on-orbit satellite for transmitting the signal from one location to 
another.
    State sponsor of terrorism means a country determined by the 
Secretary of State, under section 1754(c)(1)(A)(i) of the Export Control 
Reform Act of 2018 (Title XVII, Subtitle B, of the National Defense 
Authorization Act for Fiscal Year 2019, Pub. L. 115-232), to be a 
country the government of which has repeatedly provided support for acts 
of international terrorism. As of December 14, 2020, state sponsors of 
terrorism include Iran, North Korea, and Syria. (10 U.S.C. 2327)

[83 FR 66072, Dec. 21, 2018, as amended at 86 FR 53883, Sept. 29, 2021]



225.772-2  Prohibitions.

    Except as provided in 225.772-4, the contracting officer shall not 
award a contract for commercial satellite services to--
    (a)(1) A foreign entity if the Under Secretary of Defense for 
Acquisition and Sustainment or the Under Secretary of Defense for Policy 
reasonably believes that--
    (i) The foreign entity is an entity in which the government of a 
covered foreign country has an ownership interest that enables the 
government to affect satellite operations;
    (ii) The foreign entity plans to or is expected to provide satellite 
services

[[Page 194]]

under the contract from a covered foreign country; or
    (iii) Entering into such contract would create an unacceptable 
cybersecurity risk for DoD, as determined by the Under Secretary of 
Defense for Acquisition and Sustainment or the Under Secretary of 
Defense for Policy; or
    (2) An offeror that is offering commercial satellite services 
provided by a foreign entity as described in paragraph (a) of this 
section; or
    (b)(1) Any entity, except as provided in paragraph (b)(2) of this 
section, for a launch that occurs on or after December 31, 2022, if the 
Under Secretary of Defense for Acquisition and Sustainment or the Under 
Secretary of Defense for Policy reasonably believes that such satellite 
services will be provided using satellites that will be--
    (i) Designed or manufactured--
    (A) In a covered foreign country; or
    (B) By an entity controlled in whole or in part by, or acting on 
behalf of, the government of a covered foreign country; or
    (ii) Launched outside the United States using a launch vehicle that 
is--
    (A) Designed or manufactured in a covered foreign country; or
    (B) Provided by--
    (1) The government of a covered foreign country; or
    (2) An entity controlled in whole or in part by, or acting on behalf 
of, the government of a covered foreign country.
    (2) The prohibition in paragraph (b)(1) of this section does not 
apply with respect to launch services for which a satellite service 
provider has a contract or other agreement that, prior to June 10, 2018, 
was either fully paid for by the satellite service provider or covered 
by a legally binding commitment of the satellite service provider to pay 
for such services.

[83 FR 66072, Dec. 21, 2018]



225.772-3  Procedures.

    (a)(1) The contracting officer shall not award to any source that is 
a foreign satellite service provider or is offering satellite services 
provided by a foreign entity if such award presents an unacceptable 
cybersecurity risk, as determined by the Under Secretary of Defense for 
Acquisition and Sustainment or the Under Secretary of Defense for 
Policy.
    (2) When procuring commercial satellite services from a foreign 
entity, the contracting officer shall review the exclusion records in 
the System for Award Management (SAM) database as required at FAR 9.405, 
to ensure that an entity identified in, or otherwise known to be 
involved in, the otherwise successful offer is not listed as ineligible 
in the SAM database (see FAR 9.405).
    (b) If an offeror discloses information in accordance with paragraph 
(c) of the provision 252.225-7049, Prohibition on Acquisition of Certain 
Foreign Commercial Satellite Services--Representations, the contracting 
officer--
    (1) Shall forward the information regarding the offeror through 
agency channels to the address at PGI 225.772-3; and
    (2) Shall not award to that offeror, unless an exception is 
determined to apply in accordance with 225.772-4.
    (c)(1) If the otherwise successful offeror provides negative 
responses to all representations in the provision at 252.225-7049, the 
contracting officer may rely on the representations, unless the 
contracting officer has an independent reason to question the 
representations.
    (2) If the contracting officer has an independent reason to question 
a negative representation of the otherwise successful offeror, the 
contracting officer shall consult with the office specified in PGI 
225.772-3, prior to deciding whether to award to that offeror.

[79 FR 45664, Aug. 5, 2014, as amended at 83 FR 66073, Dec. 21, 2018]



225.772-4  Exception.

    (a) The prohibitions in 225.772-2(a) and (b) do not apply if--
    (1) The Under Secretary of Defense for Acquisition and Sustainment, 
or the Under Secretary of Defense for Policy, without power of 
redelegation, determines that it is in the national security interest of 
the United States to enter into such contract; and
    (2) Not later than seven days before entering into such contract, 
the Under Secretary of Defense making the determination in paragraph 
(a)(1) of this

[[Page 195]]

section, in consultation with the Director of National Intelligence, 
submits to the congressional defense committees a national security 
assessment, in accordance with 10 U.S.C. 2279.
    (b) If requesting an exception pursuant to paragraph (a) of this 
section, the contracting officer shall forward the request through 
agency channels to the address at PGI 225.772-3, providing any available 
information necessary for the Under Secretary of Defense making the 
determination in paragraph (a)(1) of this section to evaluate the 
request and perform a national security assessment, in accordance with 
10 U.S.C. 2279.

[79 FR 45664, Aug. 5, 2014, as amended at 83 FR 66073, Dec. 21, 2018]



225.772-5  Solicitation provision and contract clauses.

    (a) Use the provision at 252.225-7049, Prohibition on Acquisition of 
Certain Foreign Commercial Satellite Services--Representations, in 
solicitations that include the clause at 252.225-7051, Prohibition on 
Acquisition of Certain Foreign Commercial Satellite Services. If the 
solicitation includes the provision at FAR 52.204-7, do not separately 
list the provision 252.225-7049 in the solicitation.
    (b) Use the clause at 252.225-7051, Prohibition on Acquisition of 
Certain Foreign Commercial Satellite Services, in solicitations and 
contracts for the acquisition of commercial satellite services, 
including solicitation and contracts using FAR part 12 procedures for 
the acquisition of commercial items.
    (c) Use the clause at 252.239-7018, Supply Chain Risk, as prescribed 
at 239.7306(b), when applicable.

[83 FR 66073, Dec. 21, 2018]



      Subpart 225.8_Other International Agreements and Coordination

    Source: 68 FR 15621, Mar. 31, 2003, unless otherwise noted.



225.802  Procedures.

    (b) Information on memoranda of understanding and other 
international agreements is available at PGI 225.802(b).

[70 FR 73154, Dec. 9, 2005]



225.802-70  Contracts for performance outside the United States 
and Canada.

    Follow the procedures at PGI 225.802-70 when placing a contract 
requiring performance outside the United States and Canada. Also see 
subpart 225.3, Contracts Performed Outside the United States.

[70 FR 23801, May 5, 2005, as amended at 77 FR 43472, July 24, 2012; 80 
FR 36902, June 26, 2015]



225.802-71  End use certificates.

    Contracting officers considering the purchase of an item from a 
foreign source may encounter a request for the signing of a certificate 
to indicate that the Armed Forces of the United States is the end user 
of the item, and that the U.S. Government will not transfer the item to 
third parties without authorization from the Government of the country 
selling the item. When encountering this situation, refer to DoD 
Directive 2040.3, End Use Certificates, for guidance.



225.870  Contracting with Canadian contractors.



225.870-1  General.

    (a) The Canadian government guarantees to the U.S. Government all 
commitments, obligations, and covenants of the Canadian Commercial 
Corporation under any contract or order issued to the Corporation by any 
contracting office of the U.S. Government. The Canadian government has 
waived notice of any change or modification that may be made, from time 
to time, in these commitments, obligations, or covenants.
    (b) For production planning purposes, Canada is part of the defense 
industrial base (see 225.870-2(b)).
    (c) The Canadian Commercial Corporation will award and administer 
contracts with contractors located in Canada, except for--
    (1) Negotiated acquisitions for experimental, developmental, or 
research work under projects other than the Defense Development Sharing 
Program;

[[Page 196]]

    (2) Acquisitions of unusual or compelling urgency;
    (3) Acquisitions at or below the simplified acquisition threshold; 
or
    (4) Acquisitions made by DoD activities located in Canada.
    (d) For additional information on production rights, data, and 
information; services provided by Canadian Commercial Corporation; 
audit; and inspection, see PGI 225.870-1(d).

[68 FR 15621, Mar. 31, 2003, as amended at 70 FR 73154, Dec. 9, 2005; 77 
FR 43472, July 24, 2012]



225.870-2  Solicitation of Canadian contractors.

    (a) If requested, furnish a solicitation to the Canadian Commercial 
Corporation even if no Canadian firm is solicited.
    (b) Handle acquisitions at or below the simplified acquisition 
threshold directly with Canadian firms and not through the Canadian 
Commercial Corporation.

[68 FR 15621, Mar. 31, 2003, as amended at 72 FR 20758, Apr. 26, 2007]



225.870-3  Submission of offers.

    (a) As indicated in 225.870-4, the Canadian Commercial Corporation 
is the prime contractor. To indicate acceptance of offers by individual 
Canadian companies, the Canadian Commercial Corporation issues a letter 
supporting the Canadian offer and containing the following information:
    (1) Name of the Canadian offeror.
    (2) Confirmation and endorsement of the offer in the name of the 
Canadian Commercial Corporation.
    (3) A statement that the Corporation shall subcontract 100 percent 
with the offeror.
    (b) When a Canadian offer cannot be processed through the Canadian 
Commercial Corporation in time to meet the date for receipt of offers, 
the Corporation may permit Canadian firms to submit offers directly. 
However, the contracting officer shall receive the Canadian Commercial 
Corporation's endorsement before contract award.
    (c) The Canadian Commercial Corporation will submit all sealed bids 
in terms of U.S. currency. Do not adjust contracts awarded under sealed 
bidding for losses or gains from fluctuation in exchange rates.
    (d) Except for sealed bids, the Canadian Commercial Corporation 
normally will submit offers and quotations in terms of Canadian 
currency. The Corporation may, at the time of submitting an offer, elect 
to quote and receive payment in terms of U.S. currency, in which case 
the contract--
    (1) Shall provide for payment in U.S. currency; and
    (2) Shall not be adjusted for losses or gains from fluctuation in 
exchange rates.



225.870-4  Contracting procedures.

    (a) Except for contracts described in 225.870-1(c)(1) through (4), 
award individual contracts covering purchases from suppliers located in 
Canada to the Canadian Commercial Corporation, 350 Albert Street, Suite 
700, Ottawa, ON K1R 1A4.
    (b) Direct communication with the Canadian supplier is authorized 
and encouraged in connection with all technical aspects of the contract, 
provided the Corporation's approval is obtained on any matters involving 
changes to the contract.
    (c) Requirement for data other than certified cost or pricing data. 
(1) DoD has waived the requirement for submission of certified cost or 
pricing data for the Canadian Commercial Corporation and its 
subcontractors (see 215.403-1(c)(4)(C)).
    (2) The Canadian Commercial Corporation is not exempt from the 
requirement to submit data other than certified cost or pricing data, as 
defined in FAR 2.101. In accordance with FAR 15.403-3(a)(1)(ii), the 
contracting officer shall require submission of data other than 
certified cost or pricing data from the offeror, to the extent necessary 
to determine a fair and reasonable price.
    (i) No further approval is required to request data other than 
certified cost or pricing data from the Canadian Commercial Corporation 
in the following circumstances:
    (A) In a solicitation for a sole source acquisition that is--
    (1) Cost-reimbursement, if the contract value is expected to exceed 
$700,000; or

[[Page 197]]

    (2) Fixed-price, if the contract value is expected to exceed $500 
million.
    (B) If the Canadian Commercial Corporation submits the only offer in 
response to a competitive solicitation that meets the thresholds 
specified in paragraph (c)(2)(i)(A) of this section.
    (C) For modifications that exceed $150,000 in contracts that meet 
the criteria in paragraph (c)(2)(i)(A) or (B) of this section.
    (D) In competitive solicitations in which data other than certified 
cost or pricing data are required from all offerors.
    (ii) In any circumstances other than those specified in paragraph 
(c)(2)(i) of this section, the contracting officer shall only require 
data other than certified cost or pricing data from the Canadian 
Commercial Corporation if the head of the contracting activity, or 
designee no lower than two levels above the contracting officer, 
determines that data other than certified cost or pricing data are 
needed (or in the case of modifications that it is reasonably certain 
that data other than certified cost or pricing data will be needed) in 
order to determine that the price is fair and reasonable) (see FAR 
15.403-3(a).
    (3) The contracting officer shall use the provision at 252.215-7003, 
Requirement for Submission of Data Other Than Certified Cost or Pricing 
Data--Canadian Commercial Corporation, and the clause at 252.215-7004, 
Requirement for Submission of Data Other Than Certified Cost or Pricing 
Data--Modifications--Canadian Commercial Corporation, as prescribed at 
215.408(2)(i) and (ii), respectively.
    (4) Except for contracts described in 225.870-1(c)(1) through (4), 
Canadian suppliers will provide required data other than certified cost 
or pricing data exclusively through the Canadian Commercial Corporation.
    (5) As specified in FAR 15.403-3(a)(4), an offeror who does not 
comply with a requirement to submit data that the contracting officer 
has deemed necessary to determine price reasonableness or cost realism 
is ineligible for award, unless the head of the contracting activity 
determines that it is in the best interest of the Government to make the 
award to that offeror, based on consideration of the following:
    (i) The effort made to obtain the data.
    (ii) The need for the item or service.
    (iii) Increased cost or significant harm to the Government if award 
is not made.
    (d) Identify in the contract, the type of currency, i.e., U.S. or 
Canadian. Contracts that provide for payment in Canadian currency 
shall--
    (1) Quote the contract price in terms of Canadian dollars and 
identify the amount by the initials ``CN'', e.g., $1,647.23CN; and
    (2) Clearly indicate on the face of the contract the U.S./Canadian 
conversion rate at the time of award and the U.S. dollar equivalent of 
the Canadian dollar contract amount.

[68 FR 15621, Mar. 31, 2003, as amended at 77 FR 43472, July 24, 2012; 
78 FR 65217, Oct. 31, 2013; 80 FR 36718, June 26, 2015; 82 FR 61480, 
Dec. 28, 2017; 83 FR 30825, June 29, 2018]



225.870-5  Contract administration.

    Follow the contract administration procedures at PGI 225.870-5.

[70 FR 73155, Dec. 9, 2005]



225.870-6  Termination procedures.

    When contract termination is necessary, follow the procedures at 
249.7000.

[71 FR 27645, May 12, 2006]



225.870-7  Acceptance of Canadian supplies.

    For information on the acceptance of Canadian supplies, see PGI 
225.870-7.

[70 FR 73155, Dec. 9, 2005]



225.870-8  Industrial security.

    Industrial security for Canada shall be in accordance with the U.S.-
Canada Industrial Security Agreement of March 31, 1952, as amended.



225.871  North Atlantic Treaty Organization (NATO) cooperative projects.



225.871-1  Scope.

    This section implements 22 U.S.C. 2767 and 10 U.S.C. 2350b.

[70 FR 73155, Dec. 9, 2005]

[[Page 198]]



225.871-2  Definitions.

    As used in this section--
    (a) Cooperative project means a jointly managed arrangement--
    (1) Described in a written agreement between the parties;
    (2) Undertaken to further the objectives of standardization, 
rationalization, and interoperability of the armed forces of NATO member 
countries; and
    (3) Providing for--
    (i) One or more of the other participants to share with the United 
States the cost of research and development, testing, evaluation, or 
joint production (including follow-on support) of certain defense 
articles;
    (ii) Concurrent production in the United States and in another 
member country of a defense article jointly developed; or
    (iii) Acquisition by the United States of a defense article or 
defense service from another member country.
    (b) Other participant means a cooperative project participant other 
than the United States.



225.871-3  General.

    (a) Cooperative project authority. (1) Departments and agencies, 
that have authority to do so, may enter into cooperative project 
agreements with NATO or with one or more member countries of NATO under 
DoDD 5530.3, International Agreements.
    (2) Under laws and regulations governing the negotiation and 
implementation of cooperative project agreements, departments and 
agencies may enter into contracts, or incur other obligations, on behalf 
of other participants without charge to any appropriation or contract 
authorization.
    (3) Agency heads are authorized to solicit and award contracts to 
implement cooperative projects.
    (b) Contracts implementing cooperative projects shall comply with 
all applicable laws relating to Government acquisition, unless a waiver 
is granted under 225.871-4. A waiver of certain laws and regulations may 
be obtained if the waiver--
    (1) Is required by the terms of a written cooperative project 
agreement;
    (2) Will significantly further NATO standardization, 
rationalization, and interoperability; and
    (3) Is approved by the appropriate DoD official.



225.871-4  Statutory waivers.

    (a) For contracts or subcontracts placed outside the United States, 
the Deputy Secretary of Defense may waive any provision of law that 
specifically prescribes--
    (1) Procedures for the formation of contracts;
    (2) Terms and conditions for inclusion in contracts;
    (3) Requirements or preferences for--
    (i) Goods grown, produced, or manufactured in the United States or 
in U.S. Government-owned facilities; or
    (ii) Services to be performed in the United States; or
    (4) Requirements regulating the performance of contracts.
    (b) There is no authority for waiver of--
    (1) Any provision of the Arms Export Control Act (22 U.S.C. 2751);
    (2) Any provision of 10 U.S.C. 2304;
    (3) The cargo preference laws of the United States, including the 
Military Cargo Preference Act of 1904 (10 U.S.C. 2631) and the Cargo 
Preference Act of 1954 (46 U.S.C. 1241(b)); or
    (4) Any of the financial management responsibilities administered by 
the Secretary of the Treasury.
    (c) To request a waiver under a cooperative project, follow the 
procedures at PGI 225.871-4.
    (d) Obtain the approval of the Deputy Secretary of Defense before 
committing to make a waiver in an agreement or a contract.

[68 FR 15621, Mar. 31, 2003, as amended at 71 FR 62565, Oct. 26, 2006]



225.871-5  Directed Subcontracting.

    (a) The Director of Defense Procurement and Acquisition Policy may 
authorize the direct placement of subcontracts with particular 
subcontractors. Directed subcontracting is not authorized unless 
specifically addressed in the cooperative project agreement.
    (b) In some instances, it may not be feasible to name specific 
subcontractors at the time the agreement is concluded. However, the 
agreement shall clearly state the general provisions for

[[Page 199]]

work sharing at the prime and subcontract level. For additional 
information on cooperative project agreements, see PGI 225.871-5.

[68 FR 15621, Mar. 31, 2003, as amended at 70 FR 73155, Dec. 9, 2005]



225.871-6  Disposal of property.

    Dispose of property that is jointly acquired by the members of a 
cooperative project under the procedures established in the agreement or 
in a manner consistent with the terms of the agreement, without regard 
to any laws of the United States applicable to the disposal of property 
owned by the United States.

[70 FR 73155, Dec. 9, 2005]



225.871-7  Congressional notification.

    (a) Congressional notification is required when DoD makes a 
determination to award a contract or subcontract to a particular entity, 
if the determination was not part of the certification made under 22 
U.S.C. 2767(f) before finalizing the cooperative agreement.
    (1) Departments and agencies shall provide a proposed Congressional 
notice to the Director of Defense Procurement and Acquisition Policy in 
sufficient time to forward to Congress before the time of contract 
award.
    (2) The proposed notice shall include the reason it is necessary to 
use the authority to designate a particular contractor or subcontractor.
    (b) Congressional notification is also required each time a 
statutory waiver under 225.871-4 is incorporated in a contract or a 
contract modification, if such information was not provided in the 
certification to Congress before finalizing the cooperative agreement.



225.872  Contracting with qualifying country sources.



225.872-1  General.

    (a) As a result of memoranda of understanding and other 
international agreements, DoD has determined it inconsistent with the 
public interest to apply restrictions of the Buy American statute or the 
Balance of Payments Program to the acquisition of qualifying country end 
products from the following qualifying countries:

Australia
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Federal Republic of Germany
Finland
France
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    (b) Individual acquisitions of qualifying country end products from 
the following qualifying country may, on a purchase-by-purchase basis 
(see 225.872-4), be exempted from application of the Buy American 
statute and the Balance of Payments Program as inconsistent with the 
public interest: Austria.
    (c) The determination in paragraph (a) of this subsection does not 
limit the authority of the Secretary concerned to restrict acquisitions 
to domestic sources or reject an otherwise acceptable offer from a 
qualifying country source when considered necessary for national defense 
reasons.

[68 FR 15621, Mar. 31, 2003, as amended at 69 FR 8116, Feb. 23, 2004; 75 
FR 32641, June 8, 2010; 77 FR 35880, June 15, 2012; 77 FR 76942, Dec. 
31, 2012; 81 FR 50651, Aug. 2, 2016; 81 FR 93840, Dec. 22, 2016; 82 FR 
61484, Dec. 28, 2017]



225.872-2  Applicability.

    (a) This section applies to all acquisitions of supplies except 
those restricted by--
    (1) U.S. National Disclosure Policy, DoDD 5230.11, Disclosure of 
Classified Military Information to Foreign Governments and International 
Organizations;
    (2) U.S. defense mobilization base requirements purchased under the 
authority of FAR 6.302-3(a)(2)(i), except for quantities in excess of 
that required to maintain the defense mobilization base. This 
restriction does not apply to Canadian planned producers.
    (i) Review individual solicitations to determine whether this 
restriction applies.
    (ii) Information concerning restricted items may be obtained from

[[Page 200]]

the Deputy Under Secretary of Defense (Industrial Affairs);
    (3) Other U.S. laws or regulations (e.g., the annual DoD 
appropriations act); and
    (4) U.S. industrial security requirements.
    (b) This section does not apply to construction contracts.



225.872-3  Solicitation procedures.

    (a) Except for items developed under the U.S./Canadian Development 
Sharing Program, use the criteria for soliciting and awarding contracts 
to small business concerns under FAR Part 19 without regard to whether 
there are potential qualifying country sources for the end product. Do 
not consider an offer of a qualifying country end product if the 
solicitation is identified for the exclusive participation of small 
business concerns.
    (b) Send solicitations directly to qualifying country sources. 
Solicit Canadian sources through the Canadian Commercial Corporation in 
accordance with 225.870.
    (c) Use international air mail if solicitation destinations are 
outside the United States and security classification permits such use.
    (d) If unusual technical or security requirements preclude the 
acquisition of otherwise acceptable defense equipment from qualifying 
country sources, review the need for such requirements. Do not impose 
unusual technical or security requirements solely for the purpose of 
precluding the acquisition of defense equipment from qualifying 
countries.
    (e) Do not automatically exclude qualifying country sources from 
submitting offers because their supplies have not been tested and 
evaluated by the department or agency.
    (1) Consider the adequacy of qualifying country service testing on a 
case-by-case basis. Departments or agencies that must limit 
solicitations to sources whose items have been tested and evaluated by 
the department or agency shall consider supplies from qualifying country 
sources that have been tested and accepted by the qualifying country for 
service use.
    (2) The department or agency may perform a confirmatory test, if 
necessary.
    (3) Apply U.S. test and evaluation standards, policies, and 
procedures when the department or agency decides that confirmatory tests 
of qualifying country end products are necessary.
    (4) If it appears that these provisions might adversely delay 
service programs, obtain the concurrence of the Under Secretary of 
Defense (Acquisition, Technology, and Logistics), before excluding the 
qualifying country source from consideration.
    (f) Permit industry representatives from a qualifying country to 
attend symposia, program briefings, prebid conferences (see FAR 14.207 
and 15.201(c)), and similar meetings that address U.S. defense equipment 
needs and requirements. When practical, structure these meetings to 
allow attendance by representatives of qualifying country concerns.

[68 FR 15621, Mar. 31, 2003, as amended at 72 FR 20758, Apr. 26, 2007]



225.872-4  Individual determinations.

    If the offer of an end product from a qualifying country source 
listed in 225.872-1(b), as evaluated, is low or otherwise eligible for 
award, prepare a determination and findings exempting the acquisition 
from the Buy American statute and the Balance of Payments Program as 
inconsistent with the public interest, unless another exception such as 
the Trade Agreements Act applies. Follow the procedures at PGI 225.872-
4.

[70 FR 73155, Dec. 9, 2005, as amended at 77 FR 35880, June 15, 2012]



225.872-5  Contract administration.

    (a) Arrangements exist with some qualifying countries to provide 
reciprocal contract administration services. Some arrangements are at no 
cost to either government. To determine whether such an arrangement has 
been negotiated and what contract administration functions are covered, 
contact the Deputy Director of Defense Procurement and Acquisition 
Policy (Contract Policy and International Contracting), ((703) 697-9351, 
DSN 227-9351).

[[Page 201]]

    (b) Follow the contract administration procedures at PGI 225.872-
5(b).
    (c) Information on quality assurance delegations to foreign 
governments is in Subpart 246.4, Government Contract Quality Assurance.

[68 FR 15621, Mar. 31, 2003, as amended at 70 FR 73155, Dec. 9, 2005; 72 
FR 30278, May 31, 2007]



225.872-6  Request for audit services.

    Handle requests for audit services in France, Germany, the 
Netherlands, or the United Kingdom in accordance with PGI 215.404-2(c), 
but follow the additional procedures at PGI 225.872-6.

[81 FR 59510, Aug. 30, 2016]



225.872-7  Industrial security for qualifying countries.

    The required procedures for safeguarding classified defense 
information necessary for the performance of contracts awarded to 
qualifying country sources are in the National Industrial Security 
Program Operating Manual, 32 CFR part 117 (implemented for the Army by 
AR 380-49; for the Navy by SECNAV Instruction 5510.1H; for the Air Force 
by AFI 31-601; for the Defense Information Systems Agency by DCA 
Instruction 240-110-8; and for the National Imagery and Mapping Agency 
by NIMA Instruction 5220.22).

[68 FR 15621, Mar. 31, 2003, as amended at 86 FR 3836, Jan. 15, 2021]



225.872-8  Subcontracting with qualifying country sources.

    In reviewing contractor subcontracting procedures, the contracting 
officer shall ensure that the contract does not preclude qualifying 
country sources from competing for subcontracts, except when restricted 
by national security interest reasons, mobilization base considerations, 
or applicable U.S. laws or regulations (see the clause at 252.225-7002, 
Qualifying Country Sources as Subcontractors).



225.873  Waiver of United Kingdom commercial exploitation levies.



225.873-1  Policy.

    DoD and the Government of the United Kingdom (U.K.) have agreed to 
waive U.K. commercial exploitation levies and U.S. nonrecurring cost 
recoupment charges on a reciprocal basis. For U.K. levies to be waived, 
the offeror or contractor shall identify the levies and the contracting 
officer shall request a waiver before award of the contract or 
subcontract under which the levies are charged.



225.873-2  Procedures.

    When an offeror or a contractor identifies a levy included in an 
offered or contract price, follow the procedures at PGI 225.873-2.

[70 FR 73155, Dec. 9, 2005]



                    Subpart 225.9_Customs and Duties

    Source: 68 FR 15626, Mar. 31, 2003, unless otherwise noted.



225.900-70  Definition.

    ``Component,'' as used in this subpart, means any item supplied to 
the Government as part of an end product or of another component.

[74 FR 68383, Dec. 24, 2009]



225.901  Policy.

    Unless the supplies are entitled to duty-free treatment under a 
special category in the Harmonized Tariff Schedule of the United States 
(e.g., the Caribbean Basin Economic Recovery Act or a Free Trade 
Agreement), or unless the supplies already have entered into the customs 
territory of the United States and the contractor already has paid the 
duty, DoD will issue duty-free entry certificates for--
    (1) Qualifying country supplies (end products and components);
    (2) Eligible products (end products but not components) under 
contracts covered by the World Trade Organization Government Procurement 
Agreement or a Free Trade Agreement; and
    (3) Other foreign supplies for which the contractor estimates that 
duty will exceed $300 per shipment into the customs territory of the 
United States.

[68 FR 15626, Mar. 31, 2003, as amended at 69 FR 1928, Jan. 13, 2004; 70 
FR 2363, Jan. 13, 2005; 81 FR 28732, May 10, 2016]

[[Page 202]]



225.902  Procedures.

    Follow the entry and release procedures at PGI 225.902.

[70 FR 73155, Dec. 9, 2005]



225.903  Exempted supplies.

    (b)(i) For an explanation of the term ``supplies,'' see PGI 
225.903(b)(i).
    (ii) The duty-free certificate shall be printed, stamped, or typed 
on the face of, or attached to, Customs Form 7501. A duly designated 
officer or civilian official of the appropriate department or agency 
shall execute the certificate in the format provided at PGI 
225.903(b)(ii).

[70 FR 73155, Dec. 9, 2005]



        Subpart 225.10_Additional Foreign Acquisition Regulations



225.1070  Clause deviations in overseas contracts.

    See 201.403(2) for approval authority for clause deviations in 
overseas contracts with governments of North Atlantic Treaty 
Organization (NATO) countries or other allies or with United Nations or 
NATO organizations.

[65 FR 19856, Apr. 13, 2000]



       Subpart 225.11_Solicitation Provisions and Contract Clauses

    Source: 68 FR 16526, Mar. 31, 2003, unless otherwise noted.



225.1100  Scope of subpart.

    This subpart prescribes the clauses that implement subparts 225.1 
through 225.10. The clauses that implement subparts 225.70 through 
225.75 are prescribed within those subparts.

[68 FR 16526, Mar. 31, 2003, as amended at 81 FR 17048, Mar. 25, 2016]



225.1101  Acquisition of supplies.

    (1) Use the basic or the alternate of the provision at 252.225-7000, 
Buy American--Balance of Payments Program Certificate, instead of the 
provision at FAR 52.225-2, Buy American Certificate, in any 
solicitation, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items, that includes the basic or the 
alternate of the clause at 252.225-7001, Buy American and Balance of 
Payments Program. If the solicitation includes the provision at FAR 
52.204-7, do not separately list the provision 252.225-7000 in the 
solicitation.
    (i) Use the basic provision when the solicitation includes the basic 
clause at 252.225-7001.
    (ii) Use the alternate I provision when the solicitation includes 
alternate I of the clause at 252.225-7001.
    (2)(i) Use the basic or the alternate of the clause at 252.225-7001, 
Buy American Act and Balance of Payments Program, instead of the clause 
at FAR 52.225-1, Buy American --Supplies, in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, unless--
    (A) All line items will be acquired from a particular source or 
sources under the authority of FAR 6.302-3;
    (B) All line items require domestic or qualifying country end 
products in accordance with subpart 225.70, but note that this exception 
does not apply if subpart 225.70 only requires manufacture of the end 
product in the United States or in the United States or Canada, without 
a corresponding requirement for use of domestic components;
    (C) The acquisition is for supplies for use within the United States 
and an exception to the Buy American statute applies, e.g., 
nonavailability or public interest (see FAR 25.103 and 225.103);
    (D) The acquisition is for supplies for use outside the United 
States and an exception to the Balance of Payments Program applies (see 
225.7501);
    (E) One or more of the basic or the alternates of the following 
clauses will apply to all line items in the contract:
    (1) 252.225-7021, Trade Agreements.
    (2) 252.225-7036, Buy American --Free Trade Agreements--Balance of 
Payments Program; or
    (F) All line items will be acquired using a procedure specified in 
225.7703-1(a).
    (ii) Use the basic clause if the acquisition is not of end products 
listed in 225.401-70 in support of operations in Afghanistan.
    (iii) Use the alternate I clause when the acquisition is of end 
products listed

[[Page 203]]

in 225.401-70 in support of operations in Afghanistan.
    (3) Use the clause at 252.225-7002, Qualifying Country Sources as 
Subcontractors, in solicitations and contracts that include the basic or 
one of the alternates of the following clauses:
    (i) 252.225-7001, Buy American and Balance of Payments Program.
    (ii) 252.225-7021, Trade Agreements.
    (iii) 252.225-7036, Buy American --Free Trade Agreements--Balance of 
Payments Program.
    (4) Use the clause at 252.225-7013, Duty-Free Entry, instead of the 
clause at FAR 52.225-8. Do not use the clause for acquisitions of 
supplies that will not enter the customs territory of the United States.
    (5) Use the basic or the alternate of the provision at 252.225-7020, 
Trade Agreements Certificate, instead of the provision at FAR 52.225-6, 
Trade Agreements Certificate, in solicitations, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items, 
that include the basic or alternate II of the clause at 252.225-7021, 
Trade Agreements. If the solicitation includes the provision at FAR 
52.204-7, do not separately list the provision 252.225-7020 in the 
solicitation.
    (i) Use the basic provision if the solicitation includes the basic 
clause at 252.225-7021.
    (ii) Use the alternate I provision if the solicitation includes 
alternate II of the clause at 252.225-7021.
    (6) Except as provided in paragraph (6)(iv) of this section, use the 
basic or an alternate of the clause at 252.225-7021, Trade Agreements, 
instead of the clause at FAR 52.225-5, Trade Agreements, in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, if the 
World Trade Organization Government Procurement Agreement applies, i.e., 
the acquisition is of end products listed at 225.401-70, the value of 
the acquisition equals or exceeds $182,000, and none of the exceptions 
at 25.401(a) applies.
    (i) Use the basic clause in solicitations and contracts that are not 
of end products in support of operations in Afghanistan, or that include 
the clause at 252.225-7024, Requirement for Products or Services from 
Afghanistan.
    (ii) Use the alternate II clause in solicitations and contracts that 
do not include the clause at 252.225-7024, Requirement for Products or 
Services from Afghanistan, when the acquisition is of end products in 
support of operations in Afghanistan.
    (iii) Do not use the basic or an alternate of the clause if--
    (A) Purchase from foreign sources is restricted, unless the 
contracting officer anticipates a waiver of the restriction; or
    (B) The clause at 252.225-7026, Acquisition Restricted to Products 
or Services from Afghanistan, is included in the solicitation and 
contract.
    (iv) The acquisition of eligible and noneligible products under the 
same contract may result in the application of trade agreements to only 
some of the items acquired. In such case, indicate in the Schedule those 
items covered by the Trade Agreements clause.
    (7) Use the provision at 252.225-7032, Waiver of United Kingdom 
Levies--Evaluation of Offers, in solicitations if a U.K. firm is 
expected to--
    (i) Submit an offer; or
    (ii) Receive a subcontract exceeding $1 million.
    (8) Use the clause at 252.225-7033, Waiver of United Kingdom Levies, 
in solicitations and contracts if a U.K. firm is expected to--
    (i) Submit an offer; or
    (ii) Receive a subcontract exceeding $1 million.
    (9) Use the basic or an alternate of the provision at 252.225-7035, 
Buy American--Free Trade Agreements--Balance of Payments Program 
Certificate, instead of the provision at FAR 52.225-4, Buy American--
Free Trade Agreements--Israeli Trade Act Certificate, in solicitations, 
including solicitations using FAR part 12 procedures for the acquisition 
of commercial items, that include the basic or an alternate of the 
clause at 252.225-7036, Buy American--Free Trade Agreements--Balance of 
Payments Program. If the solicitation includes the provision at FAR 
52.204-7, do not separately list the provision 252.225-7035 in the 
solicitation.

[[Page 204]]

    (i) Use the basic provision in solicitations when the basic of the 
clause at 252.225-7036 is used.
    (ii) Use the alternate I provision when the solicitation includes 
alternate I of the clause at 252.225-7036.
    (iii) Use the alternate II provision when the solicitation includes 
alternate II of the clause at 252.225-7036.
    (iv) Use the alternate III provision when the solicitation includes 
alternate III of the clause at 252.225-7036.
    (v) Use the alternate IV provision when the solicitation includes 
alternate IV of the clause at 252.225-7036.
    (vi) Use the alternate V provision when the solicitation includes 
alternate V of the clause at 252.225-7036.
    (10)(i) Except as provided in paragraph (10)(ii) of this section, 
use the basic or an alternate of the clause at 252.225-7036, Buy 
American--Free Trade Agreements--Balance of Payments Program, instead of 
the clause at FAR 52.225-3, Buy American--Free Trade Agreements--Israeli 
Trade Act, in solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of commercial 
items, for the items listed at 225.401-70, when the estimated value 
equals or exceeds $25,000, but is less than $182,000, unless an 
exception at FAR 25.401 or 225.401 applies.
    (A) Use the basic clause in solicitations and contracts when the 
estimated value equals or exceeds $100,000, but is less than $182,000, 
except if the acquisition is of end products in support of operations in 
Afghanistan.
    (B) Use the alternate I clause in solicitations and contracts when 
the estimated value equals or exceeds $25,000, but is less than $83,099, 
except if the acquisition is of end products in support of operations in 
Afghanistan.
    (C) Use the alternate II clause in solicitations and contracts when 
the estimated value equals or exceeds $100,000, but is less than 
$182,000, and the acquisition is of end products in support of 
operations in Afghanistan.
    (D) Use the alternate III clause in solicitations and contracts when 
the estimated value equals or exceeds $25,000, but is less than $83,099, 
and the acquisition is of end products in support of operations in 
Afghanistan.
    (E) Use the alternate IV clause in solicitations and contracts when 
the estimated value equals or exceeds $83,099 but is less than $100,000, 
except if the acquisition is of end products in support of operations in 
Afghanistan.
    (F) Use the alternate V clause in solicitations and contracts when 
the estimated value equals or exceeds $83,099 but is less than $100,000 
and the acquisition is of end products in support of operations in 
Afghanistan.
    (ii) Do not use the basic or an alternate of the clause in paragraph 
(10)(i) of this section if--
    (A) Purchase from foreign sources is restricted (see 225.401(a)(2)), 
unless the contracting officer anticipates a waiver of the restriction;
    (B) Acquiring information technology that is a commercial item, 
using fiscal year 2004 or subsequent funds (Section 535 of Division F of 
the Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and the 
same provision in subsequent appropriations acts); or
    (C) Using a procedure specified in 225.7703-1(a).
    (iii) The acquisition of eligible and noneligible products under the 
same contract may result in the application of a Free Trade Agreement to 
only some of the items acquired. In such case, indicate in the Schedule 
those items covered by the Buy American --Free Trade Agreements--Balance 
of Payments Program clause.

[75 FR 81916, Dec. 29, 2010, as amended at 77 FR 4630, Jan. 30, 2012; 77 
FR 30357, May 22, 2012; 77 FR 35880, June 15, 2012; 78 FR 37986, June 
25, 2013; 78 FR 40043, July 3, 2013; 78 FR 59857, Sept. 30, 2013; 78 FR 
79621, Dec. 31, 2013; 79 FR 3520, Jan. 22, 2014; 79 FR 11342, Feb. 28, 
2014; 79 FR 65817, Nov. 5, 2014; 80 FR 2021, Jan. 15, 2015; 80 FR 36898, 
June 26, 2015; 80 FR 81471, Dec. 30, 2015; 81 FR 17048, Mar. 25, 2016; 
82 FR 61482, Dec. 28, 2017; 84 FR 72246, Dec. 31, 2019]



225.1103  Other provisions and clauses.

    (1) Unless the contracting officer knows that the prospective 
contractor is not a domestic concern, use the clause at 252.225-7005, 
Identification of Expenditures in the United States, in solicitations 
and contracts that--
    (i) Exceed the simplified acquisition threshold; and
    (ii) Are for the acquisition of--

[[Page 205]]

    (A) Supplies for use outside the United States;
    (B) Construction to be performed outside the United States; or
    (C) Services to be performed primarily outside the United States.
    (2) Use the clause at 252.225-7041, Correspondence in English, in 
solicitations and contracts when contract performance will be wholly or 
in part in a foreign country.
    (3) Use the provision at 252.225-7042, Authorization to Perform, in 
solicitations when contract performance will be wholly or in part in a 
foreign country. If the solicitation includes the provision at FAR 
52.204-7, do not separately list the provision 252.225-7042 in the 
solicitation.
    (4) Unless an exception in 225.770-3 applies, use the clause at 
252.225-7007, Prohibition on Acquisition of Certain Items from Communist 
Chinese Military Companies, in solicitations and contracts involving the 
delivery of items covered by the United States Munitions List or the 600 
series of the Commerce Control List.

[68 FR 16526, Mar. 31, 2003, as amended at 71 FR 39006, July 11, 2006; 
71 FR 53046, Sept. 8, 2006; 78 FR 37987, June 25, 2013; 78 FR 40043, 
July 3, 2013; 83 FR 66073, Dec. 21, 2018]



   Subpart 225.70_Authorization Acts, Appropriations Acts, and Other 
              Statutory Restrictions on Foreign Acquisition



225.7000  Scope of subpart.

    (a) This subpart contains restrictions on the acquisition of foreign 
products and services, imposed by DoD appropriations and authorization 
acts and other statutes. Refer to the acts to verify current 
applicability of the restrictions.
    (b) Nothing in this subpart affects the applicability of the Buy 
American statute or the Balance of Payments Program.

[56 FR 36367, July 31, 1991, as amended at 62 FR 2856, Jan. 17, 1997; 68 
FR 15627, Mar. 31, 2003; 77 FR 35880, June 15, 2012]



225.7001  Definitions.

    As used in this subpart--
    Assembly means an item forming a portion of a system or subsystem 
that--
    (1) Can be provisioned and replaced as an entity; and
    (2) Incorporates multiple, replaceable parts.
    Bearing components means the bearing element, retainer, inner race, 
or outer race.
    Component means any item supplied to the Government as part of an 
end item or of another component except that for use in 225.7007, the 
term means an article, material, or supply incorporated directly into an 
end product.
    End item, as used in sections 225.7003 and 225.7018, means the final 
production product when assembled or completed and ready for delivery 
under a line item of the contract (10 U.S.C. 2533b(m)).
    End product means supplies delivered under a line item of the 
contract.
    Hand or measuring tools means those tools listed in Federal supply 
classifications 51 and 52, respectively.
    Structural component of a tent--
    (1) Means a component that contributes to the form and stability of 
the tent (e.g., poles, frames, flooring, guy ropes, pegs); and
    (2) Does not include equipment such as heating, cooling, or 
lighting.
    Subsystem means a functional grouping of items that combine to 
perform a major function within an end item, such as electrical power, 
altitude control, and propulsion.

[84 FR 72243, Dec. 31, 2019]



225.7002  Restrictions on food, clothing, fabrics, hand or measuring 
tools, and flags.

[80 FR 51749, Aug. 26, 2015]



225.7002-1  Restrictions.

    (a) The following restrictions implement 10 U.S.C. 2533a (the 
``Berry Amendment''). Except as provided in subsection 225.7002-2, do 
not acquire--
    (1) Any of the following items, either as end products or 
components, unless the items have been grown, reprocessed, reused, or 
produced in the United States:
    (i) Food.

[[Page 206]]

    (ii) Clothing and the materials and components thereof, other than 
sensors, electronics, or other items added to, and not normally 
associated with, clothing and the materials and components thereof. 
Clothing includes items such as outerwear, headwear, underwear, 
nightwear, footwear, hosiery, handwear, belts, badges, and insignia. For 
additional guidance and examples, see PGI 225.7002-1(a)(1)(ii).
    (iii)(A) Tents and the structural components of tents;
    (B) Tarpaulins; or
    (C) Covers.
    (iv) Cotton and other natural fiber products.
    (v) Woven silk or woven silk blends.
    (vi) Spun silk yarn for cartridge cloth.
    (vii) Synthetic fabric or coated synthetic fabric, including all 
textile fibers and yarns that are for use in such fabrics.
    (viii) Canvas products.
    (ix) Wool (whether in the form of fiber or yarn or contained in 
fabrics, materials, or manufactured articles).
    (x) Any item of individual equipment (Product or Service Code (PSC) 
8465) manufactured from or containing any of the fibers, yarns, fabrics, 
or materials listed in this paragraph (a)(1).
    (2) Hand or measuring tools, unless the tools were produced in the 
United States. For additional guidance, see PGI 225.7002-1(a)(2).
    (b) In accordance with section 8123 of the Department of Defense 
Appropriations Act, 2014 (Pub. L. 113-76, division C, title VIII), and 
the same provision in subsequent Defense appropriations acts, except as 
provided in 225.7002-2, do not acquire a flag of the United States (PSC 
8345), unless such flag, including the materials and components thereof, 
is manufactured in the United States, consistent with the requirements 
at 10 U.S.C. 2533a. This restriction does not apply to the acquisition 
of any end-items or components related to flying or displaying the flag 
(e.g., flag poles and accessories).

[67 FR 20697, Apr. 26, 2002, as amended at 71 FR 39009, July 11, 2006; 
71 FR 58537, Oct. 4, 2006; 72 FR 2638, Jan. 22, 2007; 74 FR 37636, July 
29, 2009; 76 FR 52133, Aug. 19, 2011; 77 FR 38736, June 29, 2012; 78 FR 
13546, Feb. 28, 2013; 80 FR 51749, Aug. 26, 2015]



225.7002-2  Exceptions.

    Acquisitions in the following categories are not subject to the 
restrictions in 225.7002-1:
    (a) Acquisitions at or below the simplified acquisition threshold, 
except for athletic footwear purchased by DoD for use by members of the 
Army, Navy, Air Force, or Marine Corps upon their initial entry into the 
Armed Forces (section 817 of the National Defense Authorization Act for 
Fiscal Year 2017 (Pub. L. 114-328)).
    (b) Acquisitions of any of the items in 225.7002-1, if the Secretary 
concerned determines that items grown, reprocessed, reused, or produced 
in the United States cannot be acquired as and when needed in a 
satisfactory quality and sufficient quantity at U.S. market prices. (See 
the requirement in 205.301 for synopsis within 7 days after contract 
award when using this exception.)
    (1) The following officials are authorized, without power of 
redelegation, to make such a domestic nonavailability determination:
    (i) The Under Secretary of Defense (Acquisition, Technology, and 
Logistics).
    (ii) The Secretary of the Army.
    (iii) The Secretary of the Navy.
    (iv) The Secretary of the Air Force.
    (v) The Director of the Defense Logistics Agency.
    (2) The supporting documentation for the determination shall include 
an analysis and written certification by the requiring activity, with 
specificity, why alternatives that would not require a domestic 
nonavailability determination are unacceptable.
    (3) Defense agencies other than the Defense Logistics Agency shall 
follow the procedures at PGI 225.7002-2(b)(3) when submitting a request 
for a domestic nonavailability determination.
    (c) Acquisitions of items listed in FAR 25.104(a).
    (d) Acquisitions outside the United States in support of combat 
operations.
    (e) Acquisitions of perishable foods by or for activities located 
outside the United States for personnel of those activities.
    (f) Acquisitions of food or hand or measuring tools--

[[Page 207]]

    (1) In support of contingency operations; or
    (2) For which the use of other than competitive procedures has been 
approved on the basis of unusual and compelling urgency in accordance 
with FAR 6.302-2.
    (g) Emergency acquisitions by activities located outside the United 
States for personnel of those activities.
    (h) Acquisitions by vessels in foreign waters.
    (i) Acquisitions of items specifically for commissary resale.
    (j) Acquisitions of incidental amounts of cotton, other natural 
fibers, or wool incorporated in an end product, for which the estimated 
value of the cotton, other natural fibers, or wool--
    (1) Is not more than 10 percent of the total price of the end 
product; and
    (2) Does not exceed the simplified acquisition threshold.
    (k) Acquisitions of waste and byproducts of cotton or wool fiber for 
use in the production of propellants and explosives.
    (l) Acquisitions of foods manufactured or processed in the United 
States, regardless of where the foods (and any component if applicable) 
were grown or produced. However, in accordance with section 8118 of the 
DoD Appropriations Act for Fiscal Year 2005 (Pub. L. 108-287), this 
exception does not apply to fish, shellfish, or seafood manufactured or 
processed in the United States or fish, shellfish, or seafood contained 
in foods manufactured or processed in the United States.
    (m) Acquisitions of fibers and yarns that are for use in synthetic 
fabric or coated synthetic fabric (but not the purchase of the synthetic 
or coated synthetic fabric itself), if--
    (1) The fabric is to be used as a component of an end product that 
is not a textile product. Examples of textile products, made in whole or 
in part of fabric, include--
    (i) Draperies, floor coverings, furnishings, and bedding (Product or 
Service Group (PSG) 72, Household and Commercial Furnishings and 
Appliances);
    (ii) Items made in whole or in part of fabric in Product or Service 
Group (PSG) 83, Textile/leather/furs/apparel/findings/tents/flags, or 
Federal Supply Group 84, Clothing, Individual Equipment and Insignia;
    (iii) Upholstered seats (whether for household, office, or other 
use); and
    (iv) Parachutes (Product or Service Group (PSG) 1670); or
    (2) The fibers and yarns are para-aramid fibers and continuous 
filament para-aramid yarns manufactured in a qualifying country.
    (n) Acquisitions of chemical warfare protective clothing when the 
acquisition furthers an agreement with a qualifying country. (See 
225.003(10) and the requirement in 205.301 for synopsis within 7 days 
after contract award when using this exception.)
    (o) Acquisitions that are interagency, State, or local purchases 
that are executed by DoD as a result of the transfer of contracts from 
the General Services Administration or for which DoD serves as an item 
manager for products on behalf of the General Services Administration. 
According to section 897 of the National Defense Authorization Act for 
Fiscal Year 2016 (Pub. L. 114-92), such contracts shall not be subject 
to requirements under chapter 148 of title 10, United States Code 
(including 10 U.S.C. 2533a), to the extent such contracts are for 
purchases of products by other Federal agencies or State or local 
governments.

[67 FR 20697, Apr. 26, 2002, as amended at 68 FR 7442, Feb. 14, 2003; 69 
FR 26509, May 13, 2004; 69 FR 31910, June 8, 2004; 70 FR 43073, July 26, 
2005; 71 FR 34833, June 16, 2006; 71 FR 58537, Oct. 4, 2006; 72 FR 
20765, Apr. 26, 2007; 72 FR 63123, Nov. 8, 2007; 73 FR 11356, Mar. 3, 
2008; 73 FR 76971, Dec. 18, 2008; 74 FR 37636, July 29, 2009; 74 FR 
52896, Oct. 15, 2009; 75 FR 34945, June 21, 2010; 76 FR 14589, Mar. 17, 
2011; 76 FR 52133, Aug. 19, 2011; 80 FR 36718, June 26, 2015; 
80 FR 51749, Aug. 26, 2015; 81 FR 42562, June 30, 2016; 83 FR 65562, 
Dec. 21, 2018; 85 FR 61501, Sept. 29, 2020]



225.7002-3  Contract clauses.

    Unless an exception at 225.7002-2 applies--
    (a) Use the clause at 252.225-7012, Preference for Certain Domestic 
Commodities, in solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of commercial 
items .
    (b) Use the clause at 252.225-7015, Restriction on Acquisition of 
Hand or

[[Page 208]]

Measuring Tools, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, that exceed the simplified acquisition threshold that 
require delivery of hand or measuring tools.
    (c) Use the clause at 252.225-7006, Acquisition of the American 
Flag, in solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of commercial 
items, that are for the acquisition of the American flag, with an 
estimated value that exceeds the simplified acquisition threshold.

[61 FR 50453, Sept. 26, 1996, as amended at 67 FR 20698, Apr. 26, 2002; 
68 FR 15627, Mar. 31, 2003; 74 FR 37636, July 29, 2009; 78 FR 37987, 
June 25, 2013; 80 FR 51749, Aug. 26, 2015; 80 FR 67255, Oct. 30, 2015; 
83 FR 65562, Dec. 21, 2018]



225.7003  Restrictions on acquisition of specialty metals.



225.7003-1  Definitions.

    As used in this section--
    Alloy means a metal consisting of a mixture of a basic metallic 
element and one or more metallic, or non-metallic, alloying elements.
    (1) For alloys named by a single metallic element (e.g., titanium 
alloy), it means that the alloy contains 50 percent or more of the named 
metal (by mass).
    (2) If two metals are specified in the name (e.g., nickel-iron 
alloy), those metals are the two predominant elements in the alloy, and 
together they constitute 50 percent or more of the alloy (by mass).
    Automotive item--
    (1) Means a self-propelled military transport tactical vehicle, 
primarily intended for use by military personnel or for carrying cargo, 
such as--
    (i) A high-mobility multipurpose wheeled vehicle;
    (ii) An armored personnel carrier; or
    (iii) A troop/cargo-carrying truckcar, truck, or van; and
    (2) Does not include--
    (i) A commercially available off-the-shelf vehicle; or
    (ii) Construction equipment (such as bulldozers, excavators, lifts, 
or loaders) or other self-propelled equipment (such as cranes or 
aircraft ground support equipment).
    Commercial derivative military article means an item acquired by the 
Department of Defense that is or will be produced using the same 
production facilities, a common supply chain, and the same or similar 
production processes that are used for the production of articles 
predominantly used by the general public or by nongovernmental entities 
for purposes other than governmental purposes.
    Electronic component means an item that operates by controlling the 
flow of electrons or other electrically charged particles in circuits, 
using interconnections of electrical devices such as resistors, 
inductors, capacitors, diodes, switches, transistors, or integrated 
circuits. The term does not include structural or mechanical parts of an 
assembly containing an electronic component and does not include any 
high performance magnets that may be used in the electronic component.
    High performance magnet means a permanent magnet that obtains a 
majority of its magnetic properties from rare earth metals (such as 
samarium).
    Produce means--
    (1) Atomization;
    (2) Sputtering; or
    (3) Final consolidation of non-melt derived metal powders.
    Specialty metal means--
    (1) Steel--
    (i) With a maximum alloy content exceeding one or more of the 
following limits: manganese, 1.65 percent; silicon, 0.60 percent; or 
copper, 0.60 percent; or
    (ii) Containing more than 0.25 percent of any of the following 
elements: aluminum, chromium, cobalt, molybdenum, nickel, niobium 
(columbium), titanium, tungsten, or vanadium;
    (2) Metal alloys consisting of--
    (i) Nickel or iron-nickel alloys that contain a total of alloying 
metals other than nickel and iron in excess of 10 percent; or
    (ii) Cobalt alloys that contain a total of alloying metals other 
than cobalt and iron in excess of 10 percent;
    (3) Titanium and titanium alloys; or
    (4) Zirconium and zirconium alloys.
    Steel means an iron alloy that includes between .02 and 2 percent 
carbon and may include other elements.

[74 FR 37636, July 29, 2009, as amended at 84 FR 72243, Dec. 31, 2019]

[[Page 209]]



225.7003-2  Restrictions.

    The following restrictions implement 10 U.S.C. 2533b. Except as 
provided in 225.7003-3--
    (1)(a) Do not acquire the following items, or any components of the 
following items, unless any specialty metals contained in the items or 
components are melted or produced in the United States (also see 
guidance at PGI 225.7003-2(a)):
    (i) Aircraft.
    (ii) Missile or space systems.
    (iii) Ships.
    (iv) Tank or automotive items.
    (v) Weapon systems.
    (vi) Ammunition.
    (2) Do not acquire a specialty metal (e.g., raw stock, including 
bar, billet, slab, wire, plate, and sheet; castings; and forgings) as an 
end item, unless the specialty metal is melted or produced in the United 
States. This restriction applies to specialty metal acquired by a 
contractor for delivery to DoD as an end item, in addition to specialty 
metal acquired by DoD directly from the entity that melted or produced 
the specialty metal.
    (b) For more information on specialty metals restrictions and 
reporting of noncompliances, see http://www.acq.osd.mil/ dpap/cpic/ic/
restrictions _on_specialty_metals _10_usc _2533b.html.

[74 FR 37636, July 29, 2009, as amended at 81 FR 28730, May 10, 2016]



225.7003-3  Exceptions.

    (a) Acquisitions in the following categories are not subject to the 
restrictions in 225.7003-2:
    (1) Acquisitions at or below the simplified acquisition threshold.
    (2) Acquisitions outside the United States in support of combat 
operations.
    (3) Acquisitions in support of contingency operations.
    (4) Acquisitions for which the use of other than competitive 
procedures has been approved on the basis of unusual and compelling 
urgency in accordance with FAR 6.302-2.
    (5) Acquisitions of items specifically for commissary resale.
    (6) Acquisitions of items for test and evaluation under the foreign 
comparative testing program (10 U.S.C. 2350a(g)). However, this 
exception does not apply to any acquisitions under follow-on production 
contracts.
    (b) One or more of the following exceptions may apply to an end item 
or component that includes any of the following, under a prime contract 
or subcontract at any tier. The restrictions in 225.7003-2 do not apply 
to the following:
    (1) Electronic components, unless the Secretary of Defense, upon the 
recommendation of the Strategic Materials Protection Board pursuant to 
10 U.S.C. 187, determines that the domestic availability of a particular 
electronic component is critical to national security.
    (2)(i) Commercially available off-the-shelf (COTS) items containing 
specialty metals, except the restrictions do apply to contracts or 
subcontracts for the acquisition of--
    (A) Specialty metal mill products, such as bar, billet, slab, wire, 
plate, and sheet, that have not been incorporated into end items, 
subsystems, assemblies, or components. Specialty metal supply contracts 
issued by COTS producers are not subcontracts for the purposes of this 
exception;
    (B) Forgings or castings of specialty metals, unless the forgings or 
castings are incorporated into COTS end items, subsystems, or 
assemblies;
    (C) Commercially available high performance magnets that contain 
specialty metal, unless such high performance magnets are incorporated 
into COTS end items or subsystems (see PGI 225.7003-3(b)(6) for a table 
of applicability of specialty metals restrictions to magnets); and
    (D) COTS fasteners, unless--
    (1) The fasteners are incorporated into COTS end items, subsystems, 
or assemblies; or
    (2) The fasteners qualify for the commercial item exception in 
paragraph (b)(3) of this subsection.
    (ii) If this exception is used for an acquisition of COTS end items 
valued at $5 million or more per item, the acquiring department or 
agency shall submit an annual report to the Director, Defense 
Procurement and Acquisition Policy, in accordance with the procedures at 
PGI 225.7003-3(b)(2).

[[Page 210]]

    (3) Fasteners that are commercial items and are acquired under a 
contract or subcontract with a manufacturer of such fasteners, if the 
manufacturer has certified that it will purchase, during the relevant 
calendar year, an amount of domestically melted or produced specialty 
metal, in the required form, for use in the production of fasteners for 
sale to DoD and other customers, that is not less than 50 percent of the 
total amount of the specialty metal that the manufacturer will purchase 
to carry out the production of such fasteners for all customers.
    (4) Items listed in 225.7003-2(a), manufactured in a qualifying 
country or containing specialty metals melted or produced in a 
qualifying country.
    (5) Specialty metal in any of the items listed in 225.7003-2 if the 
USD(A&S), or an official authorized in accordance with paragraph 
(b)(5)(i) of this section, determines that specialty metal melted or 
produced in the United States cannot be acquired as and when needed at a 
fair and reasonable price in a satisfactory quality, a sufficient 
quantity, and the required form (i.e., a domestic nonavailability 
determination). In accordance with 10 U.S.C. 2533b(m)(4), the term 
``required form'' in this section refers to the form of the mill 
product, such as bar, billet, wire, slab, plate, or sheet, in the grade 
appropriate for the production of a finished end item to be delivered to 
the Government under this contract; or a finished component assembled 
into an end item to be delivered to the Government under the contract. 
See guidance in PGI 225.7003-3(b)(5).
    (i) The Secretary of the military department concerned is 
authorized, without power of redelegation, to make a domestic 
nonavailability determination that applies to only one contract. The 
supporting documentation for the determination shall include an analysis 
and written documentation by the requiring activity, with specificity, 
why alternatives that would not require a domestic nonavailability 
determination are unacceptable.
    (ii) A domestic nonavailability determination that applies to more 
than one contract (i.e., a class domestic nonavailability 
determination), requires the approval of the USD(A&S).
    (A) At least 30 days before making a domestic nonavailability 
determination that would apply to more than one contract, the USD(A&S) 
will, to the maximum extent practicable, and in a manner consistent with 
the protection of national security and confidential business 
information--
    (1) Publish a notice on the Federal Business Opportunities Web site 
(http://www.FedBizOpps.gov or any successor site) of the intent to make 
the domestic nonavailability determination; and
    (2) Solicit information relevant to such notice from interested 
parties, including producers of specialty metal mill products.
    (B) The USD(A&S)--
    (1) Will take into consideration all information submitted in 
response to the notice in making a class domestic nonavailability 
determination;
    (2) May consider other relevant information that cannot be made part 
of the public record consistent with the protection of national security 
information and confidential business information; and
    (3) Will ensure that any such domestic nonavailability determination 
and the rationale for the determination are made publicly available to 
the maximum extent consistent with the protection of national security 
and confidential business information.
    (6) End items containing a minimal amount of otherwise noncompliant 
specialty metals (i.e., specialty metals not melted or produced in the 
United States that are not covered by another exception listed in this 
paragraph (b)), if the total weight of noncompliant specialty metal does 
not exceed 2 percent of the total weight of all specialty metal in the 
end item. This exception does not apply to high performance magnets 
containing specialty metals. See PGI 225.7003-3(b)(6) for a table of 
applicability of specialty metals restrictions to magnets.
    (c) Compliance for commercial derivative military articles. The 
restrictions at 225.7003-2(a) do not apply to an item acquired under a 
prime contract if--

[[Page 211]]

    (1) The offeror has certified, and subsequently demonstrates, that 
the offeror and its subcontractor(s) will individually or collectively 
enter into a contractual agreement or agreements to purchase a 
sufficient quantity of domestically melted or produced specialty metal 
in accordance with the provision at 252.225-7010; and
    (2) The USD(A&S), or the Secretary of the military department 
concerned, determines that the item is a commercial derivative military 
article (defense agencies see procedures at PGI 225.7003-3(c)). The 
contracting officer shall submit the offeror's certification and a 
request for a determination to the appropriate official, through agency 
channels, and shall notify the offeror when a decision has been made.
    (d) National security waiver. The USD(A&S) may waive the 
restrictions at 225.7003-2 if the USD(A&S) determines in writing that 
acceptance of the item is necessary to the national security interests 
of the United States (see procedures at PGI 225.7003-3(d). This 
authority may not be delegated.
    (1) The written determination of the USD(A&S)--
    (i) Shall specify the quantity of end items to which the national 
security waiver applies;
    (ii) Shall specify the time period over which the national security 
waiver applies; and
    (iii) Shall be provided to the congressional defense committees 
before the determination is executed, except that in the case of an 
urgent national security requirement, the determination may be provided 
to the congressional defense committees up to 7 days after it is 
executed.
    (2) After making such a determination, the USD(A&S) will--
    (i) Ensure that the contractor or subcontractor responsible for the 
noncompliant specialty metal develops and implements an effective plan 
to ensure future compliance; and
    (ii) Determine whether or not the noncompliance was knowing and 
willful. If the USD(A&S) determines that the noncompliance was knowing 
and willful, the appropriate debarring and suspending official shall 
consider suspending or debarring the contractor or subcontractor until 
such time as the contractor or subcontractor has effectively addressed 
the issues that led to the noncompliance.
    (3) Because national security waivers will only be granted when the 
acquisition in question is necessary to the national security interests 
of the United States, the requirement for a plan will be applied as a 
condition subsequent, and not a condition precedent, to the granting of 
a waiver.

[74 FR 37636, July 29, 2009, as amended at 75 FR 48280, Aug. 10, 2010; 
79 FR 17446, Mar. 28, 2014; 84 FR 72244, Dec. 31, 2019; 85 FR 61502, 
Sept. 29, 2020]



225.7003-4  [Reserved]



225.7003-5  Solicitation provision and contract clauses.

    (a) Unless the acquisition is wholly exempt from the specialty 
metals restrictions at 225.7003-2 because the acquisition is covered by 
an exception in 225.7003-3(a) or (d) (but see paragraph (d) of this 
subsection)--
    (1) Use the clause at 252.225-7008, Restriction on Acquisition of 
Specialty Metals, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that--
    (i) Exceed the simplified acquisition threshold; and
    (ii) Require the delivery of specialty metals as end items.
    (2) Use the clause at 252.225-7009, Restriction on Acquisition of 
Certain Articles Containing Specialty Metals, in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that--
    (i) Exceed the simplified acquisition threshold; and
    (ii) Require delivery of any of the following items, or components 
of the following items, if such items or components contain specialty 
metal:
    (A) Aircraft.
    (B) Missile or space systems.
    (C) Ships.
    (D) Tank or automotive items.
    (E) Weapon systems.
    (F) Ammunition.

[[Page 212]]

    (b) Use the provision at 252.225-7010, Commercial Derivative 
Military Article--Specialty Metals Compliance Certificate, in 
solicitations, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items, --
    (1) That contain the clause at 252.225-7009; and
    (2) For which the contracting officer anticipates that one or more 
offers of commercial derivative military articles may be received.
    (c) If an agency cannot reasonably determine at time of acquisition 
whether some or all of the items will be used in support of combat 
operations or in support of contingency operations, the contracting 
officer should not rely on the exception at 225.7003-3(a)(2) or (3), but 
should include the appropriate specialty metals clause or provision in 
the solicitation and contract.
    (d) If the solicitation and contract require delivery of a variety 
of contract line items containing specialty metals, but only some of the 
items are subject to domestic specialty metals restrictions, identify in 
the Schedule those items that are subject to the restrictions.

[74 FR 37636, July 29, 2009; 75 FR 48280, Aug. 10, 2010; 78 FR 37987, 
June 25, 2013]



225.7004  Restriction on acquisition of foreign buses.



225.7004-1  Restriction.

    In accordance with 10 U.S.C. 2534, do not acquire a multipassenger 
motor vehicle (bus) unless it is manufactured in the United States, 
Australia, Canada, or the United Kingdom.

[68 FR 15627, Mar. 31, 2003, as amended at 83 FR 65562, Dec. 21, 2018]



225.7004-2  Applicability.

    Apply this restriction if the buses are purchased, leased, rented, 
or made available under contracts for transportation services.

[68 FR 15627, Mar. 31, 2003]



225.7004-3  Exceptions.

    This restriction does not apply in any of the following 
circumstances:
    (a) Buses manufactured outside the United States, Australia, Canada, 
or the United Kingdom are needed for temporary use because buses 
manufactured in the United States or Canada are not available to satisfy 
requirements that cannot be postponed. Such use may not, however, exceed 
the lead time required for acquisition and delivery of busesmanufactured 
in the United States, Australia, Canada, or the United Kingdom.
    (b) The requirement for buses is temporary in nature. For example, 
to meet a special, nonrecurring requirement or a sporadic and infrequent 
recurring requirement, buses manufactured outside the United States, 
Australia, Canada, or the United Kingdommay be used for temporary 
periods of time. Such use may not, however, exceed the period of time 
needed to meet the special requirement.
    (c) Buses manufactured outside the United States, Australia, Canada, 
or the United Kingdom are available at no cost to the U.S. Government.
    (d) The acquisition is for an amount at or below the simplified 
acquisition threshold.

[68 FR 15627, Mar. 31, 2003, as amended at 83 FR 65562, Dec. 21, 2018]



225.7004-4  Waiver.

    The waiver criteria at 225.7008(a) apply to this restriction.

[68 FR 15627, Mar. 31, 2003, as amended at 74 FR 37639, July 29, 2009]



225.7005  [Reserved]



225.7006  Restriction on air circuit breakers for naval vessels.



225.7006-1  Restriction.

    In accordance with 10 U.S.C. 2534, do not acquire air circuit 
breakers for naval vessels unless they are manufactured in the United 
States, Australia, Canada, or the United Kingdom.

[68 FR 15627, Mar. 31, 2003, as amended at 83 FR 65562, Dec. 21, 2018]



225.7006-2  Exceptions.

    This restriction does not apply if the acquisition is--
    (a) For an amount at or below the simplified acquisition threshold; 
or

[[Page 213]]

    (b) For spare or repair parts needed to support air circuit breakers 
manufactured outside the United States. Support includes the purchase of 
spare air circuit breakers when those from alternate sources are not 
interchangeable.

[68 FR 15627, Mar. 31, 2003]



225.7006-3  Waiver.

    The waiver criteria at 225.7008(a) apply to this restriction.

[83 FR 65562, Dec. 21, 2018]



225.7006-4  Solicitation provision and contract clause.

    (a) Use the provision at 252.225-7037, Evaluation of Offers for Air 
Circuit Breakers, in solicitations, including solicitations using FAR 
part 12 procedures for the acquisition of commercial items, that require 
air circuit breakers for naval vessels unless--
    (1) An exception applies; or
    (2) A waiver has been granted.
    (b) Use the clause at 252.225-7038, Restriction on Acquisition of 
Air Circuit Breakers, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that require air circuit breakers for 
naval vessels unless--
    (1) An exception at 225.7006-2 applies; or
    (2) A waiver has been granted.

[68 FR 15627, Mar. 31, 2003, as amended at 78 FR 37988, June 25, 2013; 
83 FR 65562, Dec. 21, 2018]



225.7007  Restrictions on anchor and mooring chain.



225.7007-1  Restrictions.

    (a) In accordance with Section 8041 of the Fiscal Year 1991 DoD 
Appropriations Act (Public Law 101-511) and similar sections in 
subsequent DoD appropriations acts, do not acquire welded shipboard 
anchor and mooring chain, four inches or less in diameter, unless--
    (1) It is manufactured in the United States, including cutting, heat 
treating, quality control, testing, and welding (both forging and shot 
blasting process); and
    (2) The cost of the components manufactured in the United States 
exceeds 50 percent of the total cost of components.
    (b) 10 U.S.C. 2534 also restricts acquisition of welded shipboard 
anchor and mooring chain, four inches or less in diameter, when used as 
a component of a naval vessel. However, the Appropriations Act 
restriction described in paragraph (a) of this subsection takes 
precedence over the restriction of 10 U.S.C. 2534.

[68 FR 15627, Mar. 31, 2003]



225.7007-2  Waiver.

    (a) The Secretary of the department responsible for acquisition may 
waive the restriction in 225.7007-1(a), on a case-by-case basis, if--
    (1) Sufficient domestic suppliers are not available to meet DoD 
requirements on a timely basis; and
    (2) The acquisition is necessary to acquire capability for national 
security purposes.
    (b) Document the waiver in a written determination and findings 
containing--
    (1) The factors supporting the waiver; and
    (2) A certification that the acquisition must be made in order to 
acquire capability for national security purposes.
    (c) Provide a copy of the determination and findings to the House 
and Senate Committees on Appropriations.

[68 FR 15627, Mar. 31, 2003]



225.7007-3  Contract clause.

    Unless a waiver has been granted, use the clause at 252.225-7019, 
Restriction on Acquisition of Anchor and Mooring Chain, in solicitations 
and contracts requiring welded shipboard anchor or mooring chain four 
inches or less in diameter.

[68 FR 15627, Mar. 31, 2003]



225.7008  Waiver of restrictions of 10 U.S.C. 2534.

     When specifically authorized by reference elsewhere in this 
subpart, the restrictions on certain foreign purchases under 10 U.S.C. 
2534(a) may be waived as follows:

[[Page 214]]

    (a)(1) The Under Secretary of Defense (Acquisition and Sustainment) 
(USD(A&S)), without power of delegation, may waive a restriction for a 
particular item for a particular foreign country upon determination 
that--
    (i) United States producers of the item would not be jeopardized by 
competition from a foreign country, and that country does not 
discriminate against defense items produced in the United States to a 
greater degree than the United States discriminates against defense 
items produced in that country; or
    (ii) Application of the restriction would impede cooperative 
programs entered into between DoD and a foreign country, or would impede 
the reciprocal procurement of defense items under a memorandum of 
understanding providing for reciprocal procurement of defense items 
under 225.872, and that country does not discriminate against defense 
items produced in the United States to a greater degree than the United 
States discriminates against defense items produced in that country.
    (2) A notice of the determination to exercise the waiver authority 
shall be published in the Federal Register and submitted to the 
congressional defense committees at least 15 days before the effective 
date of the waiver.
    (3) The effective period of the waiver shall not exceed 1 year.
    (4) For contracts entered into prior to the effective date of a 
waiver, provided adequate consideration is received to modify the 
contract, the waiver shall be applied as directed or authorized in the 
waiver to--
    (i) Subcontracts entered into on or after the effective date of the 
waiver; and
    (ii) Options for the procurement of items that are exercised after 
the effective date of the waiver, if the option prices are adjusted for 
any reason other than the application of the waiver.
    (b) The head of the contracting activity may waive a restriction on 
a case-by-case basis upon execution of a determination and findings that 
any of the following applies:
    (1) The restriction would cause unreasonable delays.
    (2) Satisfactory quality items manufactured in the United States, 
Australia, or Canada, or the United Kingdom are not available.
    (3) Application of the restriction would result in the existence of 
only one source for the item in the United States, Australia, or Canada, 
or the United Kingdom.
    (4) Application of the restriction is not in the national security 
interests of the United States.
    (5) Application of the restriction would adversely affect a U.S. 
company.
    (c) A restriction is waived when it would cause unreasonable costs. 
The cost of an item of U.S., Australian, Canadian, or United Kingdom 
origin is unreasonable if it exceeds 150 percent of the offered price, 
inclusive of duty, of items that are not of U.S., Australian, Canadian, 
or United Kingdom origin.

[74 FR 37639, July 29, 2009, as amended at 78 FR 13543, Feb. 28, 2013; 
80 FR 10391, Feb. 26, 2015; 85 FR 34534, June 5, 2020]



225.7009  Restriction on ball and roller bearings.



225.7009-1  Scope.

    This section implements Section 8065 of the Fiscal Year 2002 DoD 
Appropriations Act (Pub. L. 107-117) and the same restriction in 
subsequent DoD appropriations acts.

[71 FR 14111, Mar. 21, 2006]



225.7009-2  Restriction.

    (a) Do not acquire ball and roller bearings unless--
    (1) The bearings are manufactured in the United States or Canada; 
and
    (2) For each ball or roller bearing, the cost of the bearing 
components manufactured in the United States or Canada exceeds 50 
percent of the total cost of the bearing components of that ball or 
roller bearing.
    (b) The restriction at 225.7003-2 may also apply to bearings that 
are made from specialty metals, such as high carbon chrome steel 
(bearing steel).

[75 FR 76300, Dec. 8, 2010, as amended at 76 FR 32843, June 6, 2011]

[[Page 215]]



225.7009-3  Exception.

    The restriction in 225.7009-2 does not apply to contracts or 
subcontracts for the acquisition of commercial items, except for 
commercial ball and roller bearings acquired as end items.

[71 FR 14111, Mar. 21, 2006]



225.7009-4  Waiver.

    The Secretary of the department responsible for acquisition or, for 
the Defense Logistics Agency, the Component Acquisition Executive, may 
waive the restriction in 225.7009-2, on a case-by-case basis, by 
certifying to the House and Senate Committees on Appropriations that--
    (a) Adequate domestic supplies are not available to meet DoD 
requirements on a timely basis; and
    (b) The acquisition must be made in order to acquire capability for 
national security purposes.

[71 FR 14111, Mar. 21, 2006]



225.7009-5  Contract clause.

    Use the clause at 252.225-7016, Restriction on Acquisition of Ball 
and Roller Bearings, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, unless--
    (a) The items being acquired are commercial items other than ball or 
roller bearings acquired as end items;
    (b) The items being acquired do not contain ball and roller 
bearings; or
    (c) A waiver has been granted in accordance with 225.7009-4.

[71 FR 14112, Mar. 21, 2006, as amended at 78 FR 37988, June 25, 2013]



225.7010  Restriction on certain naval vessel components.



225.7010-1  Restriction.

    In accordance with 10 U.S.C. 2534, do not acquire the following 
components of naval vessels, to the extent they are unique to marine 
applications, unless manufactured in the United States, Australia, 
Canada, or the United Kingdom:
    (a) Gyrocompasses.
    (b) Electronic navigation chart systems.
    (c) Steering controls.
    (d) Pumps.
    (e) Propulsion and machinery control systems.
    (f) Totally enclosed lifeboats.

[80 FR 10391, Feb. 26, 2015, as amended at 85 FR 34534, June 5, 2020]



225.7010-2  Exceptions.

    This restriction does not apply to--
    (a) Contracts or subcontracts that do not exceed the simplified 
acquisition threshold; or
    (b) Acquisition of spare or repair parts needed to support 
components for naval vessels manufactured outside the United States. 
Support includes the purchase of spare gyrocompasses, electronic 
navigation chart systems, steering controls, pumps, propulsion and 
machinery control systems, or totally enclosed lifeboats, when those 
from alternate sources are not interchangeable.

[80 FR 10391, Feb. 26, 2015]



225.7010-3  Waiver.

    The waiver criteria at 225.7008(a) apply to this restriction.

[85 FR 34534, June 5, 2020]



225.7010-4  Implementation.

    (a) 10 U.S.C. 2534(h) prohibits the use of contract clauses or 
certifications to implement this restriction.
    (b) Agencies shall accomplish implementation of this restriction 
through use of management and oversight techniques that achieve the 
objectives of this section without imposing a significant management 
burden on the Government or the contractor involved.

[80 FR 10391, Feb. 26, 2015]



225.7011  Restriction on carbon, alloy, and armor steel plate.



225.7011-1  Restriction.

    (a) In accordance with Section 8111 of the Fiscal Year 1992 DoD 
Appropriations Act (Pub. L. 102-172) and similar sections in subsequent 
DoD appropriations acts, do not acquire any of the following types of 
carbon, alloy, or armor steel plate for use in a Government-owned 
facility or a facility under the control of (e.g., leased by) DoD, 
unless it is melted and rolled in the United States or Canada:

[[Page 216]]

    (1) Carbon, alloy, or armor steel plate in Federal Supply Class 
9515.
    (2) Carbon, alloy, or armor steel plate described by specifications 
of the American Society for Testing Materials or the American Iron and 
Steel Institute.
    (b) This restriction--
    (1) Applies to the acquisition of carbon, alloy, or armor steel 
plate as a finished steel mill product that may be used ``as is'' or may 
be used as an intermediate material for the fabrication of an end 
product; and
    (2) Does not apply to the acquisition of an end product (e.g., a 
machine tool), to be used in the facility, that contains carbon, alloy, 
or armor steel plate as a component.

[71 FR 75894, Dec. 19, 2006]



225.7011-2  Waiver.

    The Secretary of the department responsible for acquisition may 
waive this restriction, on a case-by-case basis, by certifying to the 
House and Senate Committees on Appropriations that--
    (a) Adequate U.S. or Canadian supplies are not available to meet DoD 
requirements on a timely basis; and
    (b) The acquisition must be made in order to acquire capability for 
national security purposes.

[68 FR 15627, Mar. 31, 2003]



225.7011-3  Contract clause.

    Unless a waiver has been granted, use the clause at 252.225-7030, 
Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate, in 
solicitations and contracts that'
    (a) Require the delivery to the Government of carbon, alloy, or 
armor steel plate that will be used in a Government-owned facility or a 
facility under the control of DoD; or
    (b) Require contractors operating in a Government-owned facility or 
a facility under the control of DoD to purchase carbon, alloy, or armor 
steel plate.

[68 FR 15627, Mar. 31, 2003, as amended at 71 FR 75894, Dec. 19, 2006]



225.7012  Restriction on supercomputers.



225.7012-1  Restriction.

    In accordance with Section 8112 of Public Law 100-202, and similar 
sections in subsequent DoD appropriations acts, do not purchase a 
supercomputer unless it is manufactured in the United States.

[68 FR 15627, Mar. 31, 2003]



225.7012-2  Waiver.

    The Secretary of Defense may waive this restriction, on a case-by-
case basis, after certifying to the Armed Services and Appropriations 
Committees of Congress that--
    (a) Adequate U.S. supplies are not available to meet requirements on 
a timely basis; and
    (b) The acquisition must be made in order to acquire capability for 
national security purposes.

[68 FR 15627, Mar. 31, 2003]



225.7012-3  Contract clause.

    Unless a waiver has been granted, use the clause at 252.225-7011, 
Restriction on Acquisition of Supercomputers, in solicitations and 
contracts for the acquisition of supercomputers.

[68 FR 15627, Mar. 31, 2003]



225.7013  Restrictions on construction or repair of vessels 
in foreign shipyards.

    In accordance with 10 U.S.C. 7309 and 7310--
    (a) Do not award a contract to construct in a foreign shipyard--
    (1) A vessel for any of the armed forces; or
    (2) A major component of the hull or superstructure of a vessel for 
any of the armed forces; and
    (b) Do not overhaul, repair, or maintain in a foreign shipyard, a 
naval vessel (or any other vessel under the jurisdiction of the 
Secretary of the Navy) homeported in the United States. This restriction 
does not apply to voyage repairs.

[68 FR 15627, Mar. 31, 2003, as amended at 71 FR 58537, Oct. 4, 2006]

[[Page 217]]



225.7014  Restrictions on military construction.

    (a) For restriction on award of military construction contracts to 
be performed in the United States outlying areas in the Pacific and on 
Kwajalein Atoll, or in countries bordering the Arabian Gulf, see 
236.273(a).
    (b) For restriction on acquisition of steel for use in military 
construction projects, see 236.274.

[74 FR 2417, Jan. 15, 2009, as amended at 79 FR 44316, July 31, 2014; 80 
FR 15911, Mar. 26, 2015]



225.7015  Restriction on overseas architect-engineer services.

    For restriction on award of architect-engineer contracts to be 
performed in Japan, in any North Atlantic Treaty Organization member 
country, or in countries bordering the Arabian Gulf, see 236.602-70.

[68 FR 15627, Mar. 31, 2003, as amended at 79 FR 44316, July 31, 2014; 
80 FR 15911, Mar. 26, 2015]



225.7017  Utilization of domestic photovoltaic devices.



225.7017-1  Definitions.

    As used in this section--
    Caribbean Basin country photovoltaic device means a photovoltaic 
device that--
    (1) Is wholly manufactured in a Caribbean Basin country; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in a Caribbean Basin country into a new and different 
article of commerce with a name, character, or use distinct from that of 
the article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of a Caribbean Basin country.
    Covered contract means an energy savings performance contract, a 
utility services contract, or a private housing contract awarded by DoD, 
to be performed in the United States, if such contract results in DoD 
ownership of photovoltaic devices, by means other than DoD purchase as 
end products. DoD is deemed to own a photovoltaic device if the device 
is--
    (1) Installed in the United States on DoD property or in a facility 
owned by DoD; and
    (2) Reserved for the exclusive use of DoD in the United States for 
the full economic life of the device.
    Designated country photovoltaic device means a World Trade 
Organization Government Procurement Agreement (WTO GPA) country 
photovoltaic device, a Free Trade Agreement country photovoltaic device, 
a least developed country photovoltaic device, or a Caribbean Basin 
country photovoltaic device.
    Domestic photovoltaic device means a photovoltaic device that is 
manufactured in the United States.
    Foreign photovoltaic device means a photovoltaic device other than a 
domestic photovoltaic device.
    Free Trade Agreement country photovoltaic device means a 
photovoltaic device that--
    (1) Is wholly manufactured in a Free Trade Agreement country; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in a Free Trade Agreement country into a new and different 
article of commerce with a name, character, or use distinct from that of 
the article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of a Free Trade Agreement country.
    Least developed country photovoltaic device means a photovoltaic 
device that--
    (1) Is wholly manufactured in a least developed country; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in a least developed country into a new and different 
article of commerce with a name, character, or use distinct from that of 
the article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of a least developed country.

[[Page 218]]

    Photovoltaic device means a device that converts light directly into 
electricity through a solid-state, semiconductor process.
    Qualifying country photovoltaic device means a photovoltaic device 
manufactured in a qualifying country.
    U.S.-made photovoltaic device means a photovoltaic device that--
    (1) Is manufactured in the United States; or
    (2) Is substantially transformed in the United States into a new and 
different article of commerce with a name, character, or use distinct 
from that of the article or articles from which it was transformed, 
provided that the photovoltaic device is not subsequently substantially 
transformed outside of the United States.
    WTO GPA country photovoltaic device means a photovoltaic device 
that--
    (1) Is wholly manufactured in a WTO GPA country; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in a WTO GPA country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of a WTO GPA country.

[80 FR 72603, Nov. 20, 2015, as amended at 83 FR 62499, Dec. 4, 2018]



225.7017-2  Restriction.

    In accordance with section 846 of the National Defense Authorization 
Act for Fiscal Year 2011 (Pub. L. 111-383), photovoltaic devices 
provided under any covered contract shall comply with 41 U.S.C. chapter 
83, Buy American, subject to the exceptions to that statute provided in 
the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.).

[83 FR 62500, Dec. 4, 2018]



225.7017-3  Exceptions.

    DoD requires the contractor to utilize domestic photovoltaic devices 
in covered contracts that exceed the simplified acquisition threshold, 
with the following exceptions:
    (a) Qualifying country. Qualifying country photovoltaic devices may 
be utilized in any covered contract, because 225.103(a)(i)(A) provides 
an exception to the Buy American statute for products of qualifying 
countries, as defined in 225.003.
    (b) Buy American--unreasonable cost. For a covered contract that 
utilizes photovoltaic devices valued at less than $182,000, the 
exception for unreasonable cost may apply (see FAR 25.103(c). If the 
cost of a foreign photovoltaic device plus 50 percent is less than the 
cost of a domestic photovoltaic device, then the foreign photovoltaic 
device may be utilized.
    (c) Trade agreements--(1) Free Trade Agreements. For a covered 
contract that utilizes photovoltaic devices valued at $25,000 or more, 
photovoltaic devices may be utilized from a country covered under the 
acquisition by a Free Trade Agreement, depending upon dollar threshold 
(see FAR subpart 25.4).
    (2) World Trade Organization--Government Procurement Agreement. For 
covered contracts that utilize photovoltaic devices that are valued at 
$180,000 or more, only U.S.-made photovoltaic devices, designated 
country photovoltaic devices, or qualifying country photovoltaic devices 
may be utilized.

[83 FR 62500, Dec. 4, 2018, as amended at 84 FR 72247, Dec. 31, 2019]



225.7017-4  Solicitation provision and contract clause.

    (a)(1) Use the clause at 252.225-7017, Photovoltaic Devices, in 
solicitations, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items, for a contract expected to exceed 
the simplified acquisition threshold that may be a covered contract, 
i.e., an energy savings performance contract, a utility service 
contract, or a private housing contract awarded by DoD, if such contract 
will result in DoD ownership of photovoltaic devices, by means other 
than DoD purchase as end products.
    (2) Use the clause in the resultant contract, including contracts 
using FAR part 12 procedures for the acquisition of commercial items, if 
it is a covered contract.
    (b) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, in

[[Page 219]]

solicitations, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items, that contain the clause at 252.225-
7017.

[76 FR 78860, Dec. 20, 2011, as amended at 78 FR 37988, June 25, 2013. 
Redesignated and amended at 80 FR 72603, Nov. 20, 2015; Redesignated and 
amended at 83 FR 62500, Dec. 4, 2018]



225.7018  Restriction on acquisition of certain magnets, tantalum,
and tungsten.

[84 FR 18158, Apr. 30, 2019, as amended at 85 FR 61502, Sept. 29, 2020]



225.7018-1  Definitions.

    As used in this section--
    Covered country means--
    (1) The Democratic People's Republic of North Korea;
    (2) The People's Republic of China;
    (3) The Russian Federation; and
    (4) The Islamic Republic of Iran.
    Covered material means--
    (1) Samarium-cobalt magnets;
    (2) Neodymium-iron-boron magnets;
    (3) Tantalum metal and alloys;
    (4) Tungsten metal powder; and
    (5) Tungsten heavy alloy or any finished or semi-finished component 
containing tungsten heavy alloy.
    Electronic device means an item that operates by controlling the 
flow of electrons or other electrically charged particles in circuits, 
using interconnections such as resistors, inductors, capacitors, diodes, 
switches, transistors, or integrated circuits.
    Tungsten heavy alloy means a tungsten base pseudo alloy that--
    (1) Meets the specifications of ASTM B777 or SAE-AMS-T-21014 for a 
particular class of tungsten heavy alloy; or
    (2) Contains at least 90 percent tungsten in a matrix of other 
metals (such as nickel-iron or nickel-copper) and has density of at 
least 16.5 g/cm3).

[84 FR 18158, Apr. 30, 2019, as amended at 84 FR 72244, Dec. 31, 2019; 
85 FR 61502, Sept. 29, 2020]



225.7018-2  Restriction.

    (a) Except as provided in 225.7018-3 and 225.7018-4, do not acquire 
any covered material melted or produced in any covered country, or any 
end item, manufactured in any covered country, that contains a covered 
material (10 U.S.C. 2533c).
    (b)(1) For samarium-cobalt magnets and neodymium iron-boron magnets, 
this restriction includes--
    (i) Melting samarium with cobalt to produce the samarium-cobalt 
alloy or melting neodymium with iron and boron to produce the neodymium-
iron-boron alloy; and
    (ii) All subsequent phases of production of the magnets, such as 
powder formation, pressing, sintering or bonding, and magnetization.
    (2) The restriction on melting and producing of samarium-cobalt 
magnets is in addition to any applicable restrictions on melting of 
specialty metals at 225.7003 and the clause at 252.225-7009, Restriction 
on Acquisition of Certain Articles Containing Specialty Metals.
    (c) For production of tantalum metal and alloys, this restriction 
includes the reduction of tantalum chemicals such as oxides, chlorides, 
or potassium salts, to metal powder and all subsequent phases of 
production of tantalum metal and alloys, such as consolidation of metal 
powders.
    (d) For production of tungsten metal powder and tungsten heavy 
alloy, this restriction includes--
    (1) Atomization;
    (2) Calcination and reduction into powder;
    (3) Final consolidation of non-melt derived metal powders; and
    (4) All subsequent phases of production of tungsten metal powder, 
tungsten heavy alloy, or any finished or semi-finished component 
containing tungsten heavy alloy.

[84 FR 18158, Apr. 30, 2019, as amended at 84 FR 72244, Dec. 31, 2019; 
85 FR 61502, Sept. 29, 2020]



225.7018-3  Exceptions.

    The restriction in section 225.7018-2 does not apply to an 
acquisition--
    (a) At or below the simplified acquisition threshold;
    (b) Outside the United States of an item for use outside the United 
States; or
    (c) Of an end item that is--
    (1) A commercially available off-the-shelf item (but see PGI 
225.7018-3(c)(1)(i) with regard to commercially

[[Page 220]]

available samarium-cobalt magnets), other than--
    (i) A commercially available off-the-shelf item that is 50 percent 
or more tungsten by weight; or
    (ii) A tantalum metal, tantalum alloy, or tungsten heavy alloy mill 
product, such as bar, billet, slab, wire, cube, sphere, block, blank, 
plate, or sheet, that has not been incorporated into an end item, 
subsystem, assembly, or component;
    (2) An electronic device, unless the Secretary of Defense, upon the 
recommendation of the Strategic Materials Protection Board pursuant to 
10 U.S.C. 187 determines that the domestic availability of a particular 
electronic device is critical to national security (but see PGI 
225.7018-3(c)(2) with regard to samarium-cobalt magnets used in 
electronic components); or
    (3) A neodymium-iron-boron magnet manufactured from recycled 
material if the milling of the recycled material and sintering of the 
final magnet takes place in the United States.
    (d) If the authorized agency official concerned, as specified in 
225.7018-4, determines that compliant covered materials of satisfactory 
quality and quantity, in the required form, cannot be procured as and 
when needed at a reasonable price.
    (1) For tantalum metal, tantalum alloy, or tungsten heavy alloy, the 
term ``required form'' refers to the form of the mill product, such as 
bar, billet, wire, slab, plate, or sheet, in the grade appropriate for 
the production of a finished end item to be delivered to the Government 
under this contract; or a finished component assembled into an end item 
to be delivered to the Government under the contract.
    (2) For samarium-cobalt magnets or neodymium-iron-boron magnets, the 
term ``required form'' refers to the form and properties of the magnets.

[84 FR 18158, Apr. 30, 2019, as amended at 84 FR 72244, Dec. 31, 2019; 
85 FR 61502, Sept. 29, 2020]



225.7018-4  Nonavailability determination.

    (a) Individual nonavailability determinations. (1) The head of the 
contracting activity is authorized to make a nonavailability 
determination described in 225.7018-3(d) on an individual basis (i.e., 
applies to only one contract).
    (2) The supporting documentation for the determination shall include 
an analysis and written certification by the requiring activity that 
describes, with specificity, why alternatives that would not require a 
nonavailability determination are unacceptable. The template for an 
individual nonavailability determination is available at PGI 225.7018-
4(a)(2).
    (3) Provide to USD(A&S) DASD (Industrial Policy), in accordance with 
the procedures at PGI 225.7018-4(a)(3)--
    (i) A copy of individual nonavailability determinations with 
supporting documentation; and
    (ii) Notification when individual nonavailability determinations are 
requested, but denied.
    (b) Class nonavailability determinations. A class nonavailability 
determination (i.e., a nonavailability determinations that applies to 
more than one contract) requires the approval of the USD(A&S). Follow 
the procedures at PGI 225.7018-4(b) when submitting a request for a 
class nonavailability determination.
    (1) At least 30 days before making a nonavailability determination 
that would apply to more than one contract, the USD(A&S) will, to the 
maximum extent practicable, and in a manner consistent with the 
protection of national security and confidential business information--
    (i) Publish a notice on the Federal Business Opportunities website 
(www.FedBizOpps.gov) of the intent to make the nonavailability 
determination; and
    (ii) Solicit information relevant to such notice from interested 
parties, including producers of mill products from covered materials.
    (2) The USD(A&S)--
    (i) Will take into consideration all information submitted in 
response to the notice in making a class nonavailability determination;
    (ii) May consider other relevant information that cannot be made 
part of the public record consistent with the protection of national 
security information and confidential business information; and

[[Page 221]]

    (iii) Will ensure that any such nonavailability determination and 
the rationale for the determination are made publicly available to the 
maximum extent consistent with the protection of national security and 
confidential business information.

[84 FR 18158, Apr. 30, 2019, as amended at 84 FR 72244, Dec. 31, 2019; 
85 FR 61502, Sept. 29, 2020]



225.7018-5  Contract clause.

    Unless acquiring items outside the United States for use outside the 
United States or a nonavailability determination has been made in 
accordance with 225.7018-4, use the clause at 252.225-7052, Restriction 
on Acquisition of Certain Magnets, Tantalum, and Tungsten , in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, that 
exceed the simplified acquisition threshold.

[84 FR 18158, Apr. 30, 2019, as amended at 85 FR 61502, Sept. 29, 2020]



225.7019  Prohibition on use of certain energy sourced from inside
the Russian Federation.

    Source: 86 FR 48338, Aug. 30, 2021, unless otherwise noted.



225.7019-1  Definitions.

    As used in this section--
    Covered military installation means a military installation in 
Europe identified by DoD as a main operating base.
    Furnished energy means energy furnished to a covered military 
installation in any form and for any purpose, including heating, 
cooling, and electricity.
    Main operating base means a facility outside the United States and 
its territories with permanently stationed operating forces and robust 
infrastructure.



225.7019-2  Prohibition.

    In accordance with section 2821 of the National Defense 
Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), contracts for 
the acquisition of furnished energy for a covered military installation 
shall not use any energy sourced from inside the Russian Federation as a 
means of generating the furnished energy for the covered military 
installation. The prohibition--
    (a) Applies to all forms of energy that are furnished to a covered 
military installation; and
    (b) Does not apply to energy converted by a third party into another 
form of energy and not directly delivered to a covered military 
installation.



225.7019-3  Waiver.

    (a) Request and approval of waiver. The requiring activity may 
submit to the contracting activity a request for waiver of the 
prohibition in 225.7019-2 for a specific contract for the acquisition of 
furnished energy for a covered military installation. The head of the 
contracting activity, without power of redelegation, may approve the 
waiver, upon certification to the congressional defense committees 
that--
    (1) The waiver of section 2821 is necessary to ensure an adequate 
supply of furnished energy for the covered military installation; and
    (2) National security requirements have been balanced against the 
potential risk associated with reliance upon the Russian Federation for 
furnished energy.
    (b) Submission of waiver notice. (1) Not later than 14 days before 
the execution of any energy contract for which a waiver is granted under 
paragraph (a) of this section, the head of the contracting activity 
shall submit to the congressional defense committees a notice of the 
waiver. See PGI 225.7019-3 for waiver procedures.
    (2) The waiver notice shall include the following:
    (i) The rationale for the waiver, including the basis for the 
certifications required by paragraph (a) of this section.
    (ii) An assessment of how the waiver may impact DoD's European 
energy resilience strategy.
    (iii) An explanation of the measures DoD is taking to mitigate the 
risk of using Russian Federation furnished energy.



225.7019-4  Solicitation provision and contract clause.

    Unless a waiver has been granted in accordance with 225.7019-3--

[[Page 222]]

    (a) Use the provision at 252.225-7053, Representation Regarding 
Prohibition on Use of Certain Energy Sourced from Inside the Russian 
Federation, in solicitations, including solicitations using FAR part 12 
procedures for the acquisition of commercial items and solicitations at 
or below the simplified acquisition threshold, that are for the 
acquisition of furnished energy for a covered military installation; and
    (b) Use the clause at 252.225-7054, Prohibition on Use of Certain 
Energy Sourced from Inside the Russian Federation, in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items and solicitations and 
contracts at or below the simplified acquisition threshold, that are for 
the acquisition of furnished energy for a covered military installation.



        Subpart 225.71_Other Restrictions on Foreign Acquisition

    Source: 68 FR 15631, Mar. 31, 2003, unless otherwise noted.



225.7100  Scope of subpart.

    This subpart contains foreign product restrictions that are based on 
policies designed to protect the defense industrial base.



225.7101  Definitions.

    ``Component'' and ``domestic manufacture,'' as used in this subpart, 
are defined in the clause at 252.225-7025, Restriction on Acquisition of 
Forgings.

[74 FR 68384, Dec. 24, 2009]



225.7102  Forgings.



225.7102-1  Policy.

    When acquiring the following forging items, whether as end items or 
components, acquire items that are of domestic manufacture to the 
maximum extent practicable:

------------------------------------------------------------------------
                   Items                             Categories
------------------------------------------------------------------------
Ship propulsion shafts....................  Excludes service and landing
                                             craft shafts.
Periscope tubes...........................  All.
Ring forgings for bull gears..............  All greater than 120 inches
                                             in diameter.
------------------------------------------------------------------------



225.7102-2  Exceptions.

    The policy in 225.7102-1 does not apply to acquisitions--
    (a) Using simplified acquisition procedures, unless the restricted 
item is the end item being purchased;
    (b) Overseas for overseas use; or
    (c) When the quantity acquired exceeds the amount needed to maintain 
the U.S. defense mobilization base (provided the excess quantity is an 
economical purchase quantity). The requirement for domestic manufacture 
does not apply to the quantity above that required to maintain the base, 
in which case, qualifying country sources may compete.



225.7102-3  Waiver.

    Upon request from a contractor, the contracting officer may waive 
the requirement for domestic manufacture of the items listed in 
225.7102-1.



225.7102-4  Contract clause.

    Use the clause at 252.225-7025, Restriction on Acquisition of 
Forgings, in solicitations and contracts, unless--
    (a) The supplies being acquired do not contain any of the items 
listed in 225.7102-1; or
    (b) An exception in 225.7102-2 applies. If an exception applies to 
only a portion of the acquisition, specify the excepted portion in the 
solicitation and contract.



 Subpart 225.72_Reporting Contract Performance Outside the United States

    Source: 70 FR 20839, Apr. 22, 2005, unless otherwise noted.



225.7201  Policy.

    10 U.S.C. 2410g requires offerors and contractors to notify DoD of 
any intention to perform any part of a DoD contract outside the United 
States and Canada that--
    (a) Exceeds $750,000 in value; and
    (b) Could be performed inside the United States or Canada.

[85 FR 61504, Sept. 29, 2020]

[[Page 223]]



225.7202  Exception.

    This subpart does not apply to contracts for commercial items, 
construction, ores, natural gas, utilities, petroleum products and 
crudes, timber (logs), or subsistence.



225.7203  Contracting officer distribution of reports.

    Follow the procedures at PGI 225.7203 for distribution of reports 
submitted with offers in accordance with the provision at 252.225-7003, 
Report of Intended Performance Outside the United States and Canada--
Submission with Offer.



225.7204  Solicitation provision and contract clauses.

    Except for acquisitions described in 225.7202--
    (a) Use the provision at 252.225-7003, Report of Intended 
Performance Outside the United States and Canada--Submission with Offer, 
in solicitations with a value exceeding $15 million; and
    (b) Use the clause at 252.225-7004, Report of Intended Performance 
Outside the United States and Canada--Submission after Award, in 
solicitations and contracts with a value exceeding $15 million.

[70 FR 20839, Apr. 22, 2005, as amended at 71 FR 75892, Dec. 19, 2006; 
75 FR 45074, Aug. 2, 2010; 79 FR 73500, Dec. 11, 2014; 80 FR 36904, June 
26, 2015; 85 FR 61504, Sept. 29, 2020]



         Subpart 225.73_Acquisitions for Foreign Military Sales



225.7300  Scope of subpart.

    (a) This subpart contains policies and procedures for acquisitions 
for foreign military sales (FMS) under the Arms Export Control Act (22 
U.S.C. Chapter 39). Section 22 of the Arms Export Control Act (22 U.S.C. 
2762) authorizes DoD to enter into contracts for resale to foreign 
countries or international organizations.
    (b) This subpart does not apply to--
    (1) FMS made from inventories or stocks;
    (2) Acquisitions for replenishment of inventories or stocks; or
    (3) Acquisitions made under DoD cooperative logistic supply support 
arrangements.

[63 FR 43889, Aug. 17, 1998]



225.7301  General.

    (a) The U.S. Government sells defense articles and services to 
foreign governments or international organizations through FMS 
agreements. The agreement is documented in a Letter of Offer and 
Acceptance (LOA) (see the Defense Security Cooperation Agency (DSCA) 
Security Assistance Management Manual (DSCA 5105.38-M)).
    (b) Conduct FMS acquisitions under the same acquisition and contract 
management procedures used for other defense acquisitions.
    (c) Follow the additional procedures at PGI 225.7301(c) for 
preparation of solicitations and contracts that include FMS 
requirements.
    (d) See 229.170 for policy on contracts financed under U.S. 
assistance programs that involve payment of foreign country value added 
taxes or customs duties.

[70 FR 73155, Dec. 9, 2005, as amended at 80 FR 31310, June 2, 2015]



225.7301-1  [Reserved]



225.7301-2  Solicitation approval for sole source contracts.

    The contracting officer shall coordinate through agency channels 
with the Principal Director, Defense Pricing and Contracting, prior to 
issuing a solicitation for a sole source contract for U.S./FMS combined 
requirements for a major system that has an estimated contract value 
that exceeds $500 million. See also 201.170 and PGI 216.403-1(1)(ii)(B) 
and (C).

[84 FR 65307, Nov. 27, 2019]



225.7302  Preparation of letter of offer and acceptance.

    For FMS programs that will require an acquisition, the contracting 
officer shall assist the DoD implementing agency responsible for 
preparing the Letter of Offer and Acceptance (LOA) by--
    (1) Working with prospective contractors to--

[[Page 224]]

    (i) Identify, in advance of the LOA, any unusual provisions or 
deviations (such as those requirements for Pseudo LOAs identified at PGI 
225.7301);
    (ii) Advise the contractor if the DoD implementing agency expands, 
modifies, or does not accept any key elements of the prospective 
contractor's proposal;
    (iii) Identify any logistics support necessary to perform the 
contract (such as those requirements identified at PGI 225.7301); and
    (iv) For noncompetitive acquisitions over $10,000, ask the 
prospective contractor for information on price, delivery, and other 
relevant factors. The request for information shall identify the fact 
that the information is for a potential foreign military sale and shall 
identify the foreign customer; and
    (2) Working with the DoD implementing agency responsible for 
preparing the LOA, as specified in PGI 225.7302.

[78 FR 73451, Dec. 6, 2013]



225.7303  Pricing acquisitions for FMS.

    (a) Price FMS contracts using the same principles used in pricing 
other defense contracts. However, application of the pricing principles 
in FAR parts 15 and 31 to an FMS contract may result in prices that 
differ from other defense contract prices for the same item due to the 
considerations in this section.
    (b) If the foreign government has conducted a competition resulting 
in adequate price competition (see FAR 15.403-1(b)(1)), the contracting 
officer shall not require the submission of certified cost or pricing 
data. The contracting officer should consult with the foreign government 
through security assistance personnel to determine if adequate price 
competition has occurred.

[64 FR 49683, Sept. 14, 1999, as amended at 68 FR 15632, Mar. 31, 2003; 
77 FR 76940, Dec. 31, 2012]



225.7303-1  Contractor sales to other foreign customers.

    If the contractor has made sales of the item required for the 
foreign military sale to foreign customers under comparable conditions, 
including quantity and delivery, price the FMS contract in accordance 
with FAR part 15.



225.7303-2  Cost of doing business with a foreign government or an
international organization.

    (a) In pricing FMS contracts where non-U.S. Government prices as 
described in 225.7303-1 do not exist, except as provided in 225.7303-5, 
recognize the reasonable and allocable costs of doing business with a 
foreign government or international organization, even though such costs 
might not be recognized in the same amounts in pricing other defense 
contracts. Examples of such costs include, but are not limited to, the 
following:
    (1) Selling expenses (not otherwise limited by FAR Part 31), such 
as--
    (i) Maintaining international sales and service organizations;
    (ii) Sales commissions and fees in accordance with FAR Subpart 3.4;
    (iii) Sales promotions, demonstrations, and related travel for sales 
to foreign governments. Section 126.8 of the International Traffic in 
Arms Regulations (22 CFR 126.8) may require Government approval for 
these costs to be allowable, in which case the appropriate Government 
approval shall be obtained; and
    (iv) Configuration studies and related technical services undertaken 
as a direct selling effort to a foreign country.
    (2) Product support and post-delivery service expenses, such as--
    (i) Operations or maintenance training, training or tactics films, 
manuals, or other related data; and
    (ii) Technical field services provided in a foreign country related 
to accident investigations, weapon system problems, or operations/
tactics enhancement, and related travel to foreign countries.
    (3) Offsets. For additional information see 225.7306.
    (i) An offset agreement is the contractual arrangement between the 
FMS customer and the U.S. defense contractor that identifies the offset 
obligation imposed by the FMS customer that has been accepted by the 
U.S. defense contractor as a condition of the FMS customer's purchase. 
These agreements are distinct and independent of

[[Page 225]]

the LOA and the FMS contract. Further information about offsets and LOAs 
may be found in the Defense Security Cooperation Agency (DSCA) Security 
Assistance Management Manual (DSCA 5105.38-M), chapter 6, paragraph 
6.3.9. (http://samm.dsca.mil/chapter/chapter-6).
    (ii) A U.S. defense contractor may recover all costs incurred for 
offset agreements with a foreign government or international 
organization if the LOA is financed wholly with foreign government or 
international organization customer cash or repayable foreign military 
finance credits.
    (iii) The U.S. Government assumes no obligation to satisfy or 
administer the offset agreement or to bear any of the associated costs.
    (iv) Indirect offset costs are deemed reasonable for purposes of FAR 
parts 15 and 31 with no further analysis necessary on the part of the 
contracting officer, provided that the U.S. defense contractor submits 
to the contracting officer a signed offset agreement or other 
documentation showing that the FMS customer has made the provision of an 
indirect offset a condition of the FMS acquisition. FMS customers are 
placed on notice through the LOA that indirect offset costs are deemed 
reasonable without any further analysis by the contracting officer.
    (4) Costs that are the subject of advance agreement under the 
appropriate provisions of FAR part 31; or where the advance 
understanding places a limit on the amounts of cost that will be 
recognized as allowable in defense contract pricing, and the agreement 
contemplated that it will apply only to DoD contracts for the U.S. 
Government's own requirement (as distinguished from contracts for FMS).
    (b) Costs not allowable under FAR Part 31 are not allowable in 
pricing FMS contracts, except as noted in paragraphs (c) and (e) of this 
subsection.
    (c) The limitations for major contractors on independent research 
and development and bid and proposal (IR&D/B&P) costs for projects that 
are of potential interest to DoD, in 231.205-18(c)(iii), do not apply to 
FMS contracts, except as provided in 225.7303-5. The allowability of 
IR&D/B&P costs on contracts for FMS not wholly paid for from funds made 
available on a nonrepayable basis is limited to the contract's allocable 
share of the contractor's total IR&D/B&P expenditures. In pricing 
contracts for such FMS--
    (1) Use the best estimate of reasonable costs in forward pricing; 
and
    (2) Use actual expenditures, to the extent that they are reasonable, 
in determining final cost.
    (d) Under paragraph (e)(1)(A) of Section 21 of the Arms Export 
Control Act (22 U.S.C. 2761), the United States must charge for 
administrative services to recover the estimated cost of administration 
of sales made under the Army Export Control Act.
    (e) The limitations in 231.205-1 on allowability of costs associated 
with leasing Government equipment do not apply to FMS contracts.

[56 FR 36367, July 31, 1991, as amended at 56 FR 67216, Dec. 30, 1991; 
57 FR 42631, Sept. 15, 1992; 57 FR 53600, Nov. 12, 1992; 59 FR 50511, 
Oct. 4, 1994; 61 FR 7744, Feb. 29, 1996; 61 FR 18987, Apr. 30, 1996; 63 
FR 43889, Aug. 17, 1998; 64 FR 8729, Feb. 23, 1999; 64 FR 49684, Sept. 
14, 1999; 68 FR 15632, Mar. 31, 2003; 70 FR 73155, Dec. 9, 2005; 74 FR 
68382, Dec. 24, 2009; 80 FR 31310, June 2, 2015; 83 FR 30828, June 29, 
2018]



225.7303-3  Government-to-government agreements.

    If a government-to-government agreement between the United States 
and a foreign government for the sale, coproduction, or cooperative 
logistic support of a specifically defined weapon system, major end 
item, or support item, contains language in conflict with the provisions 
of this section, the language of the government-to-government agreement 
prevails.



225.7303-4  Contingent fees.

    (a) Except as provided in paragraph (b) of this subsection, 
contingent fees are generally allowable under DoD contracts, provided--
    (1) The fees are paid to a bona fide employee or a bona fide 
established commercial or selling agency maintained by the prospective 
contractor for the purpose of securing business (see FAR Part 31 and FAR 
Subpart 3.4); and
    (2) The contracting officer determines that the fees are fair and 
reasonable.

[[Page 226]]

    (b)(1) Under DoD 5105.38-M, LOAs for requirements for the 
governments of Australia, Taiwan, Egypt, Greece, Israel, Japan, Jordan, 
Republic of Korea, Kuwait, Pakistan, Philippines, Saudi Arabia, Turkey, 
Thailand, or Venezuela (Air Force) shall provide that all U.S. 
Government contracts resulting from the LOAs prohibit the reimbursement 
of contingent fees as an allowable cost under the contract, unless the 
contractor identifies the payments and the foreign customer approves the 
payments in writing before contract award (see 225.7307(a)).
    (2) For FMS to countries not listed in paragraph (b)(1) of this 
subsection, contingent fees exceeding $50,000 per FMS case are 
unallowable under DoD contracts, unless the contractor identifies the 
payment and the foreign customer approves the payment in writing before 
contract award.

[68 FR 15633, Mar. 31, 2003, as amended at 70 FR 73155, Dec. 9, 2005]



225.7303-5  Acquisitions wholly paid for from nonrepayable funds.

    (a) In accordance with 22 U.S.C. 2762(d), price FMS wholly paid for 
from funds made available on a nonrepayable basis on the same costing 
basis with regard to profit, overhead, IR&D/B&P, and other costing 
elements as is applicable to acquisitions of like items purchased by DoD 
for its own use.
    (b) Direct costs associated with meeting a foreign customer's 
additional or unique requirements are allowable under such contracts. 
Indirect burden rates applicable to such direct costs are permitted at 
the same rates applicable to acquisitions of like items purchased by DoD 
for its own use.
    (c) A U.S. defense contractor may not recover costs incurred for 
offset agreements with a foreign government or international 
organization if the LOA is financed with funds made available on a 
nonrepayable basis.

[61 FR 18988, Apr. 30, 1996; 61 FR 49531, Sept. 20, 1996, as amended at 
63 FR 43890, Aug. 17, 1998; 64 FR 49684, Sept. 14, 1999; 68 FR 15633, 
Mar. 31, 2003]



225.7304  FMS customer involvement.

    (a) FMS customers may request that a defense article or defense 
service be obtained from a particular contractor. In such cases, FAR 
6.302-4 provides authority to contract without full and open 
competition. The FMS customer may also request that a subcontract be 
placed with a particular firm. The contracting officer shall honor such 
requests from the FMS customer only if the LOA or other written 
direction sufficiently fulfills the requirements of FAR Subpart 6.3.
    (b) FMS customers should be encouraged to participate with U.S. 
Government acquisition personnel in discussions with industry to--
    (1) Develop technical specifications;
    (2) Establish delivery schedules;
    (3) Identify any special warranty provisions or other requirements 
unique to the FMS customer; and
    (4) Review prices of varying alternatives, quantities, and options 
needed to make price-performance tradeoffs.
    (c) Do not disclose to the FMS customer any data, including 
certified cost or pricing data, that is contractor proprietary unless 
the contractor authorizes its release.
    (d) Except as provided in paragraph (e)(3) of this section, the 
degree of FMS customer participation in contract negotiations is left to 
the discretion of the contracting officer after consultation with the 
contractor. The contracting officer shall provide an explanation to the 
FMS customer if its participation in negotiations will be limited. 
Factors that may limit FMS customer participation include situations 
where--
    (1) The contract includes requirements for more than one FMS 
customer;
    (2) The contract includes unique U.S. requirements; or
    (3) Contractor proprietary data is a subject of negotiations.
    (e) Do not allow representatives of the FMS customer to--
    (1) Direct the exclusion of certain firms from the solicitation 
process (they may suggest the inclusion of certain firms);
    (2) Interfere with a contractor's placement of subcontracts; or
    (3) Observe or participate in negotiations between the U.S. 
Government and the contractor involving certified cost or pricing data, 
unless a deviation

[[Page 227]]

is granted in accordance with subpart 201.4.
    (f) Do not accept directions from the FMS customer on source 
selection decisions or contract terms (except that, upon timely notice, 
the contracting officer may attempt to obtain any special contract 
provisions, warranties, or other unique requirements requested by the 
FMS customer).
    (g) Do not honor any requests by the FMS customer to reject any bid 
or proposal.
    (h) If an FMS customer requests additional data concerning FMS 
contract prices, the contracting officer shall, after consultation with 
the contractor, provide sufficient data to demonstrate the 
reasonableness of the price and reasonable responses to relevant 
questions concerning contract price. This data--
    (1) May include tailored responses, top-level pricing summaries, 
historical prices, or an explanation of any significant differences 
between the actual contract price and the estimated contract price 
included in the initial LOA; and
    (2) May be provided orally, in writing, or by any other method 
acceptable to the contracting officer.

[67 FR 70325, Nov. 22, 2002, as amended at 77 FR 76940, Dec. 31, 2012]



225.7305  Limitation of liability.

    Advise the contractor when the foreign customer will assume the risk 
for loss or damage under the appropriate limitation of liability 
clause(s) (see FAR Subpart 46.8). Consider the costs of necessary 
insurance, if any, obtained by the contractor to cover the risk of loss 
or damage in establishing the FMS contract price.

[56 FR 36367, July 31, 1991, as amended at 68 FR 15633, Mar. 31, 2003]



225.7306  Offset arrangements.

    In accordance with the Presidential policy statement of April 16, 
1990, DoD does not encourage, enter into, or commit U.S. firms to FMS 
offset arrangements. The decision whether to engage in offsets, and the 
responsibility for negotiating and implementing offset arrangements, 
resides with the companies involved. (Also see 225.7303-2(a)(3).)

[70 FR 73155, Dec. 9, 2005]



225.7307  Contract clauses.

    (a) Use the clause at 252.225-7027, Restriction on Contingent Fees 
for Foreign Military Sales, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for FMS. Insert in paragraph 
(b)(1) of the clause the name(s) of any foreign country customer(s) 
listed in 225.7303-4(b).
    (b) Use the clause at 252.225-7028, Exclusionary Policies and 
Practices of Foreign Governments, in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, that are for the purchase of 
supplies and services for international military education training and 
FMS.

[68 FR 15633, Mar. 31, 2003. Redesignated at 70 FR 73155, Dec. 9, 2005. 
Amended at 78 FR 37988, June 25, 2013]

Subpart 225.74 [Reserved]



               Subpart 225.75_Balance of Payments Program

    Source: 67 FR 20694, Apr. 26, 2002, unless otherwise noted.



225.7500  Scope of subpart.

    This subpart provides policies and procedures implementing the 
Balance of Payments Program. It applies to contracts for the acquisition 
of--
    (a) Supplies for use outside the United States; and
    (b) Construction to be performed outside the United States.



225.7501  Policy.

    Acquire only domestic end products for use outside the United 
States, and use only domestic construction material for construction to 
be performed outside the United States, including end products and 
construction material for foreign military sales, unless--
    (a) Before issuing the solicitation--
    (1) The estimated cost of the acquisition or the value of a 
particular construction material is at or below the simplified 
acquisition threshold;
    (2) The end product or particular construction material is--
    (i) Listed in FAR 25.104;

[[Page 228]]

    (ii) A petroleum product;
    (iii) A spare part for foreign-manufactured vehicles, equipment, 
machinery, or systems, provided the acquisition is restricted to the 
original manufacturer or its supplier;
    (iv) An industrial gas;
    (v) A brand drug specified by the Defense Medical Materiel Board; or
    (vi) Information technology that is a commercial item, using fiscal 
year 2004 or subsequent funds (Section 535 of Division F of the 
Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and the same 
provision in subsequent appropriations acts);
    (3) The acquisition is covered by the World Trade Organization 
Government Procurement Agreement;
    (4) The acquisition of foreign end products or construction material 
is required by a treaty or executive agreement between governments;
    (5) Use of a procedure specified in 225.7703-1(a) is authorized for 
an acquisition in support of operations in Afghanistan;
    (6) The end product is acquired for commissary resale; or
    (7) The contracting officer determines that a requirement can best 
be filled by a foreign end product or construction material, including 
determinations that--
    (i) A subsistence product is perishable and delivery from the United 
States would significantly impair the quality at the point of 
consumption;
    (ii) An end product or construction material, by its nature or as a 
practical matter, can best be acquired in the geographic area concerned, 
e.g., ice or books; or bulk material, such as sand, gravel, or other 
soil material, stone, concrete masonry units, or fired brick;
    (iii) A particular domestic construction material is not available;
    (iv) The cost of domestic construction material would exceed the 
cost of foreign construction material by more than 50 percent, 
calculated on the basis of--
    (A) A particular construction material; or
    (B) The comparative cost of application of the Balance of Payments 
Program to the total acquisition; or
    (v) Use of a particular domestic construction material is 
impracticable;
    (b) After receipt of offers--
    (1) The evaluated low offer (see Subpart 225.5) is an offer of an 
end product that--
    (i) Is a qualifying country end product;
    (ii) Is an eligible product; or
    (iii) If the acquisition is in support of operations in Afghanistan, 
a South Caucasus/Central and South Asian state end product listed in 
225.401-70 (see 225.7704-2); or
    (iv) Is a nonqualifying country end product, but application of the 
Balance of Payments Program evaluation factor would not result in award 
on a domestic offer; or
    (2) The construction material is an eligible product or, if the 
acquisition is in support of operations in Afghanistan, the construction 
material is a South Caucasus/Central and South Asian state construction 
material (see 225.7704-2); or
    (c) At any time during the acquisition process, the head of the 
agency determines that it is not in the public interest to apply the 
restrictions of the Balance of Payments Program to the end product or 
construction material.

[67 FR 20694, Apr. 26, 2002, as amended at 67 FR 77939, Dec. 20, 2002; 
69 FR 1928, Jan. 13, 2004; 70 FR 2363, Jan. 13, 2005; 70 FR 73155, Dec. 
9, 2005; 71 FR 58540, Oct. 4, 2006; 73 FR 53153, Sept. 15, 2008; 75 FR 
81917, Dec. 29, 2010; 76 FR 76320, Dec. 7, 2011; 78 FR 59857, Sept. 30, 
2013; 82 FR 61481, Dec. 28, 2017]



225.7502  Procedures.

    If the Balance of Payments Program applies to the acquisition, 
follow the procedures at PGI 225.7502.

[71 FR 62566, Oct. 26, 2006]



225.7503  Contract clauses.

    Unless the entire acquisition is exempt from the Balance
    of Payments 
Program--
    (a) Use the basic or an alternate of the clause at 252.225-7044, 
Balance of Payments Program--Construction Material, in solicitations and 
contracts for construction to be performed outside the United States, 
including acquisitions of commercial items or components, with an 
estimated value greater

[[Page 229]]

than the simplified acquisition threshold but less than $7,008,000.
    (1) Use the basic clause unless the acquisition is in support of 
operations in Afghanistan.
    (2) Use the alternate I clause if the acquisition is in support of 
operations in Afghanistan.
    (b) Use the basic or an alternate of the clause at 252.225-7045, 
Balance of Payments Program--Construction Material Under Trade 
Agreements, in solicitations and contracts for construction to be 
performed outside the United States with an estimated value of 
$7,008,000 or more, including acquisitions of commercial items or 
components.
    (1) Use the basic clause in solicitations and contracts with an 
estimated value of $10,802,884 or more, unless the acquisition is in 
support of operations in Afghanistan.
    (2) Use the alternate I clause in solicitations and contracts with 
an estimated value of $7,008,000 or more, but less than $10,802,884 
unless the acquisition is in support of operations in Afghanistan.
    (3) Use the alternate II clause in solicitations and contracts with 
an estimated value of $10,802,884 or more and is in support of 
operations in Afghanistan.
    (4) Use the alternate III clause in solicitations and contracts with 
an estimated value of $7,008,000 or more, but less than $10,802,884, and 
is in support of operations in Afghanistan.

[79 FR 65818, Nov. 5, 2014, as amended at 80 FR 81471, Dec. 30, 2015; 82 
FR 61483, Dec. 28, 2017; 84 FR 72247, Dec. 31, 2019]



             Subpart 225.76_Secondary Arab Boycott of Israel

    Source: 71 FR 39006, July 11, 2006, unless otherwise noted.



225.7601  Restriction.

    In accordance with 10 U.S.C. 2410i, do not enter into a contract 
with a foreign entity unless it has certified that it does not comply 
with the secondary Arab boycott of Israel.



225.7602  Procedures.

    For contracts awarded to the Canadian Commercial Corporation (CCC), 
the CCC will submit a certification from its proposed subcontractor with 
the other required precontractual information (see 225.870).



225.7603  Exceptions.

    This restriction does not apply to--
    (a) Purchases at or below the simplified acquisition threshold;
    (b) Contracts for consumable supplies, provisions, or services for 
the support of United States forces or of allied forces in a foreign 
country; or
    (c) Contracts pertaining to the use of any equipment, technology, 
data, or services for intelligence or classified purposes, or to the 
acquisition or lease thereof, in the interest of national security.



225.7604  Waivers.

    The Secretary of Defense may waive this restriction on the basis of 
national security interests. To request a waiver, follow the procedures 
at PGI 225.7604.

[71 FR 62566, Oct. 26, 2006]



225.7605  Solicitation provision.

    Unless an exception at 225.7603 applies or a waiver has been granted 
in accordance with 225.7604, use the provision at 252.225-7031, 
Secondary Arab Boycott of Israel, in all solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items. If the solicitation includes the provision at FAR 
52.204-7, do not separately list 252.225-7031 in the solicitation.

[71 FR 39006, July 11, 2006, as amended at 78 FR 37988, June 25, 2013; 
78 FR 40043, July 3, 2013]



   Subpart 225.77_Acquisitions in Support of Operations in Afghanistan

    Source: 73 FR 53153, Sept. 15, 2008, unless otherwise noted.



225.7700  Scope.

    This subpart implements--

[[Page 230]]

    (a) Section 892 of the National Defense Authorization Act for Fiscal 
Year 2008 (Pub. L. 110-181);
    (b) Section 886 of the National Defense Authorization Act for Fiscal 
Year 2008 (Pub. L. 110-181), as amended by section 842 of the National 
Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239);
    (c) Section 826 of the National Defense Authorization Act for Fiscal 
Year 2013 (Pub. L. 112-239); and
    (d) The determinations by the Deputy Secretary of Defense regarding 
participation of the countries of the South Caucasus or Central and 
South Asia in acquisitions in support of operations in Afghanistan.
    (e) Section 216 of the National Defense Authorization Act for Fiscal 
Year 2017 (Pub. L. 114-328).

[78 FR 59857, Sept. 30, 2013, as amended at 83 FR 16004, Apr. 13, 2018]



225.7701  Definitions.

    As used in this subpart--
    Product from Afghanistan means a product that is mined, produced, or 
manufactured in Afghanistan.
    Service from Afghanistan means a service including construction that 
is performed in Afghanistan predominantly by citizens or permanent 
resident aliens of Afghanistan.
    Small arms means pistols and other weapons less than 0.50 caliber.
    Source from Afghanistan means a source that--
    (1) Is located in Afghanistan; and
    (2) Offers products or services from Afghanistan.
    Textile component is defined in the clause at 252.225-7029, 
Acquisition of Uniform Components for Afghan Military or Afghan National 
Police.

[78 FR 59857, Sept. 30, 2013]



225.7702  Acquisitions not subject to the enhanced authority to 
acquire products or services from Afghanistan.



225.7702-1  Acquisition of small arms.

    (a) Except as provided in paragraph (b) of this section, when 
acquiring small arms for assistance to the Army of Afghanistan, the 
Afghani Police Forces, or other Afghani security organizations--
    (1) Use full and open competition to the maximum extent practicable, 
consistent with the provisions of 10 U.S.C. 2304;
    (2) If use of other than full and open competition is justified in 
accordance with FAR Subpart 6.3, ensure that--
    (i) No responsible U.S. manufacturer is excluded from competing for 
the acquisition; and
    (ii) Products manufactured in the United States are not excluded 
from the competition; and
    (3) If the exception at FAR 6.302-2 (unusual and compelling urgency) 
applies, do not exclude responsible U.S. manufacturers or products 
manufactured in the United States from the competition for the purpose 
of administrative expediency. However, such an offer may be rejected if 
it does not meet delivery schedule requirements.
    (b) Paragraph (a)(2) of this section does not apply when--
    (1) The exception at FAR 6.302-1 (only one or a limited number of 
responsible sources) applies, and the only responsible source or sources 
are not U.S. manufacturers or are not offering products manufactured in 
the United States; or
    (2) The exception at FAR 6.302-4 (international agreement) applies, 
and United States manufacturers or products manufactured in the United 
States are not the source(s) specified in the written directions of the 
foreign government reimbursing the agency for the cost of the 
acquisition of the property or services for such government.

[73 FR 53153, Sept. 15, 2008. Redesignated and amended at 78 FR 59858, 
Sept. 30, 2013]



225.7702-2  Acquisition of uniform components for the Afghan military
or the Afghan police.

    Any textile components supplied by DoD to the Afghan National Army 
or the Afghan National Police for purpose of production of uniforms 
shall be produced in the United States.

[78 FR 59858, Sept. 30, 2013]

[[Page 231]]



225.7703  Enhanced authority to acquire products or services from
Afghanistan.



225.7703-1  Acquisition procedures.

    (a) Subject to the requirements of 225.7703-2, except as provided in 
225.7702, a product or service (including construction)in support of 
operations in Afghanistan may be acquired by--
    (1) Providing a preference for products or services from Afghanistan 
in accordance with the evaluation procedures at 225.7703-3;
    (2) Limiting competition to products or services from Afghanistan; 
or
    (3) Using procedures other than competitive procedures to award a 
contract to a particular source or sources from Afghanistan. When other 
than competitive procedures are used, the contracting officer shall 
document the contract file with the rationale for selecting the 
particular source(s).
    (b) For acquisitions conducted using a procedure specified in 
paragraph (a) of this subsection, the justification and approval 
addressed in FAR Subpart 6.3 is not required.
    (c) When issuing solicitations and contracts for performance in 
Afghanistan, follow the procedures at PGI 225.7703-1(c).

[73 FR 53153, Sept. 15, 2008, as amended at 78 FR 59858, Sept. 30, 2013; 
79 FR 58695, Sept. 30, 2014]



225.7703-2  Determination requirements.

    Before use of a procedure specified in 225.7703-1(a), a written 
determination must be prepared and executed as follows:
    (a) For products or services to be used only by the military forces, 
police, or other security personnel of Afghanistan, the contracting 
officer shall--
    (1) Determine in writing that the product or service is to be used 
only by the military forces, police, or other security personnel of 
Afghanistan; and
    (2) Include the written determination in the contract file.
    (b) For products or services not limited to use by the military 
forces, police, or other security personnel of Afghanistan, the 
following requirements apply:
    (1) The appropriate official specified in paragraph (b)(2) of this 
subsection must determine in writing that it is in the national security 
interest of the United States to use a procedure specified in 225.7703-
1(a), because--
    (i) The procedure is necessary to provide a stable source of jobs in 
Afghanistan; and
    (ii) Use of the procedure will not adversely affect--
    (A) Operations in Afghanistan (including security, transition, 
reconstruction, and humanitarian relief activities); or
    (B) The U.S. industrial base. The authorizing official generally may 
presume that there will not be an adverse effect on the U.S. industrial 
base. However, when in doubt, the authorizing official should coordinate 
with the applicable subject matter expert specified in PGI 225.7703-
2(b).
    (2) Determinations may be made for an individual acquisition or a 
class of acquisitions meeting the criteria in paragraph (b)(1) of this 
subsection as follows:
    (i) The head of the contacting activity is authorized to make a 
determination that applies to an individual acquisition with a value of 
less than $100 million.
    (ii) The Principal Director, Defense Pricing and Contracting, and 
the following officials, without power of redelegation, are authrized to 
make a determination that applies to an individual acquisition with a 
value of $100 million or more or to a class of acquisitions:
    (A) Defense Logistics Agency Component Acquisition Executive.
    (B) Army Acquisition Executive.
    (C) Navy Acquisition Executive.
    (D) Air Force Acquisition Executive.
    (E) Commander of the United States Central Command Joint Theater 
Support Contracting Command (C-JTSCC).
    (3) The contracting officer--
    (i) Shall include the applicable written determination in the 
contract file; and
    (ii) Shall ensure that each contract action taken pursuant to the 
authority of a class determination is within the scope of the class 
determination, and shall document the contract file for each action 
accordingly.

[[Page 232]]

    (c) See PGI 225.7703-2(c) for formats for use in preparation of the 
determinations required by this subsection.

[73 FR 53153, Sept. 15, 2008, as amended at 75 FR 18039, Apr. 8, 2010; 
75 FR 45074, Aug. 2, 2010; 78 FR 59858, Sept. 30, 2013; 80 FR 36905, 
June 26, 2015; 85 FR 61504, Sept. 29, 2020]



225.7703-3  Evaluating offers.

    Evaluate offers submitted in response to solicitations that include 
the provision at 252.225-7023, Preference for Products or Services from 
Afghanistan, as follows:
    (a) If the low offer is an offer of a product or service from 
Afghanistan, award on that offer.
    (b) If there are no offers of a product or service from Afghanistan, 
award on the low offer.
    (c) Otherwise, apply the evaluation factor specified in the 
solicitation to the low offer.
    (1) If the price of the low offer of a product or service from 
Afghanistan is less than the evaluated price of the low offer, award on 
the low offer of a product or service from Afghanistan.
    (2) If the evaluated price of the low offer remains less than the 
low offer of a product or service from Afghanistan, award on the low 
offer.

[78 FR 59858, Sept. 30, 2013, as amended at 79 FR 56278, Sept. 19, 2014; 
80 FR 72607, Nov. 20, 2015]



225.7703-4  Solicitation provisions and contract clauses.

    (a) Use the provision at 252.225-7023, Preference for Products or 
Services from Afghanistan, in solicitations, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items, 
that provide a preference for products or services from Afghanistan in 
accordance with 225.7703-1(a)(1). The contracting officer may modify the 
50 percent evaluation factor in accordance with contracting office 
procedures.
    (b) Use the clause at 252.225-7024, Requirement for Products or 
Services from Afghanistan, in solicitations, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items, 
that include the provision at 252.225-7023, Preference for Products or 
Services from Afghanistan, and in the resulting contract.
    (c) Use the clause at 252.225-7026, Acquisition Restricted to 
Products or Services from Afghanistan, in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, that--
    (1) Are restricted to the acquisition of products or services from 
Afghanistan in accordance with 225.7703-1(a)(2); or
    (2) Will be directed to a particular source or sources from 
Afghanistan in accordance with 225.7703-1(a)(3).
    (d) Use the clause at 252.225-7029, Acquisition of Uniform 
Components for Afghan Military or Afghan National Police, in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, for the 
acquisition of any textile components that DoD intends to supply to the 
Afghan National Army or the Afghan National Police for purposes of 
production of uniforms.
    (e) When the Trade Agreements Act applies to the acquisition, use 
the appropriate clause and provision as prescribed at 225.1101 (5) and 
(6).
    (f) Do not use any of the following provisions or clauses in 
solicitations or contracts that include the provision at 252.225-7023, 
the clause at 252.225-7024, or the clause at 252.225-7026:
    (1) 252.225-7000, Buy American--Balance of Payments Program 
Certificate.
    (2) 252.225-7001, Buy American and Balance of Payments Program.
    (3) 252.225-7002, Qualifying Country Sources as Subcontractors.
    (4) 252.225-7035, Buy American--Free Trade Agreements--Balance of 
Payments Program Certificate.
    (5) 252.225-7036, Buy American--Free Trade Agreements--Balance of 
Payments Program.
    (6) 252.225-7044, Balance of Payments Program--Construction 
Material.
    (7) 252.225-7045, Balance of Payments Program--Construction Material 
Under Trade Agreements.
    (g) Do not use the following clause or provision in solicitations or 
contracts that include the clause at 252.225-7026:
    (1) 252.225-7020, Trade Agreements Certificate.

[[Page 233]]

    (2) 252.225-7021, Trade Agreements.

[78 FR 59858, Sept. 30, 2013, as amended at 84 FR 12140, Apr. 1, 2019]



225.7704  Acquisitions of products and services from South Caucasus
/Central and South Asian (SC/CASA) state in support of operations
in Afghanistan.



225.7704-1  Applicability of trade agreements.

    As authorized by the United States Trade Representative, the 
Secretary of Defense has waived the prohibition in section 302(a) of the 
Trade Agreements Act (see subpart 225.4) for acquisitions by DoD, and by 
GSA on behalf of DoD, of products and services from SC/CASA states in 
direct support of operations in Afghanistan.

[75 FR 81918, Dec. 29, 2010]



225.7704-2  Applicability of Balance of Payments Program.

    The Deputy Secretary of Defense has determined, because of 
importance to national security, that it would be inconsistent with the 
public interest to apply the provisions of the Balance of Payments 
Program (see subpart 225.75) to offers of end products other than arms, 
ammunition, and war materials (i.e., end products listed in 225.401-70) 
and construction materials from the SC/CASA states that are being 
acquired by or on behalf of DoD in direct support of operations in 
Afghanistan.

[75 FR 81918, Dec. 29, 2010]



225.7704-3  Solicitation provisions and contract clauses.

    Appropriate solicitation provisions and contract clauses are 
prescribed as alternates to the Buy American-Trade Agreements-Balance of 
Payments Program solicitation provisions and contract clauses prescribed 
at 225.1101 and 225.7503.

[75 FR 81918, Dec. 29, 2010]



225.7705  Prohibition on use of funds for contracts of certain 
programs and projects in Afghanistan that cannot be safely accessed.

    Source: 83 FR 16004, Apr. 13, 2018, unless otherwise noted.
    This section implements section 1216 of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328).



225.7705-1  Prohibition.

    The contracting officer shall not obligate or expend funds for a 
construction or other infrastructure program or project of the 
Department in Afghanistan if military or civilian personnel of the 
United States Government or their representatives, with authority to 
conduct oversight of such program or project, cannot safely access such 
program or project. In limited circumstances, this prohibition may be 
waived in accordance with section 225.7705-2.



225.7705-2  Waiver of prohibition.

    (a) The prohibition in 225.7705-1 may be waived upon issuance of a 
determination, approved in accordance with paragraph (b) of this 
section, that--
    (1) The program or project clearly contributes to United States 
national interests or strategic objectives;
    (2) The Government of Afghanistan has requested or expressed a need 
for the program or project;
    (3) The program or project has been coordinated with the Government 
of Afghanistan, and with any other implementing agencies or 
international donors;
    (4) Security conditions permit effective implementation and 
oversight of the program or project;
    (5) Safeguards to detect, deter, and mitigate corruption and waste, 
fraud, and abuse of funds are in place;
    (6) Adequate arrangements have been made for the sustainment of the 
program or project following its completion, including arrangements with 
respect to funding and technical capacity for sustainment; and
    (7) Meaningful metrics have been established to measure the progress 
and effectiveness of the program or project in meeting its objectives.
    (b) The following officials are authorized to approve the 
determination described in paragraph (a) of this section:
    (1) In the case of a program or project with an estimated lifecycle 
cost of less than $1 million, by the contracting officer.

[[Page 234]]

    (2) In the case of a program or project with an estimated lifecycle 
cost of $1 million or more, but less than $20 million, by the senior 
U.S. officer in the Combined Security Transition Command-Afghanistan.
    (3) In the case of a program or project with an estimated lifecycle 
cost of $20 million or more, but less than $40 million, by the Commander 
of United States Forces-Afghanistan.
    (4) In the case of a program or project with an estimated lifecycle 
cost of $40 million or more, by the Secretary of Defense.
    (c) Congressional notification is required within 15 days of 
issuance of a determination to waive the prohibition for programs or 
projects valued at $40 million or more in accordance with paragraph 
(b)(4) of this section.



225.7705-3  Procedures.

    (a) The contracting officer shall not obligate or expend funds for 
contracts for a construction or other infrastructure program or project 
in Afghanistan, awarded after December 23, 2016, unless the requiring 
activity provides the following documentation:
    (1) Written affirmation that military or civilian personnel of the 
United States Government or their representatives, with authority to 
conduct oversight of such program or project, can safely access such 
program or project; or
    (2)(i) For programs or projects valued at less than $1 million, 
sufficient information upon which to base the determination described in 
225.7705-2(a); or
    (ii)(A) For programs or projects valued at $1 million or more, a 
copy of the approved determination described in 225.7705-2(a) and (b); 
and
    (B) For programs or projects valued at $40 million or more, a copy 
of the Congressional notification described in 225.7705-2(c).
    (b) After contract award, the contracting officer shall review the 
requiring activity's progress reports (e.g., contracting officer's 
representative reports) that addresses whether access continues to be 
safe or security conditions continue to permit effective implementation 
and oversight of the contract. If the requiring activity does not affirm 
continued safe access or, if a determination to waive the prohibition 
has been approved, that security conditions continue to permit effective 
implementation and oversight of the contract, then the contracting 
officer shall consult with the requiring activity to take any 
appropriate actions.



Subpart 225.78_Acquisitions in Support of Geographic Combatant Command's 
                  Theater Security Cooperation Efforts



Sec. 225.7801  Policy.

    For guidance on procurement support of the geographic combatant 
command's theater security cooperation efforts, see PGI 225.78.

[76 FR 27274, May 11, 2011]



                      Subpart 225.79_EXPORT CONTROL

    Source: 78 FR 36110, June 17, 2013, unless otherwise noted.



225.7900  Scope of subpart.

    This subpart implements--
    (a) Section 890(a) of the National Defense Authorization Act for 
Fiscal Year 2008 (Pub. L. 110-181); and
    (b) The requirements regarding export control of Title I of the 
Security Cooperation Act of 2010 (Pub. L. 111-266); the Treaty Between 
the Government of the United States of America and the Government of 
Australia Concerning Defense Trade Cooperation (the U.S.-Australia DTC 
Treaty); and the Treaty Between the Government of the United States of 
America and the Government the United Kingdom of Great Britain and 
Northern Ireland Concerning Defense Trade Cooperation (the U.S.-U.K. DTC 
Treaty). See PGI 225.7902 for additional information.



225.7901  Export-controlled items.

    This section implements section 890(a) of the National Defense 
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).



225.7901-1  Definitions.

    ``Export-controlled items,'' as used in this section, is defined in 
the clause at 252.225-7048.

[[Page 235]]



225.7901-2  General.

    Certain types of items are subject to export controls in accordance 
with the Arms Export Control Act (22 U.S.C. 2751, et seq.), the 
International Traffic in Arms Regulations (22 CFR parts 120-130), the 
Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 et 
seq.), and the Export Administration Regulations (15 CFR parts 730-774). 
See PGI 225.7901-2 for additional information.



225.7901-3  Policy.

    (a) It is in the interest of both the Government and the contractor 
to be aware of export controls as they apply to the performance of DoD 
contracts.
    (b) It is the contractor's responsibility to comply with all 
applicable laws and regulations regarding export-controlled items. This 
responsibility exists independent of, and is not established or limited 
by, this section.



225.7901-4  Contract clause.

    Use the clause at 252.225-7048, Export-Controlled Items, in all 
solicitations and contracts.



225.7902  Defense Trade Cooperation Treaties.

    This section implements the Defense Trade Cooperation (DTC) Treaties 
with Australia and the United Kingdom and the associated Implementing 
Arrangements for DoD solicitations and contracts that authorize 
prospective contractors and contractors to use the DTC Treaties to 
respond to DoD solicitations and in the performance of DoD contracts.



225.7902-1  Definitions.

    ``Approved community,'' ``defense articles,'' ``Defense Trade 
Cooperation (DTC) Treaty'', ``export,'' ``Implementing Arrangement,'' 
``qualifying defense articles,'' ``transfer,'' and ``U.S. DoD Treaty-
eligible requirements'' are defined in contract clause DFARS 252.225-
7047, Exports by Approved Community Members in Performance of the 
Contract.



225.7902-2  Purpose.

    The DTC Treaties permit the export of certain U.S. defense articles, 
technical data, and defense services, without U.S. export licenses or 
other written authorization under the International Traffic in Arms 
Regulation (ITAR) into and within the Approved Community, as long as the 
exports are in support of purposes specified in the DTC Treaties. All 
persons must continue to comply with statutory and regulatory 
requirements outside of DFARS and ITAR concerning the import of defense 
articles and defense services or the possession or transfer of defense 
articles, including, but not limited to, regulations issued by the 
Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 CFR 
parts 447, 478, and 479, which are unaffected by the DTC Treaties. The 
Approved Community consists of U.S. entities that are registered with 
the Department of State and are eligible exporters, the U.S. Government, 
and certain governmental and commercial facilities in Australia and the 
United Kingdom that are approved and listed by the U.S. Government. See 
PGI 225.7902-2 for additional information.



225.7902-3  Policy.

    DoD will facilitate maximum use of the DTC Treaties by prospective 
contractors responding to DoD solicitations and by contractors eligible 
to export qualifying defense articles under DoD contracts in accordance 
with 22 CFR 126.16(g) and 22 CFR 126.17(g).



225.7902-4  Procedures.

    (a) For all solicitations and contracts that may be eligible for DTC 
Treaty coverage (see PGI 225.7902-4(1)), the program manager shall 
identify in writing and submit to the contracting officer prior to 
issuance of a solicitation and prior to award of a contract--
    (1) The qualifying DTC Treaty Scope paragraph (Article 3(1)(a), 
3(1)(b), or 3(1)(d) of the U.S.-Australia DTC Treaty or Article 
(3)(1)(a), (3(1)(b), or 3(1)(d) of the U.S.-U.K. DTC Treaty); and
    (2) The qualifying defense article(s) using the categories described 
in 22 CFR 126.16(g) and 22 CFR 126.17(g).
    (b) If applicable, the program manager shall also identify in 
writing and submit to the contracting officer any specific Part C, DTC 
Treaty-exempted

[[Page 236]]

technology list items, terms and conditions for applicable contract line 
item numbers (See PGI 225.7902-4(2)).



225.7902-5  Solicitation provision and contract clause.

    (a) Use the provision at 252.225-7046, Exports by Approved Community 
Members in Response to the Solicitation, in solicitations containing the 
clause at 252.225-7047.
    (b)(1) Use the clause at 252.225-7047, Exports by Approved Community 
Members in Performance of the Contract, in solicitations and contracts 
when--
    (i) Export-controlled items are expected to be involved in the 
performance of the contract and the clause at 252.225-7048 is used; and
    (ii) At least one contract line item is intended to satisfy a U.S. 
DoD Treaty-eligible requirement.
    (2) The contracting officer shall complete paragraph (b) of the 
clause using information the program manager provided as required by 
225.7902-4(a).

[78 FR 36110, June 17, 2013, as amended at 78 FR 38235, June 26, 2013; 
78 FR 40043, July 3, 2013]



PART 226_OTHER SOCIOECONOMIC PROGRAMS--Table of Contents



                 Subpart 226.1_Indian Incentive Program

Sec.
226.103 Procedures.
226.104 Contract clause.

Subpart 226.70 [Reserved]

        Subpart 226.71_Preference for Local and Small Businesses

226.7100 Scope of subpart.
226.7101 Definition.
226.7102 Policy.
226.7103 Procedure.
226.7104 Other considerations.

 Subpart 226.72_Demonstration Project for Contractors Employing Persons 
                            With Disabilities

226.7200 Scope of subpart.
226.7201 Definitions.
226.7202 Policy and procedures.
226.7203 Solicitation provision.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36388, July 31, 1991, unless otherwise noted.



                 Subpart 226.1_Indian Incentive Program



226.103  Procedures.

    Follow the procedures at PGI 226.103 when submitting a request for 
funding of an Indian incentive.

[70 FR 73149, Dec. 9, 2005]



226.104  Contract clause.

    Use the clause at 252.226-7001, Utilization of Indian Organizations, 
Indian-Owned Economic Enterprises, and Native Hawaiian Small Business 
Concerns, in solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of commercial 
items, that are for supplies or services exceeding $500,000 in value.

[68 FR 56562, Oct. 1, 2003, as amended at 69 FR 55991, Sept. 17, 2004; 
78 FR 37988, June 25, 2013]

Subpart 226.70 [Reserved]



        Subpart 226.71_Preference for Local and Small Businesses

    Source: 59 FR 12192, Mar. 16, 1994, unless otherwise noted.



226.7100  Scope of subpart.

    This subpart implements section 2912 of the Fiscal Year 1994 Defense 
Authorization Act (Pub. L. 103-160) and section 817 of the Fiscal Year 
1995 Defense Authorization Act (Pub. L. 103-337).

[60 FR 5870, Jan. 31, 1995]



226.7101  Definition.

    Vicinity, as used in this subpart, means the county or counties in 
which the military installation to be closed or realigned is located and 
all adjacent counties, unless otherwise defined by the agency head.

[60 FR 29499, June 5, 1995]



226.7102  Policy.

    Businesses located in the vicinity of a military installation that 
is being closed or realigned under a base closure law, including 10 
U.S.C. 2687, and small

[[Page 237]]

and small disadvantaged businesses shall be provided maximum practicable 
opportunity to participate in acquisitions that support the closure or 
realignment, including acquisitions for environmental restoration and 
mitigation.



226.7103  Procedure.

    In considering acquisitions for award through the section 8(a) 
program (subpart 219.8 and FAR subpart 19.8) or in making set-aside 
decisions under subpart 219.5 and FAR subpart 19.5 for acquisitions in 
support of a base closure or realignment, the contracting officer 
shall--
    (a) Determine whether there is a reasonable expectation that offers 
will be received from responsible business concerns located in the 
vicinity of the military installation that is being closed or realigned.
    (b) If offers can not be expected from business concerns in the 
vicinity, proceed with section 8(a) or set-aside consideration as 
otherwise indicated in part 219 and FAR part 19.
    (c) If offers can be expected from business concerns in the 
vicinity--
    (1) Consider section 8(a) only if at least one eligible 8(a) 
contractor is located in the vicinity.
    (2) Set aside the acquisition for small business only if at least 
one of the expected offers is from a small business located in the 
vicinity.

[60 FR 29499, June 5, 1995, as amended at 63 FR 41974, Aug. 6, 1998; 67 
FR 11438, Mar. 14, 2002]



226.7104  Other considerations.

    When planning for contracts for services related to base closure 
activities at a military installation affected by a closure or 
realignment under a base closure law, contracting officers shall 
consider including, as a factor in source selection, the extent to which 
offerors specifically identify and commit, in their proposals, to a plan 
to hire residents of the vicinity of the military installation that is 
being closed or realigned.

[60 FR 61598, Nov. 30, 1995]



 Subpart 226.72_Demonstration Project for Contractors Employing Persons 
                            With Disabilities

    Source: 84 FR 72560, Dec. 31, 2019, unless otherwise noted.



226.7200  Scope of subpart.

    This subpart implements section 853 of the National Defense 
Authorization Act for Fiscal Year 2004 (Pub. L. 108-136, 10 U.S.C. 2302 
note). Nothing in this subpart supersedes the requirement to use the 
mandatory sources in FAR part 8 or the small business programs in FAR 
part 19.



226.7201  Definitions.

    As used in this subpart--
    Eligible contractor means a business entity operated on a for-profit 
or nonprofit basis that--
    (1) Employs severely disabled individuals at a rate that averages 
not less than 33 percent of its total workforce over the 12-month period 
prior to issuance of the solicitation;
    (2) Pays not less than the minimum wage prescribed pursuant to 29 
U.S.C. 206 to the employees who are severely disabled individuals; and
    (3) Provides, for its employees, health insurance and a retirement 
plan comparable to those provided for employees by business entities of 
similar size in its industrial sector or geographic region.
    Severely disabled individual means an individual with a disability 
(as defined in 42 U.S.C. 12102) who has a severe physical or mental 
impairment that seriously limits one or more functional capacities.



226.7202  Policy and procedures.

    (a)(1) Contracting officers may use this Demonstration Project to 
award one or more contracts to an eligible contractor for the purpose of 
providing defense contracting opportunities for entities that employ 
severely disabled individuals. To determine if there are eligible 
contractors capable of fulfilling the agency's requirement, conduct 
market research as described in 210.002 and FAR 10.002. For services, 
see also PGI 210.070.

[[Page 238]]

    (2) If the contracting officer elects to use this Demonstration 
Project, FAR 6.302-5 requires a written justification and approval to 
limit competition to eligible contractors. In the justification, 
identify the statutory authority for the Demonstration Project (10 
U.S.C. 2302 note).
    (b) When using this Demonstration Project, one of the evaluation 
factors shall be the percentage of the offeror's total workforce that 
consists of severely disabled individuals employed by the offeror. 
Contracting officers may use a rating method in which a higher 
percentage of the offeror's total workforce consisting of severely 
disabled individuals would result in a higher rating for this evaluation 
factor.
    (c)(1) Contracts awarded to eligible contractors under this 
Demonstration Project shall be counted toward DoD's small disadvantaged 
business goal. The contractor must be an eligible contractor when 
options under the contract are exercised, in order for DoD to continue 
to receive credit for the contract toward its small disadvantaged 
business goal.
    (2) Contracting officers shall verify the contractor's 
representation (e.g., by checking the System for Award Management) prior 
to exercising an option on a contract awarded under the Demonstration 
Project. Contracting officers may exercise the option if the contractor 
has represented that it is not an eligible contractor; however, the 
contract shall no longer be counted toward DoD's small disadvantaged 
business goal.



226.7203  Solicitation provision.

    Use the provision at 252.226-7002, Representation for Demonstration 
Project for Contractors Employing Persons with Disabilities, in 
solicitations when using this Demonstration Project, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items.

[[Page 239]]



              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS





PART 227_PATENTS, DATA, AND COPYRIGHTS--Table of Contents



         Subpart 227.3_Patent Rights Under Government Contracts

Sec.
227.303 Contract clauses.
227.304 Procedures.
227.304-1 General.

               Subpart 227.4_Rights in Data and Copyrights

227.400 Scope of subpart.

    Subpart 227.6_Foreign License and Technical Assistance Agreements

227.670 Scope.
227.671 General.
227.672 Policy.
227.673 Foreign license and technical assistance agreements between the 
          Government and domestic concerns.
227.674 Supply contracts between the Government and a foreign government 
          or concern.
227.675 Foreign license and technical assistance agreements between a 
          domestic concern and a foreign government or concern.
227.675-1 International Traffic in Arms Regulations.
227.675-2 Review of agreements.
227.676 Foreign patent interchange agreements.

      Subpart 227.70_Infringement Claims, Licenses, and Assignments

227.7000 Scope.
227.7001 Policy.
227.7002 Statutes pertaining to administrative claims of infringement.
227.7003 Claims for copyright infringement.
227.7004 Requirements for filing an administrative claim for patent 
          infringement.
227.7005 Indirect notice of patent infringement claims.
227.7006 Investigation and administrative disposition of claims.
227.7007 Notification and disclosure to claimants.
227.7008 Settlement of indemnified claims.
227.7009 Patent releases, license agreements, and assignments.
227.7009-1 Required clauses.
227.7009-2 Clauses to be used when applicable.
227.7009-3 Additional clauses--contracts except running royalty 
          contracts.
227.7009-4 Additional clauses--contracts providing for payment of a 
          running royalty.
227.7010 Assignments.
227.7011 Procurement of rights in inventions, patents, and copyrights.
227.7012 Contract format.
227.7013 Recordation.

                 Subpart 227.71_Rights in Technical Data

227.7100 Scope of subpart.
227.7101 Definitions.
227.7102 Commercial items, components, or processes.
227.7102-1 Policy.
227.7102-2 Rights in technical data.
227.7102-3 Government right to review, verify, challenge and validate 
          asserted restrictions.
227.7102-4 Contract clauses.
227.7103 Noncommercial items or processes.
227.7103-1 Policy.
227.7103-2 Acquisition of technical data.
227.7103-3 Early identification of technical data to be furnished to the 
          Government with restrictions on use, reproduction or 
          disclosure.
227.7103-4 License rights.
227.7103-5 Government rights.
227.7103-6 Contract clauses.
227.7103-7 Use and non-disclosure agreement.
227.7103-8 Deferred delivery and deferred ordering of technical data.
227.7103-9 Copyright.
227.7103-10 Contractor identification and marking of technical data to 
          be furnished with restrictive markings.
227.7103-11 Contractor procedures and records.
227.7103-12 Government right to establish conformity of markings.
227.7103-13 Government right to review, verify, challenge, and validate 
          asserted restrictions.
227.7103-14 Conformity, acceptance, and warranty of technical data.
227.7103-15 Subcontractor rights in technical data.
227.7103-16 Providing technical data to foreign governments, foreign 
          contractors, or international organizations.
227.7103-17 Overseas contracts with foreign sources.
227.7104 Contracts under the Small Business Innovation Research (SBIR) 
          Program.
227.7105 Contracts for the acquisition of existing works.
227.7105-1 General.
227.7105-2 Acquisition of existing works without modification.
227.7105-3 Acquisition of modified existing works.

[[Page 240]]

227.7106 Contracts for special works.
227.7107 Contracts for architect-engineer services.
227.7107-1 Architectural designs and data clauses for architect-engineer 
          or construction contracts.
227.7107-2 Contracts for construction supplies and research and 
          development work.
227.7107-3 Approval of restricted designs.
227.7108 Contractor data repositories.

    Subpart 227.72_Rights in Computer Software and Computer Software 
                              Documentation

227.7200 Scope of subpart.
227.7201 Definitions.
227.7202 Commercial computer software and commercial computer software 
          documentation.
227.7202-1 Policy.
227.7202-2 [Reserved]
227.7202-3 Rights in commercial computer software or commercial computer 
          software documentation.
227.7202-4 Contract clause.
227.7203 Noncommercial computer software and noncommercial computer 
          software documentation.
227.7203-1 Policy.
227.7203-2 Acquisition of noncommercial computer software and computer 
          software documentation.
227.7203-3 Early identification of computer software or computer 
          software documentation to be furnished to the Government with 
          restrictions on use, reproduction or disclosure.
227.7203-4 License rights.
227.7203-5 Government rights.
227.7203-6 Contract clauses.
227.7203-8 Deferred delivery and deferred ordering of computer software 
          and computer software documentation.
227.7203-9 Copyright.
227.7203-10 Contractor identification and marking of computer software 
          or computer software documentation to be furnished with 
          restrictive markings.
227.7203-11 Contractor procedures and records.
227.7203-12 Government right to establish conformity of markings.
227.7203-13 Government right to review, verify, challenge, and validate 
          asserted restrictions.
227.7203-14 Conformity, acceptance, and warranty of computer software 
          and computer software documentation.
227.7203-15 Subcontractor rights in computer software or computer 
          software documentation.
227.7203-16 Providing computer software or computer software 
          documentation to foreign governments, foreign contractors, or 
          international organizations.
227.7203-17 Overseas contracts with foreign sources.
227.7204 Contracts under the Small Business Innovative Research Program.
227.7205 Contracts for special works.
227.7206 Contracts for architect-engineer services.
227.7207 Contractor data repositories.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36389, July 31, 1991, unless otherwise noted.



         Subpart 227.3_Patent Rights Under Government Contracts



227.303  Contract clauses.

    (1) Use the clause at 252.227-7039, Patents--Reporting of Subject 
Inventions, in solicitations and contracts containing the clause at FAR 
52.227-11, Patent Rights--Ownership by the Contractor.
    (2)(i) Use the clause at 252.227-7038, Patent Rights--Ownership by 
the Contractor (Large Business), instead of the clause at FAR 52.227-11, 
in solicitations and contracts for experimental, developmental, or 
research work if--
    (A) The contractor is other than a small business concern or 
nonprofit organization; and
    (B) No alternative patent rights clause is used in accordance with 
FAR 27.303(c) or (e).
    (ii) Use the clause with its Alternate I if--
    (A) The acquisition of patent rights for the benefit of a foreign 
government is required under a treaty or executive agreement;
    (B) The agency head determines at the time of award that it would be 
in the national interest to acquire the right to sublicense foreign 
governments or international organizations pursuant to any existing or 
future treaty or agreement; or
    (C) Other rights are necessary to effect a treaty or agreement, in 
which case Alternate I may be appropriately modified.
    (iii) Use the clause with its Alternate II in long-term contracts if 
necessary to effect treaty or agreements to be entered into.

[72 FR 69159, Dec. 7, 2007]

[[Page 241]]



227.304  Procedures.



227.304-1  General.

    Interim and final invention reports and notification of all 
subcontracts for experimental, developmental, or research work may be 
submitted on DD Form 882, Report of Inventions and Subcontracts.

[56 FR 36389, July 31, 1991, as amended at 57 FR 53600, Nov. 12, 1992; 
76 FR 76320, Dec. 7, 2011]



               Subpart 227.4_Rights in Data and Copyrights



227.400  Scope of subpart.

    DoD activities shall use the guidance in subparts 227.71 and 227.72 
instead of the guidance in FAR subpart 27.4.

[60 FR 33471, June 28, 1995]



    Subpart 227.6_Foreign License and Technical Assistance Agreements



227.670  Scope.

    This subpart prescribes policy with respect to foreign license and 
technical assistance agreements.



227.671  General.

    In furtherance of the Military Assistance Program or for other 
national defense purposes, the Government may undertake to develop or 
encourage the development of foreign additional sources of supply. The 
development of such sources may be accomplished by an agreement, often 
called a foreign licensing agreement or technical assistance agreement, 
wherein a domestic concern, referred to in this subpart as a ``primary 
source,'' agrees to furnish to a foreign concern or government, herein 
referred to as a ``second source;'' foreign patent rights; technical 
assistance in the form of data, know-how, trained personnel of the 
primary source, instruction and guidance of the personnel of the second 
source, jigs, dies, fixtures, or other manufacturing aids, or such other 
assistance, information, rights, or licenses as are needed to enable the 
second source to produce particular supplies or perform particular 
services. Agreements calling for one or more of the foregoing may be 
entered into between the primary source and the Government, a foreign 
government, or a foreign concern. The consideration for providing such 
foreign license and technical assistance may be in the form of a lump 
sum payment, payments for each item manufactured by the second source, 
an agreement to exchange data and patent rights on improvements made to 
the article or service, capital stock transactions, or any combination 
of these. The primary source's bases for computing such consideration 
may include actual costs; charges for the use of patents, data, or know-
how reflecting the primary source's investment in developing and 
engineering and production techniques; and the primary source's 
``price'' for setting up a second source. Such agreements often refer to 
the compensation to be paid as a royalty or license fee whether or not 
patent rights are involved.



227.672  Policy.

    It is Government policy not to pay in connection with its contracts, 
and not to allow to be paid in connection with contracts made with funds 
derived through the Military Assistance Program or otherwise through the 
United States Government, charges for use of patents in which it holds a 
royalty-free license or charges for data which it has a right to use and 
disclose to others, or which is in the public domain, or which the 
Government has acquired without restriction upon its use and disclosure 
to others. This policy shall be applied by the Departments in 
negotiating contract prices for foreign license technical assistance 
contracts (227.675) or supply contracts with second sources (227.674); 
and in commenting on such agreements when they are referred to the 
Department of Defense by the Department of State pursuant to section 414 
of the Mutual Security Act of 1954 as amended (22 U.S.C. 1934) and the 
International Traffic in Arms Regulations (see 227.675).

[[Page 242]]



227.673  Foreign license and technical assistance agreements between the Government and domestic concerns.

    (a) Contracts between the Government and a primary source to provide 
technical assistance or patent rights to a second source for the 
manufacture of supplies or performance of services shall, to the extent 
practicable, specify the rights in patents and data and any other rights 
to be supplied to the second source. Each contract shall provide, in 
connection with any separate agreement between the primary source and 
the second source for patent rights or technical assistance relating to 
the articles or services involved in the contract, that--
    (1) The primary source and his subcontractors shall not make, on 
account of any purchases by the Government or by others with funds 
derived through the Military Assistance Program or otherwise through the 
Government, any charge to the second source for royalties or 
amortization for patents or inventions in which the Government holds a 
royalty-free license; or data which the Government has the right to 
possess, use, and disclose to others; or any technical assistance 
provided to the second source for which the Government has paid under a 
contract between the Government and the primary source; and
    (2) The separate agreement between the primary and second source 
shall include a statement referring to the contract between the 
Government and the primary source, and shall conform to the requirements 
of the International Traffic in Arms Regulations (see 227.675-1).
    (b) The following factors, among others, shall be considered in 
negotiating the price to be paid the primary source under contracts 
within (a) of this section:
    (1) The actual cost of providing data, personnel, manufacturing 
aids, samples, spare parts, and the like;
    (2) The extent to which the Government has contributed to the 
development of the supplies or services, and to the methods of 
manufacture or performance, through past contracts for research and 
development or for manufacture of the supplies or performance of the 
services; and
    (3) The Government's patent rights and rights in data relating to 
the supplies or services and to the methods of manufacture or of 
performance.



227.674  Supply contracts between the Government and a foreign 
government or concern.

    In negotiating contract prices with a second source, including the 
redetermination of contract prices, or in determining the allowability 
of costs under a cost-reimbursement contract with a second source, the 
contracting officer:
    (a) Shall obtain from the second source a detailed statement (see 
FAR 27.204-1(a)(2)) of royalties, license fees, and other compensation 
paid or to be paid to a primary source (or any of his subcontractors) 
for patent rights, rights in data, and other technical assistance 
provided to the second source, including identification and description 
of such patents, data, and technical assistance; and
    (b) Shall not accept or allow charges which in effect are--
    (1) For royalties or amortization for patents or inventions in which 
the Government holds a royalty-free license; or
    (2) For data which the Government has a right to possess, use, and 
disclose to others; or
    (3) For any technical assistance provided to the second source for 
which the Government has paid under a contract between the Government 
and a primary source.



227.675  Foreign license and technical assistance agreements between 
a domestic concern and a foreign government or concern.



227.675-1  International Traffic in Arms Regulations.

    Pursuant to section 414 of the Mutual Security Act of 1954, as 
amended (22 U.S.C. 1934), the Department of State controls the 
exportation of data relating to articles designated in the United States 
Munitions List as arms, ammunition, or munitions of war. (The Munitions 
List and pertinent procedures are set forth in the International Traffic 
in

[[Page 243]]

Arms Regulations, 22 CFR, et seq.) Before authorizing such exportation, 
the Department of State generally requests comments from the Department 
of Defense. On request of the Office of the Assistant Secretary of 
Defense (International Security Affairs), each Department shall submit 
comments thereon as the basis for a Department of Defense reply to the 
Department of State.



227.675-2  Review of agreements.

    (a) In reviewing foreign license and technical assistance agreements 
between primary and second sources, the Department concerned shall, 
insofar as its interests are involved, indicate whether the agreement 
meets the requirements of Sec. Sec. 124.07-124.10 of the International 
Traffic in Arms Regulations or in what respects it is deficient. 
Paragraphs (b) through (g) of this subsection provide general guidance.
    (b) When it is reasonably anticipated that the Government will 
purchase from the second source the supplies or services involved in the 
agreement, or that Military Assistance Program funds will be provided 
for the procurement of the supplies or services, the following guidance 
applies.
    (1) If the agreement specifies a reduction in charges thereunder, 
with respect to purchases by or for the Government or by others with 
funds derived through the Military Assistance Program or otherwise 
through the Government, in recognition of the Government's rights in 
patents and data, the Department concerned shall evaluate the amount of 
the reduction to determine whether it is fair and reasonable in the 
circumstances, before indicating its approval.
    (2) If the agreement does not specify any reduction in charges or 
otherwise fails to give recognition to the Government's rights in the 
patents or data involved, approval shall be conditioned upon amendment 
of the agreement to reflect a reduction, evaluated by the Department 
concerned as acceptable to the Government, in any charge thereunder with 
respect to purchases made by or for the Government or by others with 
funds derived through the Military Assistance Program or otherwise 
through the Government, in accordance with Sec. 124.10 of the 
International Traffic in Arms Regulations.
    (3) If the agreement provides that no charge is to be made to the 
second source for data or patent rights to the extent of the 
Government's rights, the Department concerned shall evaluate the 
acceptability of the provision before indicating its approval.
    (4) If time or circumstances do not permit the evaluation called for 
in (b) (1), (2), or (3) of this subsection, the guidance in (c) of this 
subsection shall be followed.
    (c) When it is not reasonably anticipated that the Government will 
purchase from the second source the supplies or services involved in the 
agreement nor that Military Assistance Program funds will be provided 
for the purchase of the supplies or services, then the following 
guidance applies.
    (1) If the agreement provides for charges to the second source for 
data or patent rights, it may suffice to fulfill the requirements of 
Sec. 124.10 insofar as the Department of Defense is concerned if:
    (i) The agreement requires the second source to advise the primary 
source when he has knowledge of any purchase made or to be made from him 
by or for the Government or by others with funds derived through the 
Military Assistance Program or otherwise through the Government;
    (ii) The primary source separately agrees with the Government that 
upon such advice to him from the second source or from the Government or 
otherwise as to any such a purchase or prospective purchase, he will 
negotiate with the Department concerned an appropriate reduction in his 
charges to the second source in recognition of any Government rights in 
patents or data; and
    (iii) The agreement between the primary and second sources further 
provides that in the event of any such purchase and resulting reduction 
in charges, the second source shall pass on this reduction to the 
Government by giving the Government a corresponding reduction in the 
purchase price of the article or service.
    (2) If the agreement provides that no charge is to be made to the 
second source for data or patent rights to the

[[Page 244]]

extent to which the Government has rights, the Department concerned 
shall:
    (i) Evaluate the acceptability of the provision before indicating 
its approval; or
    (ii) Explicitly condition its approval on the right to evaluate the 
acceptability of the provision at a later time.
    (d) When there is a technical assistance agreement between the 
primary source and the Government related to the agreement between the 
primary and second sources that is under review, the latter agreement 
shall reflect the arrangements contemplated with respect thereto by the 
Government's technical assistance agreement with the primary source.
    (e) Every agreement shall provide that any license rights 
transferred under the agreement are subject to existing rights of the 
Government.
    (f) In connection with every agreement referred to in (b) of this 
section, a request shall be made to the primary source--
    (1) To identify the patents, data, and other technical assistance to 
be provided to the second source by the primary source or any of his 
subcontractors,
    (2) To identify any such patents and data in which, to the knowledge 
of the primary source, the Government may have rights, and
    (3) To segregate the charges made to the second source for each such 
category or item of patents, data, and other technical assistance.

Reviewing personnel shall verify this information or, where the primary 
source does not furnish it, obtain such information from Governmental 
sources so far as practicable.
    (g) The Department concerned shall make it clear that its approval 
of any agreement does not necessarily recognize the propriety of the 
charges or the amounts thereof, or constitute approval of any of the 
business arrangements in the agreement, unless the Department expressly 
intends by its approval to commit itself to the fairness and 
reasonableness of a particular charge or charges. In any event, a 
disclaimer should be made to charges or business terms not affecting any 
purchase made by or for the Government or by others with funds derived 
through the Military Assistance Program or otherwise through the 
Government.



227.676  Foreign patent interchange agreements.

    (a) Patent interchange agreements between the United States and 
foreign governments provide for the use of patent rights, compensation, 
free licenses, and the establishment of committees to review and make 
recommendations on these matters. The agreements also may exempt the 
United States from royalty and other payments. The contracting officer 
shall ensure that royalty payments are consistent with patent 
interchange agreements.
    (b) Assistance with patent rights and royalty payments in the United 
States European Command (USEUCOM) area of responsibility is available 
from HQ USEUCOM, ATTN: ECLA, Unit 30400, Box 1000, APO AE 09128; 
Telephone: DSN 430-8001/7263, Commercial 49-0711-680-8001/7263; Telefax: 
49-0711-680-5732.

[62 FR 34125, June 24, 1997, as amended at 63 FR 11534, Mar. 9, 1998]



      Subpart 227.70_Infringement Claims, Licenses, and Assignments



227.7000  Scope.

    This subpart prescribes policy, procedures, and instructions for use 
of clauses with respect to processing licenses, assignments, and 
infringement claims.



227.7001  Policy.

    Whenever a claim of infringement of privately owned rights in 
patented inventions or copyrighted works is asserted against any 
Department or Agency of the Department of Defense, all necessary steps 
shall be taken to investigate, and to settle administratively, deny, or 
otherwise dispose of such claim prior to suit against the United States. 
This subpart 227.70 does not apply to licenses or assignments acquired 
by the Department of Defense under the Patent Rights clauses.

[[Page 245]]



227.7002  Statutes pertaining to administrative claims of infringement.

    Statutes pertaining to administrative claims of infringement in the 
Department of Defense include the following: the Foreign Assistance Act 
of 1961, 22 U.S.C. 2356 (formerly the Mutual Security Acts of 1951 and 
1954); the Invention Secrecy Act, 35 U.S.C. 181-188; 10 U.S.C. 2386; 28 
U.S.C. 1498; and 35 U.S.C. 286.



227.7003  Claims for copyright infringement.

    The procedures set forth herein will be followed, where applicable, 
in copyright infringement claims.



227.7004  Requirements for filing an administrative claim for patent
infringement.

    (a) A patent infringement claim for compensation, asserted against 
the United States under any of the applicable statutes cited in 
227.7002, must be actually communicated to and received by a Department, 
agency, organization, office, or field establishment within the 
Department of Defense. Claims must be in writing and should include the 
following:
    (1) An allegation of infringement;
    (2) A request for compensation, either expressed or implied;
    (3) A citation of the patent or patents alleged to be infringed;
    (4) A sufficient designation of the alleged infringing item or 
process to permit identification, giving the military or commercial 
designation, if known, to the claimant;
    (5) A designation of at least one claim of each patent alleged to be 
infringed; or
    (6) As an alternative to (a) (4) and (5) of this section, a 
declaration that the claimant has made a bona fide attempt to determine 
the item or process which is alleged to infringe, but was unable to do 
so, giving reasons, and stating a reasonable basis for his belief that 
his patent or patents are being infringed.
    (b) In addition to the information listed in (a) of this section, 
the following material and information is generally necessary in the 
course of processing a claim of patent infringement. Claimants are 
encouraged to furnish this information at the time of filing a claim to 
permit the most expeditious processing and settlement of the claim.
    (1) A copy of the asserted patent(s) and identification of all 
claims of the patent alleged to be infringed.
    (2) Identification of all procurements known to claimant which 
involve the alleged infringing item or process, including the identity 
of the vendor or contractor and the Government procuring activity.
    (3) A detailed identification of the accused article or process, 
particularly where the article or process relates to a component or 
subcomponent of the item procured, an element by element comparison of 
the representative claims with the accused article or process. If 
available, this identification should include documentation and drawings 
to illustrate the accused article or process in suitable detail to 
enable verification of the infringement comparison.
    (4) Names and addresses of all past and present licenses under the 
patent(s), and copies of all license agreements and releases involving 
the patent(s).
    (5) A brief description of all litigation in which the patent(s) has 
been or is now involved, and the present status thereof.
    (6) A list of all persons to whom notices of infringement have been 
sent, including all departments and agencies of the Government, and a 
statement of the ultimate disposition of each.
    (7) A description of Government employment or military service, if 
any, by the inventor and/or patent owner.
    (8) A list of all Government contracts under which the inventor, 
patent owner, or anyone in privity with him performed work relating to 
the patented subject matter.
    (9) Evidence of title to the patent(s) alleged to be infringed or 
other right to make the claim.
    (10) A copy of the Patent Office file of each patent if available to 
claimant.
    (11) Pertinent prior art known to claimant, not contained in the 
Patent Office file, particularly publications and foreign art.

In addition in the foregoing, if claimant can provide a statement that 
the investigation may be limited to the

[[Page 246]]

specifically identified accused articles or processes, or to a specific 
procurement, it may materially expedite determination of the claim.
    (c) Any department receiving an allegation of patent infringement 
which meets the requirements of this paragraph shall acknowledge the 
same and supply the other departments that may have an interest therein 
with a copy of such communication and the acknowledgement thereof.
    (1) For the Department of the Army--Chief, Patents, Copyrights, and 
Trademarks Division, U.S. Army Legal Services Agency;
    (2) For the Department of the Navy--the Patent Counsel for Navy, 
Office of Naval Research;
    (3) For the Department of the Air Force--Chief, Patents Division, 
Office of the Judge Advocate General;
    (4) For the Defense Logistics Agency--the Office of Counsel;
    (5) For the National Security Agency--the General Counsel;
    (6) For the Defense Information Systems Agency--the Counsel;
    (7) For the Defense Threat Reduction Agency--the General Counsel; 
and
    (8) For the National Geospatial-Intelligence Agency--the Counsel.
    (d) If a communication alleging patent infringement is received 
which does not meet the requirements set forth in paragraph (c) of this 
section, the sender shall be advised in writing--
    (1) That his claim for infringement has not been satisfactorily 
presented, and
    (2) Of the elements considered necessary to establish a claim.
    (e) A communication making a proffer of a license in which no 
infringement is alleged shall not be considered as a claim for 
infringement.

[56 FR 36389, July 31, 1991, as amended at 56 FR 67216, Dec. 30, 1991; 
61 FR 50454, Sept. 26, 1996; 62 FR 2613, Jan. 17, 1997; 64 FR 51076, 
Sept. 21, 1999; 74 FR 42780, Aug. 25, 2009; 76 FR 3536, Jan. 20, 2011]



227.7005  Indirect notice of patent infringement claims.

    (a) A communication by a patent owner to a Department of Defense 
contractor alleging that the contractor has committed acts of 
infringement in performance of a Government contract shall not be 
considered a claim within the meaning of 227.7004 until it meets the 
requirements specified therein.
    (b) Any Department receiving an allegation of patent infringement 
which meets the requirements of 227.7004 shall acknowledge the same and 
supply the other Departments (see 227.7004(c)) which may have an 
interest therein with a copy of such communication and the 
acknowledgement thereof.
    (c) If a communication covering an infringement claim or notice 
which does not meet the requirements of 227.7004(a) is received from a 
contractor, the patent owner shall be advised in writing as covered by 
the instructions of 227.7004(d).



227.7006  Investigation and administrative disposition of claims.

    An investigation and administrative determination (denial or 
settlement) of each claim shall be made in accordance with instructions 
and procedures established by each Department, subject to the following:
    (a) When the procurement responsibility for the alleged infringing 
item or process is assigned to a single Department or only one 
Department is the purchaser of the alleged infringing item or process, 
and the funds of that Department only are to be charged in the 
settlement of the claim, that Department shall have the sole 
responsibility for the investigation and administrative determination of 
the claim and for the execution of any agreement in settlement of the 
claim. Where, however, funds of another Department are to be charged, in 
whole or in part, the approval of such Department shall be obtained as 
required by 208.7002. Any agreement in settlement of the claim, approved 
pursuant to 208.7002 shall be executed by each of the Departments 
concerned.
    (b) When two or more Departments are the respective purchasers of 
alleged infringing items or processes and the funds of those Departments 
are to be charged in the settlement of the claim, the investigation and 
administrative determination shall be the responsibility of the 
Department having the predominant financial interest in the claim or of 
the Department or Departments as jointly agreed upon by the

[[Page 247]]

Departments concerned. The Department responsible for negotiation shall, 
throughout the negotiation, coordinate with the other Departments 
concerned and keep them advised of the status of the negotiation. Any 
agreement in the settlement of the claim shall be executed by each 
Department concerned.



227.7007  Notification and disclosure to claimants.

    When a claim is denied, the Department responsible for the 
administrative determination of the claim shall so notify the claimant 
or his authorized representative and provide the claimant a reasonable 
rationale of the basis for denying the claim. Disclosure of information 
or the rationale referred to above shall be subject to applicable 
statutes, regulations, and directives pertaining to security, access to 
official records, and the rights of others.



227.7008  Settlement of indemnified claims.

    Settlement of claims involving payment for past infringement shall 
not be made without the consent of, and equitable contribution by, each 
indemnifying contractor involved, unless such settlement is determined 
to be in the best interests of the Government and is coordinated with 
the Department of Justice with a view to preserving any rights of the 
Government against the contractors involved. If consent of and equitable 
contribution by the contractors are obtained, the settlement need not be 
coordinated with the Department of Justice.



227.7009  Patent releases, license agreements, and assignments.

    This section contains clauses for use in patent release and 
settlement agreements, license agreements, and assignments, executed by 
the Government, under which the Government acquires rights. Minor 
modifications of language (e.g., pluralization of ``Secretary'' or 
``Contracting Officer'') in multi-departmental agreements may be made if 
necessary.



227.7009-1  Required clauses.

    (a) Covenant Against Contingent Fees. Insert the clause at FAR 
52.203-5.
    (b) Gratuities. Insert the clause at FAR 52.203-3.
    (c) Assignment of Claims. Insert the clause at FAR 52.232-23.
    (d) Disputes. Pursuant to FAR 33.014, insert the clause at FAR 
52.233-1.
    (e) Non-Estoppel. Insert the clause at 252.227-7000.

[56 FR 36389, July 31, 1991, as amended at 61 FR 50454, Sept. 26, 1996]



227.7009-2  Clauses to be used when applicable.

    (a) Release of past infringement. The clause at 252.227-7001, 
Release of Past Infringement, is an example which may be modified or 
omitted as appropriate for particular circumstances, but only upon the 
advice of cognizant patent or legal counsel. (See footnotes at end of 
clause.)
    (b) Readjustment of payments. The clause at 252.227-7002, 
Readjustment of Payments, shall be inserted in contracts providing for 
payment of a running royalty.
    (c) Termination. The clause at 252.227-7003, Termination, is an 
example for use in contracts providing for the payment of a running 
royalty. This clause may be modified or omitted as appropriate for 
particular circumstances, but only upon the advice of cognizant patent 
or legal counsel (see 227.7004(c)).



227.7009-3  Additional clauses--contracts except running royalty
contracts.

    The following clauses are examples for use in patent release and 
settlement agreements, and license agreements not providing for payment 
by the Government of a running royalty.
    (a) License Grant. Insert the clause at 252.227-7004.
    (b) License Term. Insert one of the clauses at 252.227-7005 
Alternate I or Alternate II, as appropriate.



227.7009-4  Additional clauses--contracts providing for payment
of a running royalty.

    The clauses set forth below are examples which may be used in patent 
release and settlement agreements, and license agreements, when it is 
desired to cover the subject matter thereof and the contract provides 
for payment of a running royalty.

[[Page 248]]

    (a) License grant--running royalty. No Department shall be obligated 
to pay royalties unless the contract is signed on behalf of such 
Department. Accordingly, the License Grant clause at 252.227-7006 should 
be limited to the practice of the invention by or for the signatory 
Department or Departments.
    (b) License term--running royalty. The clause at 252.227-7007 is a 
sample form for expressing the license term.
    (c) Computation of royalties. The clause at 252.227-7008 providing 
for the computation of royalties, may be of varying scope depending upon 
the nature of the royalty bearing article, the volume of procurement, 
and the type of contract pursuant to which the procurement is to be 
accomplished.
    (d) Reporting and payment of royalties. (1) The contract should 
contain a provision specifying the office designated within the specific 
Department involved to make any necessary reports to the contractor of 
the extent of use of the licensed subject matter by the entire 
Department, and such office shall be charged with the responsibility of 
obtaining from all procuring offices of that Department the information 
necessary to make the required reports and corresponding vouchers 
necessary to make the required payments. The clause at 252.227-7009 is a 
sample for expressing reporting and payment of royalties requirements.
    (2) Where more than one Department or Government Agency is licensed 
and there is a ceiling on the royalties payable in any reporting period, 
the licensing Departments or Agencies shall coordinate with respect to 
the pro rata share of royalties to be paid by each.
    (e) License to other government agencies. When it is intended that a 
license on the same terms and conditions be available to other 
departments and agencies of the Government, the clause at 252.227-7010 
is an example which may be used.



227.7010  Assignments.

    (a) The clause at 252.227-7011 is an example which may be used in 
contracts of assignment of patent rights to the Government.
    (b) To facilitate proof of contracts of assignments, the 
acknowledgement of the contractor should be executed before a notary 
public or other officer authorized to administer oaths (35 U.S.C. 261).



227.7011  Procurement of rights in inventions, patents, and copyrights.

    Even though no infringement has occurred or been alleged, it is the 
policy of the Department of Defense to procure rights under patents, 
patent applications, and copyrights whenever it is in the Government's 
interest to do so and the desired rights can be obtained at a fair 
price. The required and suggested clauses at 252.227-7004 and 252.227-
7010 shall be required and suggested clauses, respectively, for license 
agreements and assignments made under this paragraph. The instructions 
at 227.7009-3 and 227.7010 concerning the applicability and use of those 
clauses shall be followed insofar as they are pertinent.



227.7012  Contract format.

    The format at 252.227-7012 appropriately modified where necessary, 
may be used for contracts of release, license, or assignment.



227.7013  Recordation.

    Executive Order No. 9424 of 18 February 1944 requires all executive 
Departments and agencies of the Government to forward through 
appropriate channels to the Commissioner of Patents and Trademarks, for 
recording, all Government interests in patents or applications for 
patents.



                 Subpart 227.71_Rights in Technical Data

    Source: 60 FR 33471, June 28, 1995, unless otherwise noted.



227.7100  Scope of subpart.

    This subpart--
    (a) Prescribes policies and procedures for the acquisition of 
technical data and the rights to use, modify, reproduce, release, 
perform, display, or disclose technical data. It implements requirements 
in the following laws and Executive Order:
    (1) 10 U.S.C. 2302(4).
    (2) 10 U.S.C. 2305 (subsection (d)(4)).
    (3) 10 U.S.C. 2320.

[[Page 249]]

    (4) 10 U.S.C. 2321.
    (5) 10 U.S.C. 2325.
    (6) 10 U.S.C. 7317.
    (7) 17 U.S.C. 1301, et seq.
    (8) Pub. L. 103-355.
    (9) Executive Order 12591 (Subsection 1(b)(6)).
    (b) Does not apply to--
    (1) Computer software or technical data that is computer software 
documentation (see subpart 227.72); or
    (2) Releases of technical data to litigation support contractors 
(see subpart 204.74).

[60 FR 33471, June 28, 1995, as amended at 74 FR 61044, Nov. 23, 2009; 
79 FR 11340, Feb. 28, 2014]



227.7101  Definitions.

    (a) As used in this subpart, unless otherwise specifically 
indicated, the terms ``offeror'' and ``contractor'' include an offeror's 
or contractor's subcontractors, suppliers, or potential subcontractors 
or suppliers at any tier.
    (b) Other terms used in this subpart are defined in the clause at 
252.227-7013, Rights in Technical Data--Noncommercial Items.

[56 FR 36389, July 31, 1991, as amended at 60 FR 61598, Nov. 30, 1995]



227.7102  Commercial items, components, or processes.



227.7102-1  Policy.

    (a) DoD shall acquire only the technical data customarily provided 
to the public with a commercial item or process, except technical data 
that--
    (1) Are form, fit, or function data;
    (2) Are required for repair or maintenance of commercial items or 
processes, or for the proper installation, operating, or handling of a 
commercial item, either as a stand alone unit or as a part of a military 
system, when such data are not customarily provided to commercial users 
or the data provided to commercial users is not sufficient for military 
purposes; or
    (3) Describe the modifications made at Government expense to a 
commercial item or process in order to meet the requirements of a 
Government solicitation.
    (b) To encourage offerors and contractors to offer or use commercial 
products to satisfy military requirements, offerors, and contractors 
shall not be required, except for the technical data described in 
paragraph (a) of this subsection, to--
    (1) Furnish technical information related to commercial items or 
processes that is not customarily provided to the public; or
    (2) Relinquish to, or otherwise provide, the Government rights to 
use, modify, reproduce, release, perform, display, or disclose technical 
data pertaining to commercial items or processes except for a transfer 
of rights mutually agreed upon.
    (c) The Government's rights in a vessel design, and in any useful 
article embodying a vessel design, must be consistent with the 
Government's rights in technical data pertaining to the design (10 
U.S.C. 7317; 17 U.S.C. 1301(a)(3)).

[60 FR 33471, June 28, 1995, as amended at 74 FR 61044, Nov. 23, 2009]



227.7102-2  Rights in technical data.

    (a) The clause at 252.227-7015, Technical Data--Commercial Items, 
provides the Government specific license rights in technical data 
pertaining to commercial items or processes. DoD may use, modify, 
reproduce, release, perform, display, or disclose data only within the 
Government. The data may not be used to manufacture additional 
quantities of the commercial items and, except for emergency repair or 
overhaul and for covered Government support contractors, may not be 
released or disclosed to, or used by, third parties without the 
contractor's written permission. Those restrictions do not apply to the 
technical data described in 227.7102-1(a).
    (b) If additional rights are needed, contracting activities must 
negotiate with the contractor to determine if there are acceptable terms 
for transferring such rights. The specific additional rights granted to 
the Government shall be enumerated in a license agreement made part of 
the contract.

[56 FR 36389, July 31, 1991, as amended at 76 FR 11367, Mar. 2, 2011]

[[Page 250]]



227.7102-3  Government right to review, verify, challenge 
and validate asserted restrictions.

    Follow the procedures at 227.7103-13 and the clause at 252.227-7037, 
Validation of Restrictive Markings on Technical Data, regarding the 
validation of asserted restrictions on technical data related to 
commercial items.

[76 FR 58147, Sept. 20, 2011]



227.7102-4  Contract clauses.

    (a)(1) Except as provided in paragraph (b) of this subsection, use 
the clause at 252.227-7015, Technical Data-Commercial Items, in all 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, when the 
Contractor will be required to deliver technical data pertaining to 
commercial items, components, or processes.
    (2) Use the clause at 252.227-7015 with its Alternate I in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, for the 
development or delivery of a vessel design or any useful article 
embodying a vessel design.
    (b) In accordance with the clause prescription at 227.7103-6(a), use 
the clause at 252.227-7013, Rights in Technical Data-Noncommercial 
Items, in addition to the clause at 252.227-7015, if the Government will 
have paid for any portion of the development costs of a commercial item. 
The clause at 252.227-7013 will govern the technical data pertaining to 
any portion of a commercial item that was developed in any part at 
Government expense, and the clause at 252.227-7015 will govern the 
technical data pertaining to any portion of a commercial item that was 
developed exclusively at private expense.
    (c) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, in solicitations and contracts using FAR 
part 12 procedures for the acquisition of commercial items that include 
the clause at 252.227-7015 or the clause at 252.227-7013.

[76 FR 58147, Sept. 20, 2011, as amended at 78 FR 37988, June 25, 2013]



227.7103  Noncommercial items or processes.



227.7103-1  Policy.

    (a) DoD policy is to acquire only the technical data, and the rights 
in that data, necessary to satisfy agency needs.
    (b) Solicitations and contracts shall--
    (1) Specify the technical data to be delivered under a contract and 
delivery schedules for the data;
    (2) Establish or reference procedures for determining the 
acceptability of technical data;
    (3) Establish separate contract line items, to the extent 
practicable, for the technical data to be delivered under a contract and 
require offerors and contractors to price separately each deliverable 
data item; and
    (4) Require offerors to identify, to the extent practicable, 
technical data to be furnished with restrictions on the Government's 
rights and require contractors to identify technical data to be 
delivered with such restrictions prior to delivery.
    (c) Offerors shall not be required, either as a condition of being 
responsive to a solicitation or as a condition for award, to sell or 
otherwise relinquish to the Government any rights in technical data 
related to items, components or processes developed at private expense 
except for the data identified at 227.7103-5(a)(2) and (a)(4) through 
(9).
    (d) Offerors and contractors shall not be prohibited or discouraged 
from furnishing or offering to furnish items, components, or processes 
developed at private expense solely because the Government's rights to 
use, modify, release, reproduce, perform, display, or disclose technical 
data pertaining to those items may be restricted.
    (e) As provided in 10 U.S.C. 2305, solicitations for major systems 
development contracts shall not require offerors to submit proposals 
that would permit the Government to acquire competitively items 
identical to items developed at private expense unless a determination 
is made at a level above the contracting officer that--
    (1) The offeror will not be able to satisfy program schedule or 
delivery requirements; or

[[Page 251]]

    (2) The offeror's proposal to meet mobilization requirements does 
not satisfy mobilization needs.
    (f) For acquisitions involving major weapon systems or subsystems of 
major weapon systems, the acquisition plan shall address acquisition 
strategies that provide for technical data and the associated license 
rights in accordance with 207.106(S-70).
    (g) The Government's rights in a vessel design, and in any useful 
article embodying a vessel design, must be consistent with the 
Government's rights in technical data pertaining to the design (10 
U.S.C. 7317; 17 U.S.C. 1301(a)(3)).

[60 FR 33471, June 28, 1995, as amended at 72 FR 51189, Sept. 6, 2007; 
74 FR 61044, Nov. 23, 2009]



227.7103-2  Acquisition of technical data.

    (a) Contracting officers shall work closely with data managers and 
requirements personnel to assure that data requirements included in 
solicitations are consistent with the policy expressed in 227.7103-1.
    (b)(1) Data managers or other requirements personnel are responsible 
for identifying the Government's minimum needs for technical data. Data 
needs must be established giving consideration to the contractor's 
economic interests in data pertaining to items, components, or processes 
that have been developed at private expense; the Government's costs to 
acquire, maintain, store, retrieve, and protect the data; reprocurement 
needs; repair, maintenance and overhaul philosophies; spare and repair 
part considerations; and whether procurement of the items, components, 
or processes can be accomplished on a form, fit, or function basis. When 
it is anticipated that the Government will obtain unlimited or 
government purpose rights in technical data that will be required for 
competitive spare or repair parts procurements, such data should be 
identified as deliverable data items. Reprocurement needs may not be a 
sufficient reason to acquire detailed manufacturing or process data when 
items or components can be acquired using performance specifications, 
form, fit and function data, or when there are a sufficient number of 
alternate sources which can reasonably be expected to provide such items 
on a performance specification or form, fit, or function basis.
    (2) When reviewing offers received in response to a solicitation or 
other request for data, data managers must balance the original 
assessment of the Government's data needs with data prices contained in 
the offer.
    (c) Contracting officers are responsible for ensuring that, wherever 
practicable, solicitations and contracts--
    (1) Identify the type and quantity of the technical data to be 
delivered under the contract and the format and media in which the data 
will be delivered;
    (2) Establish each deliverable data item as a separate contract line 
item (this requirement may be satisfied by listing each deliverable data 
item on an exhibit to the contract);
    (3) Identify the prices established for each deliverable data item 
under a fixed-price type contract;
    (4) Include delivery schedules and acceptance criteria for each 
deliverable data item; and
    (5) Specifically identify the place of delivery for each deliverable 
item of technical data.



227.7103-3  Early identification of technical data to be furnished
to the Government with restrictions on use, reproduction or 
disclosure.

    (a) 10 U.S.C. 2320 requires, to the maximum extent practicable, an 
identification prior to delivery of any technical data to be delivered 
to the Government with restrictions on use.
    (b) Use the provision at 252.227-7017, Identification and Assertion 
of Use, Release, or Disclosure Restrictions, in all solicitations that 
include the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items. The provision requires offerors to identify any 
technical data for which restrictions, other than copyright, on use, 
release, or disclosure are asserted and to attach the identification and 
assertions to the offer.
    (c) Subsequent to contract award, the clause at 252.227-7013 permits 
a contractor, under certain conditions, to

[[Page 252]]

make additional assertions of use, release, or disclosure restrictions. 
The prescription for the use of that clause and its alternate is at 
227.7103-6 (a) and (b).

[60 FR 33471, June 28, 1995, as amended at 78 FR 13544, Feb. 28, 2013]



227.7103-4  License rights.

    (a) Grant of license. The Government obtains rights in technical 
data, including a copyright license, under and irrevocable license 
granted or obtained for the Government by the contractor. The contractor 
or licensor retains all rights in the data not granted to the 
Government. For technical data that pertain to items, components, or 
processes, the scope of the license is generally determined by the 
source of funds used to develop the item, component, or process. When 
the technical data do not pertain to items, components, or processes, 
the scope of the license is determined by the source of funds used to 
create the data.
    (1) Techical data pertaining to items, components, or processes. 
Contractors or licensors may, with some exceptions (see 227.7103-5(a)(2) 
and (a)(4) through (9)), restrict the Government's rights to use, 
modify, release, reproduce, perform, display or disclose technical data 
pertaining to items, components, or processes developed exclusively at 
private expense (limited rights). They may not restrict the Government's 
rights in items, components, or processes developed exclusively at 
Government expense (unlimited rights) without the Government's approval. 
When an item, component, or process is developed with mixed funding, the 
Government may use, modify, release, reproduce, perform, display or 
disclose the data pertaining to such items, components, or processes 
within the Government without restriction but may release or disclose 
the data outside the Government only for government purposes (government 
purpose rights).
    (2) Technical data that do not pertain to items, components, or 
processes. Technical data may be created during the performance of a 
contract for a conceptual design or similar effort that does not require 
the development, manufacture, construction, or production of items, 
components or processes. The Government generally obtains unlimited 
rights in such data when the data were created exclusively with 
Government funds, government purpose rights when the data were created 
with mixed funding, and limited rights when the data were created 
exclusively at private expense.
    (b) Source of funds determination. The determination of the source 
of development funds for technical data pertaining to items, components, 
or processes should be made at any practical sub-item or subcomponent 
level or for any segregable portion of a process. Contractors may assert 
limited rights in a segregable sub-item, sub-component, or portion of a 
process which otherwise qualifies for limited rights under the clause at 
252.227-7013, Rights in Technical Data--Noncommercial Items.



227.7103-5  Government rights.

    The standard license rights that a licensor grants to the Government 
are unlimited rights, government purpose rights, or limited rights. 
Those rights are defined in the clause at 252.227-7013, Rights in 
Technical Data--Noncommercial Items. In unusual situations, the 
standards rights may not satisfy the Government's needs or the 
Government may be willing to accept lesser rights in data in return for 
other consideration. In those cases, a special license may be 
negotiated. However, the licensor is not obligated to provide the 
Government greater rights and the contracting officer is not required to 
accept lesser rights than the rights provided in the standard grant of 
license. The situations under which a particular grant of license 
applies are enumerated in paragraphs (a) through (d) of this subsection.
    (a) Unlimited rights. The Government obtains unlimited rights in 
technical data that are--
    (1) Data pertaining to an item, component, or process which has been 
or will be developed exclusively with Government funds;
    (2) Studies, analyses, test data, or similar data produced in the 
performance of a contract when the study, analysis, test, or similar 
work was specified as an element of performance;

[[Page 253]]

    (3) Created exclusively with Government funds in the performance of 
a contract that does not require the development, manufacture, 
construction, or production of items, components, or processes;
    (4) Form, fit, and function data;
    (5) Necessary for installation, operation, maintenance, or training 
purposes (other than detailed manufacturing or process data);
    (6) Corrections or changes to technical data furnished to the 
contractor by the Government;
    (7) Publicly available or have been released or disclosed by the 
contractor or subcontractor without restrictions on further use, release 
or disclosure other than a release or disclosure resulting from the 
sale, transfer, or other assignment of interest in the software to 
another party or the sale or transfer of some or all of a business 
entity or its assets to another party;
    (8) Data in which the Government has obtained unlimited rights under 
another Government contract or as a result of negotiations; or
    (9) Data furnished to the Government, under a Government contract or 
subcontract thereunder, with--
    (i) Government purpose license rights or limited rights and the 
restrictive condition(s) has/have expired; or
    (ii) Government purpose rights and the contractor's exclusive right 
to use such data for commercial purposes has expired.
    (b) Government purpose rights. (1) The Government obtains government 
purpose rights in technical data--
    (i) That pertain to items, components, or processes developed with 
mixed funding except when the Government is entitled to unlimited rights 
as provided in paragraphs (a)(2) and (a)(4) through (9) of this 
subsection; or
    (ii) Created with mixed funding in the performance of a contract 
that does not require the development, manufacture, construction, or 
production of items, components, or processes.
    (2) The period during which government purpose rights are effective 
is negotiable. The clause at 252.227-7013 provides a nominal five-year 
period. Either party may request a different period. Changes to the 
government purpose rights period may be made at any time prior to 
delivery of the technical data without consideration from either party. 
Longer periods should be negotiated when a five-year period does not 
provide sufficient time to apply the data for commercial purposes or 
when necessary to recognize subcontractors' interests in the data.
    (3) The government purpose rights period commences upon execution of 
the contract, subcontract, letter contract (or similar contractual 
instrument), contract modification, or option exercise that required the 
development. Upon expiration of the Government rights period, the 
Government has unlimited rights in the data including the right to 
authorize others to use the data for commercial purposes.
    (4) During the government purpose rights period, the government may 
not use, or authorize other persons to use, technical data marked with 
government purpose rights legends for commercial purposes. The 
Government shall not release or disclose data in which it has government 
purpose rights to any person, or authorize others to do so, unless--
    (i) Prior to release or disclosure, the intended recipient is 
subject to the use and non-disclosure agreement at 227.7103-7; or
    (ii) The intended recipient is a Government contractor receiving 
access to the data for performance of a Government contract that 
contains the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends.
    (5) When technical data marked with government purpose rights 
legends will be released or disclosed to a Government contractor 
performing a contract that does not include the clause at 252-227-7025, 
the contract may be modified, prior to release or disclosure, to include 
that clause in lieu of requiring the contractor to complete a use and 
non-disclosure agreement.
    (6) Contracting activities shall establish procedures to assure that 
technical data marked with government purpose rights legends are 
released or disclosed, including a release or disclosure through a 
Government solicitation, only to persons subject to the use and

[[Page 254]]

non-disclosure restrictions. Public announcements in the Commerce 
Business Daily or other publications must provide notice of the use and 
non-disclosure requirements. Class use and non-disclosure agreements 
(e.g., agreements covering all solicitations received by the XYZ company 
within a reasonable period) are authorized and may be obtained at any 
time prior to release or disclosure of the government purpose rights 
data. Documents transmitting government purpose rights data to persons 
under class agreements shall identify the technical data subject to 
government purpose rights and the class agreement under which such data 
are provided.
    (c) Limited rights. (1) The Government obtains limited rights in 
technical data--
    (i) That pertain to items, components, or processes developed 
exclusively at private expense except when the Government is entitled to 
unlimited rights as provided in paragraphs (a)(2) and (a)(4) through (9) 
of this subsection; or
    (ii) Created exclusively at private expense in the performance of a 
contract that does not require the development, manufacture, 
construction, or production of items, components, or processes.
    (2) Data in which the Government has limited rights may not be used, 
released, or disclosed outside the Government without the permission of 
the contractor asserting the restriction except for a use, release, or 
disclosure that is--
    (i) Necessary for emergency repair and overhaul; or
    (ii) To a covered Government support contractor; or
    (iii) To a foreign government, other than detailed manufacturing or 
process data, when use, release, or disclosure is in the interest of the 
United States and is required for evaluational or informational 
purposes.
    (3) The person asserting limited rights must be notified of the 
Government's intent to release, disclose, or authorize others to use 
such data prior to release or disclosure of the data except notification 
of an intended release, disclosure, or use for emergency repair or 
overhaul which shall be made as soon as practicable.
    (4) When the person asserting limited rights permits the Government 
to release, disclose, or have others use the data subject to 
restrictions on further use, release, or disclosure, or for a release 
under paragraph (c)(2)(i), (ii), or (iii) of this subsection, the 
intended recipient must complete the use and non-disclosure agreement at 
227.7103-7, or receive the data for performance of a Government contract 
that contains the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends, prior to release or disclosure of the limited rights data.
    (d) Specifically negotiated license rights. (1) Negotiate specific 
licenses when the parties agree to modify the standard license rights 
granted to the government or when the government wants to obtain rights 
in data in which it does not have rights. When negotiating to obtain, 
relinquish, or increase the Government's rights in technical data, 
consider the acquisition strategy for the item, component, or process, 
including logistics support and other factors which may have relevance 
for a particular procurement. The Government may accept lesser rights 
when it has unlimited or government purpose rights in data but may not 
accept less than limited rights in such data. The negotiated license 
rights must stipulate what rights the Government has to release or 
disclose the data to other persons or to authorize others to use the 
data. Identify all negotiated rights in a license agreement made part of 
the contract.
    (2) When the Government needs additional rights in data acquired 
with government purpose or limited rights, the contracting officer must 
negotiate with the contractor to determine whether there are acceptable 
terms for transferring such rights. Generally, such negotiations should 
be conducted only when there is a need to disclose the data outside the 
Government or if the additional rights are required for competitive 
reprocurement and the anticipated savings expected to be obtained 
through competition are estimated to exceed the acquisition cost of

[[Page 255]]

the additional rights. Prior to negotiating for additional rights in 
limited rights data, consider alternatives such as--
    (i) Using performance specifications and form, fit, and function 
data to acquire or develop functionally equivalent items, components, or 
processes;
    (ii) Obtaining a contractor's contractual commitment to qualify 
additional sources and maintain adequate competition among the sources; 
or
    (iii) Reverse engineering, or providing items from Government 
inventories to contractors who request the items to facilitate the 
development of equivalent items through reverse engineering.

[56 FR 36389, July 31, 1991, as amended at 76 FR 11367, Mar. 2, 2011; 78 
FR 30238, May 22, 2013]



227.7103-6  Contract clauses.

    (a) Use the clause at 252.227-7013, Rights in Technical Data-
Noncommercial Items, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, when the successful offeror(s) will be 
required to deliver to the Government technical data pertaining to 
noncommercial items, or pertaining to commercial items for which the 
Government will have paid for any portion of the development costs (in 
which case the clause at 252.227-7013 will govern the technical data 
pertaining to any portion of a commercial item that was developed in any 
part at Government expense, and the clause at 252.227-7015 will govern 
the technical data pertaining to any portion of a commercial item that 
was developed exclusively at private expense). Do not use the clause 
when the only deliverable items are computer software or computer 
software documentation (see 227.72), commercial items developed 
exclusively at private expense (see 227.7102-4), existing works (see 
227.7105), special works (see 227.7106), or when contracting under the 
Small Business Innovation Research Program (see 227.7104). Except as 
provided in 227.7107-2, do not use the clause in architect-engineer and 
construction contracts.
    (b)(1) Use the clause at 252.227-7013 with its Alternate I in 
research solicitations and contracts, including research solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, when the contracting officer determines, in 
consultation with counsel, that public dissemination by the contractor 
would be--
    (i) In the interest of the government; and
    (ii) Facilitated by the Government relinquishing its right to 
publish the work for sale, or to have others publish the work for sale 
on behalf of the Government.
    (2) Use the clause at 252.227-7013 with its Alternate II in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, that are 
for the development or delivery of a vessel design or any useful article 
embodying a vessel design.
    (c) Use the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government Furnished Information Marked with Restrictive 
Legends, in solicitations and contracts when it is anticipated that the 
Government will provide the contractor (other than a litigation support 
contractor covered by 252.204-7014), for performance of its contract, 
technical data marked with another contractor's restrictive legend(s).
    (d) Use the provision at 252.227-7028, Technical Data or Computer 
Software Previously Delivered to the Government, in solicitations when 
the resulting contract will require the contractor to deliver technical 
data. The provision requires offerors to identify any technical data 
specified in the solicitations as deliverable data items that are the 
same or substantially the same as data items the offeror has delivered 
or is obligated to deliver, either as a contractor or subcontractor, 
under any other federal agency contract.
    (e) Use the following clauses in solicitations and contracts that 
include the clause at 252.227-7013:
    (1) 252.227-7016, Rights in Bid or Proposal Information;
    (2) 252.227-7030, Technical Data--Withholding of Payment; and

[[Page 256]]

    (3) 252.227-7037, Validation of Restrictive Markings on Technical 
Data (paragraph (e) of the clause contains information that must be 
included in a challenge).

[60 FR 33471, June 28, 1995; 60 FR 41157, Aug. 11, 1995; 60 FR 61598, 
Nov. 30, 1995; 62 FR 2613, Jan. 17, 1997; 69 FR 31911, June 8, 2004; 74 
FR 61044, Nov. 23, 2009; 76 FR 58147, Sept. 20, 2011; 78 FR 37988, June 
25, 2013; 79 FR 11340, Feb. 28, 2014]



227.7103-7  Use and non-disclosure agreement.

    (a) Except as provided in paragraph (b) of this subsection, 
technical data or computer software delivered to the Government with 
restrictions on use, modification, reproduction, release, performance, 
display, or disclosure may not be provided to third parties unless the 
intended recipient completes and signs the use and non-disclosure 
agreement at paragraph (c) of this subsection prior to release, or 
disclosure of the data.
    (1) The specific conditions under which an intended recipient will 
be authorized to use, modify, reproduce, release, perform, display, or 
disclose technical data subject to limited rights or computer software 
subject to restricted rights must be stipulated in an attachment to the 
use and non-disclosure agreement.
    (2) For an intended release, disclosure, or authorized use of 
technical data or computer software subject to special license rights, 
modify paragraph (1)(d) of the use and non-disclosure agreement to enter 
the conditions, consistent with the license requirements, governing the 
recipient's obligations regarding use, modification, reproduction, 
release, performance, display or disclosure of the data or software.
    (b) The requirement for use and non-disclosure agreements does not 
apply to Government contractors which require access to a third party's 
data or software for the performance of a Government contract that 
contains the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends.
    (c) The prescribed use and non-disclosure agreement is:

                    Use and Non-Disclosure Agreement

    The undersigned, ________ (Insert Name) ________, an authorized 
representative of the ________ (Insert Company Name) ________, (which is 
hereinafter referred to as the ``Recipient'') requests the Government to 
provide the Recipient with technical data or computer software 
(hereinafter referred to as ``Data'') in which the Government's use, 
modification, reproduction, release, performance, display or disclosure 
rights are restricted. Those Data are identified in an attachment to 
this Agreement. In consideration for receiving such Data, the Recipient 
agrees to use the Data strictly in accordance with this Agreement:
    (1) The Recipient shall--
    (a) Use, modify, reproduce, release, perform, display, or disclose 
Data marked with government purpose rights or SBIR data rights legends 
only for government purposes and shall not do so for any commercial 
purpose. The Recipient shall not release, perform, display, or disclose 
these Data, without the express written permission of the contractor 
whose name appears in the restrictive legend (the ``Contractor''), to 
any person other than its subcontractors or suppliers, or prospective 
subcontractors or suppliers, who require these Data to submit offers 
for, or perform, contracts with the Recipient. The Recipient shall 
require its subcontractors or suppliers, or prospective subcontractors 
or suppliers, to sign a use and non-disclosure agreement prior to 
disclosing or releasing these Data to such persons. Such agreement must 
be consistent with the terms of this agreement.
    (b) Use, modify, reproduce, release, perform, display, or disclose 
technical data marked with limited rights legends only as specified in 
the attachment to this Agreement. Release, performance, display, or 
disclosure to other persons is not authorized unless specified in the 
attachment to this Agreement or expressly permitted in writing by the 
Contractor. The Recipient shall promptly notify the Contractor of the 
execution of this Agreement and identify the Contractor's Data that has 
been or will be provided to the Recipient, the date and place the Data 
were or will be received, and the name and address of the Government 
office that has provided or will provide the Data.
    (c) Use computer software marked with restricted rights legends only 
in performance of Contract Number ________ (insert contract number(s)) 
________. The recipient shall not, for example, enhance, decompile, 
disassemble, or reverse engineer the software; time share, or use a 
computer program with more than one computer at a time. The recipient 
may not release, perform, display, or disclose such software to others 
unless expressly permitted in writing

[[Page 257]]

by the licensor whose name appears in the restrictive legend. The 
Recipient shall promptly notify the software licensor of the execution 
of this Agreement and identify the software that has been or will be 
provided to the Recipient, the date and place the software were or will 
be received, and the name and address of the Government office that has 
provided or will provide the software.
    (d) Use, modify, reproduce, release, perform, display, or disclose 
Data marked with special license rights legends (To be completed by the 
contracting officer. See 227.7103-7(a)(2). Omit if none of the Data 
requested is marked with special license rights legends).
    (2) The Recipient agrees to adopt or establish operating procedures 
and physical security measures designed to protect these Data from 
inadvertent release or disclosure to unauthorized third parties.
    (3) The Recipient agrees to accept these Data ``as is'' without any 
Government representation as to suitability for intended use or warranty 
whatsoever. This disclaimer does not affect any obligation the 
Government may have regarding Data specified in a contract for the 
performance of that contract.
    (4) The Recipient may enter into any agreement directly with the 
Contractor with respect to the use, modification, reproduction, release, 
performance, display, or disclosure of these Data.
    (5) The Recipient agrees to indemnify and hold harmless the 
Government, its agents, and employees from every claim or liability, 
including attorneys fees, court costs, and expenses arising out of, or 
in any way related to, the misuse or unauthorized modification, 
reproduction, release, performance, display, or disclosure of Data 
received from the Government with restrictive legends by the Recipient 
or any person to whom the Recipient has released or disclosed the Data.
    (6) The Recipient is executing this Agreement for the benefit of the 
Contractor. The Contractor is a third party beneficiary of this 
Agreement who, in addition to any other rights it may have, is intended 
to have the rights of direct action against the Recipient or any other 
person to whom the Recipient has released or disclosed the Data, to seek 
damages from any breach of this Agreement or to otherwise enforce this 
Agreement.
    (7) The Recipient agrees to destroy these Data, and all copies of 
the Data in its possession, no later than 30 days after the date shown 
in paragraph (8) of this Agreement, to have all persons to whom it 
released the Data do so by that date, and to notify the Contractor that 
the Data have been destroyed.
    (8) This Agreement shall be effective for the period commencing with 
the Recipient's execution of this Agreement and ending upon ____ (Insert 
Date) ____. The obligations imposed by this Agreement shall survive the 
expiration or termination of the Agreement.
Recipient's Business Name_______________________________________________
By______________________________________________________________________
Authorized Representative

________________________________________________________________________
Date

Representative's Typed Name_____________________________________________
and Title_______________________________________________________________

                (End of use and non-disclosure agreement)



227.7103-8  Deferred delivery and deferred ordering of technical data.

    (a) Deferred delivery. Use the clause at 252.227-7026, Deferred 
Delivery of Technical Data or Computer Software, when it is in the 
Government's interests to defer the delivery of technical data. The 
clause permits the contracting officer to require the delivery of 
technical data identified as ``deferred delivery'' data at any time 
until two years after acceptance by the Government of all items (other 
than technical data or computer software) under the contract or contract 
termination, whichever is later. The obligation of subcontractors or 
suppliers to deliver such technical data expires two years after the 
date the prime contractor accepts the last item from the subcontractor 
or supplier for use in the performance of the contract. The contract 
must specify which technical data is subject to deferred delivery. The 
contracting officer shall notify the contractor sufficiently in advance 
of the desired delivery date for such data to permit timely delivery.
    (b) Deferred ordering. Use the clause at 252.227-7027, Deferred 
Ordering of Technical Data or Computer Software, when a firm requirement 
for a particular data item(s) has not been established prior to contract 
award but there is a potential need for the data. Under this clause, the 
contracting officer may order any data that has been generated in the 
performance of the contract or any subcontract thereunder at any time 
until three years after acceptance of all items (other than technical 
data or computer software) under the contract or contract termination, 
whichever is later. The obligation of subcontractors to deliver

[[Page 258]]

such data expires three years after the date the contractor accepts the 
last item under the subcontract. When the data are ordered, the delivery 
dates shall be negotiated and the contractor compensated only for 
converting the data into the prescribed form, reproduction costs, and 
delivery costs.



227.7103-9  Copyright.

    (a) Copyright license. (1) The clause at 252.227-7013, Rights in 
Technical Data--Noncommercial Items, requires a contractor to grant or 
obtain for the Government license rights which permit the Government to 
reproduce data, distribute copies of the data, publicly perform or 
display the data or, through the right to modify data, prepare 
derivative works. The extent to which the Government, and others acting 
on its behalf, may exercise these rights varies for each of the standard 
data rights licenses obtained under the clause. When non-standard 
license rights in technical data will be negotiated, negotiate the 
extent of the copyright license concurrent with negotiations for the 
data rights license. Do not negotiate a copyright license that provides 
less rights than the standard limited rights license in technical data.
    (2) The clause at 252.227-7013 does not permit a contractor to 
incorporate a third party's copyrighted data into a deliverable data 
item unless the contractor has obtained an appropriate license for the 
Government and, when applicable, others acting on the Government's 
behalf, or has obtained the contracting officer's written approval to do 
so. Grant approval to use third party copyrighted data in which the 
Government will not receive a copyright license only when the 
Government's requirements cannot be satisfied without the third party 
material or when the use of the third party material will result in cost 
savings to the Government which outweigh the lack of a copyright 
license.
    (b) Copyright considerations--acquisition of existing and special 
works. See 227.7105 or 227.7106 for copyright considerations when 
acquiring existing or special works.



227.7103-10  Contractor identification and marking of technical data 
to be furnished with restrictive markings.

    (a) Identification requirements. (1) The solicitation provision at 
252.227-7017, Identification and Assertion of Use, Release, or 
Disclosure Restrictions, requires offerors to identify to the 
contracting officer, prior to contract award, any technical data that 
the offeror asserts should be provided to the Government with 
restrictions on use, modification, reproduction, release or disclosure. 
This requirement does not apply to restrictions based solely on 
copyright. The notification and identification must be submitted as an 
attachment to the offer. If an offeror fails to submit the attachment or 
fails to complete the attachment in accordance with the requirements of 
the solicitation provision, such failure shall constitute a minor 
informality. Provide offerors an opportunity to remedy a minor 
informality in accordance with the procedures at FAR 14.405 or 15.306. 
An offeror's failure to correct the informality within the time 
prescribed by the contracting officer shall render the offer ineligible 
for award.
    (2) The procedures for correcting minor informalities shall not be 
used to obtain information regarding asserted restrictions or an 
offeror's suggested asserted rights category. Questions regarding the 
justification for an asserted restriction or asserted rights category 
must be pursued in accordance with the procedures at 227.7103-13.
    (3) The restrictions asserted by a successful offeror shall be 
attached to its contract unless, in accordance with the procedures at 
227.7103-13, the parties have agreed that an asserted restriction is not 
justified. The contract attachment shall provide the same information 
regarding identification of the technical data, the asserted rights 
category, the basis for the assertion, and the name of the person 
asserting the restrictions as required by paragraph (d) of the 
solicitation provision at 252.227-7017. Subsequent to contract award, 
the clause at 252.227-7013, Rights in Technical Data--Noncommercial 
Items, permits the contractor to make additional assertions under 
certain conditions. The additional assertions

[[Page 259]]

must be made in accordance with the procedures and in the format 
prescribed by that clause.
    (4) Neither the pre- or post-award assertions made by the 
contractor, nor the fact that certain assertions are identified in the 
attachment to the contract, determine the respective rights of the 
parties. As provided at 227.7103-13, the Government has the right to 
review, verify, challenge and validate restrictive markings.
    (5) Information provided by offerors in response to the solicitation 
provision may be used in the source selection process to evaluate the 
impact on evaluation factors that may be created by restrictions on the 
Government's ability to use or disclose technical data. However, 
offerors shall not be prohibited from offering products for which the 
offeror is entitled to provide the Government limited rights in the 
technical data pertaining to such products and offerors shall not be 
required, either as a condition of being responsive to a solicitation or 
as a condition for award, to sell or otherwise relinquish any greater 
rights in technical data when the offeror is entitled to provide the 
technical data with limited rights.
    (b) Contractor marking requirements. The clause at 252.227-7013, 
Rights in Technical Data--Noncommercial Items--
    (1) Requires a contractor that desires to restrict the Government's 
rights in technical data to place restrictive markings on the data, 
provides instructions for the placement of the restrictive markings, and 
authorizes the use of certain restrictive markings; and
    (2) Requires a contractor to deliver, furnish, or otherwise provide 
to the Government any technical data in which the Government has 
previously obtained rights with the Government's pre-existing rights in 
that data unless the parties have agreed otherwise or restrictions on 
the Government's rights to use, modify, reproduce, release, perform, 
display, or disclose the data have expired. When restrictions are still 
applicable, the contractor is permitted to mark the data with the 
appropriate restrictive legend for which the data qualified.
    (c) Unmarked technical data. (1) Technical data delivered or 
otherwise provided under a contract without restrictive markings shall 
be presumed to have been delivered with unlimited rights and may be 
released or disclosed without restriction. To the extent practicable, if 
a contractor has requested permission (see paragraph (c)(2) of this 
subsection) to correct an inadvertent omission of markings, do not 
release or disclose the technical data pending evaluation of the 
request.
    (2) A contractor may request permission to have appropriate legends 
placed on unmarked technical data at its expense. The request must be 
received by the contracting officer within six months following the 
furnishing or delivery of such data, or any extension of that time 
approved by the contracting officer. The person making the request must:
    (i) Identify the technical data that should have been marked;
    (ii) Demonstrate that the omission of the marking was inadvertent, 
the proposed marking is justified and conforms with the requirements for 
the marking of technical data contained in the clause at 252.227-7013; 
and
    (iii) Acknowledge, in writing, that the Government has no liability 
with respect to any disclosure, reproduction, or use of the technical 
data made prior to the addition of the marking or resulting from the 
omission of the marking.
    (3) Contracting officers should grant permission to mark only if the 
technical data were not distributed outside the Government or were 
distributed outside the Government with restrictions on further use or 
disclosure.

[60 FR 33471, June 28, 1995, as amended at 82 FR 61481, Dec. 28, 2017]



227.7103-11  Contractor procedures and records.

    (a) The clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, requires a contractor, and its subcontractors or 
suppliers that will deliver technical data with other than unlimited 
rights, to establish and follow written procedures to assure that 
restrictive markings are used only when authorized and to maintain

[[Page 260]]

records to justify the validity of asserted restrictions on delivered 
data.
    (b) The clause at 252.227-7037, Validation of Restrictive Markings 
on Technical Data requires contractors and their subcontractors at any 
tier to maintain records sufficient to justify the validity of 
restrictive markings on technical data delivered or to be delivered 
under a Government contract.



227.7103-12  Government right to establish conformity of markings.

    (a) Nonconforming markings. (1) Authorized markings are identified 
in the clause at 252.227-7013, Rights in Technical Data--Noncommercial 
Items. All other markings are nonconforming markings. An authorized 
marking that is not in the form, or differs in substance, from the 
marking requirements in the clause at 252.227-7013 is also a 
nonconforming marking.
    (2) The correction of nonconforming markings on technical data is 
not subject to 252.227-7037, Validation of Restrictive Markings on 
Technical Data. To the extent practicable, the contracting officer 
should return technical data bearing nonconforming markings to the 
person who has placed the nonconforming markings on such data to provide 
that person an opportunity to correct or strike the nonconforming 
marking at that person's expense. If that person fails to correct the 
nonconformity and return the corrected data within 60 days following the 
person's receipt of the data, the contracting officer may correct or 
strike the nonconformity at that person's expense. When it is 
impracticable to return technical data for correction, contracting 
officers may unilaterally correct any nonconforming markings at 
Government expense. Prior to correction, the data may be used in 
accordance with the proper restrictive marking.
    (b) Unjustified markings. (1) An unjustified marking is an 
authorized marking that does not depict accurately restrictions 
applicable to the Government's use, modification, reproduction, release, 
performance, display, or disclosure of the marked technical data. For 
example, a limited rights legend placed on technical data pertaining to 
items, components, or processes that were developed under a Government 
contract either exclusively at Government expense or with mixed funding 
(situations under which the Government obtains unlimited or government 
purpose rights) is an unjustified marking.
    (2) Contracting officers have the right to review and challenge the 
validity of unjustified markings. However, at any time during 
performance of a contract and notwithstanding existence of a challenge, 
the contracting officer and the person who has asserted a restrictive 
marking may agree that the restrictive marking is not justified. Upon 
such agreement, the contracting officer may, at his or her election, 
either--
    (i) Strike or correct the unjustified marking at that person's 
expense; or
    (ii) Return the technical data to the person asserting the 
restriction for correction at that person's expense. If the data are 
returned and that person fails to correct or strike the unjustified 
restriction and return the corrected data to the contracting officer 
within 60 days following receipt of the data, the unjustified marking 
shall be corrected or stricken at that person's expense.



227.7103-13  Government right to review, verify, challenge, 
and validate asserted restrictions.

    (a) General. An offeror's assertion(s) of restrictions on the 
Government's rights to use, modify, reproduce, release, or disclose 
technical data do not, by themselves, determine the extent of the 
Government's rights in the technical data. Under 10 U.S.C. 2321, the 
Government has the right to challenge asserted restrictions when there 
are reasonable grounds to question the validity of the assertion and 
continued adherence to the assertion would make it impractical to later 
procure competitively the item to which the data pertain.
    (b) Pre-award considerations. The challenge procedures required by 
10 U.S.C. 2321 could significantly delay awards under competitive 
procurements. Therefore, avoid challenging asserted restrictions prior 
to a competitive contract award unless resolution of the assertion is 
essential for successful completion of the procurement.

[[Page 261]]

    (c) Challenge considerations and presumption.
    (1) Requirements to initiate a challenge. Contracting officers shall 
have reasonable grounds to challenge the validity of an asserted 
restriction. Before issuing a challenge to an asserted restriction, 
carefully consider all available information pertaining to the 
assertion. The contracting officer shall not challenge a contractor's 
assertion that a commercial item was developed exclusively at private 
expense unless the Government can demonstrate that it contributed to 
development of that item.
    (2) Presumption regarding development exclusively at private 
expense. 10 U.S.C. 2320(b)(1) and 2321(f) establish a presumption and 
procedures regarding validation of asserted restrictions for technical 
data related to commercial items, and to major systems, on the basis of 
development exclusively at private expense.
    (i) Commercial items. Except as provided in paragraph (c)(2)(ii) of 
this section, contracting officers shall presume that a commercial item 
was developed exclusively at private expense whether or not a contractor 
or subcontractor submits a justification in response to a challenge 
notice. When a challenge is warranted, a contractor's or subcontractor's 
failure to respond to the challenge notice cannot be the sole basis for 
issuing a final decision denying the validity of an asserted 
restriction.
    (ii) Major weapon systems. When the contracting officer challenges 
an asserted restriction regarding technical data for a major weapon 
system or a subsystem or component thereof on the basis that the 
technology was not developed exclusively at private expense--
    (A) The presumption in paragraph (c)(2)(i) of this section applies 
to--
    (1) A commercial subsystem or component of a major weapon system, if 
the major weapon system was acquired as a commercial item in accordance 
with subpart 234.70 (10 U.S.C. 2379(a));
    (2) A component of a subsystem, if the subsystem was acquired as a 
commercial item in accordance with subpart 234.70 (10 U.S.C. 2379(b)); 
and
    (3) Any other component, if the component is a commercially 
available off-the-shelf item or a commercially available off-the-shelf 
item with modifications of a type customarily available in the 
commercial marketplace or minor modifications made to meet Federal 
Government requirements; and
    (B) In all other cases, the contracting officer shall sustain the 
challenge unless information provided by the contractor or subcontractor 
demonstrates that the item was developed exclusively at private expense.
    (d) Challenge and validation. All challenges shall be made in 
accordance with the provisions of the clause at 252.227-7037, Validation 
of Restrictive Markings on Technical Data.
    (1) Challenge period. Asserted restrictions should be reviewed 
before acceptance of technical data deliverable under the contract. 
Assertions must be challenged within three years after final payment 
under the contract or three years after delivery of the data, whichever 
is later. However, restrictive markings may be challenged at any time if 
the technical data--
    (i) Are publicly available without restrictions;
    (ii) Have been provided to the United States without restriction; or
    (iii) Have been otherwise made available without restriction other 
than a release or disclosure resulting from the sale, transfer, or other 
assignment of interest in the technical data to another party or the 
sale or transfer of some or all of a business entity or its assets to 
another party.
    (2) Pre-challenge requests for information. (i) After consideration 
of the situations described in paragraph (d)(3) of this subsection, 
contracting officers may request the person asserting a restriction to 
furnish a written explanation of the facts and supporting documentation 
for the assertion in sufficient detail to enable the contracting officer 
to ascertain the basis of the restrictive markings. Additional 
supporting documentation may be requested when the explanation provided 
by the person making the assertion does not, in the contracting 
officer's opinion, establish the validity of the assertion.

[[Page 262]]

    (ii) If the person asserting the restriction fails to respond to the 
contracting officer's request for information or additional supporting 
documentation, or if the information submitted or any other available 
information pertaining to the validity of a restrictive marking does not 
justify the asserted restriction, a challenge should be considered.
    (3) Transacting matters directly with subcontracts. The clause at 
252.227-7037 obtains the contractor's agreement that the Government may 
transact matters under the clause directly with a subcontractor, at any 
tier, without creating or implying privity of contract. Contracting 
officers should permit a subcontractor or supplier to transact challenge 
and validation matters directly with the Government when--
    (i) A subcontractor's or supplier's business interests in its 
technical data would be compromised if the data were disclosed to a 
higher tier contractor;
    (ii) There is reason to believe that the contractor will not respond 
in a timely manner to a challenge and an untimely response would 
jeopardize a subcontractor's or suppliers right to assert restrictions; 
or
    (iii) Requested to do so by a subcontractor or supplier.
    (4) Challenge notice. The contracting officer shall not issue a 
challenge notice unless there are reasonable grounds to question the 
validity of an assertion. The contracting officer may challenge an 
assertion whether or not supporting documentation was requested under 
paragraph (d)(2) of this subsection. Challenge notices shall be in 
writing and issued to the contractor or, after consideration of the 
situations described in paragraph (d)(3) of this subsection, the person 
asserting the restriction. The challenge notice shall include the 
information in paragraph (e) of the clause at 252.227-7037.
    (5) Extension of response time. The contracting officer, at his or 
her discretion, may extend the time for response contained in a 
challenge notice, as appropriate, if the contractor submits a timely 
written request showing the need for additional time to prepare a 
response.
    (6) Contracting officer's final decision. Contracting officers must 
issue a final decision for each challenged assertion, whether or not the 
assertion has been justified.
    (i) A contracting officer's final decision that an assertion is not 
justified must be issued a soon as practicable following the failure of 
the person asserting the restriction to respond to the contracting 
officer's challenge within 60 days, or any extension to that time 
granted by the contracting officer.
    (ii) A contracting officer who, following a challenge and response 
by the person asserting the restriction, determines that an asserted 
restriction is justified, shall issue a final decision sustaining the 
validity of the asserted restriction. If the asserted restriction was 
made subsequent to submission of the contractor's offer, add the 
asserted restriction to the contract attachment.
    (iii) A contracting officer who determine that the validity of an 
asserted restriction has not been justified shall issue a contracting 
officer's final decision within the time frames prescribed in 252.227-
7037. As provided in paragraph (g) of that clause, the Government is 
obligated to continue to respect the asserted restrictions through final 
disposition of any appeal unless the agency head notifies the person 
asserting the restriction that urgent or compelling circumstances do not 
permit the Government to continue to respect the asserted restriction.
    (7) Multiple challenges to an asserted restriction. When more than 
one contracting officer challenges an asserted restriction, the 
contracting officer who made the earliest challenge is responsible for 
coordinating the Government challenges. That contracting officer shall 
consult with all other contracting officers making challenges, verify 
that all challenges apply to the same asserted restriction and, after 
consulting with the contractor, subcontractor, or supplier asserting the 
restriction, issue a schedule that provides that person a reasonable 
opportunity to respond to each challenge.
    (8) Validation. Only a contracting officer's final decision, or 
actions of an agency board of contract appeals or a court of competent 
jurisdiction, that

[[Page 263]]

sustain the validity of an asserted restriction constitute validation of 
the asserted restriction.

[60 FR 33471, June 28, 1995, as amended at 81 FR 65566, Sept. 23, 2016]



227.7103-14  Conformity, acceptance, and warranty of technical data.

    (a) Statutory requirements. 10 U.S.C. 2320--
    (1) Provides for the establishment of remedies applicable to 
technical data found to be incomplete, inadequate, or not to satisfy the 
requirements of the contract concerning such data; and
    (2) Authorizes agency heads to withhold payments (or exercise such 
other remedies an agency head considers appropriate) during any period 
if the contractor does not meet the requirements of the contract 
pertaining to the delivery of technical data.
    (b) Conformity and acceptance. (1) Solicitations and contracts 
requiring the delivery of technical data shall specify the requirements 
the data must satisfy to be acceptable. Contracting officers, or their 
authorized representatives, are responsible for determining whether 
technical data tendered for acceptance conform to the contractual 
requirements.
    (2) The clause at 252.227-7030, Technical Data--Withholding of 
Payment, provides for withholding up to 10 percent of the contract price 
pending correction or replacement of the nonconforming technical data or 
negotiation of an equitable reduction in contract price. The amount 
subject to withholding may be expressed as a fixed dollar amount or as a 
percentage of the contract price. In either case, the amount shall be 
determined giving consideration to the relative value and importance of 
the data. For example--
    (i) When the sole purpose of a contract is to produce the data, the 
relative value of that data may be considerably higher than the value of 
data produced under a contract where the production of the data is a 
secondary objective; or
    (ii) When the Government will maintain or repair items, repair and 
maintenance data may have a considerably higher relative value than data 
that merely describe the item or provide performance characteristics.
    (3) Do not accept technical data that do not conform to the 
contractual requirements in all respects. Except for nonconforming 
restrictive markings (see paragraph (b)(4) of this subsection), 
correction or replacement of nonconforming data or an equitable 
reduction in contract price when correction or replacement of the 
nonconforming data is not practicable or is not in the Government's 
interests, shall be accomplished in accordance with--
    (i) The provisions of a contract clause providing for inspection and 
acceptance of deliverables and remedies for nonconforming deliverables; 
or
    (ii) The procedures at FAR 46.407(c) through (g), if the contract 
does not contain an inspection clause providing remedies for 
nonconforming deliverables.
    (4) Follow the procedures at 227.7103-12(a)(2) if nonconforming 
markings are the sole reason technical data fail to conform to 
contractual requirements. The clause at 252.227-7030 may be used to 
withhold an amount for payment, consistent with the terms of the clause, 
pending correction of the nonconforming markings.
    (c) Warranty. (1) The intended use of the technical data and the 
cost, if any, to obtain the warranty should be considered before 
deciding to obtain a data warranty (see FAR 46.703). The fact that a 
particular item, component, or process is or is not warranted is not a 
consideration in determining whether or not to obtain a warranty for the 
technical data that pertain to the item, component, or process. For 
example, a data warranty should be considered if the Government intends 
to repair or maintain an item and defective repair or maintenance data 
would impair the Government's effective use of the item or result in 
increased costs to the Government.
    (2) As prescribed in 246.710, use the clause at 252.246-7001, 
Warranty of Data, and its alternates, or a substantially similar clause 
when the Government needs a specific warranty of technical data.

[60 FR 33471, June 28, 1995, as amended at 69 FR 31912, June 8, 2004]

[[Page 264]]



227.7103-15  Subcontractor rights in technical data.

    (a) 10 U.S.C. 2320 provides subcontractors at all tiers the same 
protection for their rights in data as is provided to prime contractors. 
The clauses at 252.227-7013, Rights in Technical Data--Noncommercial 
Items, and 252.227-7037, Validation of Restrictive Markings on Technical 
Data, implement the statutory requirements.
    (b) 10 U.S.C. 2321 permits a subcontractor to transact directly with 
the Government matters relating to the validation of its asserted 
restrictions on the Government's rights to use or disclose technical 
data. The clause at 252.227-7037 obtains a contractor's agreement that 
the direct transaction of validation or challenge matters with 
subcontractors at any tier does not establish or imply privity of 
contract. When a subcontractor or supplier exercise its right to 
transact validation matters directly with the Government, contracting 
officers shall deal directly with such persons, as provided at 227.7103-
13(c)(3).
    (c) Require prime contractors whose contracts include the following 
clauses to include those clauses, without modification except for 
appropriate identification of the parties, in contracts with 
subcontractors or suppliers, at all tiers, who will be furnishing 
technical data for non-commercial items in response to a Government 
requirement:
    (1) 252.227-7013, Rights in Technical Data--Noncommercial Items;
    (2) 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends;
    (3) 252.227-7028, Technical Data or Computer Software Previously 
Delivered to the Government; and
    (4) 252.227-7037, Validation of Restrictive Markings on Technical 
Data.
    (d) Do not require contractors to have their subcontractors or 
suppliers at any tier relinquish rights in technical data to the 
contractor, a higher tier subcontractor, or to the Government, as a 
condition for award of any contract, subcontract, purchase order, or 
similar instrument except for the rights obtained by the Government 
under the Rights in Technical Data--Noncommercial Items clause contained 
in the contractor's contract with the Government.

[56 FR 36389, July 31, 1991, as amended at 60 FR 61598, Nov. 30, 1995]



227.7103-16  Providing technical data to foreign governments, 
foreign contractors, or international organizations.

    Technical data may be released or disclosed to foreign governments, 
foreign contractors, or international organizations only if release or 
disclosure is otherwise permitted both by Federal export controls and 
other national security laws or regulations. Subject to such laws and 
regulations, the Department of Defense--
    (a) May release or disclose technical data in which it has obtained 
unlimited rights to such foreign entities or authorize the use of such 
data by those entities; and
    (b) Shall not release or disclose technical data for which 
restrictions on use, release, or disclosure have been asserted to 
foreign entities, or authorize the use of technical data by those 
entities, unless the intended recipient is subject to the same 
provisions as included in the use and non-disclosure agreement at 
227.7103-7 and the requirements of the clause at 252.227-7103, Rights in 
Technical Data--Noncommercial Items, governing use, modification, 
reproduction, release, performance, display, or disclosure of such data 
have been satisfied.



227.7103-17  Overseas contracts with foreign sources.

    (a) The clause at 252.227-7032, Rights in Technical Data and 
Computer Software (Foreign), may be used in contracts with foreign 
contractors to be performed overseas, except Canadian purchases (see 
paragraph (c) of this subsection), in lieu of the clause at 252.227-
7013, Rights in Technical Data--Noncommercial Items, when the Government 
requires the unrestricted right to use, modify, reproduce, perform, 
display, release or disclose all technical data to be delivered under 
the contract. Do not use the clause in contracts for existing or special 
works.
    (b) When the Government does not require unlimited rights, the 
clause at

[[Page 265]]

252.227-7032 may be modified to accommodate the needs of a specific 
overseas procurement situation. The Government should obtain rights in 
the technical data that are not less than the rights the Government 
would have obtained under the data rights clause(s) prescribed in this 
part for a comparable procurement performed within the United States or 
its outlying areas.
    (c) Contracts for Canadian purchases shall include the appropriate 
data rights clause prescribed in this part for a comparable procurement 
performed within the United States or its outlying areas.

[56 FR 36389, July 31, 1991, as amended at 70 FR 35545, June 21, 2005]



227.7104  Contracts under the Small Business Innovation Research 
(SBIR) Program.

    (a) Use the clause at 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation Research 
(SBIR) Program, when technical data or computer software will be 
generated during performance of contracts under the SBIR program.
    (b) Under the clause at 252.227-7018, the Government obtains SBIR 
data rights in technical data and computer software generated under the 
contract and marked with the SBIR data rights legend. SBIR data rights 
provide the Government limited rights in such technical data and 
restricted rights in such computer software during the SBIR data 
protection period commencing with contract award and ending five years 
after completion of the project under which the data were generated. 
Upon expiration of the five-year restrictive license, the Government has 
unlimited rights in the SBIR technical data and computer software.
    (c) During the SBIR data protection period, the Government may not 
release or disclose SBIR technical data or computer software to any 
person except as authorized for limited rights technical data or 
restricted rights computer software, respectively.
    (d) Use the clause at 252.227-7018 with its Alternate I in research 
contracts when the contracting officer determines, in consultation with 
counsel, that public dissemination by the contractor would be--
    (1) In the interest of the Government; and
    (2) Facilitated by the Government relinquishing its right to publish 
the work for sale, or to have others publish the work for sale on behalf 
of the Government.
    (e) Use the following provision and clauses in SBIR solicitations 
and contracts that include the clause at 252.227-7018:
    (1) 252.227-7016, Rights in Bid or Proposal Information;
    (2) 252.227-7017, Identification and Assertion of Use, Release, or 
Disclosure Restrictions;
    (3) 252.227-7019, Validation of Asserted Restrictions--Computer 
Software;
    (4) 252.227-7030, Technical Data--Withholding of Payment; and
    (5) 252.227-7037, Validation of Restrictive Markings on Technical 
Data (paragraph (e) of the clause contains information that must be 
included in a challenge).
    (f) Use the following clauses and provision in SBIR solicitations 
and contracts in accordance with the guidance at 227.7103-6 (c) and (d):
    (1) 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends; and
    (2) 252.227-7028, Technical Data or Computer Software Previously 
Delivered to the Government.

[56 FR 36389, July 31, 1991, as amended at 60 FR 61598, Nov. 30, 1995; 
62 FR 2614, Jan. 17, 1997; 69 FR 31912, June 8, 2004; 78 FR 30238, May 
22, 2013]



227.7105  Contracts for the acquisition of existing works.



227.7105-1  General.

    (a) Existing works include motion pictures, television recordings, 
video recordings, and other audiovisual works in any medium; sound 
recordings in any medium; musical, dramatic, and literary works; 
pantomimes and choreographic works; pictorial, graphic, and sculptural 
works; and works of a similar nature. Usually, these or similar works 
were not first

[[Page 266]]

created, developed, generated, originated, prepared, or produced under a 
Government contract. Therefore, the Government must obtain a license in 
the work if it intends to reproduce the work, distribute copies of the 
work, prepare derivative works, or perform or display the work publicly. 
When the Government is not responsible for the content of an existing 
work, it should require the copyright owner to indemnify the Government 
for liabilities that may arise out of the content, performance, use, or 
disclosure of such data.
    (b) Follow the procedures at 227.7106 for works which will be first 
created, developed, generated, originated, prepared, or produced under a 
Government contract and the Government needs to control distribution of 
the work or has a specific need to obtain indemnity for liabilities that 
may arise out of the creation, content, performance, use, or disclosure 
of the work or from libelous or other unlawful material contained in the 
work. Follow the procedures at 227.7103 when the Government does not 
need to control distribution of such works or obtain such indemnities.



227.7105-2  Acquisition of existing works without modification.

    (a) Use the clause at 252.227-7021, Rights in Data--Existing Works, 
in lieu of the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, in solicitations and contracts exclusively for 
existing works when--
    (1) The existing works will be acquired without modification; and
    (2) The Government requires the right to reproduce, prepare 
derivative works, or publicly perform or display the existing works; or
    (3) The Government has a specific need to obtain indemnity for 
liabilities that may arise out of the content, performance, use, or 
disclosure of such data.
    (b) The clause at 252.227-7021 provides the Government, and others 
acting on its behalf, a paid-up, non-exclusive, irrevocable, world-wide 
license to reproduce, prepare derivative works and publicly perform or 
display the works called for by a contract and to authorize others to do 
so for government purposes.
    (c) A contract clause is not required to acquire existing works such 
as books, magazines and periodicals, in any storage or retrieval medium, 
when the Government will not reproduce the books, magazines or 
periodicals, or prepare derivative works.



227.7105-3  Acquisition of modified existing works.

    Use the clause at 252.227-7020, Rights in Special Works, in 
solicitations and contracts for modified existing works in lieu of the 
clause at 252.227-7021, Rights in Data--Existing Works.



227.7106  Contracts for special works.

    (a) Use the clause at 252.227-7020, Rights in Special Works, in 
solicitations and contracts where the Government has a specific need to 
control the distribution of works first produced, created, or generated 
in the performance of a contract and required to be delivered under that 
contract, including controlling distribution by obtaining an assignment 
of copyright, or a specific need to obtain indemnity for liabilities 
that may arise out of the creation, delivery, use, modification, 
reproduction, release, performance, display, or disclosure of such 
works. Use the clause--
    (1) In lieu of the clause at 252.227-7013, Rights in Technical 
Data--Noncommercial Items, when the Government must own or control 
copyright in all works first produced, created, or generated and 
required to be delivered under a contract; or
    (2) In addition to the clause at 252.227-7013 when the Government 
must own or control copyright in a portion of a work first produced, 
created, or generated and required to be delivered under a contract. The 
specific portion in which the Government must own or control copyright 
must be identified in a special contract requirement.
    (b) Although the Government obtains an assignment of copyright and 
unlimited rights in a special work under the clause at 252.227-7020, the 
contractor retains use and disclosure rights in that work. If the 
Government needs to restrict a contractor's rights to use or disclose a 
special work, it must also

[[Page 267]]

negotiate a special license which specifically restricts the 
contractor's use or disclosure rights.
    (c) The clause at 252.227-7020 does not permit a contractor to 
incorporate into a special work any works copyrighted by others unless 
the contractor obtains the contracting officer's permission to do so and 
obtains for the Government a non-exclusive, paid up, world-wide license 
to make and distribute copies of that work, to prepare derivative works, 
to perform or display publicly any portion of the work, and to permit 
others to do so for government purposes. Grant permission only when the 
Government's requirements cannot be satisfied unless the third party 
work is included in the deliverable work.
    (d) Examples of works which may be procured under the Rights in 
Special Works clause include, but are not limited, to audiovisual works, 
computer data bases, computer software documentation, scripts, 
soundtracks, musical compositions, and adaptations; histories of 
departments, agencies, services or units thereof; surveys of Government 
establishments; instructional works or guidance to Government officers 
and employees on the discharge of their official duties; reports, books, 
studies, surveys or similar documents; collections of data containing 
information pertaining to individuals that, if disclosed, would violate 
the right of privacy or publicity of the individuals to whom the 
information relates; or investigative reports.



227.7107  Contracts for architect-engineer services.

    This section sets forth policies and procedures, pertaining to data, 
copyrights, and restricted designs unique to the acquisition of 
construction and architect-engineer services.



227.7107-1  Architectural designs and data clauses for architect
-engineer or construction contracts.

    (a) Except as provided in paragraph (b) of this subsection and in 
227.7107-2, use the clause at 252.227-7022, Government Rights 
(Unlimited), in solicitations and contracts for architect-engineer 
services and for construction involving architect-engineer services.
    (b) When the purpose of a contract for architect-engineer services, 
or for construction involving architect-engineer services, is to obtain 
a unique architectural design of a building, a monument, or construction 
of similar nature, which for artistic, aesthetic or other special 
reasons the Government does not want duplicated, the Government may 
acquire exclusive control of the data pertaining to the design by 
including the clause at 252.227-7023, Drawings and Other Data to Become 
Property of Government, in solicitations and contracts.
    (c) The Government shall obtain unlimited rights in shop drawings 
for construction. In solicitations and contracts calling for delivery of 
shop drawings, include the clause at 252.227-7033, Rights in Shop 
Drawings.



227.7107-2  Contracts for construction supplies and research and 
development work.

    Use the provisions and clauses required by 227-7103-6 and 227.7203-6 
when the acquisition is limited to--
    (a) Construction supplies or materials;
    (b) Experimental, developmental, or research work, or test and 
evaluation studies of structures, equipment, processes, or materials for 
use in construction; or
    (c) Both.



227.7107-3  Approval of restricted designs.

    The clause at 252.227-7024, Notice and Approval of Restricted 
Designs, may be included in architect-engineer contracts to permit the 
Government to make informed decisions concerning noncompetitive aspects 
of the design.



227.7108  Contractor data repositories.

    (a) Contractor data repositories may be established when permitted 
by agency procedures. The contractual instrument establishing the data 
repository must require, as a minimum, the data repository management 
contractor to--
    (1) Establish and maintain adequate procedures for protecting 
technical data delivered to or stored at the repository from 
unauthorized release or disclosure;

[[Page 268]]

    (2) Establish and maintain adequate procedures for controlling the 
release or disclosure of technical data from the repository to third 
parties consistent with the Government's rights in such data;
    (3) When required by the contracting officer, deliver data to the 
Government on paper or in other specified media;
    (4) Be responsible for maintaining the currency of data delivered 
directly by Government contractors or subcontractors to the repository;
    (5) Obtain use and non-disclosure agreements (see 227.7103-7) from 
all persons to whom government purpose rights data is released or 
disclosed; and
    (6) Indemnify the Government from any liability to data owners or 
licensors resulting from, or as a consequence of, a release or 
disclosure of technical data made by the data repository contractor or 
its officers, employees, agents, or representatives.
    (b) If the contractor is or will be the data repository manager, the 
contractor's data management and distribution responsibilities must be 
identified in the contract or the contract must reference the agreement 
between the Government and the contractor that establishes those 
responsibilities.
    (c) If the contractor is not and will not be the data repository 
manager, do not require a contractor or subcontractor to deliver 
technical data marked with limited rights legends to a data repository 
managed by another contractor unless the contractor or subcontractor who 
has asserted limited rights agrees to release the data to the repository 
or has authorized, in writing, the Government to do so.
    (d) Repository procedures may provide for the acceptance, delivery, 
and subsequent distribution of technical data in storage media other 
than paper, including direct electronic exchange of data between two 
computers. The procedures must provide for the identification of any 
portions of the data provided with restrictive legends, when 
appropriate. The acceptance criteria must be consistent with the 
authorized delivery format.



    Subpart 227.72_Rights in Computer Software and Computer Software 
                              Documentation

    Source: 60 FR 33482, June 28, 1995, unless otherwise noted.



227.7200  Scope of subpart.

    This subpart--
    (a) Prescribes policies and procedures for the acquisition of 
computer software and computer software documentation, and the rights to 
use, modify, reproduce, release, perform, display, or disclose such 
software or documentation. It implements requirements in the following 
laws and Executive Order:
    (1) 10 U.S.C. 2302(4).
    (2) 10 U.S.C. 2305 (subsection (d)(4)).
    (3) 10 U.S.C. 2320.
    (4) 10 U.S.C. 2321.
    (5) 10 U.S.C. 2325.
    (6) Executive Order 12591 (subsection 1(b)(6)).
    (b) Does not apply to--
    (1) Computer software or computer software documentation acquired 
under GSA schedule contracts; or
    (2) Releases of computer software or computer software documentation 
to litigation support contractors (see subpart 204.74).

[60 FR 33482, June 28, 1995, as amended at 79 FR 11340, Feb. 28, 2014]



227.7201  Definitions.

    (a) As used in this subpart, unless otherwise specifically 
indicated, the terms ``offeror'' and ``contractor'' include an offeror's 
or contractor's subcontractors, suppliers, or potential subcontractors 
or suppliers at any tier.
    (b) Other terms used in this subpart are defined in the clause at 
252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation.



227.7202  Commercial computer software and commercial computer
software documentation.



227.7202-1  Policy.

    (a) Commercial computer software or commercial computer software 
documentation shall be acquired under the licenses customarily provided 
to the

[[Page 269]]

public unless such licenses are inconsistent with Federal procurement 
law or do not otherwise satisfy user needs.
    (b) Commercial computer software and commercial computer software 
documentation shall be obtained competitively, to the maximum extent 
practicable, using firm-fixed-price contracts or firm-fixed-priced 
orders under available pricing schedules.
    (c) Offerors and contractors shall not be required to--
    (1) Furnish technical information related to commercial computer 
software or commercial computer software documentation that is not 
customarily provided to the public except for information documenting 
the specific modifications made at Government expense to such software 
or documentation to meet the requirements of a Government solicitation; 
or
    (2) Relinquish to, or otherwise provide, the Government rights to 
use, modify, reproduce, release, perform, display, or disclose 
commercial computer software or commercial computer software 
documentation except for a transfer of rights mutually agreed upon.



227.7202-2  [Reserved]



227.7202-3  Rights in commercial computer software or commercial
computer software documentation.

    (a) The Government shall have only the rights specified in the 
license under which the commercial computer software or commercial 
computer software documentation was obtained.
    (b) If the Government has a need for rights not conveyed under the 
license customarily provided to the public, the Government must 
negotiate with the contractor to determine if there are acceptable terms 
for transferring such rights. The specific rights granted to the 
Government shall be enumerated in the contract license agreement or an 
addendum thereto.



227.7202-4  Contract clause.

    A specific contract clause governing the Government's rights in 
commercial computer software or commercial computer software 
documentation is not prescribed. As required by 227.7202-3, the 
Government's rights to use, modify, reproduce, release, perform, 
display, or disclose computer software or computer software 
documentation shall be identified in a license agreement.



227.7203  Noncommercial computer software and noncommercial computer
software documentation.



227.7203-1  Policy.

    (a) DoD policy is to acquire only the computer software and computer 
software documentation, and the rights in such software or 
documentation, necessary to satisfy agency needs.
    (b) Solicitations and contracts shall--
    (1) Specify the computer software or computer software documentation 
to be delivered under a contract and the delivery schedules for the 
software or documentation;
    (2) Establish or reference procedures for determining the 
acceptability of computer software or computer software documentation;
    (3) Establish separate contract line items, to the extent 
practicable, for the computer software or computer software 
documentation to be delivered under a contract and require offerors and 
contractors to price separately each deliverable data item; and
    (4) Require offerors to identify, to the extent practicable, 
computer software or computer software documentation to be furnished 
with restrictions on the Government's rights and require contractors to 
identify computer software or computer software documentation to be 
delivered with such restrictions prior to delivery.
    (c) Offerors shall not be required, either as a condition of being 
responsive to a solicitation or as a condition for award, to sell or 
otherwise relinquish to the Government any rights in computer software 
developed exclusively at private expense except for the software 
identified at 227.7203-5(a) (3) through (6).
    (d) Offerors and contractors shall not be prohibited or discouraged 
from furnishing or offering to furnish computer software developed 
exclusively at private expense solely because the Government's rights to 
use, modify, release, reproduce, perform, display, or

[[Page 270]]

disclose the software may be restricted.
    (e) For acquisitions involving major weapon systems or subsystems of 
major weapon systems, the acquisition plan shall address acquisition 
strategies that provide for computer software and computer software 
documentation, and the associated license rights, in accordance with 
207.106(S-70).

[60 FR 33471, June 28, 1995, as amended at 72 FR 51189, Sept. 6, 2007]



227.7203-2  Acquisition of noncommercial computer software and 
computer software documentation.

    (a) Contracting officers shall work closely with data managers and 
requirements personnel to assure that computer software and computer 
software documentation requirements included in solicitations are 
consistent with the policy expressed in 227.7203-1.
    (b)(1) Data managers or other requirements personnel are responsible 
for identifying the Government's minimum needs. In addition to desired 
software performance, compatibility, or other technical considerations, 
needs determinations should consider such factors as multiple site or 
shared use requirements, whether the Government's software maintenance 
philosophy will require the right to modify or have third parties modify 
the software, and any special computer software documentation 
requirements.
    (2) When reviewing offers received in response to a solicitation or 
other request for computer software or computer software documentation, 
data managers must balance the original assessment of the Government's 
needs with prices offered.
    (c) Contracting officers are responsible for ensuring that, wherever 
practicable, solicitations and contracts--
    (1) Identify the types of computer software and the quantity of 
computer programs and computer software documentation to be delivered, 
any requirements for multiple users at one site or multiple site 
licenses, and the format and media in which the software or 
documentation will be delivered;
    (2) Establish each type of computer software or computer software 
documentation to be delivered as a separate contract line item (this 
requirement may be satisfied by an exhibit to the contract);
    (3) Identify the prices established for each separately priced 
deliverable item of computer software or computer software documentation 
under a fixed-price type contract;
    (4) Include delivery schedules and acceptance criteria for each 
deliverable item; and
    (5) Specifically identify the place of delivery for each deliverable 
item.



227.7203-3  Early identification of computer software or computer
software documentation to be furnished to the Government with 
restrictions on use, reproduction or disclosure.
          

    (a) Use the provision at 252.227-7017, Identification and Assertion 
of Use, Release, or Disclosure Restrictions, in all solicitation that 
include the clause at 252.227-7014, Rights in Noncommercial Computer 
Software and Noncommercial Computer Software Documentation. The 
provision requires offerors to identify any computer software or 
computer software documentation for which restrictions, other than 
copyright, on use, modification, reproduction, release, performance, 
display, or disclosure are asserted and to attach the identification and 
assertion to the offer.
    (b) Subsequent to contract award, the clause at 252.227-7014 permits 
a contractor, under certain conditions, to make additional assertions of 
restrictions. The prescriptions for the use of that clause and its 
alternates are at 227.7203-6(a).



227.7203-4  License rights.

    (a) Grant of license. The Government obtains rights in computer 
software or computer software documentation, including a copyright 
license, under an irrevocable license granted or obtained by the 
contractor which developed the software or documentation or the licensor 
of the software or documentation if the development contractor is not 
the licensor. The contractor or licensor retains all rights in the 
software or documentation not granted to the Government. The scope of a 
computer software license is generally determined by the source of funds 
used to develop the software. Contractors or

[[Page 271]]

licensors may, with some exceptions, restrict the Government's rights to 
use, modify, reproduce, release, perform, display, or disclose computer 
software developed exclusively or partially at private expense (see 
227.7203-5 (b) and (c)). They may not, without the Government's 
agreement (see 227.7203-5(d)), restrict the Government's rights in 
computer software developed exclusively with Government funds or in 
computer software documentation required to be delivered under a 
contract.
    (b) Source of funds determination. The determination of the source 
of funds used to develop computer software should be made at the lowest 
practicable segregable portion of the software or documentation (e.g., a 
software sub-routine that performs a specific function). Contractors may 
assert restricted rights in a segregable portion of computer software 
which otherwise qualifies for restricted rights under the clause at 
252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation.



227.7203-5  Government rights.

    The standard license rights in computer software that a licensor 
grants to the Government are unlimited rights, government purpose 
rights, or restricted rights. The standard license in computer software 
documentation conveys unlimited rights. Those rights are defined in the 
clause at 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation. In unusual situations, 
the standard rights may not satisfy the Government's needs or the 
Government may be willing to accept lesser rights in return for other 
consideration. In those cases, a special license may be negotiated. 
However, the licensor is not obligated to provide the Government greater 
rights and the contracting officer is not required to accept lesser 
rights than the rights provided in the standard grant of license. The 
situations under which a particular grant of license applies are 
enumerated in paragraphs (a) through (d) of this subsection.
    (a) Unlimited rights. The Government obtains an unlimited rights 
license in--
    (1) Computer software developed exclusively with Government funds;
    (2) Computer software documentation required to be delivered under a 
Government contract;
    (3) Corrections or changes to computer software or computer software 
documentation furnished to the contractor by the Government;
    (4) Computer software or computer software documentation that is 
otherwise publicly available or has been released or disclosed by the 
contractor or subcontractor without restrictions on further use, release 
or disclosure other than a release or disclosure resulting from the 
sale, transfer, or other assignment of interest in the software to 
another party or the sale or transfer of some or all of a business 
entity or it assets to another party;
    (5) Computer software or computer software documentation obtained 
with unlimited rights under another Government contract or as a result 
of negotiations; or
    (6) Computer software or computer software documentation furnished 
to the Government, under a Government contract or subcontract with--
    (i) Restricted rights in computer software, limited rights in 
technical data, or government purpose license rights and the restrictive 
conditions have expired; or
    (ii) Government purpose rights and the contractor's exclusive right 
to use such software or documentation for commercial purposes has 
expired.
    (b) Government purpose rights. (1) Except as provided in paragraph 
(a) of this subsection, the Government obtains government purpose rights 
in computer software developed with mixed funding.
    (2) The period during which government purpose rights are effective 
is negotiable. The clause at 252.227-7014 provides a nominal five-year 
period. Either party may request a different period. Changes to the 
government purpose rights period may be made at any time prior to 
delivery of the software without consideration from either party. Longer 
periods should be negotiated when a five-year period does not

[[Page 272]]

provide sufficient time to commercialize the software or, for software 
developed by subcontractors, when necessary to recognize the 
subcontractors' interests in the software.
    (3) The government purpose rights period commences upon execution of 
the contract, subcontract, letter contract (or similar contractual 
instrument), contract modification, or option exercise that required 
development of the computer software. Upon expiration of the government 
purpose rights period, the Government has unlimited rights in the 
software including the right to authorize others to use data for 
commercial purposes.
    (4) During the government purpose rights period, the Government may 
not use, or authorize other persons to use, computer software marked 
with government purpose rights legends for commercial purposes. The 
Government shall not release or disclose, or authorize others to release 
or disclose, computer software in which it has government purpose rights 
to any person unless--
    (i) Prior to release or disclosure, the intended recipient is 
subject to the use and non-disclosure agreement at 227.7103-7; or
    (ii) The intended recipient is a Government contractor receiving 
access to the software for performance of a Government contract that 
contains the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends.
    (5) When computer software marked with government purpose rights 
legends will be released or disclosed to a Government contractor 
performing a contract that does not include the clause at 252.227-7025, 
the contract may be modified, prior to release or disclosure, to include 
such clause in lieu of requiring the contractor to complete a use and 
non-disclosure agreement.
    (6) Contracting activities shall establish procedures to assure that 
computer software or computer software documentation marked with 
government purpose rights legends are released or disclosed, including a 
release or disclosure through a Government solicitation, only to persons 
subject to the use and non-disclosure restrictions. Public announcements 
in the Commerce Business Daily or other publications must provide notice 
of the use and non-disclosure requirements. Class use and non-disclosure 
agreements (e.g., agreements covering all solicitations received by the 
XYZ company within a reasonable period) are authorized and may be 
obtained at any time prior to release or disclosure of the government 
purpose rights software or documentation. Documents transmitting 
government purpose rights software or documentation to persons under 
class agreements shall identify the specific software or documentation 
subject to government purpose rights and the class agreement under which 
such software or documentation are provided.
    (c) Restricted rights. (1) The Government obtains restricted rights 
in noncommercial computer software, required to be delivered or 
otherwise provided to the Government under a contract, that was 
developed exclusively at private expense.
    (2) Contractors are not required to provide the Government 
additional rights in computer software delivered or otherwise provided 
to the Government with restricted rights. When the Government has a need 
for additional rights, the Government must negotiate with the contractor 
to determine if there are acceptable terms for transferring such rights. 
List or describe all software in which the contractor has granted the 
Government additional rights in a license agreement made part of the 
contract (see paragraph (d) of this subsection). The license shall 
enumerate the specific additional rights granted to the Government.
    (d) Specifically negotiated license rights. Negotiate specific 
licenses when the parties agree to modify the standard license rights 
granted to the Government or when the Government wants to obtain rights 
in computer software in which it does not have rights. When negotiating 
to obtain, relinquish, or increase the Government's rights in computer 
software, consider the planned software maintenance philosophy, 
anticipated time or user sharing requirements, and other factors which 
may have relevance for a particular procurement. If negotiating to

[[Page 273]]

relinquish rights in computer software documentation, consider the 
administrative burden associated with protecting documentation subject 
to restrictions from unauthorized release or disclosure. The negotiated 
license rights must stipulate the rights granted the Government to use, 
modify, reproduce, release, perform, display, or disclose the software 
or documentation and the extent to which the Government may authorize 
others to do so. Identify all negotiated rights in a license agreement 
made part of the contract.
    (e) Rights in derivative computer software or computer software 
documentation. The clause at 252.227-7014 protects the Government's 
rights in computer software, computer software documentation, or 
portions thereof that the contractor subsequently uses to prepare 
derivative software or subsequently embeds or includes in other software 
or documentation. The Government retains the rights it obtained under 
the development contract in the unmodified portions of the derivative 
software or documentation.

[56 FR 36389, July 31, 1991, as amended at 76 FR 3537, Jan. 20, 2011]



227.7203-6  Contract clauses.

    (a)(1) Use the clause at 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, in 
solicitations and contracts when the successful offeror(s) will be 
required to deliver computer software or computer software 
documentation. Do not use the clause when the only deliverable items are 
technical data (other than computer software documentation), commercial 
computer software or commercial computer software documentation, 
commercial items (see 227.7102-3), special works (see 227.7205), or 
contracts under the Small Business Innovation Research Program (see 
227.7104), Except as provided in 227.7107-2, do not use the clause in 
architect-engineer and construction contracts.
    (2) Use the clause at 252.227-7014 with its Alternate I in research 
contracts when the contracting officer determines, in consultation with 
counsel, that public dissemination by the contractor would be--
    (i) In the interest of the Government; and
    (ii) Facilitated by the Government relinquishing its right to 
publish the work for sale, or to have others publish the work for sale 
on behalf of the Government.
    (b) Use the clause at 252.227-7016, Rights in Bid or Proposal 
Information, in solicitations and contracts that include the clause at 
252.227-7014.
    (c) Use the clause at 252.227-7019, Validation of Asserted 
Restrictions--Computer Software, in solicitations and contracts that 
include the clause at 252.227-7014. The clause provides procedures for 
the validation of asserted restrictions on the Government's rights to 
use, release, or disclose computer software.
    (d) Use the provision at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends, in solicitations and contracts when it is anticipated that the 
Government will provide the contractor (other than a litigation support 
contractor covered by 252.204-7014), for performance of its contract, 
computer software or computer software documentation marked with another 
contractor's restrictive legend(s).
    (e) Use the provision at 252.227-7028, Technical Data or Computer 
Software Previously Delivered to the Government, in solicitations when 
the resulting contract will require the contractor to deliver computer 
software or computer software documentation. The provision requires 
offerors to identify any software or documentation specified in the 
solicitation as deliverable items that are the same or substantially the 
same as software or documentation which the offeror has delivered or is 
obligated to deliver, either as a contractor or subcontractor, under any 
other federal agency contract.
    (f) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, in solicitations and contracts that include 
the clause at 252.227-7014 when the contractor will be required to 
deliver noncommercial computer software documentation (technical data). 
The clause implements statutory requirements under 10 U.S.C. 2321. 
Paragraph (e) of the clause

[[Page 274]]

contains information that must be included in a formal challenge.

[56 FR 36389, July 31, 1991, as amended at 76 FR 3537, Jan. 20, 2011; 79 
FR 11340, Feb. 28, 2014]



227.7203-8  Deferred delivery and deferred ordering of computer
software and computer software documentation.

    (a) Deferred delivery. Use the clause at 252.227-7026, Deferred 
Delivery of Technical Data or Computer Software, when it is in the 
Government's interests to defer the delivery of computer software or 
computer software documentation. The clause permits the contracting 
officer to require the delivery of data identified as ``deferred 
delivery'' data or computer software at any time until two years after 
acceptance by the Government of all items (other than technical data or 
computer software) under the contract or contract termination, whichever 
is later. The obligation of subcontractors or suppliers to deliver such 
data expires two years after the date the prime contractor accepts the 
last item from the subcontractor or supplier for use in the performance 
of the contract. The contract must specify the computer software or 
computer software documentation that is subject to deferred delivery. 
The contracting officer shall notify the contractor sufficiently in 
advance of the desired delivery date for such software or documentation 
to permit timely delivery.
    (b) Deferred ordering. Use the clause at 252.227-7027, Deferred 
Ordering of Technical Data or Computer Software, when a firm requirement 
for software or documentation has not been established prior to contract 
award but there is a potential need for computer software or computer 
software documentation. Under this clause the contracting officer may 
order any computer software or computer software documentation generated 
in the performance of the contract or any subcontract thereunder at any 
time until three years after acceptance of all items (other than 
technical data or computer software) under the contract or contract 
termination, whichever is later. The obligation of subcontractors to 
deliver such technical data or computer software expires three years 
after the date the contractor accepts the last item under the 
subcontract. When the software or documentation are ordered, the 
delivery dates shall be negotiated and the contractor compensated only 
for converting the software or documentation into the prescribed form, 
reproduction costs, and delivery costs.



227.7203-9  Copyright.

    (a) Copyright license. (1) The clause at 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation, requires a contractor to grant, or obtain for the 
Government license rights which permit the Government to reproduce the 
software or documentation, distribute copies, perform or display the 
software or documentation and, through the right to modify data, prepare 
derivative works. The extent to which the Government, and others acting 
on its behalf, may exercise these rights varies for each of the standard 
data rights licenses obtained under the clause. When non-standard 
license rights in computer software or computer software documentation 
will be negotiated, negotiate the extent of the copyright license 
concurrent with negotiations for the data rights license. Do not 
negotiate copyright licenses for computer software that provide less 
rights than the standard restricted rights in computer software license. 
For computer software documentation, do not negotiate a copyright 
license that provides less rights than the standard limited rights in 
technical data license.
    (2) The clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, does not permit a contractor to incorporate a third 
party's copyrighted software into a deliverable software item unless the 
contractor has obtained an appropriate license for the Government and, 
when applicable, others acting on the Government's behalf, or has 
obtained the contracting officer's written approval to do so. Grant 
approval to use third party copyrighted software in which the Government 
will not receive a copyright license only when the Government's 
requirements cannot be satisfied without the third party material or 
when the use of the

[[Page 275]]

third party material will result in cost savings to the Government which 
outweigh the lack of a copyright license.
    (b) Copyright considerations--special works. See 227.7205 for 
copyright considerations when acquiring special works.



227.7203-10  Contractor identification and marking of computer 
software or computer software documentation to be furnished with
restrictive markings.

    (a) Identification requirements. (1) The solicitation provision at 
252.227-7017, Identification and Assertion of Use, Release, or 
Disclosure Restrictions, requires offerors to identify, prior to 
contract award, any computer software or computer software documentation 
that an offeror asserts should be provided to the Government with 
restrictions on use, modification, reproduction, release, or disclosure. 
This requirement does not apply to restrictions based solely on 
copyright. The notification and identification must be submitted as an 
attachment to the offer. If an offeror fails to submit the attachment or 
fails to complete the attachment in accordance with the requirements of 
the solicitation provision, such failure shall constitute a minor 
informality. Provide offerors an opportunity to remedy a minor 
informality in accordance with the procedures at FAR 14.405 or 
15.306(a). An offeror's failure to correct an informality within the 
time prescribed by the contracting officer shall render the offer 
ineligible for award.
    (2) The procedures for correcting minor informalities shall not be 
used to obtain information regarding asserted restrictions or an 
offeror's suggested asserted rights category. Questions regarding the 
justification for an asserted restriction or asserted rights category 
must be pursued in accordance with the procedures at 227.7203-13.
    (3) The restrictions asserted by a successful offeror shall be 
attached to its contract unless, in accordance with the procedures at 
227.7203-13, the parties have agreed that an asserted restriction is not 
justified. The contract attachment shall provide the same information 
regarding identification of the computer software or computer software 
documentation, the asserted rights category, the basis for the 
assertion, and the name of the person asserting the restrictions as 
required by paragraph (d) of the solicitation provision at 252.227-7017. 
Subsequent to contract award, the clause at 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation, permits a contractor to make additional assertions under 
certain conditions. The additional assertions must be made in accordance 
with the procedures and in the format prescribed by that clause.
    (4) Neither the pre- or post-award assertions made by the contractor 
nor the fact that certain assertions are identified in the attachment to 
the contract, determine the respective rights of the parties. As 
provided at 227.7203-13, the Government has the right to review, verify, 
challenge and validate restrictive markings.
    (5) Information provided by offerors in response to the solicitation 
provision at 252.227-7017 may be used in the source selection process to 
evaluate the impact on evaluation factors that may be created by 
restrictions on the Government's ability to use or disclose computer 
software or computer software documentation.
    (b) Contractor marking requirements. The clause at 252.227-7014, 
Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation--
    (1) Requires a contractor who desires to restrict the Government's 
rights in computer software or computer software documentation to place 
restrictive markings on the software or documentation, provides 
instructions for the placement of the restrictive markings, and 
authorizes the use of certain restrictive markings. When it is 
anticipated that the software will or may be used in combat or 
situations which simulate combat conditions, do not permit contractors 
to insert instructions into computer programs that interfere with or 
delay operation of the software to display a restrictive rights legend 
or other license notice; and
    (2) Requires a contractor to deliver, furnish, or otherwise provide 
to the Government any computer software or computer software 
documentation in which the Government has previously

[[Page 276]]

obtained rights with the Government's pre-existing rights in that 
software or documentation unless the parties have agreed otherwise or 
restrictions on the Government's rights to use, modify, produce, 
release, or disclose the software or documentation have expired. When 
restrictions are still applicable, the contractor is permitted to mark 
the software or documentation with the appropriate restrictive legend.
    (c) Unmarked computer software or computer software documentation. 
(1) Computer software or computer software documentation delivered or 
otherwise provided under a contract without restrictive markings shall 
be presumed to have been delivered with unlimited rights and may be 
released or disclosed without restriction. To the extent practicable, if 
a contractor has requested permission (see paragraph (c)(2) of this 
subsection) to correct an inadvertent omission of markings, do not 
release or disclose the software or documentation pending evaluation of 
the request.
    (2) A contractor may request permission to have appropriate legends 
placed on unmarked computer software or computer software documentation 
at its expense. The request must be received by the contracting officer 
within six months following the furnishing or delivery of such software 
or documentation, or any extension of that time approved by the 
contracting officer. The person making the request must--
    (i) Identify the software or documentation that should have been 
marked;
    (ii) Demonstrate that the omission of the marking was inadvertent, 
the proposed marking is justified and conforms with the requirements for 
the marking of computer software or computer software documentation 
contained in the clause at 252.227-7014; and
    (iii) Acknowledge, in writing, that the Government has no liability 
with respect to any disclosure, reproduction, or use of the software or 
documentation made prior to the addition of the marking or resulting 
from the omission of the marking.
    (3) Contracting officers should grant permission to mark only if the 
software or documentation were not distributed outside the Government or 
were distributed outside the Government with restrictions on further use 
or disclosure.

[60 FR 33482, June 28, 1995, as amended at 63 FR 55052, Oct. 14, 1998]



227.7203-11  Contractor procedures and records.

    (a) The clause at 252.227-7014, Rights in Noncommercial Computer 
Software and Noncommercial Computer Software Documentation, requires a 
contractor, and its subcontractors or suppliers that will deliver 
computer software or computer software documentation with other than 
unlimited rights, to establish and follow written procedures to assure 
that restrictive markings are used only when authorized and to maintain 
records to justify the validity of restrictive markings.
    (b) The clause at 252.227-7019, Validation of Asserted 
Restrictions--Computer Software, requires contractors and their 
subcontractors or suppliers at any tier to maintain records sufficient 
to justify the validity of markings that assert restrictions on the use, 
modification, reproduction, release, performance, display, or disclosure 
of computer software.



227.7203-12  Government right to establish conformity of markings.

    (a) Nonconforming markings. (1) Authorized markings are identified 
in the clause at 252.227-7014, Rights in Noncommercial Computer Software 
and Noncommercial Computer Software Documentation. All other markings 
are nonconforming markings. An authorized marking that is not in the 
form, or differs in substance, from the marking requirements in the 
clause at 252.227-7014 is also a nonconforming marking.
    (2) The correction of nonconforming markings on computer software is 
not subject to 252.227-7019, Validation of Asserted Restrictions--
Computer Software, and the correction of nonconforming markings on 
computer software documentation (technical data) is not subject to 
252.227-7037, Validation of Restrictive Markings on Technical Data. To 
the extent practicable, the contracting officer should return computer 
software or computer software

[[Page 277]]

documentation bearing nonconforming markings to the person who has 
placed the nonconforming markings on the software or documentation to 
provide that person an opportunity to correct or strike the 
nonconforming markings at that person's expense. If that person fails to 
correct the nonconformity and return the corrected software or 
documentation within 60 days following the person's receipt of the 
software or documentation, the contracting officer may correct or strike 
the nonconformity at the person's expense. When it is impracticable to 
return computer software or computer software documentation for 
correction, contracting officers may unilaterally correct any 
nonconforming markings at Government expense. Prior to correction, the 
software or documentation may be used in accordance with the proper 
restrictive marking.
    (b) Unjustified markings. (1) An unjustified marking is an 
authorized marking that does not depict accurately restrictions 
applicable to the Government's use, modification, reproduction, release, 
or disclosure of the marked computer software or computer software 
documentation. For example, a restricted rights legend placed on 
computer software developed under a Government contract either 
exclusively at Government expense or with mixed funding (situations 
under which the Government obtains unlimited or government purpose 
rights) is an unjustified marking.
    (2) Contracting officers have the right to review and challenge the 
validity of unjustified markings. However, at any time during 
performance of a contract and notwithstanding existence of a challenge, 
the contracting officer and the person who has asserted a restrictive 
marking may agree that the restrictive marking is not justified. Upon 
such agreement, the contracting officer may, at his or her election, 
either--
    (i) Strike or correct the unjustified marking at that person's 
expense; or
    (ii) Return the computer software or computer software documentation 
to the person asserting the restriction for correction at that person's 
expense. If the software or documentation are returned and that person 
fails to correct or strike the unjustified restriction and return the 
corrected software or documentation to the contracting officer within 60 
days following receipt of the software or documentation, the unjustified 
marking shall be corrected or stricken at that person's expense.



227.7203-13  Government right to review, verify, challenge,
and validate asserted restrictions.

    (a) General. An offeror's or contractor's assertion(s) of 
restrictions on the Government's rights to use, modify, reproduce, 
release, or disclose computer software or computer software 
documentation do not, by themselves, determine the extent of the 
Government's rights in such software or documentation. The Government 
may require an offeror or contractor to submit sufficient information to 
permit an evaluation of a particular asserted restriction and may 
challenge asserted restrictions when there are reasonable grounds to 
believe that an assertion is not valid.
    (b) Requests for information. Contracting officers should have a 
reason to suspect that an asserted restriction might not be correct 
prior to requesting information. When requesting information, provide 
the offeror or contractor the reason(s) for suspecting that an asserted 
restriction might not be correct. A need for additional license rights 
is not, by itself, a sufficient basis for requesting information 
concerning an asserted restriction. Follow the procedures at 227.7203-
5(d) when additional license rights are needed but there is no basis to 
suspect that an asserted restriction might not be valid.
    (c) Transacting matters directly with subcontractors. The clause at 
252.227-7019, Validation of Asserted Restrictions--Computer Software, 
obtains the contractor's agreement that the Government may transact 
matters under the clause directly with a subcontractor or supplier, at 
any tier, without creating or implying privity of contract. Contracting 
officers should permit a subcontractor or supplier to transact challenge 
and validation matters directly with the Government when--

[[Page 278]]

    (1) A subcontractor's or supplier's business interests in its 
technical data would be compromised if the data were disclosed to a 
higher tier contractor.
    (2) There is reason to believe that the contractor will not respond 
in a timely manner to a challenge and an untimely response would 
jeopardize a subcontractor's or supplier's right to assert restrictions; 
or
    (3) Requested to do so by a subcontractor or supplier.
    (d) Challenging asserted restrictions--(1) Pre-award considerations. 
The challenge procedures in the clause at 252.227-7019 could 
significantly delay competitive procurements. Therefore, avoid 
challenging asserted restrictions prior to a competitive contract award 
unless resolution of the assertion is essential for successful 
completion of the procurement.
    (2) Computer software documentation. Computer software documentation 
is technical data. Challenges to asserted restrictions on the 
Government's rights to use, modify, reproduce, release, perform, 
display, or disclose computer software documentation must be made in 
accordance with the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, and the guidance at 227.7103-13. The 
procedures in the clause at 252.227-7037 implement requirements 
contained in 10 U.S.C. 2321. Resolution of questions regarding the 
validity of asserted restrictions using the process described at 
227.7103-12(b)(2) is strongly encouraged.
    (3) Computer software. (i) Asserted restrictions should be reviewed 
before acceptance of the computer software deliverable under a contract. 
The Government's right to challenge an assertion expires three years 
after final payment under the contract or three years after delivery of 
the software, whichever is later. Those limitations on the Government's 
challenge rights do not apply to software that is publicly available, 
has been furnished to the Government without restrictions, or has been 
otherwise made available without restrictions.
    (ii) Contracting officers must have reasonable grounds to challenge 
the current validity of an asserted restriction. Before challenging an 
asserted restriction, carefully consider all available information 
pertaining to the asserted restrictions. Resolution of questions 
regarding the validity of asserted restrictions using the process 
described at 227.7203-12(b)(2) is strongly encouraged. After 
consideration of the situations described in paragraph (c) of this 
subsection, contracting officers may request the person asserting a 
restriction to furnish a written explanation of the facts and supporting 
documentation for the assertion in sufficient detail to enable the 
contracting officer to determine the validity of the assertion. 
Additional supporting documentation may be requested when the 
explanation provided by that person does not, in the contracting 
officer's opinion, establish the validity of the assertion.
    (iii) Assertions may be challenged whether or not supporting 
documentation was requested. Challenges must be in writing and issued to 
the person asserting the restriction.
    (4) Extension of response time. The contracting officer, at his or 
her discretion, may extend the time for response contained in a 
challenge, as appropriate, if the contractor submits a timely written 
request showing the need for additional time to prepare a response.
    (e) Validating or denying asserted restrictions. (1) Contracting 
officers must promptly issue a final decision denying or sustaining the 
validity of each challenged assertion unless the parties have agreed on 
the disposition of the assertion. When a final decision denying the 
validity of an asserted restriction is made following a timely response 
to a challenge, the Government is obligated to continue to respect the 
asserted restrictions through final disposition of any appeal unless the 
agency head notifies the person asserting the restriction that urgent or 
compelling circumstances do not permit the Government to continue to 
respect the asserted restriction. See 252.227-7019(g) for restrictions 
applicable following a determination of urgent and compelling 
circumstances.
    (2) Only a contracting officer's final decision, or actions of an 
agency Board of Contract Appeals or a court of competent jurisdiction, 
that sustain the

[[Page 279]]

validity of an asserted restriction constitute validation of the 
restriction.
    (f) Multiple challenges to an asserted restriction. When more than 
one contracting officer challenges an asserted restriction, the 
contracting officer who made the earliest challenge is responsible for 
coordinating the Government challenges. That contracting officer shall 
consult with all other contracting officers making challenges, verify 
that all challenges apply to the same asserted restriction and, after 
consulting with the contractor, subcontractor, or supplier asserting the 
restriction, issue a schedule that provides that person a reasonable 
opportunity to respond to each challenge.

[56 FR 36389, July 31, 1991, as amended at 76 FR 58148, Sept. 20, 2011; 
81 FR 65566, Sept. 23, 2016]



227.7203-14  Conformity, acceptance, and warranty of computer software
and computer software documentation.

    (a) Computer software documentation. Computer software documentation 
is technical data. See 227.7103-14 for appropriate guidance and 
statutory requirements.
    (b) Computer software--(1) Conformity and acceptance. Solicitations 
and contracts requiring the delivery of computer software shall specify 
the requirements the software must satisfy to be acceptable. Contracting 
officers, or their authorized representatives, are responsible for 
determining whether computer software tendered for acceptance conforms 
to the contractual requirements. Except for nonconforming restrictive 
markings (follow the procedures at 227.7203-12(a) if nonconforming 
markings are the sole reason computer software tendered for acceptance 
fails to conform to contractual requirements), do not accept software 
that does not conform in all respects to applicable contractual 
requirements. Correction or replacement of nonconforming software, or an 
equitable reduction in contract price when correction or replacement of 
the nonconforming data is not practicable or is not in the Government's 
interests, shall be accomplished in accordance with--
    (i) The provisions of a contract clause providing for inspection and 
acceptance of deliverables and remedies for nonconforming deliverables; 
or
    (ii) The procedures at FAR 46.407(c) through (g), if the contract 
does not contain an inspection clause providing remedies for 
nonconforming deliverables.
    (2) Warranties--(i) Weapon systems. Computer software that is a 
component of a weapon system or major subsystem should be warranted as 
part of the weapon system warranty. Follow the procedures at 246.7.
    (ii) Non-weapon systems. Approval of the chief of the contracting 
office must be obtained to use a computer software warranty other than a 
weapon system warranty. Consider the factors at FAR 46.703 in deciding 
whether to obtain a computer software warranty. When approval for a 
warranty has been obtained, the clause at 252.246-7001, Warranty of 
Data, and its alternates, may be appropriately modified for use with 
computer software or a procurement specific clause may be developed.

[56 FR 36389, July 31, 1991, as amended at 76 FR 3537, Jan. 20, 2011]



227.7203-15  Subcontractor rights in computer software or computer 
software documentation.

    (a) Subcontractors and suppliers at all tiers should be provided the 
same protection for their rights in computer software or computer 
software documentation as are provided to prime contractors.
    (b) The clauses at 252.227-7019, Validation of Asserted 
Restrictions--Computer Software, and 252.227-7037, Validation of 
Restrictive Markings on Technical Data, obtain a contractor's agreement 
that the Government's transaction of validation or challenge matters 
directly with subcontractors at any tier does not establish or imply 
privity of contract. When a subcontractor or supplier exercises its 
right to transact validation matters directly with the Government, 
contracting officers shall deal directly with such persons, as provided 
at 227.7203-13(c) for computer software and 227.7103-13(c)(3) for 
computer software documentation (technical data).

[[Page 280]]

    (c) Require prime contractors whose contracts include the following 
clauses to include those clauses, without modification except for 
appropriate identification of the parties, in contracts with 
subcontractors or suppliers who will be furnishing computer software in 
response to a Government requirement (see 227.7103-15(c) for clauses 
required when subcontractors or suppliers will be furnishing computer 
software documentation (technical data)):
    (1) 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation;
    (2) 252.227-7019, Validation of Asserted Restrictions--Computer 
Software;
    (3) 252.227-7025, Limitations on the Use or Disclosure of Government 
Furnished Information Marked with Restrictive Legends; and
    (4) 252.227-7028, Technical Data or Computer Software Previously 
Delivered to the Government.
    (d) Do not require contractors to have their subcontractors or 
suppliers at any tier relinquish rights in technical data to the 
contractor, a higher tier subcontractor, or to the Government, as a 
condition for award of any contract, subcontract, purchase order, or 
similar instrument except for the rights obtained by the Government 
under the provisions of the Rights in Noncommercial Computer Software 
and Noncommercial Computer Software Documentation clause contained in 
the contractor's contract with the Government.

[56 FR 36389, July 31, 1991, as amended at 76 FR 76320, Dec. 7, 2011]



227.7203-16  Providing computer software or computer software
documentation to foreign governments, foreign contractors, 
or international organizations.

    Computer software or computer software documentation may be released 
or disclosed to foreign governments, foreign contractors, or 
international organizations only if release or disclosure is otherwise 
permitted both by Federal export controls and other national security 
laws or regulations. Subject to such laws and regulations, the 
Department of Defense--
    (a) May release or disclose computer software or computer software 
documentation in which it has obtained unlimited rights to such foreign 
entities or authorize the use of such data by those entities; and
    (b) Shall not release or disclose computer software or computer 
software documentation for which restrictions on use, release, or 
disclosure have been asserted to such foreign entities or authorize the 
use of such data by those entities, unless the intended recipient is 
subject to the same provisions as included in the use and non-disclosure 
agreement at 227.7103-7 and the requirements of the clause at 252.227-
7014, Rights in Noncommercial Computer Software and Noncommercial 
Computer Software Documentation, governing use, modification, 
reproduction, release, performance, display, or disclosure of such data 
have been satisfied.



227.7203-17  Overseas contracts with foreign sources.

    (a) The clause at 252.227-7032, Rights in Technical Data and 
Computer Software (Foreign), may be used in contracts with foreign 
contractors to be performed overseas, except Canadian purchases (see 
paragraph (c) of this subsection) in lieu of the clause at 252.227-7014, 
Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation, when the Government requires the unrestricted 
right to use, modify, reproduce, release, perform, display, or disclose 
all computer software or computer software documentation to be delivered 
under the contract. Do not use the clause in contracts for special 
works.
    (b) When the Government does not require unlimited rights, the 
clause at 252.227-7032 may be modified to accommodate the needs of a 
specific overseas procurement situation. The Government should obtain 
rights to the computer software or computer software documentation that 
are not less than the rights the Government would have obtained under 
the software rights clause(s) prescribed in this part for a comparable 
procurement performed within the United States or its outlying areas.

[[Page 281]]

    (c) Contracts for Canadian purchases shall include the appropriate 
software rights clause prescribed in this part for a comparable 
procurement performed within the United States or its outlying areas.

[56 FR 36389, July 31, 1991, as amended at 70 FR 35545, June 21, 2005]



227.7204  Contracts under the Small Business Innovation Research
Program.

    When contracting under the Small Business Innovation Research 
Program, follow the procedures at 227-7104.

[56 FR 36389, July 31, 1991, as amended at 76 FR 3537, Jan. 20, 2011]



227.7205  Contracts for special works.

    (a) Use the clause at 252.227-7020, Rights in Special Works, in 
solicitations and contracts where the Government has a specific need to 
control the distribution of computer software or computer software 
documentation first produced, created, or generated in the performance 
of a contract and required to be delivered under that contract, 
including controlling distribution by obtaining an assignment of 
copyright, or a specific need to obtain indemnity for liabilities that 
may arise out of the creation, delivery, use, modification, 
reproduction, release, performance, display, or disclosure of such 
software or documentation. Use the clause--
    (1) In lieu of the clause at 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, 
when the Government must own or control copyright in all computer 
software or computer software documentation first produced, created, or 
generated and required to be delivered under a contract; or
    (2) In addition to the clause at 252.227-7014 when the Government 
must own or control copyright in some of the computer software or 
computer software documentation first produced, created, or generated 
and required to be delivered under a contract. The specific software or 
documentation in which the Government must own or control copyright must 
be identified in a special contract requirement.
    (b) Although the Government obtains an assignment of copyright and 
unlimited rights in the computer software or computer software 
documentation delivered as a special work under the clause at 252.227-
7020, the contractor retains use and disclosure rights in that software 
or documentation. If the Government needs to restrict a contractor's 
rights to use or disclose a special work, it must also negotiate a 
special license which specifically restricts the contractor's use or 
disclosure rights.
    (c) The clause at 252.227-7020 does not permit a contractor to 
incorporate into a special work any work copyrighted by others unless 
the contractor obtains the contracting officer's permission to do so and 
obtains for the Government a non-exclusive, paid up, world-wide license 
to make and distribute copies of that work, to prepare derivative works, 
to perform or display any portion of that work, and to permit others to 
do so for government purposes. Grant permission only when the 
Government's requirements cannot be satisfied unless the third party 
work is included in the deliverable work.
    (d) Examples of other works which may be procured under the clause 
at 252.227-7020 include, but are not limited to, audiovisual works, 
scripts, soundtracks, musical compositions, and adaptations; histories 
of departments, agencies, services or units thereof; surveys of 
Government establishments; instructional works or guidance to Government 
officers and employees on the discharge of their official duties; 
reports, books, studies, surveys or similar documents; collections of 
data containing information pertaining to individuals that, if 
disclosed, would violate the right of privacy or publicity of the 
individuals to whom the information relates; or investigative reports.



227.7206  Contracts for architect-engineer services.

    Follow 227.7107 when contracting for architect-engineer services.



227.7207  Contractor data repositories.

    Follow 227.7108 when it is in the Government's interests to have a 
data repository include computer software or to have a separate computer 
software repository. Contractual instruments

[[Page 282]]

establishing the repository requirements must appropriately reflect the 
repository manager's software responsibilities.



PART 228_BONDS AND INSURANCE--Table of Contents



                           Subpart 228.1_Bonds

Sec.
228.102 Performance and payment bonds for construction contracts.
228.102-1 General.
228.102-70 Defense Environmental Restoration Program construction 
          contract.
228.105 Other types of bonds.
228.106 Administration.
228.106-7 Withholding contract payments.

                         Subpart 228.3_Insurance

228.304 Risk-pooling arrangements.
228.305 Overseas workers' compensation and war-hazard insurance.
228.307 Insurance under cost-reimbursement contracts.
228.307-1 Group insurance plans.
228.311 Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.
228.311-1 Contract clause.
228.370 Additional clauses.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36404, July 31, 1991, unless otherwise noted.



                           Subpart 228.1_Bonds



228.102  Performance and payment bonds for construction contracts.



228.102-1  General.

    The requirement for performance and payment bonds is waived for 
cost-reimbursement contracts. However, for cost-type contracts with 
fixed-price construction subcontracts over $40,000, require the prime 
contractor to obtain from each of its construction subcontractors 
performance and payment protections in favor of the prime contractor as 
follows:
    (1) For fixed-price construction subcontracts over $40,000, but not 
exceeding $150,000, payment protection sufficient to pay labor and 
material costs, using any of the alternatives listed at FAR 28.102-
1(b)(1).
    (2) For fixed-price construction subcontracts over $150,000--
    (i) A payment bond sufficient to pay labor and material costs; and
    (ii) A performance bond in an equal amount if available at no 
additional cost.

[68 FR 36945, June 20, 2003, as amended at 71 FR 75892, Dec. 19, 2006; 
75 FR 45074, Aug. 2, 2010; 80 FR 36904, June 26, 2015; 85 FR 61504, 
Sept. 29, 2020]



228.102-70  Defense Environmental Restoration Program construction
contracts.

    For Defense Environmental Restoration Program construction contracts 
entered into pursuant to 10 U.S.C. 2701--
    (a) Any rights of action under the performance bond shall only 
accrue to, and be for the exclusive use of, the obligee named in the 
bond;
    (b) In the event of default, the surety's liability on the 
performance bond is limited to the cost of completion of the contract 
work, less the balance of unexpended funds. Under no circumstances shall 
the liability exceed the penal sum of the bond;
    (c) The surety shall not be liable for indemnification or 
compensation of the obligee for loss or liability arising from personal 
injury or property damage, even if the injury or damage was caused by a 
breach of the bonded contract; and
    (d) Once it has taken action to meet its obligations under the bond, 
the surety is entitled to any indemnification and identical standard of 
liability to which the contractor was entitled under the contract or 
applicable laws and regulations.

[68 FR 36945, June 20, 2003]



228.105  Other types of bonds.

    Fidelity and forgery bonds generally are not required but are 
authorized for use when--
    (1) Necessary for the protection of the Government or the 
contractor; or
    (2) The investigative and claims services of a surety company are 
desired.

[70 FR 8538, Feb. 22, 2005]

[[Page 283]]



228.106  Administration.



228.106-7  Withholding contract payments.

    (a) Withholding may be appropriate in other than construction 
contracts (see FAR 32.112-1(b)).

[57 FR 42707, Sept. 16, 1992, as amended at 70 FR 8538, Feb. 22, 2005]



                         Subpart 228.3_Insurance



228.304  Risk-pooling arrangements.

    DoD has established the National Defense Projects Rating Plan, also 
known as the Special Casualty Insurance Rating Plan, as a risk-pooling 
arrangement to minimize the cost to the Government of purchasing the 
liability insurance listed in FAR 28.307-2. Use the plan in accordance 
with the procedures at PGI 228.304 when it provides the necessary 
coverage more advantageously than commercially available coverage.

[69 FR 65091, Nov. 10, 2004]



228.305  Overseas workers' compensation and war-hazard insurance.

    (d) When submitting requests for waiver, follow the procedures at 
PGI 228.305(d).

[69 FR 65091, Nov. 10, 2004]



228.307  Insurance under cost-reimbursement contracts.



228.307-1  Group insurance plans.

    The Defense Department Group Term Insurance Plan is available for 
contractor use under cost-reimbursement type contracts when approved as 
provided in department or agency regulations. A contractor is eligible 
if--
    (a) The number of covered employees is 500 or more; and
    (b) The contractor has all cost-reimbursement contracts; or
    (c) At least 90 percent of the payroll for contractor operations to 
be covered by the Plan is under cost-reimbursement contracts.



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



228.311-1  Contract clause.

    Use the clause at FAR 52.228-7, Insurance--Liability to Third 
Persons, in solicitations and contracts, other than those for 
construction and those for architect-engineer services, when a cost-
reimbursement contract is contemplated, unless the head of the 
contracting activity waives the requirement for use of the clause.

[56 FR 36404, July 31, 1991. Redesignated at 61 FR 50454, Sept. 26, 
1996]



228.370  Additional clauses.

    (a) Use the clause at 252.228-7000, Reimbursement for War-Hazard 
Losses, when--
    (1) The clause at FAR 52.228-4, Worker's Compensation and War-Hazard 
Insurance Overseas, is used; and
    (2) The head of the contracting activity decides not to allow the 
contractor to buy insurance for war-hazard losses.
    (b)(1) Use the clause at 252.228-7001, Ground and Flight Risk, in 
all solicitations and contracts for the acquisition, development, 
production, modification, maintenance, repair, flight, or overhaul of 
aircraft, except those solicitations and contracts--
    (i) That are strictly for activities incidental to the normal 
operations of the aircraft (e.g., refueling operations, minor non-
structural actions not requiring towing such as replacing aircraft tires 
due to wear and tear);
    (ii) That are awarded under FAR Part 12 procedures and are for the 
development, production, modification, maintenance, repair, flight, or 
overhaul of aircraft; or otherwise involving the furnishing of aircraft;
    (iii) For which a non-DoD customer (including a foreign military 
sales customer) has not agreed to assume the risk for loss or 
destruction of, or damages to, the aircraft; or
    (iv) For commercial derivative aircraft that are to be maintained to 
Federal Aviation Administration (FAA) airworthiness when the work will 
be performed at a licensed FAA repair station.

[[Page 284]]

    (2) The clause at 252.228-7001 may be modified only as follows:
    (i) Include a modified definition of ``aircraft'' if the contract 
covers other than conventional types of winged aircraft, i.e., 
helicopters, vertical take-off or landing aircraft, lighter-than-air 
airships, unmanned aerial vehicles, or other nonconventional aircraft. 
The modified definition should describe a stage of manufacture 
comparable to the standard definition.
    (ii) Modify ``in the open'' to include ``hush houses,'' test hangars 
and comparable structures, and other designated areas.
    (iii) Expressly define the ``contractor's premises'' where the 
aircraft will be located during and for contract performance. These 
locations may include contract premises which are owned or leased by the 
contractor or subcontractor, or premises where the contractor or 
subcontractor is a permittee or licensee or has a right to use, 
including Government airfields.
    (iv) Revise paragraph (e)(3) of the clause to provide Government 
assumption of risk for transportation by conveyance on streets or 
highways when transportation is--
    (A) Limited to the vicinity of contractor premises; and
    (B) Incidental to work performed under the contract.
    (3) Follow the procedures at PGI 228.370(b) when using the clause at 
252.228-7001.
    (c) The clause at 252.228-7003, Capture and Detention, may be used 
when contractor employees are subject to capture and detention and may 
not be covered by the War Hazards Compensation Act (42 U.S.C. 1701 et 
seq.).
    (d) Use the clause at 252.228-7005, Mishap Reporting and 
Investigation Involving Aircraft, Missiles, and Space Launch Vehicles, 
in solicitations and contracts that involve the manufacture, 
modification, overhaul, or repair of aircraft, missiles, and space 
launch vehicles.
    (e) Use the clause at 252.228-7006, Compliance with Spanish Laws and 
Insurance, in solicitations and contracts for services or construction 
to be performed in Spain, unless the contractor is a Spanish concern.

[56 FR 36404, July 31, 1991, as amended at 57 FR 42631, Sept. 15, 1992; 
62 FR 34125, June 24, 1997; 63 FR 69006, Dec. 15, 1998; 75 FR 32644, 
June 8, 2010; 84 FR 65312, Nov. 27, 2019]



PART 229_TAXES--Table of Contents



                          Subpart 229.1_General

Sec.
229.101 Resolving tax problems.
229.170 Reporting of foreign taxation on U.S. assistance programs.
229.170-1 Definition.
229.170-2 Policy.
229.170-3 Reports.
229.170-4 Contract clause.

                     Subpart 229.4_Contract Clauses

229.402 Foreign contracts.
229.402-70 Additional provisions and clauses.

Subpart 229.70--Special Procedures for Overseas Contracts

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36405, July 31, 1991, unless otherwise noted.



                          Subpart 229.1_General



229.101  Resolving tax problems.

    (a) Within DoD, the agency-designated legal counsels are the defense 
agency General Counsels, the General Counsels of the Navy and Air Force, 
and for the Army, the Chief, Contract Law Division, Office of the Judge 
Advocate General. For additional information on the designated legal 
counsels, see PGI 229.101(a).
    (b) For information on fuel excise taxes, see PGI 229.101(b).
    (c) For guidance on directing a contractor to litigate the 
applicability of a particular tax, see PGI 229.101(c).
    (d) For information on tax relief agreements between the United 
States and European foreign governments, see PGI 229.101(d).

[70 FR 8538, Feb. 22, 2005, as amended at 71 FR 14100, Mar. 21, 2006]

[[Page 285]]



229.170  Reporting of foreign taxation on U.S. assistance programs.



229.170-1  Definition.

    Commodities, as used in this section, means any materials, articles, 
supplies, goods, or equipment.

[70 FR 57192, Sept. 30, 2005]



229.170-2  Policy.

    (a) By law, bilateral agreements with foreign governments must 
include a provision that commodities acquired under contracts funded by 
U.S. assistance programs shall be exempt from taxation by the foreign 
government. If taxes or customs duties nevertheless are imposed, the 
foreign government must reimburse the amount of such taxes to the U.S. 
Government (Section 579 of Division E of the Consolidated Appropriations 
Act, 2003 (Pub. L. 108-7), as amended by Section 506 of Division D of 
the Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and similar 
sections in subsequent acts).
    (b) This foreign tax exemption--
    (1) Applies to a contract or subcontract for commodities when--
    (i) The funds are appropriated by the annual foreign operations 
appropriations act; and
    (ii) The value of the contract or subcontract is $500 or more;
    (2) Does not apply to the acquisition of services;
    (3) Generally is implemented through letters of offer and 
acceptance, other country-to-country agreements, or Federal interagency 
agreements; and
    (4) Requires reporting of noncompliance for effective 
implementation.

[70 FR 57192, Sept. 30, 2005]



229.170-3  Reports.

    The contracting officer shall submit a report to the designated 
Security Assistance Office when a foreign government or entity imposes 
tax or customs duties on commodities acquired under contracts or 
subcontracts meeting the criteria of 229.170-2(b)(1). Follow the 
procedures at PGI 229.170-3 for submission of reports.

[70 FR 57192, Sept. 30, 2005]



229.170-4  Contract clause.

    Use the clause at 252.229-7011, Reporting of Foreign Taxes--U.S. 
Assistance Programs, in solicitations and contracts funded with U.S. 
assistance appropriations provided in the annual foreign operations 
appropriations act.

[70 FR 57192, Sept. 30, 2005]



                     Subpart 229.4_Contract Clauses

    Source: 62 FR 34125, June 24, 1997, unless otherwise noted.



229.402  Foreign contracts.



229.402-70  Additional provisions and clauses.

    (a) Use the basic or the alternate of the clause at 252.229-7001, 
Tax Relief, in solicitations and contracts when a contract will be 
awarded to a foreign concern for performance in a foreign country.
    (1) Use the basic clause in solicitations and contracts when the 
contract will be performed in a foreign country other than Germany.
    (2) Use the alternate I clause in solicitations and contracts when 
the contract will be performed in Germany.
    (b) Use the clause at 252.229-7002, Customs Exemptions (Germany), in 
solicitations and contracts requiring the import of U.S. manufactured 
products into Germany.
    (c)(1) Use the clause at 252.229-7003, Tax Exemptions (Italy), in 
solicitations and contracts when contract performance will be in Italy.
    (2) Use the provision at 252.229-7012, Tax Exemptions (Italy)--
Representation, in solicitations that contain the clause at 252.229-
7003, Tax Exemptions (Italy). If the solicitation includes the provision 
at FAR 52.204-7, do not separately list 252.229-7012 in the 
solicitation.
    (d) Use the clause at 252.229-7004, Status of Contractor as a Direct 
Contractor (Spain), in solicitations and contracts requiring the import 
into Spain of supplies for construction, development, maintenance, or 
operation of Spanish-American installations and facilities.

[[Page 286]]

    (e)(1) Use the clause at 252.229-7005, Tax Exemptions (Spain). If 
the solicitation includes the provision at FAR 52.204-7, do not 
separately list 252.229-7013 in the solicitation., in solicitations and 
contracts when contract performance will be in Spain.
    (2) Use the provision at 252.229-7013, Tax Exemptions (Spain)--
Representation, in solicitations that contain the clause at 252.229-
7005, Tax Exemptions (Spain).
    (f) Use the clause at 252.229-7006, Value Added Tax Exclusion 
(United Kingdom), in solicitations and contracts when contract 
performance will be in the United Kingdom.
    (g) Use the clause at 252.229-7007, Verification of United States 
Receipt of Goods, in solicitations and contracts when contract 
performance will be in the United Kingdom.
    (h) Use the clause at 252.229-7008, Relief from Import Duty (United 
Kingdom), in solicitations issued and contracts awarded in the United 
Kingdom.
    (i) Use the clause at 252.229-7009, Relief from Customs Duty and 
Value Added Tax on Fuel (Passenger Vehicles) (United Kingdom), in 
solicitations issued and contracts awarded in the United Kingdom for 
fuels (gasoline or diesel) and lubricants used in passenger vehicles 
(excluding taxis).
    (j) Use the clause at 252.229-7010, Relief from Customs Duty on Fuel 
(United Kingdom), in solicitations issued and contracts awarded in the 
United Kingdom that require the use of fuels (gasoline or diesel) and 
lubricants in taxis or vehicles other than passenger vehicles.

[62 FR 34125, June 24, 1997, 77 FR 19130, Mar. 30, 2012; 78 FR 37989, 
June 25, 2013; 78 FR 40043, July 3, 2013; 79 FR 58700, Sept. 30, 2014; 
80 FR 81469, Dec. 30, 2015; 85 FR 74612, Nov. 23, 2020]



        Subpart 229.70_Special Procedures for Overseas Contracts

    Source: 70 FR 6375, Feb. 7, 2005, unless otherwise noted.
    Note: To obtain tax relief for overseas contracts, follow the 
procedures at PGI 229.70.



PART 230_COST ACCOUNTING STANDARDS ADMINISTRATION--Table of Contents



                 Subpart 230.2_CAS Program Requirements

Sec.
230.201-5 Waiver.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36406, July 31, 1991, unless otherwise noted.



                 Subpart 230.2_CAS Program Requirements



230.201-5  Waiver.

    (a)(1)(A) The military departments and the Director, Defense 
Procurement and Acquisition Policy, Office of the Under Secretary of 
Defense (Acquisition, Technology, and Logistics)--
    (1) May grant CAS waivers that meet the conditions in FAR 30.201-
5(b)(1); and
    (2) May grant CAS waivers that meet the conditions in FAR 30.201-
5(b)(2), provided the cognizant Federal agency official granting the 
waiver determines that--
    (i) The property or services cannot reasonably be obtained under the 
contract, subcontract, or modification, as applicable, without granting 
the waiver;
    (ii) The price can be determined to be fair and reasonable without 
the application of the Cost Accounting Standards; and
    (iii) There are demonstrated benefits to granting the waiver.
    (B) Follow the procedures at PGI 230.201-5(a)(1) for submitting 
waiver requests to the Director, Defense Procurement and Acquisition 
Policy.
    (2) The military departments shall not delegate CAS waiver authority 
below the individual responsible for issuing contracting policy for the 
department.
    (e) By November 30th of each year, the military departments shall 
provide a report to the Director, Defense Procurement and Acquisition 
Policy, ATTN: DPAP/CPIC, of all waivers granted under FAR 30.201-5(a), 
during the previous fiscal year, for any contract, subcontract, or 
modification expected to have a value of $15,000,000 or more. See PGI 
230.201-5(e) for format

[[Page 287]]

and guidance for the report. The Director, Defense Procurement and 
Acquisition Policy, will submit a consolidated report to the CAS Board 
and the congressional defense committees.

[71 FR 69495, Dec. 1, 2006, as amended at 77 FR 52254, Aug. 29, 2012]



PART 231_CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents



                       Subpart 231.1_Applicability

Sec.
231.100 Scope of subpart.
231.100-70 Contract clause.

          Subpart 231.2_Contracts With Commercial Organizations

231.205 Selected costs.
231.205-1 Public relations and advertising costs.
231.205-6 Compensation for personal services.
231.205-18 Independent research and development and bid and proposal 
          costs.
231.205-19 Insurance and indemnification.
231.205-22 Legislative lobbying costs.
231.205-70 External restructuring costs.
231.205-71 Costs related to counterfeit electronic parts and suspect 
          counterfeit electronic parts.

          Subpart 231.3_Contracts With Educational Institutions

231.303 Requirements.

  Subpart 231.6_Contracts With State, Local, and Federally Recognized 
                        Indian Tribal Governments

231.603 Requirements.

          Subpart 231.7_Contracts With Nonprofit Organizations

231.703 Requirements.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36408, July 31, 1991, unless otherwise noted.



                       Subpart 231.1_Applicability



231.100  Scope of subpart.



231.100-70  Contract clause.

    Use the clause at 252.231-7000, Supplemental Cost Principles, in all 
solicitations and contracts which are subject to the principles and 
procedures described in FAR subpart 31.1, 31.2, 31.6, or 31.7.

[59 FR 27672, May 27, 1994]



          Subpart 231.2_Contracts With Commercial Organizations



231.205  Selected costs.



231.205-1  Public relations and advertising costs.

    (e) See 225.7303-2(e) for allowability provisions affecting foreign 
military sales contracts.
    (f) Unallowable public relations and advertising costs also include 
monies paid to the Government associated with the leasing of Government 
equipment, including lease payments and reimbursement for support 
services, except for foreign military sales contracts as provided for at 
225.7303-2.

[74 FR 68382, Dec. 24, 2009]



231.205-6  Compensation for personal services.

    (f)(1) In accordance with Section 8122 of Pub. L. 104-61, and 
similar sections in subsequent Defense appropriations acts, costs for 
bonuses or other payments in excess of the normal salary paid by the 
contractor to an employee, that are part of restructuring costs 
associated with a business combination, are unallowable under DoD 
contracts funded by fiscal year 1996 or subsequent appropriations. This 
limitation does not apply to severance payments or early retirement 
incentive payments. (See 231.205-70(b) for the definitions of ``business 
combination'' and ``restructuring costs.'')
    (m)(1) Fringe benefit costs that are contrary to law, employer-
employee agreement, or an established policy of the contractor are 
unallowable.

[57 FR 53600, Nov. 12, 1992, as amended at 58 FR 28469, May 13, 1993; 60 
FR 2331, Jan. 9, 1995; 60 FR 61598, Nov. 30, 1995; 61 FR 7077, Feb. 26, 
1996; 61 FR 36306, July 10, 1996; 61 FR 50454, Sept. 26, 1996; 61 FR 
58490, Nov. 15, 1996; 61 FR 65479, Dec. 13, 1996; 62 FR 63036, Nov. 26, 
1997; 63 FR 14641, Mar. 26, 1998; 78 FR 73453, Dec. 6, 2013]

[[Page 288]]



231.205-18  Independent research and development and bid and proposal
costs.

    (a) Definitions. As used in this subsection--
    (i) Covered contract means a DoD prime contract for an amount 
exceeding the simplified acquisition threshold, except for a fixed-price 
contract without cost incentives. The term also includes a subcontract 
for an amount exceeding the simplified acquisition threshold, except for 
a fixed-price subcontract without cost incentives under such a prime 
contract.
    (ii) Covered segment means a product division of the contractor that 
allocated more than $1,100,000 in independent research and development 
and bid and proposal (IR&D/B&P) costs to covered contracts during the 
preceding fiscal year. In the case of a contractor that has no product 
divisions, the term means that contractor as a whole. A product division 
of the contractor that allocated less than $1,100,000 in IR&D/B&P costs 
to covered contracts during the preceding fiscal year is not subject to 
the limitations in paragraph (c) of this subsection.
    (iii) Major contractor means any contractor whose covered segments 
allocated a total of more than $11,000,000 in IR&D/B&P costs to covered 
contracts during the preceding fiscal year. For purposes of calculating 
the dollar threshold amounts to determine whether a contractor meets the 
definition of ``major contractor,'' do not include contractor segments 
allocating less than $1,100,000 of IR&D/B&P costs to covered contracts 
during the preceding fiscal year.
    (c) Allowability. (i) Departments/agencies shall not supplement this 
regulation in any way that limits IR&D/B&P cost allowability.
    (ii) See 225.7303-2(c) for allowability provisions affecting foreign 
military sale contracts.
    (iii) For major contractors, the following limitations apply:
    (A) The amount of IR&D/B&P costs allowable under DoD contracts shall 
not exceed the lesser of--
    (1) Such contracts' allocable share of total incurred IR&D/B&O 
costs; or
    (2) The amount of incurred IR&D/B&P costs for projects having 
potential interest to DoD.
    (B) Allowable IR&D/B&P costs are limited to those for projects that 
are of potential interest to DoD, including activities intended to 
accomplish any of the following:
    (1) Enable superior performance of future U.S. weapon systems and 
components.
    (2) Reduce acquisition costs and life-cycle costs of military 
systems.
    (3) Strengthen the defense industrial and technology base of the 
United States.
    (4) Enhance the industrial competitiveness of the United States.
    (5) Promote the development of technologies identified as critical 
under 10 U.S.C. 2522.
    (6) Increase the development and promotion of efficient and 
effective applications of dual-use technologies.
    (7) Provide efficient and effective technologies for achieving such 
environmental benefits as: Improved environmental data gathering, 
environmental cleanup and restoration, pollution reduction in 
manufacturing, environmental conservation, and environmentally safe 
management of facilities.
    (C) For annual IR&D costs to be allowable--
    (1) The IR&D projects generating the costs must be reported to the 
Defense Technical Information Center (DTIC) using the DTIC's online 
input form and instructions at http://
www.defenseinnovationmarketplace.mil/;
    (2) The inputs must be updated at least annually and when the 
project is completed; and
    (3) Copies of the input and updates must be made available for 
review by the cognizant administrative contracting officer (ACO) and the 
cognizant Defense Contract Audit Agency auditor to support the 
allowability of the costs.
    (iv) Contractors not meeting the threshold of a major contractor are 
encouraged to use the DTIC online input form to report IR&D projects to 
provide DoD with visibility into the technical content of the 
contractors' IR&D activities.

[[Page 289]]

    (v) For major contractors, the ACO or corporate ACO shall--
    (A) Determine whether IR&D/B&P projects are of potential interest to 
DoD; and
    (B) Provide the results of the determination to the contractor.
    (vi) The cognizant contract administration office shall furnish 
contractors with guidance on financial information needed to support 
IR&D/B&P costs and on technical information needed from major 
contractors to support the potential interest to DoD determination (also 
see 242.771-3).

[64 FR 8729, Feb. 23, 1999, as amended at 77 FR 4636, Jan. 30, 2012; 81 
FR 78011, Nov. 4, 2016; 83 FR 42788, Aug. 24, 2018]



231.205-19  Insurance and indemnification.

    (e) In addition to the cost limitations in FAR 31.205-19(e), self-
insurance and purchased insurance costs are subject to the requirements 
of the clauses at 252.217-7012, Liability and Insurance, and 252.228-
7001, Ground and Flight Risk.

[75 FR 32645, June 8, 2010]



231.205-22  Legislative lobbying costs.

    (a) Costs associated with preparing any material, report, list, or 
analysis on the actual or projected economic or employment impact in a 
particular State or congressional district of an acquisition program for 
which all research, development, testing, and evaluation has not been 
completed also are unallowable (10 U.S.C. 2249).

[69 FR 63332, Nov. 1, 2004]



231.205-70  External restructuring costs.

    (a) Scope. This subsection--
    (1) Prescribes policies and procedures for allowing contractor 
external restructuring costs when savings would result for DoD; and
    (2) Implements 10 U.S.C. 2325.
    (b) Definitions. As used in this subsection:
    (1) Business combination means a transaction whereby assets or 
operations of two or more companies not previously under common 
ownership or control are combined, whether by merger, acquisition, or 
sale/purchase of assets.
    (2) External restructuring activities means restructuring activities 
occurring after a business combination that affect the operations of 
companies not previously under common ownership or control. They do not 
include restructuring activities occurring after a business combination 
that affect the operations of only one of the companies not previously 
under common ownership or control, or, when there has been no business 
combination, restructuring activities undertaken within one company. 
External restructuring activities are a direct outgrowth of a business 
combination. They normally will be initiated within 3 years of the 
business combination.
    (3) Restructuring activities means nonroutine, nonrecurring, or 
extraordinary activities to combine facilities, operations, or 
workforce, in order to eliminate redundant capabilities, improve future 
operations, and reduce overall costs. Restructuring activities do not 
include routine or ongoing repositionings and redeployments of a 
contractor's productive facilities or workforce (e.g., normal plant 
rearrangement or employee relocation), nor do they include other routine 
or ordinary activities charged as indirect costs that would otherwise 
have been incurred (e.g., planning and analysis, contract administration 
and oversight, or recurring financial and administrative support).
    (4) Restructuring costs means the costs, including both direct and 
indirect, of restructuring activities. Restructuring costs that may be 
allowed include, but are not limited to, severance pay for employees, 
early retirement incentive payments for employees, employee retraining 
costs, relocation expense for retained employees, and relocation and 
rearrangement of plant and equipment. For purposes of this definition, 
if restructuring costs associated with external restructuring activities 
allocated to DoD contracts are less than $2.5 million, the costs shall 
not be subject to the audit, review, and determination requirements of 
paragraph (c)(4) of this subsection;

[[Page 290]]

instead, the normal rules for determining cost allowability in 
accordance with FAR part 31 shall apply.
    (5) Restructuring savings means cost reductions, including both 
direct and indirect cost reductions, that result from restructuring 
activities. Reassignments of cost to future periods are not 
restructuring savings.
    (c) Limitations on cost allowability. Restructuring costs associated 
with external restructuring activities shall not be allowed unless--
    (1) Such costs are allowable in accordance with FAR part 31 and 
DFARS part 231;
    (2) An audit of projected restructuring costs and restructuring 
savings is performed;
    (3) The cognizant administrative contracting officer (ACO) reviews 
the audit report and the projected costs and projected savings, and 
negotiates an advance agreement in accordance with paragraph (d) of this 
subsection; and
    (4)(i) The official designated in paragraph (c)(4)(ii) of this 
subsection determines in writing that the audited projected savings, on 
a present value basis, for DoD resulting from the restructuring will 
exceed either--
    (A) The costs allowed by a factor of at least two to one; or
    (B) The costs allowed, and the business combination will result in 
the preservation of a critical capability that might otherwise be lost 
to DoD.
    (ii)(A) If the amount of restructuring costs is expected to exceed 
$25 million over a 5-year period, the designated official is the Under 
Secretary of Defense (Acquisition, Technology, and Logistics) or the 
Principal Deputy. This authority may not be delegated below the level of 
an Assistant Secretary of Defense.
    (B) For all other cases, the designated official is the Director of 
the Defense Contract Management Agency. The Director may not delegate 
this authority.
    (d) Procedures and ACO responsibilities. As soon as it is known that 
the contractor will incur restructuring costs for external restructuring 
activities, the cognizant ACO shall follow the procedures at PGI 
231.205-70(d).
    (e) Information needed to obtain a determination. (1) The novation 
agreement (if one is required).
    (2) The contractor's restructuring proposal.
    (3) The proposed advance agreement.
    (4) The audit report.
    (5) Any other pertinent information.
    (6) The cognizant ACO's recommendation for a determination. This 
recommendation must clearly indicate one of the following, consistent 
with paragraph (c)(4)(i) of this subsection:
    (i) The audited projected savings for DoD will exceed the costs 
allowed by a factor of at least two to one on a present value basis.
    (ii) The business combination will result in the preservation of a 
critical capability that might otherwise be lost to DoD, and the audited 
projected savings for DoD will exceed the costs allowed on a present 
value basis.
    (f) Contracting officer responsibilities. (1) The contracting 
officer, in consultation with the cognizant ACO, should consider 
including a repricing clause in noncompetitive fixed-price contracts 
that are negotiated during the period between--
    (i) The time a business combination is announced; and
    (ii) The time the contractor's forward pricing rates are adjusted to 
reflect the impact of restructuring.
    (2) The decision to use a repricing clause will depend upon the 
particular circumstances involved, including--
    (i) When the restructuring will take place;
    (ii) When restructuring savings will begin to be realized;
    (iii) The contract performance period;
    (iv) Whether the contracting parties are able to make a reasonable 
estimate of the impact of restructuring on the contract; and
    (v) The size of the potential dollar impact of restructuring on the 
contract.
    (3) If the contracting officer decides to use a repricing clause, 
the clause must provide for a downward-only price adjustment to ensure 
that DoD

[[Page 291]]

receives its appropriate share of restructuring net savings.

[63 FR 7309, Feb. 13, 1998; 63 FR 12862, Mar. 16, 1998, as amended at 64 
FR 18828, Apr. 16, 1999; 65 FR 39705, June 27, 2000; 68 FR 7440, Feb. 
14, 2003; 69 FR 63332, Nov. 1, 2004; 70 FR 43075, July 26, 2005]



231.205-71  Costs related to counterfeit electronic parts and suspect
counterfeit electronic parts.

    (a) Scope. This section implements the requirements of section 
818(c)(2), National Defense Authorization Act for Fiscal Year 2012 (Pub. 
L. 112-81), as modified by section 833, National Defense Authorization 
Act for Fiscal Year 2013 (Pub. L. 112-239), and section 885 of the 
National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-
92).
    (b) The costs of counterfeit electronic parts and suspect 
counterfeit electronic parts and the costs of rework or corrective 
action that may be required to remedy the use or inclusion of such parts 
are unallowable, unless--
    (1) The contractor has an operational system to detect and avoid 
counterfeit electronic parts and suspect counterfeit electronic parts 
that has been reviewed and approved by DoD pursuant to 244.303(b);
    (2) The counterfeit electronic parts or suspect counterfeit 
electronic parts are Government-furnished property as defined in FAR 
45.101 or were obtained by the contractor in accordance with the clause 
at 252.246-7008, Sources of Electronic Parts; and
    (3) The contractor--
    (i) Becomes aware of the counterfeit electronic parts or suspect 
counterfeit electronic parts through inspection, testing, and 
authentication efforts of the contractor or its subcontractors; through 
a Government Industry Data Exchange Program (GIDEP) alert; or by other 
means; and
    (ii) Provides timely (i.e., within 60 days after the contractor 
becomes aware) written notice to--
    (A) The cognizant contracting officer(s); and
    (B) GIDEP (unless the contractor is a foreign corporation or 
partnership that does not have an office, place of business, or fiscal 
paying agent in the United States; or the counterfeit electronic part or 
suspect counterfeit electronic part is the subject of an on-going 
criminal investigation).

[81 FR 59515, Aug. 30, 2016]



          Subpart 231.3_Contracts With Educational Institutions



231.303  Requirements.

    (1) Pursuant to section 841 of the National Defense Authorization 
Act for Fiscal Year 1994 (Pub. L. 103-160), no limitation may be placed 
on the reimbursement of otherwise allowable indirect costs incurred by 
an institution of higher education under a DoD contract awarded on or 
after November 30, 1993, unless that same limitation is applied 
uniformly to all other organizations performing similar work under DoD 
contracts. The 26 percent limitation imposed on administrative indirect 
costs by OMB Circular No. A-21 shall not be applied to DoD contracts 
awarded on or after November 30, 1993, to institutions of higher 
education because the same limitation is not applied to other 
organizations performing similar work.
    (2) The cognizant administrative contracting officer may waive the 
prohibition in 231.303(1) if the governing body of the institution of 
higher education requests the waiver to simplify the institution's 
overall management of DoD cost reimbursements under DoD contracts.
    (3) Under 10 U.S.C. 2249, the costs cited in 231.205-22(a) are 
unallowable.

[59 FR 26144, May 19, 1994, as amended at 60 FR 2331, Jan. 9, 1995; 61 
FR 36306, July 10, 1996; 62 FR 47155, Sept. 8, 1997; 63 FR 14641, Mar. 
26, 1998]



  Subpart 231.6_Contracts With State, Local, and Federally Recognized 
                        Indian Tribal Governments



231.603  Requirements.

    Under 10 U.S.C. 2249, the costs cited in 231.205-22(a) are 
unallowable.

[61 FR 36306, July 10, 1996, as amended at 62 FR 47155, Sept. 8, 1997; 
63 FR 14641, Mar. 26, 1998]

[[Page 292]]



          Subpart 231.7_Contracts With Nonprofit Organizations



231.703  Requirements.

    Under 10 U.S.C. 2249, the costs cited in 231.205-22(a) are 
unallowable.

[61 FR 36306, July 10, 1996, as amended at 62 FR 47155, Sept. 8, 1997; 
63 FR 14641, Mar. 26, 1998]



PART 232_CONTRACT FINANCING--Table of Contents



Sec.
232.001 Definitions.
232.006 Reduction or suspension of contract payments upon finding of 
          fraud.
232.006-5 Reporting.
232.007 Contract financing payments.
232.009 Providing accelerated payments to small business subcontractors.
232.009-1 General.
232.009-2 Contract clause.
232.070 Responsibilities.
232.071 [Reserved]
232.072 Financial responsibility of contractors.
232.072-1 Required financial reviews.
232.072-2 Appropriate information.
232.072-3 Cash flow forecasts.

          Subpart 232.1_Non-Commercial Item Purchase Financing

232.102 Description of contract financing methods.
232.102-70 Provisional delivery payments.
232.104 Providing contract financing.

            Subpart 232.2_Commercial Item Purchase Financing

232.202-4 Security for Government financing.
232.206 Solicitation provisions and contract clauses.

          Subpart 232.3_Loan Guarantees for Defense Production

232.302 Authority.

         Subpart 232.4_Advance Payments for Non-Commercial Items

232.404 Exclusions.
232.409 Contracting officer action.
232.409-1 Recommendation for approval.
232.410 Findings, determination, and authorization.
232.412 Contract clause.
232.412-70 Additional clauses.
232.470 Advance payment pool.

             Subpart 232.5_Progress Payments Based on Costs

232.501 General.
232.501-1 Customary progress payment rates.
232.501-2 Unusual progress payments.
232.501-3 Contract price.
232.502 Preaward matters.
232.502-4 Contract clauses.
232.502-4-70 Additional clauses.
232.503 Postaward matters.
232.503-6 Suspension or reduction of payments.
232.503-15 Application of Government title terms.

                      Subpart 232.6_Contract Debts

232.602 Responsibilities.
232.603 Debt determination.
232.604 Demand for payment.
232.610 Compromising debts.
232.611 Contract clause.
232.670 Transfer of responsibility for debt collection.
232.671 Bankruptcy reporting.

                     Subpart 232.7_Contract Funding

232.702 Policy.
232.703 Contract funding requirements.
232.703-1 General.
232.703-3 Contracts crossing fiscal years.
232.703-70 Military construction appropriations act restriction.
232.704 Limitation of cost or funds.
232.704-70 Incrementally funded fixed-price contracts.
232.705 Contract clauses.
232.705-70 Clause for limitation of Government's obligation.

                   Subpart 232.8_Assignment of Claims

232.803 Policies.
232.805 Procedure.
232.806 Contract clause.

                      Subpart 232.9_Prompt Payment

232.901 Applicability.
232.903 Responsibilities.
232.904 Determining payment due dates.
232.905 Payment documentation and process.
232.906 Making payments.
232.908 Contract clauses.

                Subpart 232.10_Performance-Based Payments

232.1001 Policy.
232.1003-70 Criteria for use.
232.1004 Procedures.
232.1005-70 Solicitation provisions and contract clauses.

[[Page 293]]

                Subpart 232.11_Electronic Funds Transfer

232.1110 Solicitation provision and contract clauses.

Subpart 232.70_Electronic Submission and Processing of Payment Requests 
                          and Receiving Reports

232.7000 Scope of subpart.
232.7001 Definitions.
232.7002 Policy.
232.7003 Procedures.
232.7004 Contract clauses.

               Subpart 232.71_Levies on Contract Payments

232.7100 Scope of subpart.
232.7101 Policy and procedures.
232.7102 Contract clause.

         Subpart 232.72_Payment in Local Currency (Afghanistan)

232.7200 Scope of subpart.
232.7201 Policy and procedures.
232.7202 Solicitation provision.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36409, July 31, 1991, unless otherwise noted.



232.001  Definitions.

    Incremental funding means the partial funding of a contract or an 
exercised option, with additional funds anticipated to be provided at a 
later time.

[71 FR 18673, Apr. 12, 2006]



232.006  Reduction or suspension of contract payments upon finding of fraud.



232.006-5  Reporting.

    Departments and agencies in accordance with department/agency 
procedures, shall prepare and submit to the Under Secretary of Defense 
(Acquisition, Technology, and Logistics), through the Director of 
Defense Procurement and Acquisition Policy, annual reports (Report 
Control Symbol DD-AT&L(A) 1891) containing the information required by 
FAR 32.006-5.

[63 FR 11535, Mar. 9, 1998, as amended at 65 FR 39705, June 27, 2000; 68 
FR 7440, Feb. 14, 2003]



232.007  Contract financing payments.

    (a) DoD policy is to make contract financing payments as quickly as 
possible. Generally, the contracting officer shall insert the standard 
due dates of 7 days for progress payments, and 14 days for performance-
based payments and interim payments on cost-type contracts, in the 
appropriate paragraphs of the respective payment clauses. For interim 
payments on cost-reimbursement contracts for services, see 
232.906(a)(i).
    (b) The contracting officer should coordinate contract financing 
payment terms with offices that will be involved in the payment process 
to ensure that specified terms can be met. Where justified, the 
contracting officer may insert a due date greater than, but not less 
than, the standard. In determining payment terms, consider--
    (i) Geographical separation;
    (ii) Workload;
    (iii) Contractor ability to submit a proper request; and
    (iv) Other factors that could affect timing of payment.

[70 FR 75412, Dec. 20, 2005]



232.009  Providing accelerated payments to small business subcontractors.



232.009-1  General.

    Section 852 of the National Defense Authorization Act for Fiscal 
Year 2019 (Pub. L. 115-232) requires DoD to provide accelerated payments 
to small business contractors and subcontractors, to the fullest extent 
permitted by law, with a goal of 15 days.

[85 FR 19697, Apr. 8, 2020]



232.009-2  Contract clause.

    Use the clause at 252.232-7017, Accelerating Payments to Small 
Business Subcontractors--Prohibition on Fees and Consideration, in 
solicitations and contracts, including those using FAR part 12 
procedures for the acquisition of commercial items, that include the 
clause at FAR 52.232-40, Providing Accelerated Payments to Small 
Business Subcontractors.

[85 FR 19697, Apr. 8, 2020]



232.070  Responsibilities.

    (a) The Director of Defense Procurement and Acquisition Policy, 
Office of

[[Page 294]]

the Under Secretary of Defense (Acquisition, Technology, and Logistics) 
(OUSD(AT&L)DPAP) is responsible for ensuring uniform administration of 
DoD contract financing, including DoD contract financing policies and 
important related procedures. Agency discretion under FAR part 32 is at 
the DoD level and is not delegated to the departments and agencies. 
Proposals by the departments and agencies, to exercise agency 
discretion, shall be submitted to OUSD(AT&L)DPAP.
    (b) Departments and agencies are responsible for their day-to-day 
contract financing operations. Refer specific cases involving financing 
policy or important procedural issues to OUSD(AT&L)DPAP for 
consideration through the department/agency Contract Finance Committee 
members (also see Subpart 201.4 for deviation request and approval 
procedures).
    (c) See PGI 232.070(c) for information on department/agency contract 
financing offices.

[63 FR 11535, Mar. 9, 1998, as amended at 65 FR 39705, June 27, 2000; 68 
FR 7440, Feb. 14, 2003; 70 FR 75412, Dec. 20, 2005; 72 FR 20765, Apr. 
26, 2007]



232.071  [Reserved]



232.072  Financial responsibility of contractors.

    Use the policies and procedures in this section in determining the 
financial capability of current or prospective contractors.

[63 FR 11535, Mar. 9, 1998]



232.072-1  Required financial reviews.

    The contracting officer shall perform a financial review when the 
contracting officer does not otherwise have sufficient information to 
make a positive determination of financial responsibility. In addition, 
the contracting officer shall consider performing a financial review--
    (a) Prior to award of a contract, when--
    (1) The contractor is on a list requiring preaward clearance or 
other special clearance before award;
    (2) The contractor is listed on the Consolidated List of Contractors 
Indebted to the Government (Hold-Up List), or is otherwise known to be 
indebted to the Government;
    (3) The contractor may receive Government assets such as contract 
financing payments or Government property;
    (4) The contractor is experiencing performance difficulties on other 
work; or
    (5) The contractor is a new company or a new supplier of the item.
    (b) At periodic intervals after award of a contract, when--
    (1) Any of the conditions in paragraphs (a)(2) through (a)(5) of 
this subsection are applicable; or
    (2) There is any other reason to question the contractor's ability 
to finance performance and completion of the contract.

[63 FR 11535, Mar. 9, 1998]



232.072-2  Appropriate information.

    (a) The contracting officer shall obtain the type and depth of 
financial and other information that is required to establish a 
contractor's financial capability or disclose a contractor's financial 
condition. While the contracting officer should not request information 
that is not necessary for protection for the Government's interests, the 
contracting officer must insist upon obtaining the information that is 
necessary. The unwillingness or inability of a contractor to present 
reasonably requested information in a timely manner, especially 
information that a prudent business person would be expected to have and 
to use in the professional management of a business, may be a material 
fact in the determination of the contractor's responsibility and 
prospects for contract completion.
    (b) The contracting officer shall obtain the following information 
to the extent required to protect the Government's interest. In 
addition, if the contracting officer concludes that information not 
listed in paragraphs (b)(1) through (b)(10) of this subsection is 
required to comply with 232.072-1, that information should be requested. 
The information must be for the person(s) who are legally liable for 
contract performance. If the contractor is not a corporation, the 
contracting officer shall obtain the required information

[[Page 295]]

for each individual/joint venturer/partner:
    (1) Balance sheet and income statement--
    (i) For the current fiscal year (interim);
    (ii) For the most recent fiscal year and, preferably, for the 2 
preceding fiscal years. These should be certified by an independent 
public accountant or by an appropriate officer of the firm; and
    (iii) Forecasted for each fiscal year for the remainder of the 
period of contract performance.
    (2) Summary history of the contractor and its principal managers, 
disclosing any previous insolvencies--corporate or personal, and 
describing its products or services.
    (3) Statement of all affiliations disclosing--
    (i) Material financial interests of the contractor;
    (ii) Material financial interests in the contractor;
    (iii) Material affiliations of owners, officers, directors, major 
stockholders; and
    (iv) The major stockholders if the contractor is not a widely-
traded, publicly-held corporation.
    (4) Statement of all forms of compensation to each officer, manager, 
partner, joint venturer, or proprietor, as appropriate--
    (i) Planned for the current year;
    (ii) Paid during the past 2 years; and
    (iii) Deferred to future periods.
    (5) Business base and forecast that--
    (i) Shows, by significant markets, existing contracts and 
outstanding offers, including those under negotiation; and
    (ii) Is reconcilable to indirect cost rate projections.
    (6) Cash forecast for the duration of the contract (see 232.072-3).
    (7) Financing arrangement information that discloses--
    (i) Availability of cash to finance contract performance;
    (ii) Contractor's exposure to financial crisis from creditor's 
demands;
    (iii) Degree to which credit security provisions could conflict with 
Government title terms under contract financing;
    (iv) Clearly stated confirmations of credit with no unacceptable 
qualifications;
    (v) Unambiguous written agreement by a creditor if credit 
arrangements include deferred trade payments or creditor subordinations/
repayment suspensions.
    (8) Statement of all state, local, and Federal tax accounts, 
including special mandatory contributions, e.g., environmental 
superfund.
    (9) Description and explanation of the financial effect of issues 
such as--
    (i) Leases, deferred purchase arrangements, or patent or royalty 
arrangements;
    (ii) Insurance, when relevant to the contract;
    (iii) Contemplated capital expenditures, changes in equity, or 
contractor debt load;
    (iv) Pending claims either by or against the contractor;
    (v) Contingent liabilities such as guarantees, litigation, 
environmental, or product liabilities;
    (vi) Validity of accounts receivable and actual value of inventory, 
as assets; and
    (vii) Status and aging of accounts payable.
    (10) Significant ratios such as--
    (i) Inventory to annual sales;
    (ii) Inventory to current assets;
    (iii) Liquid assets to current assets;
    (iv) Liquid assets to current liabilities;
    (v) Current assets to current liabilities; and
    (vi) Net worth to net debt.

[63 FR 11535, Mar. 9, 1998]



232.072-3  Cash flow forecasts.

    (a) A contractor must be able to sustain a sufficient cash flow to 
perform the contract. When there is doubt regarding the sufficiency of a 
contractor's cash flow, the contracting officer should require the 
contractor to submit a cash flow forecast covering the duration of the 
contract.
    (b) A contractor's inability of refusal to prepare and provide cash 
flow forecasts or to reconcile actual cash flow with previous forecasts 
is a strong indicator of serious managerial deficiencies or potential 
contract cost or performance problems.
    (c) Single or one-time cash flow forecasts are of limited 
forecasting power. As such, they should be limited to

[[Page 296]]

preaward survey situations. Reliability of cash flow forecasts can be 
established only by comparing a series of previous actual cash flows 
with the corresponding forecasts and examining the causes of any 
differences.
    (d) Cash flow forecasts must--
    (1) Show the origin and use of all material amounts of cash within 
the entire business unit responsible for contract performance, period by 
period, for the length of the contract (or until the risk of a cash 
crisis ends); and
    (2) Provide an audit trail to the data and assumptions used to 
prepare it.
    (e) Cash flow forecasts can be no more reliable than the assumptions 
on which they are based. Most important of these assumptions are--
    (1) Estimated amounts and timing of purchases and payments for 
materials, parts, components, subassemblies, and services;
    (2) Estimated amounts and timing of payments of purchase or 
production of capital assets, test facilities, and tooling;
    (3) Amounts and timing of fixed cash charges such as debt 
installments, interest, rentals, taxes, and indirect costs;
    (4) Estimated amounts and timing of payments for projected labor, 
both direct and indirect;
    (5) Reasonableness of projected manufacturing and production 
schedules;
    (6) Estimated amounts and timing of billings to customers (including 
progress payments), and customer payments;
    (7) Estimated amounts and timing of cash receipts from lenders or 
other credit sources, and liquidation of loans; and
    (8) Estimated amount and timing of cash receipt from other sources.
    (f) The contracting officer should review the assumptions underlying 
the cash flow forecasts. In determining whether the assumptions are 
reasonable and realistic, the contracting officer should consult with--
    (1) The contractor;
    (2) Government personnel in the areas of finance, engineering, 
production, cost, and price analysis; or
    (3) Prospective supply, subcontract, and loan or credit sources.

[63 FR 11536, Mar. 9, 1998]



          Subpart 232.1_Non-Commercial Item Purchase Financing

    Source: 63 FR 11536, Mar. 9, 1998, unless otherwise noted.



232.102  Description of contract financing methods.

    (e)(2) Progress payments based on percentage or stage of completion 
are authorized only for contracts for construction (as defined in FAR 
36.102), shipbuilding, and ship conversion, alteration, or repair. 
However, percentage or state of completion methods of measuring 
contractor performance may be used for performance-based payments in 
accordance with FAR Subpart 32.10.



232.102-70  Provisional delivery payments.

    (a) The contracting officer may establish provisional delivery 
payments to pay contractors for the costs of supplies and services 
delivered to and accepted by the Government under the following contract 
actions if undefinitized:
    (1) Letter contracts contemplating a fixed-price contract.
    (2) Orders under basic ordering agreements.
    (3) Spares provisioning documents annexed to contracts.
    (4) Unpriced equitable adjustments on fixed-price contracts.
    (5) Orders under indefinite-delivery contracts.
    (b) Provisional delivery payments shall be--
    (1) Used sparingly;
    (2) Priced conservatively; and
    (3) Reduced by liquidating previous progress payments in accordance 
with the Progress Payments clause.
    (c) Provisional delivery payments shall not--
    (1) Include profit;
    (2) Exceed funds obligated for the undefinitized contract action; or
    (3) Influence the definitized contract price.



232.104  Providing contract financing.

    For fixed-price contracts with a period of performance in excess of 
a year

[[Page 297]]

that meet the dollar thresholds established in FAR 32.104(d), and for 
solicitations expected to result in such contracts, in lieu of the 
requirement at FAR 32.104(d)(1)(ii) for the contractor to demonstrate 
actual financial need or the unavailability of private financing, DoD 
has determined that--
    (1) The use of customary contract financing (see FAR 32.113), other 
than loan guarantees and advance payments, is in DoD's best interest; 
and
    (2) Further justification of its use in individual acquisitions is 
unnecessary.

[81 FR 93842, Dec. 22, 2016]



            Subpart 232.2_Commercial Item Purchase Financing

    Source: 63 FR 11537, Mar. 9, 1998, unless otherwise noted.



232.202-4  Security for Government financing.

    (a)(2) When determining whether an offeror's financial condition is 
adequate security, see 232.072-2 and 232.072-3 for guidance. It should 
be noted that an offeror's financial condition may be sufficient to make 
the contractor responsible for award purposes, but may not be adequate 
security for commercial contract financing.



232.206  Solicitation provisions and contract clauses.

    (f) Prompt payment for commercial purchase payments. The contracting 
officer shall incorporate the following standard prompt payment terms 
for commercial item contract financing:
    (i) Commercial advance payments: The contractor entitlement date 
specified in the contract, or 30 days after receipt by the designated 
billing office of a proper request for payment, whichever is later.
    (ii) Commercial interim payments: The contractor entitlement date 
specified in the contract, or 14 days after receipt by the designated 
billing office of a proper request for payment, whichever is later. The 
prompt payment standards for commercial delivery payments shall be the 
same as specified in FAR Subpart 32.9 for invoice payments for the item 
delivered.
    (g) Installment payment financing for commercial items. Installment 
payment financing shall not be used for DoD contracts, unless market 
research has established that this form of contract financing is both 
appropriate and customary in the commercial marketplace. When 
installment payment financing is used, the contracting officer shall use 
the ceiling percentage of contract price that is customary in the 
particular marketplace (not to exceed the maximum rate established in 
FAR 52.232-30).

[63 FR 11537, Mar. 9, 1998, as amended at 70 FR 75413, Dec. 20, 2005]



          Subpart 232.3_Loan Guarantees for Defense Production



232.302  Authority.

    (a) The use of guaranteed loans as a contract financing mechanism 
requires the availability of certain congressional authority. The DoD 
has not requested such authority in recent years, and none is now 
available.



         Subpart 232.4_Advance Payments for Non-Commercial Items



232.404  Exclusions.

    (a)(9) The requirements of FAR subpart 32.4 do not apply to 
advertisements in high school and college publications for military 
recruitment efforts under 10 U.S.C. 503 when the contract cost does not 
exceed the micro-purchase threshold.

[56 FR 36409, July 31, 1991, as amended at 70 FR 75413, Dec. 20, 2005; 
71 FR 75892, Dec. 19, 2006; 75 FR 45074, Aug. 2, 2010]



232.409  Contracting officer action.



232.409-1  Recommendation for approval.

    Follow the procedures at PGI 232.409-1 for preparation of the 
documents required by FAR 32.409-1(e) and (f).

[70 FR 75413, Dec. 20, 2005]

[[Page 298]]



232.410  Findings, determination, and authorization.

    If an advance payment procedure is used without a special bank 
account, follow the procedures at PGI 232.410.

[70 FR 75413, Dec. 20, 2005]



232.412  Contract clause.



232.412-70  Additional clauses.

    (a) Use the clause at 252.232-7000, Advance Payment Pool, in any 
contract that will be subject to the terms of an advance payment pool 
agreement with a nonprofit organization or educational institution. 
Normally, use the clause in all cost reimbursement type contracts with 
the organization or institution.
    (b) Use the clause at 252.232-7005, Reimbursement of Subcontractor 
Advance Payments-DoD Pilot Mentor-Prot[eacute]g[eacute] Program, when 
advance payments will be provided by the contractor to a subcontractor 
pursuant to an approved mentor-prot[eacute]g[eacute] agreement (see 
subpart 219.71).

[56 FR 36409, July 31, 1991, as amended at 56 FR 67217, Dec. 30, 1991; 
85 FR 19699, Apr. 8, 2020]



232.470  Advance payment pool.

    (a) An advance payment pool agreement--
    (1) Is a means of financing the performance of more than one 
contract held by a single contractor;
    (2) Is especially convenient for the financing of cost-type 
contracts with nonprofit educational or research institutions for 
experimental or research and development work when several contracts 
require financing by advance payments. When appropriate, pooled advance 
payments may also be used to finance other types of contracts held by a 
single contractor; and
    (3) May be established--
    (i) Without regard to the number of appropriations involved;
    (ii) To finance contracts for one or more department(s) or 
contracting activity(ies); or
    (iii) In addition to any other advance payment pool agreement at a 
single contractor location when it is more convenient or otherwise 
preferable to have more than one agreement.



             Subpart 232.5_Progress Payments Based on Costs



232.501  General.



232.501-1  Customary progress payment rates.

    (a) The customary progress payment rates for DoD contracts, 
including contracts that contain foreign military sales (FMS) 
requirements, are 80 percent for large business concerns and 90 percent 
for small business concerns.

[79 FR 61582, Oct. 14, 2014]



232.501-2  Unusual progress payments.

    Follow the procedures at PGI 232.501-2 for approval of unusual 
progress payments.

[70 FR 75413, Dec. 20, 2005]



232.501-3  Contract price.

    (b) The contracting officer may approve progress payments when the 
contract price exceeds the funds obligated under the contract, provided 
the contract limits the Government's liability to the lesser of--
    (i) The applicable rate (i.e., the lower of the progress payment 
rate, the liquidation rate, or the loss-ratio adjusted rate); or
    (ii) 100 percent of the funds obligated.

[56 FR 36409, July 31, 1991, as amended at 65 FR 39722, June 27, 2000; 
70 FR 75413, Dec. 20, 2005]



232.502  Preaward matters.



232.502-4-70  Additional clauses.

    (a) Use the clause at 252.232-7002, Progress Payments for Foreign 
Military Sales Acquisitions, in solicitations and contracts that--
    (i) Contain FMS requirements; and
    (ii) Provide for progress payments.
    (b) Use the clause at 252.232-7004, DoD Progress Payment Rates, 
instead of Alternate I of the clause at FAR 52.232-16, if the contractor 
is a small business concern.

[56 FR 36409, July 31, 1991, as amended at 56 FR 67217, Dec. 30, 1991; 
64 FR 8731, Feb. 23, 1999; 65 FR 39722, June 27, 2000; 66 FR 49865, Oct. 
1, 2001; 79 FR 61582, Oct. 14, 2014]

[[Page 299]]



232.503  Postaward matters.



232.503-6  Suspension or reduction of payments.

    (b) Contractor noncompliance. See also 242.7503.
    (g) Loss contracts. Use the following loss ratio adjustment 
procedures for making adjustments required by FAR 32.503-6(f) and (g)--
    (i) Except as provided in paragraph (g)(ii) of this subsection, the 
contracting officer must prepare a supplementary analysis of the 
contractor's request for progress payments and calculate the loss ratio 
adjustment using the procedures in FAR 32.503-6(g).
    (ii) The contracting officer may request the contractor to prepare 
the supplementary analysis as an attachment to the progress payment 
request when the contracting officer determines that the contractor's 
methods of estimating the ``Costs to Complete'' are reliable, accurate, 
and not susceptible to improper influences.
    (iii) To maintain an audit trail and permit verification of 
calculations, do not make the loss ratio adjustments by altering or 
replacing data on the contractor's original request for progress payment 
(SF 1443, Contractor's Request for Progress Payment, or computer 
generated equivalent).

[56 FR 36409, July 31, 1991, as amended at 60 FR 29499, June 5, 1995; 65 
FR 39722, June 27, 2000]



232.503-15  Application of Government title terms.

    (d) An administrative contracting officer (ACO) determination that 
the contractor's material management and accounting system conforms to 
the system criteria at 252.242-7004(d)(7) constitutes the contracting 
officer approval requirement of FAR 32.503-15(d). Prior to granting 
blanket approval of cost transfers between contracts, the ACO should 
determine that--
    (i) The contractor retains records of the transfer activity that 
took place in the prior month;
    (ii) The contractor prepares, at least monthly, a summary of the 
transfer activity that took place in the prior month; and
    (iii) The summary report includes as a minimum, the total number and 
dollar value of transfers.

[56 FR 36409, July 31, 1991, as amended at 57 FR 42632, Sept. 15, 1992; 
70 FR 75413, Dec. 20, 2005; 77 FR 11365, Feb. 24, 2012]



                      Subpart 232.6_Contract Debts



232.602  Responsibilities.

    (b) Disbursing officers are those officials designated to make 
payments under a contract or to receive payments of amounts due under a 
contract. The disbursing officer is responsible for determining the 
amount and collecting contract debts whenever overpayments or erroneous 
payments have been made. The disbursing officer also has primary 
responsibility when the amounts due and dates for payment are contained 
in the contract, and a copy of the contract has been furnished to the 
disbursing officer with notice to collect as amounts become due.

[56 FR 36409, July 31, 1991, as amended at 70 FR 75413, Dec. 20, 2005. 
Redesignated and amended at 80 FR 58633, Sept. 30, 2015]



232.603  Debt determination.

    When transferring a case to the contract financing office, follow 
the procedures at PGI 232.603.

[80 FR 58633, Sept. 30, 2015]



232.604  Demand for payment.

    When issuing a demand for payment of a contract debt, follow the 
procedures at PGI 232.604.

[80 FR 58633, Sept. 30, 2015]



232.610  Compromising debts.

    Only the department/agency contract financing offices (see PGI 
232.070(c)) are authorized to compromise debts covered by this subpart. 
232.617

[80 FR 58633, Sept. 30, 2015]



232.611  Contract clause.

    (a) The Director of Defense Procurement and Acquisition Policy, 
Office of the Under Secretary of Defense (Acquisition, Technology, and 
Logistics), may exempt the contracts in FAR 32.611(a)(2) through (5) and 
other contracts, in exceptional circumstances,

[[Page 300]]

from the administrative interest charges required by this subpart.
    (7) Other exceptions are--
    (A) Contracts for instructions of military or ROTC personnel at 
civilian schools, colleges, and universities;
    (B) Basic agreements with telephone companies for communications 
services and facilities, and purchases under such agreements; and
    (C) Transportation contracts with common carriers for common carrier 
services.

[70 FR 75413, Dec. 20, 2005. Redesignated and amended at 80 FR 58633, 
Sept. 30, 2015]



232.670  Transfer of responsibility for debt collection.

    Follow the procedures at PGI 232.670 for transferring responsibility 
for debt collection.

[70 FR 75413, Dec. 20, 2005]



232.671  Bankruptcy reporting.

    Follow the procedures at PGI 232.671 for bankruptcy reporting.

[70 FR 75413, Dec. 20, 2005]



                     Subpart 232.7_Contract Funding

    Source: 58 FR 46092, Sept. 1, 1993, unless otherwise noted.



232.702  Policy.

    Fixed-price contracts shall be fully funded except as permitted by 
232.703-1.



232.703  Contract funding requirements.



232.703-1  General.

    (1) A fixed-price contract may be incrementally funded only if--
    (i) The contract (excluding any options) or any exercised option--
    (A) Is for severable services;
    (B) Does not exceed one year in length; and
    (C) Is incrementally funded using funds available (unexpired) as of 
the date the funds are obligated; or
    (ii) The contract uses funds available from multiple (two or more) 
fiscal years and--
    (A) The contract is funded with research and development 
appropriations; or
    (B) Congress has otherwise authorized incremental funding.
    (2) An incrementally funded fixed-price contract shall be fully 
funded as soon as funds are available.

[71 FR 18673, Apr. 12, 2006]



232.703-3  Contracts crossing fiscal years.

    (b) The contracting officer may enter into a contract, exercise an 
option, or place an order under a contract for severable services for a 
period that begins in one fiscal year and ends in the next fiscal year 
if the period of the contract awarded, option exercised, or order placed 
does not exceed 1 year (10 U.S.C. 2410a).

[64 FR 28110, May 25, 1999]



232.703-70  Military construction appropriations act restriction.

    Annual military construction appropriations acts restrict the use of 
funds appropriated by the acts for payments under cost-plus-fixed-fee 
contracts (see 216.306(c)).

[61 FR 7744, Feb. 29, 1996]



232.704  Limitation of cost or funds.



232.704-70  Incrementally funded fixed-price contracts.

    (a) Upon receipt of the contractor's notice under paragraph (c) of 
the clause at 252.232-7007, Limitation of Government's Obligation, the 
contracting officer shall promptly provide written notice to the 
contractor that the Government is--
    (1) Allotting additional funds for continued performance and 
increasing the Government's limitation of obligation in a specified 
amount;
    (2) Terminating the contract; or
    (3) Considering whether to allot additional funds; and
    (i) The contractor is entitled by the contract terms to stop work 
when the Government's limitation of obligation is reached; and
    (ii) Any costs expended beyond the Government's limitation of 
obligation are at the contractor's risk.
    (b) Upon learning that the contract will receive no further funds, 
the contracting officer shall promptly give the

[[Page 301]]

contractor written notice of the Government's decision and terminate for 
the convenience of the Government.
    (c) The contracting officer shall ensure that, in accordance with 
paragraph (b) of the clause at 252.232-7007, Limitation of Government's 
Obligation, sufficient funds are allotted to the contract to cover the 
total amount payable to the contractor in the event of termination for 
the convenience of the Government.



232.705  Contract clauses.



232.705-70  Clause for limitation of Government's obligation.

    Use the clause at 252.232-7007, Limitation of Government's 
Obligation, in solicitations and resultant incrementally funded fixed-
price contracts. The contracting officer may revise the contractor's 
notification period, in paragraph (c) of the clause, from ``ninety'' to 
``thirty'' or ``sixty'' days, as appropriate.



                   Subpart 232.8_Assignment of Claims



232.803  Policies.

    (b) Only contracts for personal services may prohibit the assignment 
of claims.
    (d) Pursuant to 41 U.S.C. 6305, and in accordance with Presidential 
delegation dated October 3, 1995, Secretary of Defense delegation dated 
February 5, 1996, and Under Secretary of Defense (Acquisition, 
Technology, and Logistics) delegation dated February 23, 1996, the 
Director of Defense Procurement determined on May 10, 1996, that a need 
exists for DoD to agree not to reduce or set off any money due or to 
become due under the contract when the proceeds under the contract have 
been assigned in accordance with the Assignment of Claims provision of 
the contract. This determination was published in the Federal Register 
on June 11, 1996, as required by law. Nevertheless, if departments/
agencies decide it is in the Government's interests, or if the 
contracting officer makes a determination in accordance with FAR 
32.803(d) concerning a significantly indebted offeror, they may exclude 
the no-setoff commitment.

[56 FR 36409, July 31, 1991, as amended at 61 FR 50454, Sept. 26, 1996; 
65 FR 39706, June 27, 2000; 76 FR 58137, Sept. 20, 2011]



232.805  Procedure.

    (b) The assignee shall forward--
    (i) To the administrative contracting officer (ACO), a true copy of 
the instrument of assignment and an original and three copies of the 
notice of assignment. The ACO shall acknowledge receipt by signing and 
dating all copies of the notice of assignment and shall--
    (A) File the true copy of the instrument of assignment and the 
original of the notice in the contract file;
    (B) Forward two copies of the notice to the disbursing officer of 
the payment office cited in the contract;
    (C) Return a copy of the notice to the assignee; and
    (D) Advise the contracting officer of the assignment.
    (ii) To the surety or sureties, if any, a true copy of the 
instrument of assignment and an original and three copies of the notice 
of assignment. The surety shall return three acknowledged copies of the 
notice to the assignee, who shall forward two copies to the disbursing 
officer designated in the contract.
    (iii) To the disbursing officer of the payment office cited in the 
contract, a true copy of the instrument of assignment and an original 
and one copy of the notice of assignment. The disbursing officer shall 
acknowledge and return to the assignee the copy of the notice and shall 
file the true copy of the instrument and original notice.



232.806  Contract clause.

    (a)(1) Use the clause at 252.232-7008, Assignment of Claims 
(Overseas), instead of the clause at FAR 52.232-23, Assignment of 
Claims, in solicitations and contracts when contract performance will be 
in a foreign country.
    (2) Use Alternate I with the clause at FAR 52.232-23, Assignment of 
Claims, unless otherwise authorized under 232.803(d).

[62 FR 34126, June 24, 1997]

[[Page 302]]



                      Subpart 232.9_Prompt Payment



232.901  Applicability.

    (1) Except for FAR 32.908, FAR subpart 32.9, Prompt Payment, does 
not apply when--
    (i) There is--
    (A) An emergency, as defined in the Disaster Relief Act of 1974;
    (B) A contingency operation (see FAR 2.101(b)); or
    (C) The release or threatened release of hazardous substances (as 
defined in 4 U.S.C. 9606, section 106); and
    (ii) The head of the contracting activity has made a determination, 
after consultation with the cognizant comptroller, that conditions exist 
that limit normal business operations; and
    (iii) Payments will be made in the operational area or made 
contingent upon receiving supporting documentation (i.e., contract, 
invoice, and receiving report) from the operational area.
    (2) Criteria limiting normal business operations during emergencies 
and contingency operations that restrict the use of FAR 32.9 may include 
such conditions as--
    (i) Support infrastructure, hardware, communications capabilities, 
and bandwidth are not consistently available such that normal business 
operations can be carried out;
    (ii) Support resources, facilities, and banking needs are not 
consistently available for use as necessary in carrying out normal 
business operations;
    (iii) Military mission priorities override the availability of 
appropriately skilled personnel in support of back-office operations;
    (iv) Mobility impairments and security concerns restrict free 
movement of personnel and documents necessary for timely processing;
    (v) Foreign vendors are not familiar with or do not understand DoD 
contract requirements (i.e., proper invoice, receiving documentation, 
and contracting terms); or
    (vi) Documents received in support of payment requests and shipments 
require language translations that cannot be performed and documented 
within normal business processing times.
    (3) Subsequent Determinations. The head of the contracting activity 
shall make subsequent determinations, after consultation with the 
cognizant comptroller, as the operational area evolves into either a 
more stable or less stable environment.
    (i) If the head of the contracting activity determines that the 
operational area has evolved into a more stable environment, the 
contracting officer shall notify, by issuance of a contract 
modification, each contractor performing in the operational area under 
review. The modification deactivates clause 252.232-7011 and activates 
the applicable FAR Prompt Payment clause in the contract.
    (ii) If after deactivation of clause 252.232-7011, the head of the 
contracting activity subsequently determines that the operational area 
has evolved into a less stable environment, the head of the contracting 
activity will make a determination that conditions exist that limit 
normal business operations. The contracting officer will then reactivate 
clause 252.232-7011 by issuance of a contract modification.

[75 FR 40713, July 13, 2010, as amended at 76 FR 11373, Mar. 2, 2011]



232.903  Responsibilities.

    In accordance with section 852 of the National Defense Authorization 
Act for Fiscal Year 2019 (Pub. L. 115-232), DoD shall assist small 
business concerns by providing payment as quickly as possible, to the 
fullest extent permitted by law, with a goal of 15 days after receipt of 
proper invoices and all required documentation, including acceptance, 
and before normal payment due dates established in the contract (see 
232.906(a)).

[85 FR 19697, Apr. 8, 2020]



232.904  Determining payment due dates.

    (d) In most cases, Government acceptance or approval can occur 
within the 7-day constructive acceptance period specified in the FAR 
Prompt Payment clauses. Government payment of construction progress 
payments can, in most cases, be made within the 14-day period allowed by 
the Prompt Payment for Construction Contracts clause. While the 
contracting officer may

[[Page 303]]

specify a longer period because the period specified in the contract is 
not reasonable or practical, such change should be coordinated with the 
Government offices responsible for acceptance or approval and for 
payment. Reasons for specifying a longer period include but are not 
limited to: the nature of the work or supplies or services, inspection 
or testing requirements, shipping and acceptance terms, and resources 
available at the acceptance activity. A constructive acceptance period 
of less than the cited 7 or 14 days is not authorized.

[70 FR 75413, Dec. 20, 2005]



232.905  Payment documentation and process.

    (b)(1)(iii) For task and delivery orders numbered in accordance with 
FAR 4.1603 and 204.1603, the 13-character order number may serve as the 
contract number on invoices and receiving reports. The contract or 
agreement number under which the order was placed may be omitted from 
invoices and receiving reports. The contractor may choose to identify 
both the contract number and the 13-character order number on invoices 
and receiving reports. Task and delivery orders numbered with a four-
position alpha-numeric call or order serial number shall include both 
the 13-position basic contract Procurement Instrument Identifier and the 
four-position order number.

[81 FR 9786, Feb. 26, 2016]



232.906  Making payments.

    (a)(i) Generally, the contracting officer shall insert the standard 
due date of 14 days for interim payments on cost-reimbursement contracts 
for services in the clause at FAR 52.232-25, Prompt Payment, when using 
the clause with its Alternate I.
    (ii) The restrictions of FAR 32.906 prohibiting early payment do not 
apply to invoice payments made to small business concerns. However, 
contractors shall not be entitled to interest penalties if the 
Government fails to make early payment.

[70 FR 75413, Dec. 20, 2005, as amended at 76 FR 23506, Apr. 27, 2011]



232.908  Contract clauses.

    Use the clause at 252.232-7011, Payments in Support of Emergencies 
and Contingency Operations, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, in acquisitions that meet the 
applicability criteria at 232.901(1). Use of this clause is in addition 
to use of either the approved Payment clause prescribed in FAR 32.908 or 
the clause at FAR 52.212-4, Contract Terms and Conditions--Commercial 
Items.

[78 FR 37989, June 25, 2013]



                Subpart 232.10_Performance-Based Payments

    Source: 63 FR 11537, Mar. 9, 1998, unless otherwise noted.



232.1001  Policy.

    (a) As with all contract financing, the purpose of performance-based 
payments is to assist the contractor in the payment of costs incurred 
during the performance of the contract. See PGI 232.1001(a) for 
additional information on use of performance-based payments. However, in 
accordance with 10 U.S.C. 2307(b)(2), performance-based payments shall 
not be conditioned upon costs incurred in contract performance, but on 
the achievement of performance outcomes. Subject to the criteria in 
232.1003-70, all companies, including nontraditional defense 
contractors, are eligible for performance-based payments, consistent 
with best commercial practices.
    (d) The contracting officer shall use the following standard payment 
terms for performance-based payments: The contractor entitlement date, 
if any, specified in the contract, or 14 days after receipt by the 
designated billing office of a proper request for payment, whichever is 
later.

[63 FR 11537, Mar. 9, 1998, as amended at 79 FR 17936, Mar. 31, 2014; 85 
FR 19688, Apr. 8, 2020]



232.1003-70  Criteria for use.

    In accordance with 10 U.S.C. 2307(b)(4)(A), a contractor's financial

[[Page 304]]

statements shall be in compliance with Generally Accepted Accounting 
Principles in order to receive performance-based payments. 10 U.S.C. 
2307(b)(4)(B) specifies that it does not grant the Defense Contract 
Audit Agency the authority to audit compliance with Generally Accepted 
Accounting Principles.

[85 FR 19688, Apr. 8, 2020]



232.1004  Procedures.

    (b) Establishing performance-based finance payment amounts. (i) The 
contracting officer should include in a solicitation both the progress 
payments and performance-based payments provisions and clauses 
prescribed in this part, when considering both types of payment methods. 
Only one type of financing will be included in the resultant contract, 
except as may be authorized on separate orders subject to FAR 
32.1003(c)).
    (ii) The contracting officer shall analyze the performance-based 
payment schedule using the performance-based payments (PBP) analysis 
tool. The PBP analysis tool is on the DPC website in the Cost, Pricing & 
Finance section, Performance Based Payments--Guide Book & Analysis Tool 
tab, at http://www.acq.osd.mil/ dpap/cpic/cp/Performance_based 
_payments.html.
    (A) When considering performance-based payments, obtain from the 
offeror/contractor a proposed performance-based payments schedule that 
includes all performance-based payments events, completion criteria and 
event values along with the projected monthly expenditure profile in 
order to negotiate the value of the performance events such that the 
performance-based payments are not expected to result in an unreasonably 
low or negative level of contractor investment in the contract. If 
performance-based payments are deemed practical, the Government will 
evaluate and negotiate the details of the performance-based payments 
schedule.
    (B) For modifications to contracts that already use performance-
based payments financing, the basis for negotiation must include 
performance-based payments. The PBP analysis tool will be used in the 
same manner to help determine the price for the modification.
    (iii) The contracting officer shall document in the contract file 
that the performance-based payment schedule provides a mutually 
beneficial settlement position that reflects adequate consideration to 
the Government for the improved contractor cash flow.
    (c) Instructions for multiple appropriations. If the contract 
contains foreign military sales requirements, the contracting officer 
shall provide instructions for distribution of the contract financing 
payments to each country's account.

[63 FR 11537, Mar. 9, 1998, as amended at 79 FR 17936, Mar. 31, 2014; 85 
FR 19688, Apr. 8, 2020]



232.1005-70  Solicitation provisions and contract clauses.

    (a) The contracting officer shall include the following clauses with 
appropriate fill-ins in solicitations and contracts that include 
performance-based payments:
    (1) For performance-based payments made on a whole-contract basis, 
use the clause at 252.232-7012, Performance-Based Payments--Whole-
Contract Basis.
    (2) For performance-based payments made on a deliverable-item basis, 
use the clause at 252.232-7013, Performance-Based Payments--Deliverable-
Item Basis.
    (b) Use the provision at 252.232-7015, Performance-Based Payments--
Representation, in solicitations where the resulting contract may 
include performance-based payments.
    (c) Use the provision at 252.232-7016, Notice of Progress Payments 
or Performance-Based Payments, in lieu of FAR 52.232-13, Notice of 
Progress Payments, when the solicitation contains clauses for progress 
payments and performance-based payments (only one type of financing will 
be included in the resultant contract, except as may be authorized on 
separate orders subject to FAR 32.1003(c)).

[79 FR 17936, Mar. 31, 2014, as amended at 85 FR 19688, Apr. 8, 2020]

[[Page 305]]



                Subpart 232.11_Electronic Funds Transfer

    Source: 65 FR 46626, July 31, 2000, unless otherwise noted.



232.1110  Solicitation provision and contract clauses.

    Use the clause at 252.232-7009, Mandatory Payment by Governmentwide 
Commercial Purchase Card, in solicitations, contracts, and agreements, 
including solicitations, contracts, and agreements using FAR part 12 
procedures for the acquisition of commercial items, when--
    (1) Placement of orders or calls valued at or below the micro-
purchase threshold is anticipated; and
    (2) Payment by Governmentwide commercial purchase card is required 
for orders or calls valued at or below the micro-purchase threshold 
under the contract or agreement.

[78 FR 37989, June 25, 2013]



Subpart 232.70_Electronic Submission and Processing of Payment Requests 
                          and Receiving Reports

    Source: 68 FR 8455, Feb. 21, 2003, unless otherwise noted.



232.7000  Scope of subpart.

    This subpart prescribes policies and procedures for submitting and 
processing payment requests in electronic form to comply with 10 U.S.C. 
2227.



232.7001  Definitions.

    As used in this subpart--
    Electronic form means any automated system that transmits 
information electronically from the initiating system to affected 
systems.
    Payment request means any request for contract financing payment or 
invoice payment submitted by the contractor under a contract or task or 
delivery order.
    Receiving report means the data prepared in the manner and to the 
extent required by appendix F of this chapter, Material Inspection and 
Receiving Report.

[83 FR 66063, Dec. 21, 2018]



232.7002  Policy.

    (a) Payment requests and receiving reports are required to be 
submitted in electronic form, except for--
    (1) Classified contracts or purchases when electronic submission and 
processing of payment requests and receiving reports could compromise 
the safeguarding of classified information or national security;
    (2) Cases in which contractor submission of electronic payment 
requests and receiving reports is not feasible (e.g., when contract 
performance is in an environment where internet connectivity is not 
available);
    (3) Cases in which DoD is unable to receive payment requests or 
provide acceptance in electronic form;
    (4) Cases in which the contractor has requested permission in 
writing to submit payment requests and receiving reports by 
nonelectronic means, and the contracting officer has provided 
instructions for a temporary alternative method of submission of payment 
requests and receiving reports in the contract administration data 
section of the contract or task or delivery order (e.g., section G, an 
addendum to FAR 52.212-4, or applicable clause); and
    (5) When the Governmentwide commercial purchase card is used as the 
method of payment, in which case only submission of the receiving report 
in electronic form is required.
    (b)(1) The only acceptable electronic form for submission of payment 
requests and receiving reports is Wide Area WorkFlow (WAWF) (https://
wawf.eb.mil/), except as follows:
    (i) For payment of commercial transportation services provided under 
a Government rate tender, contract, or task or delivery order for 
transportation services, the use of a DoD-approved electronic third 
party payment system or other exempted vendor payment/invoicing system 
(e.g., PowerTrack, Transportation Financial Management System, and Cargo 
and Billing System) is permitted.
    (ii) For submitting and processing payment requests and receiving 
reports for contracts or task or delivery orders for rendered health 
care services, the use of TRICARE Encounter Data System as the 
electronic form is permitted.

[[Page 306]]

    (2) Facsimile, email, and scanned documents are not acceptable 
electronic forms of payment requests or receiving reports.

[83 FR 66063, Dec. 21, 2018]



232.7003  Procedures.

    (a) DoD officials receiving payment requests in electronic form 
shall process the payment requests in electronic form. The WAWF system 
provides the method to electronically process payment requests and 
receiving reports.
    (1) Documents necessary for payment, such as receiving reports, 
invoice approvals, contracts, contract modifications, and required 
certifications, shall also be processed in electronic form.
    (2) Scanned documents and other commonly used file formats are only 
acceptable for processing supporting documentation.
    (b) If one of the exceptions to submission in electronic form at 
232.7002(a) applies, the contracting officer shall--
    (1) Consult the payment office and the contract administration 
office regarding the alternative method to be used for submission of 
payment requests or receiving reports (e.g., facsimile or conventional 
mail); and
    (2) Provide procedures for invoicing in the contract administration 
data section of the contract or task or delivery order (e.g., section G, 
an addendum to FAR 52.212-4, or applicable clause) for submission of 
invoices by nonelectronic means. If submission of invoices by 
nonelectronic means is temporary, the procedures should specify the time 
period for which they apply.

[83 FR 66063, Dec. 21, 2018]



232.7004  Contract clauses.

    (a) Unless an exception to submission in electronic form at 
232.7002(a) applies and instructions for invoices are contained in the 
contract administration data section of the contract or task or delivery 
order, use the clause at 252.232-7003, Electronic Submission of Payment 
Requests and Receiving Reports, in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items.
    (b) Use the clause at 252.232-7006, Wide Area WorkFlow Payment 
Instructions, in solicitations and contracts or task or delivery orders, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, when 252.232-7003 is used and none 
of the exceptions at 232.7002(b)(1) apply. See PGI 232.7004 for 
instructions on completing the clause.

[83 FR 66063, Dec. 21, 2018]



               Subpart 232.71_Levies on Contract Payments

    Source: 70 FR 52032, Sept. 1, 2005, unless otherwise noted.



232.7100  Scope of subpart.

    This subpart prescribes policies and procedures concerning the 
effect of levies pursuant to 26 U.S.C. 6331(h) on contract payments. The 
Internal Revenue Service (IRS) is authorized to levy up to 100 percent 
of all payments made under a DoD contract, up to the amount of the tax 
debt.



232.7101  Policy and procedures.

    (a) The contracting officer shall require the contractor to--
    (1) Promptly notify the contracting officer when a levy may result 
in an inability to perform the contract; and
    (2) Advise the contracting officer whether the inability to perform 
may adversely affect national security.
    (b) The contracting officer shall promptly notify the Director, 
Defense Procurement and Acquisition Policy (DPAP), when the contractor's 
inability to perform will adversely affect national security or will 
result in significant additional costs to the Government. Follow the 
procedures at PGI 232.7101(b) for reviewing the contractor's rationale 
and submitting the required notification.
    (c) The Director, DPAP, will promptly evaluate the contractor's 
rationale and will notify the IRS, the contracting officer, and the 
payment office, as appropriate, in accordance with the procedures at PGI 
232.7101(c).
    (d) The contracting officer shall then notify the contractor in 
accordance with paragraph (c) of the clause at

[[Page 307]]

252.232-7010 and in accordance with the procedures at PGI 232.7101(d).

[71 FR 69492, Dec. 1, 2006]



232.7102  Contract clause.

    Use the clause at 252.232-7010, Levies on Contract Payments, in all 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items.

[71 FR 69492, Dec. 1, 2006, as amended at 78 FR 37989, June 25, 2013]



         SUBPART 232.72_Payment in local currency (Afghanistan)

    Source: 79 FR 58695, Sept. 30, 2014, unless otherwise noted.



232.7200  Scope of subpart.

    This subpart prescribes policies and procedures concerning the 
payment of contracts for performance in Afghanistan.



232.7201  Policy and procedures.

    Payment currency used for contracts performed in Afghanistan shall 
be dependent on the nationality of the vendor pursuant to the authority 
of USCENTCOM Fragmentary Orders (FRAGOs) 09-1567 and 10-143. If the 
contract is awarded to a host nation vendor (Afghan), the contractor 
will be paid in Afghani (local currency) via electronic funds transfer 
to a local (Afghan) banking institution. Contracts shall not be awarded 
to host nation vendors who do not bank locally. If awarded to other than 
a host nation vendor, the contract will be awarded in U.S. dollars.



232.7202  Solicitation provision.

    Use the provision at 252.232-7014, Notification of Payment in Local 
Currency (Afghanistan), in all solicitations, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items, 
for performance in Afghanistan.



PART 233_PROTESTS, DISPUTES, AND APPEALS--Table of Contents



                         Subpart 233.1_Protests

Sec.
233.102 General.
233.170 Briefing requirement for protested acquisitions valued at $1 
          billion or more.
233.171 Reporting requirement for protests of solicitations or awards.

                   Subpart 233.2_Disputes and Appeals

233.204-70 Limitations on payment.
233.210 Contracting officer's authority.
233.215 Contract clause.
233.215-70 Additional contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36416, July 31, 1991, unless otherwise noted.



                         Subpart 233.1_Protests



233.102  General.

    If the Government exercises the authority provided in 239.7305(d) to 
limit disclosure of information, no action undertaken by the Government 
under such authority shall be subject to review in a bid protest before 
the Government Accountability Office or in any Federal court (see 
subpart 239.73).

[78 FR 69271, Nov. 18, 2013]



233.170  Briefing requirement for protested acquisitions valued
at $1 billion or more.

    Follow the procedures at PGI 233.170 for briefing protested 
acquisitions valued at $1 billion or more.

[76 FR 3537, Jan. 20, 2011]



233.171  Reporting requirement for protests of solicitations or awards.

    Follow the procedures at PGI 233.171 for reporting information on 
protests involving the same contract award or proposed award that have 
been filed at both the Government Accountability Office and the United 
States Court of Federal Claims.

[84 FR 25194, May 31, 2019]

[[Page 308]]



                   Subpart 233.2_Disputes and Appeals



233.204-70  Limitations on payment.

    See 10 U.S.C. 2410(b) for limitations on Congressionally directed 
payment of a claim under 41 U.S.C. chapter 71 (Contract Disputes), a 
request for equitable adjustment to contract terms, or a request for 
relied under Pub. L. 85-804.

[63 FR 11537, Mar. 9, 1998, as amended at 77 FR 35881, June 15, 2012]



233.210  Contracting officer's authority.

    See PGI 233.210 for guidance on reviewing a contractor's claim.

[72 FR 6485, Feb. 12, 2007]



233.215  Contract clause.

    Use Alternate I of the clause at FAR 52.233-1, Disputes, when--
    (1) The acquisition is for--
    (i) Aircraft
    (ii) Spacecraft and launch vehicles
    (iii) Naval vessels
    (iv) Missile systems
    (v) Tracked combat vehicles
    (vi) Related electronic systems;
    (2) The contracting officer determines that continued performance 
is--
    (i) Vital to the national security, or
    (ii) Vital to the public health and welfare; or
    (3) The head of the contracting activity determines that continued 
performance is necessary pending resolution of any claim that might 
arise under or be related to the contract.

[56 FR 36416, July 31, 1991. Redesignated at 62 FR 34126, June 24, 1997]



233.215-70  Additional contract clause.

    Use the clause at 252.233-7001, Choice of Law (Overseas), in 
solicitations and contracts when contract performance will be outside 
the United States and its outlying areas, unless otherwise provided for 
in a government-to-government agreement.

[70 FR 35545, June 21, 2005]

[[Page 309]]



             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING





PART 234_MAJOR SYSTEM ACQUISITION--Table of Contents



Sec.
234.001 Definitions.
234.003 Responsibilities.
234.004 Acquisition strategy.
234.005 General requirements.
234.005-1 Competition.
234.005-2 Mission-oriented solicitation.

              Subpart 234.2_Earned Value Management System

234.201 Policy.
234.203 Solicitation provisions and contract clause.

 Subpart 234.70_Acquisition of Major Weapon Systems as Commercial Items

234.7000 Scope of subpart.
234.7001 Definition.
234.7002 Policy.

             Subpart 234.71_Cost and Software Data Reporting

234.7100 Policy.
234.7101 Solicitation provision and contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.



234.001  Definitions.

    As used in this subpart--
    Acceptable earned value management system and earned value 
management system are defined in the clause at 252.234-7002, Earned 
Value Management System.
    Production of major defense acquisition program means the production 
and deployment of a major system that is intended to achieve an 
operational capability that satisfies mission needs, or an activity 
otherwise defined as Milestone C under Department of Defense Instruction 
5000.02 or related authorities.
    Significant deficiency is defined in the clause at 252.234-7002, 
Earned Value Management System, and is synonymous with noncompliance.

[76 FR 28867, May 18, 2011, as amended at 79 FR 4632, Jan. 29, 2014]



234.003  Responsibilities.

    DoDD 5000.01, The Defense Acquisition System, and DoDI 5000.02, 
Operation of the Defense Acquisition System, contain the DoD 
implementation of OMB Circular A-109 and OMB Circular A-11.

[70 FR 14575, Mar. 23, 2005, as amended at 76 FR 76320, Dec. 7, 2011]



234.004  Acquisition strategy.

    (1) See 209.570 for policy applicable to acquisition strategies that 
consider the use of lead system integrators.
    (2) Contract type.
    (i) In accordance with section 818 of the National Defense 
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364), for major 
defense acquisition programs at Milestone B--
    (A) The milestone decision authority shall select, with the advice 
of the contracting officer, the contract type for a development program 
at the time of Milestone B approval or, in the case of a space program, 
Key Decision Point B approval;
    (B) The basis for the contract type selection shall be documented in 
the acquisition strategy. The documentation--
    (1) Shall include an explanation of the level of program risk; and
    (2) If program risk is determined to be high, shall outline the 
steps taken to reduce program risk and the reasons for proceeding with 
Milestone B approval despite the high level of program risk; and
    (C) If a cost-reimbursement type contract is selected, the contract 
file shall include the milestone decision authority's's written 
determination that--
    (1) The program is so complex and technically challenging that it 
would not be practicable to reduce program risk to a level that would 
permit the use of a fixed-price type contract; and
    (2) The complexity and technical challenge of the program is not the 
result of a failure to meet the requirements of 10 U.S.C. 2366a.
    (ii) In accordance with section 811 of the National Defense 
Authorization

[[Page 310]]

Act for Fiscal Year 2013 (Pub. L. 112-239), the contracting officer 
shall--
    (A) Not use cost-reimbursement line items for the acquisition of 
production of major defense acquisition programs, unless the Under 
Secretary of Defense for Acquisition and Sustainment (USD(A&S)), or the 
milestone decision authority when the milestone decision authority is 
the service acquisition executive of the military department that is 
managing the program, submits to the congressional defense committees--
    (1) A written certification that the particular cost-reimbursement 
line items are needed to provide a required capability in a timely and 
cost effective manner; and
    (2) An explanation of the steps taken to ensure that cost-
reimbursement line items are used only to achieve the purposes of the 
exception; and
    (B) Include a copy of such congressional certification in the 
contract file.
    (iii) See 216.301-3 for additional contract type approval 
requirements for cost-reimbursement contracts.
    (iv) For fixed-price incentive (firm target) contracts, contracting 
officers shall comply with the guidance provided at PGI 216.403-
1(1)(ii)(B) and (C).
    (3) The contracting officer shall include in solicitations for 
contracts for the technical maturation and risk reduction phase, 
engineering and manufacturing development phase or production phase of a 
weapon system, including embedded software--
    (i) Clearly defined measurable criteria for engineering activities 
and design specifications for reliability and maintainability provided 
by the program manager, or the comparable requiring activity official 
performing program management responsibilities; or
    (ii) Ensure a copy of the justification, executed by the program 
manager or the comparable requiring activity official performing program 
management responsibilities for the decision that engineering activities 
and design specifications for reliability and maintainability should not 
be a requirement, is included in the contract file (10 U.S.C. 2443).

[73 FR 4118, Jan. 24, 2008, as amended at 79 FR 4632, Jan. 29, 2014; 79 
FR 23278, Apr. 28, 2014; 79 FR 58694, Sept. 30, 2014; 84 FR 58334, Oct. 
31, 2019, 84 FR 65307, Nov. 27, 2019]



234.005  General requirements.



234.005-1  Competition.

    A contract that is initially awarded from the competitive selection 
of a proposal resulting from a broad agency announcement may contain a 
contract line item or contract option for the provision of advanced 
component development, prototype, or initial production of technology 
developed under the contract or the delivery of initial or additional 
items if the item or a prototype thereof is created as the result of 
work performed under the contract only when it adheres to the following 
limitations:
    (1) The contract line item or contract option shall be limited to 
the minimal amount of initial or additional prototype items that will 
allow for timely competitive solicitation and award of a follow-on 
development or production contract for those items.
    (2) The term of the contract line item or contract option shall be 
for not more than 2 years.
    (3) The dollar value of the work to be performed pursuant to the 
contract line item or contract option shall not exceed $100 million in 
fiscal year 2017 constant dollars. (10 U.S.C. 2302e)

[75 FR 32639, June 8, 2010, as amended at 81 FR 17045, Mar. 25, 2016; 84 
FR 4365, Feb. 15, 2019]



234.005-2   Mission-oriented solicitation.

    See 215.101-2-70(b)(2) for the prohibition on the use of the lowest 
price technically acceptable source selection process for engineering 
and manufacturing development of a major defense acquisition program for 
which budgetary authority is requested beginning in fiscal year 2019.

[84 FR 50789, Sept. 26, 2019]

[[Page 311]]



              Subpart 234.2_Earned Value Management System

    Source: 73 FR 21848, Apr. 23, 2008, unless otherwise noted.



234.201  Policy.

    (1) DoD applies the earned value management system requirement as 
follows:
    (i) For cost or incentive contracts and subcontracts valued at 
$20,000,000 or more, the earned value management system shall comply 
with the guidelines in the American National Standards Institute/
Electronic Industries Alliance Standard 748, Earned Value Management 
Systems (ANSI/EIA-748).
    (ii) For cost or incentive contracts and subcontracts valued at 
$50,000,000 or more, the contractor shall have an earned value 
management system that has been determined by the cognizant Federal 
agency to be in compliance with the guidelines in ANSI/EIA-748.
    (iii) For cost or incentive contracts and subcontracts valued at 
less than $20,000,000--
    (A) The application of earned value management is optional and is a 
risk-based decision;
    (B) A decision to apply earned value management shall be documented 
in the contract file; and
    (C) Follow the procedures at PGI 234.201(1)(iii) for conducting a 
cost-benefit analysis.
    (iv) For firm-fixed-price contracts and subcontracts of any dollar 
value--
    (A) The application of earned value management is discouraged; and
    (B) Follow the procedures at PGI 234.201(1)(iv) for obtaining a 
waiver before applying earned value management.
    (2) When an offeror proposes a plan for compliance with the earned 
value management system guidelines in ANSI/EIA-748, follow the review 
procedures at PGI 234.201(2).
    (3) The Defense Contract Management Agency is responsible for 
determining earned value management system compliance when DoD is the 
cognizant Federal agency.
    (4) See PGI 234.201(3) for additional guidance on earned value 
management.
    (5) The cognizant contracting officer, in consultation with the 
functional specialist and auditor, shall--
    (i) Determine the acceptability of the contractor's earned value 
management system and approve or disapprove the system; and
    (ii) Pursue correction of any deficiencies.
    (6) In evaluating the acceptability of a contractor's earned value 
management system, the contracting officer, in consultation with the 
functional specialist and auditor, shall determine whether the 
contractor's earned value management system complies with the system 
criteria for an acceptable earned value management system as prescribed 
in the clause at 252.234-7002, Earned Value Management System.
    (7) Disposition of findings--(i) Reporting of findings. The 
functional specialist or auditor shall document findings and 
recommendations in a report to the contracting officer. If the 
functional specialist or auditor identifies any significant deficiencies 
in the contractor's earned value management system, the report shall 
describe the deficiencies in sufficient detail to allow the contracting 
officer to understand the deficiencies.
    (ii) Initial determination. (A) The contracting officer shall review 
all findings and recommendations and, if there are no significant 
deficiencies, shall promptly notify the contractor, in writing, that the 
contractor's earned value management system is acceptable and approved; 
or
    (B) If the contracting officer finds that there are one or more 
significant deficiencies (as defined in the clause at 252.234-7002, 
Earned Value Management System) due to the contractor's failure to meet 
one or more of the earned value management system criteria in the clause 
at 252.234-7002, the contracting officer shall--
    (1) Promptly make an initial written determination on any 
significant deficiencies and notify the contractor, in writing, 
providing a description of each significant deficiency in sufficient 
detail to allow the contractor to understand the deficiencies;
    (2) Request the contractor to respond, in writing, to the initial 
determination within 30 days; and

[[Page 312]]

    (3) Evaluate the contractor's response to the initial determination, 
in consultation with the auditor or functional specialist, and make a 
final determination.
    (iii) Final determination. (A) The contracting officer shall make a 
final determination and notify the contractor, in writing, that--
    (1) The contractor's earned value management system is acceptable 
and approved, and no significant deficiencies remain, or
    (2) Significant deficiencies remain. The notice shall identify any 
remaining significant deficiencies, and indicate the adequacy of any 
proposed or completed corrective action. The contracting officer shall--
    (i) Request that the contractor, within 45 days of receipt of the 
final determination, either correct the deficiencies or submit an 
acceptable corrective action plan showing milestones and actions to 
eliminate the deficiencies;
    (ii) Disapprove the system in accordance with the clause at 252.234-
7002, Earned Value Management System, when initial validation is not 
successfully completed within the timeframe approved by the contracting 
officer, or the contracting officer determines that the existing earned 
value management system contains one or more significant deficiencies in 
high-risk guidelines in ANSI/EIA-748 standards (guidelines 1, 3, 6, 7, 
8, 9, 10, 12, 16, 21, 23, 26, 27, 28, 30, or 32). When the contracting 
officer determines that the existing earned value management system 
contains one or more significant deficiencies in one or more of the 
remaining 16 guidelines in ANSI/EIA-748 standards, the contracting 
officer shall use discretion to disapprove the system based on input 
received from functional specialists and the auditor; and
    (iii) Withhold payments in accordance with the clause at 252.242-
7005, Contractor Business Systems, if the clause is included in the 
contract.
    (B) Follow the procedures relating to monitoring a contractor's 
corrective action and the correction of significant deficiencies at PGI 
234.201(7).
    (8) System approval. The contracting officer shall promptly approve 
a previously disapproved earned value management system and notify the 
contractor when the contracting officer determines that there are no 
remaining significant deficiencies.
    (9) Contracting officer notifications. The cognizant contracting 
officer shall promptly distribute copies of a determination to approve a 
system, disapprove a system and withhold payments, or approve a 
previously disapproved system and release withheld payments to the 
auditor; payment office; affected contracting officers at the buying 
activities; and cognizant contracting officers in contract 
administration activities.

[73 FR 21848, Apr. 23, 2008, as amended at 76 FR 28867, May 18, 2011; 76 
FR 76320, Dec. 7, 2011]



234.203  Solicitation provisions and contract clause.

    For cost or incentive contracts valued at $20,000,000 or more, and 
for other contracts for which EVMS will be applied in accordance with 
234.201(1)(iii) and (iv)--
    (1) Use the provision at 252.234-7001, Notice of Earned Value 
Management System, instead of the provisions at FAR 52.234-2, Notice of 
Earned Value Management System--Pre-Award IBR, and FAR 52.234-3, Notice 
of Earned Value Management System--Post-Award IBR, in the solicitation; 
and
    (2) Use the clause at 252.234-7002, Earned Value Management System, 
instead of the clause at FAR 52.234-4, Earned Value Management System, 
in the solicitation and contract.



 Subpart 234.70_Acquisition of Major Weapon Systems as Commercial Items

    Source: 71 FR 58538, Oct. 4, 2006, unless otherwise noted.



234.7000  Scope of subpart.

    This subpart--
    (a) Implements 10 U.S.C. 2379; and
    (b) Requires a determination by the Secretary of Defense and a 
notification to Congress before acquiring a major weapon system as a 
commercial item.



234.7001  Definition.

    As used in this subpart--

[[Page 313]]

    Major weapon system means a weapon system acquired pursuant to a 
major defense acquisition program.

[85 FR 34532, June 5, 2020]



234.7002  Policy.

    (a) Major weapon systems. (1) A DoD major weapon system may be 
treated as a commercial item, or acquired under procedures established 
for the acquisition of commercial items, only if--
    (i) The Secretary of Defense determines that--
    (A) The major weapon system is a commercial item as defined in FAR 
2.101; and
    (B) Such treatment is necessary to meet national security 
objectives; and
    (ii) The congressional defense committees are notified at least 30 
days before such treatment or acquisition occurs. Follow the procedures 
at PGI 234.7002.
    (2) The authority of the Secretary of Defense to make a 
determination under paragraph (a)(1) of this section may not be 
delegated below the level of the Deputy Secretary of Defense.
    (b) Subsystems. A subsystem of a major weapon system (other than a 
commercially available off-the-shelf item) shall be treated as a 
commercial item and acquired under procedures established for the 
acquisition of commercial items if--
    (1) The subsystem is intended for a major weapon system that is 
being acquired, or has been acquired, under procedures established for 
the acquisition of commercial items in accordance with paragraph (a) of 
this section; or
    (2) The contracting officer determines in writing that the subsystem 
is a commercial item.
    (c) Components and spare parts. (1) A component or spare part for a 
major weapon system (other than a commercially available off-the-shelf 
item) may be treated as a commercial item if--
    (i) The component or spare part is intended for--
    (A) A major weapon system that is being acquired, or has been 
acquired, under procedures established for the acquisition of commercial 
items in accordance with paragraph (a) of this section; or
    (B) A subsystem of a major weapon system that is being acquired, or 
has been acquired, under procedures established for the acquisition of 
commercial items in accordance with paragraph (b) of this section; or
    (ii) The contracting officer determines in writing that the 
component or spare part is a commercial item.
    (2) This paragraph (c) shall apply only to components and spare 
parts that are acquired by DoD through a prime contract or a 
modification to a prime contract, or through a subcontract under a prime 
contract or modification to a prime contract on which the prime 
contractor adds no, or negligible, value.
    (d) Relevant information. See 212.209(a) for requirements of 10 
U.S.C. 2377 with regard to market research.
    (1) To the extent necessary to make a determination of price 
reasonableness, the contracting officer shall require the offeror to 
submit prices paid for the same or similar commercial items under 
comparable terms and conditions by both Government and commercial 
customers.
    (2) If the contracting officer determines that the offeror cannot 
provide sufficient information described in paragraph (d)(1) of this 
section to determine the reasonableness of price, the contracting 
officer shall request the offeror to submit information on--
    (i) Prices paid for the same or similar items under different terms 
and conditions;
    (ii) Prices paid for similar levels of work or effort on related 
products or services;
    (iii) Prices paid for alternative solutions or approaches; and
    (iv) Other relevant information that can serve as the basis for a 
price reasonableness determination.
    (3) If the contracting officer determines that the information 
submitted pursuant to paragraphs (d)(1) and (2) of this section is not 
sufficient to determine the reasonableness of price, the contracting 
officer shall request the offeror to submit other relevant information, 
including uncertified cost data. However, no uncertified cost data may 
be required in any case in which there are sufficient non-Government 
sales of

[[Page 314]]

the same item to establish reasonableness of price.
    (4) An offeror shall not be required to submit information described 
in paragraph (d)(3) of this section with regard to a commercially 
available off-the-shelf item. An offeror may be required to submit such 
information with regard to any other item that was developed exclusively 
at private expense only after the head of the contracting activity 
determines in writing that the information submitted pursuant to 
paragraphs (d)(1) and (2) of this section is not sufficient to determine 
the reasonableness of price.
    (5) An offeror may submit information or analysis relating to the 
value of a commercial item to aid in the determination of the 
reasonableness of the price of such item. A contracting officer may 
consider such information or analysis in addition to the information 
submitted pursuant to paragraphs (d)(1) and (2) of this section. For 
additional guidance see PGI 234.7002(d)(5).

[74 FR 34264, July 15, 2009, as amended at 83 FR 4445, Jan. 31, 2018; 85 
FR 34532, June 5, 2020]



             Subpart 234.71_Cost and Software Data Reporting

    Source: 75 FR 71561, Nov. 24, 2010, unless otherwise noted.



234.7100  Policy.

    (a) The cost and software data reporting (CSDR) requirement is 
mandatory for major defense acquisition programs (as defined in 10 
U.S.C. 2430), and major automated information system programs (as 
defined in 10 U.S.C. 2445a) as specified in DoDI 5000.02, Operation of 
the Defense Acquisition System and the DoD 5000.04-M-1, CSDR Manual. The 
CSDR system is applied in accordance with the reporting requirements 
established in DoDI 5000.02. The two principal components of the CSDR 
system are contractor cost data reporting and software resources data 
reporting.
    (b) Prior to contract award, contracting officers shall consult with 
the Defense Cost and Resource Center to determine that the offeror 
selected for award has proposed a standard CSDR system, as described in 
the offeror's proposal in response to the provision at 252.234-7003, 
that is in compliance with DoDI 5000.02, Operation of the Defense 
Acquisition System, and the DoD 5000.04-M-1, CSDR Manual.
    (c) Contact information for the Defense Cost and Resource Center and 
the Deputy Director, Cost Assessment, is located at PGI 234.7100.



234.7101  Solicitation provision and contract clause.

    (a) Use the basic or the alternate of the provision at 252.234-7003, 
Notice of Cost and Software Data Reporting System, in any solicitation 
that includes the basic or the alternate of the clause at 252.234-7004, 
Cost and Software Data Reporting.
    (1) Use the basic provision when the solicitation includes the 
clause at 252.234-7004, Cost and Software Data Reporting--Basic.
    (2) Use the alternate I provision when the solicitation includes the 
clause at 252.234-7004, Cost and Software Data Reporting--Alternate I.
    (b) Use the basic or the alternate of the clause at 252.234-7004, 
Cost and Software Data Reporting System, in solicitations that include 
major defense acquisition programs or major automated information system 
programs as follows:
    (1) Use the basic clause in solicitations and contracts for major 
defense acquisition programs or major automated information system 
programs that exceed $50 million.
    (2) Use the alternate I clause in solicitations and contracts for 
major defense acquisition programs or major automated information system 
programs with a value equal to or greater than $20 million, but less 
than or equal to $50 million, when so directed by the program manager 
with the approval of the OSD Deputy Director, Cost Assessment.

[79 FR 65593, Nov. 5, 2014]



PART 235_RESEARCH AND DEVELOPMENT CONTRACTING--Table of Contents



Sec.
235.001 Definitions.
235.006 Contracting methods and contract type.

[[Page 315]]

235.006-70 Manufacturing Technology Program.
235.006-71 Competition.
235.008 Evaluation for award.
235.010 Scientific and technical reports.
235.015-70 Special use allowances for research facilities acquired by 
          educational institutions.
235.016 Broad agency announcement.
235.017 Federally Funded Research and Development Centers.
235.017-1 Sponsoring agreements.
235.070 Indemnification against unusually hazardous risks.
235.070-1 Indemnification under research and development contracts.
235.070-2 Indemnification under contracts involving both research and 
          development and other work.
235.070-3 Contract clauses.
235.071 Export-controlled items.
235.072 Additional contract clauses.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36416, July 31, 1991, unless otherwise noted.



235.001  Definitions.

    ``Research and development'' means those efforts described by the 
Research, Development, Test, and Evaluation (RDT&E) budget activity 
definitions found in the DoD Financial Management Regulation (DoD 
7000.14-R), Volume 2B, Chapter 5.

[65 FR 32040, May 22, 2000]



235.006  Contracting methods and contract type.

    (b)(i) Consistent with section 829 of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the Under 
Secretary of Defense for Acquisition and Sustainment (USD(A&S)) has 
determined that the use of cost-reimbursement contracts for research and 
development in excess of $25 million is approved, if the contracting 
officer executes a written determination and findings that--
    (A) The level of program risk does not permit realistic pricing; and
    (B) It is not possible to provide an equitable and sensible 
allocation of program risk between the Government and the contractor.
    (b)(ii) For major defense acquisition programs as defined in 10 
U.S.C. 2430--
    (A) Follow the procedures at 234.004; and
    (B) Notify the milestone decision authority of an intent not to 
exercise a fixed-price production option on a development contract for a 
major weapon system reasonably in advance of the expiration of the 
option exercise period.
    (iii) For other than major defense acquisition programs--
    (A) Do not award a fixed-price type contract for a development 
program effort unless--
    (1) The level of program risk permits realistic pricing;
    (2) The use of a fixed-price type contract permits an equitable and 
sensible allocation of program risk between the Government and the 
contractor; and
    (3) A written determination that the criteria of paragraphs 
(b)(iii)(A)(1) and (2) of this section have been met is executed--
    (i) By the USD(A&S) if the contract is over $25 million and is for: 
research and development for a non-major system; the development of a 
major system (as defined in FAR 2.101); or the development of a 
subsystem of a major system; or
    (ii) By the contracting officer for any development not covered by 
paragraph (b)(iii)(A)(3)(i) of this section.
    (B) Obtain USD(A&S) approval of the Government's prenegotiation 
position before negotiations begin, and obtain USD(A&S) approval of the 
negotiated agreement with the contractor before the agreement is 
executed, for any action that is--
    (1) An increase of more than $250 million in the price or ceiling 
price of a fixed-price type development contract, or a fixed-price type 
contract for the lead ship of a class;
    (2) A reduction in the amount of work under a fixed-price type 
development contract or a fixed-price type contract for the lead ship of 
a class, when the value of the work deleted is $100 million or more; or
    (3)) A repricing of fixed-price type production options to a 
development contract, or a contract for the lead ship of a class, that 
increases the price or ceiling price by more than $250 million for 
equivalent quantities.

[73 FR 4118, Jan. 24, 2008, as amended at 84 FR 65308, Nov. 27, 2019]

[[Page 316]]



235.006-70  Manufacturing Technology Program.

    In accordance with 10 U.S.C. 2521(d), for acquisitions under the 
Manufacturing Technology Program--
    (a) Award all contracts using competitive procedures; and
    (b) Include in all solicitations an evaluation factor that addresses 
the extent to which offerors propose to share in the cost of the project 
(see FAR 15.304).

[65 FR 2058, Jan. 13, 2000, as amended at 69 FR 65092, Nov. 10, 2004]



235.006-71  Competition.

    (a) Use of a broad agency announcement with peer or scientific 
review for the award of science and technology proposals in accordance 
with 235.016(a) fulfills the requirement for full and open competition 
(see 206.102(d)(2)).
    (b) See 234.005-1 for limitations on the use of contract line items 
or contract options for the provision of advanced component development 
or prototypes of technology developed under a competitively awarded 
proposal.

[75 FR 71563, Nov. 24, 2010, as amended at 84 FR 4366, Feb. 15, 2019]



235.008  Evaluation for award.

    See 209.570 for limitations on the award of contracts to contractors 
acting as lead system integrators.

[73 FR 1825, Jan. 10, 2008]



235.010  Scientific and technical reports.

    (b) For DoD, the Defense Technical Information Center is responsible 
for collecting all scientific and technical reports. For access to these 
reports, follow the procedures at PGI 235.010(b).

[69 FR 65092, Nov. 10, 2004]



235.015-70  Special use allowances for research facilities acquired
by educational institutions.

    (a) Definitions. As used in this subsection--
    (1) Research facility means--
    (i) Real property, other than land; and
    (ii) Includes structures, alterations, and improvements, acquired 
for the purpose of conducting scientific research under contracts with 
departments and agencies of the DoD.
    (2) Special use allowance means a negotiated direct or indirect 
allowance--
    (i) For construction or acquisition of buildings, structures, and 
real property, other than land; and
    (ii) Where the allowance is computed at an annual rate exceeding the 
rate which normally would be allowed under FAR subpart 31.3.
    (b) Policy. (1) Educational institutions are to furnish the 
facilities necessary to perform Defense contracts. FAR 31.3 governs how 
much the Government will reimburse the institution for the research 
programs. However, in extraordinary situations, the Government may give 
special use allowances to an educational institution when the 
institution is unable to provide the capital for new laboratories or 
expanded facilities needed for Defense contracts.
    (2) Decisions to provide a special use allowance must be made on a 
case-by-case basis, using the criteria in paragraph (c) of this 
subsection.
    (c) Authorization for special use allowance. The head of a 
contracting activity may approve special use allowances only when all of 
the following conditions are met--
    (1) The research facility is essential to the performance of DoD 
contracts;
    (2) Existing facilities, either Government or nongovernment, cannot 
meet program requirements practically or effectively;
    (3) The proposed agreement for special use allowances is a sound 
business arrangement;
    (4) The Government's furnishing of Government-owned facilities is 
undesirable or impractical; and
    (5) The proposed use of the research facility is to conduct 
essential Government research which requires the new or expanded 
facilities.
    (d) Application of the special use allowance. (1) In negotiating a 
special use allowance--
    (i) Compare the needs of DoD and of the institution for the research 
facility to determine the amount of the special use allowance;

[[Page 317]]

    (ii) Consider rental costs for similar space in the area where the 
research facility is or will be located to establish the annual special 
use allowance;
    (iii) Do not include or allow--
    (A) The costs of land; or
    (B) Interest charges on capital;
    (iv) Do not include maintenance, utilities, or other operational 
costs;
    (v) The period of allowance generally will be--
    (A) At least ten years; or
    (B) A shorter period if the total amount to be allowed is less than 
the construction or acquisition cost for the research facility;
    (vi) Generally, provide for allocation of the special use allowance 
equitably among the Government contracts using the research facility;
    (vii) Special use allowances apply only in the years in which the 
Government has contracts in effect with the institution. However, if in 
any given year there is a reduced level of Government research effort 
which results in the special use allowance being excessive compared to 
the Government research funding, a separate special use allowance may be 
negotiated for that year;
    (viii) Special use allowances may be adjusted for the period before 
construction is complete if the facility is partially occupied and used 
for Government research during that period.
    (2) A special use allowance may be based on either total or partial 
cost of construction or acquisition of the research facility.
    (i) When based on total cost neither the normal use allowance nor 
depreciation will apply--
    (A) During the special use allowance period; and
    (B) After the educational institution has recovered the total 
construction or acquisition cost from the Government or other users.
    (ii) When based on partial cost, normal use allowance and 
depreciation--
    (A) Apply to the balance of costs during the special use allowance 
period to the extent negotiated in the special use allowance agreement; 
and
    (B) Do not apply after the special use allowance period, except for 
normal use allowance applied to the balance.
    (3) During the special use allowance period, the research facility--
    (i) Shall be available for Government research use on a priority 
basis over nongovernment use; and
    (ii) Cannot be put to any significant use other than that which 
justified the special use allowance, unless the head of the contracting 
activity, who approved the special use allowance, consents.
    (4) The Government will pay only an allocable share of the special 
use allowance when the institution makes any substantial use of the 
research facility for parties other than the Government during the 
period when the special use allowance is in effect.
    (5) In no event shall the institution be paid more than the 
acquisition costs.

[56 FR 36416, July 31, 1991, as amended at 60 FR 29500, June 5, 1995]



235.016  Broad agency announcement.

    (a) General. A broad agency announcement with peer or scientific 
review may be used for the award of science and technology proposals. 
Science and technology proposals include proposals for the following:
    (i) Basic research (budget activity 6.1).
    (ii) Applied research (budget activity 6.2).
    (iii) Advanced technology development (budget activity 6.3).
    (iv) Advanced component development and prototypes (budget activity 
6.4).

[84 FR 4366, Feb. 15, 2019]



235.017  Federally Funded Research and Development Centers.

    (a) Policy. (2) No DoD fiscal year 1992 or later funds may be 
obligated or expended to finance activities of a DoD Federally Funded 
Research and Development Center (FFRDC) if a member of its board of 
directors or trustees simultaneously serves on the board of directors or 
trustees of a profit-making company under contract to DoD, unless the 
FFRDC has a DoD-approved conflict of interest policy for its members 
(section 8107 of Pub. L. 102-172 and

[[Page 318]]

similar sections in subsequent Defense appropriations acts).

[58 FR 28471, May 13, 1993]



235.017-1  Sponsoring agreements.

    (c)(4) DoD-sponsoring FFRDCs that function primarily as research 
laboratories (C3I Laboratory operated by the Institute for Defense 
Analysis, Lincoln Laboratory operated by Massachusetts Institute of 
Technology, and Software Engineering Institute operated by Carnegie 
Mellon) may respond to solicitations and announcements for programs 
which promote research, development, demonstration, or transfer of 
technology (Section 217, Public Law 103-337).

[60 FR 61598, Nov. 30, 1995, as amended at 69 FR 65092, Nov. 10, 2004]



235.070  Indemnification against unusually hazardous risks.



235.070-1  Indemnification under research and development contracts.

    (a) Under 10 U.S.C. 2354, and if authorized by the Secretary 
concerned, contracts for research and/or development may provide for 
indemnification of the contractor or subcontractors for--
    (1) Claims by third persons (including employees) for death, bodily 
injury, or loss of or damage to property; and
    (2) Loss of or damage to the contractor's property to the extent 
that the liability, loss, or damage--
    (i) Results from a risk that the contract defines as ``unusually 
hazardous;''
    (ii) Arises from the direct performance of the contract; and
    (iii) Is not compensated by insurance or other means.
    (b) Clearly define the specific unusually hazardous risks to be 
indemnified. Submit this definition for approval with the request for 
authorization to grant indemnification. Include the approved definition 
in the contract.

[56 FR 36416, July 31, 1991, as amended at 64 FR 51076, Sept. 21, 1999]



235.070-2  Indemnification under contracts involving both research
and development and other work.

    These contracts may provide for indemnification under the authority 
of both 10 U.S.C. 2354 and Public Law 85-804. Public Law 85-804 will 
apply only to work to which 10 U.S.C. 2354 does not apply. Actions under 
Public Law 85-804 must also comply with FAR 50.104-3.

[56 FR 36416, July 31, 1991, as amended at 78 FR 21850, Apr. 12, 2013]



235.070-3  Contract clauses.

    When the contractor is to be indemnified in accordance with 235.070-
1, use either--
    (a) The clause at 252.235-7000, Indemnification Under 10 U.S.C. 
2354--Fixed Price; or
    (b) The clause at 252.235-7001, Indemnification Under 10 U.S.C. 
2354--Cost-Reimbursement, as appropriate.



235.071  Export-controlled items.

    For requirements regarding access to export-controlled items, see 
225.7901.

[73 FR 42278, July 21, 2008, as amended at 78 FR 36111, June 17, 2013]



235.072  Additional contract clauses.

    (a) Use a clause substantially the same as the clause at 252.235-
7002, Animal Welfare, in solicitations and contracts involving research, 
development, test, and evaluation or training that use live vertebrate 
animals.
    (b) Use the basic or the alternate of the clause at 252.235-7003, 
Frequency Authorization, in solicitations and contracts for developing, 
producing, constructing, testing, or operating a device requiring a 
frequency authorization.
    (1) Use the basic clause if agency procedures do not authorize the 
use of DD Form 1494, Application for Equipment Frequency Allocation, to 
obtain radio frequency authorization.
    (2) Use the alternate I clause if agency procedures authorize the 
use of DD Form 1494, Application for Equipment Frequency Allocation, to 
obtain frequency authorization.
    (c) Use the clause at 252.235-7010, Acknowledgement of Support and 
Disclaimer, in solicitations and contracts for research and development.
    (d) Use the clause at 252.235-7011, Final Scientific or Technical 
Report, in solicitations and contracts for research and development.

[[Page 319]]

    (e) Use the clause at 252.235-7004, Protection of Human Subjects, in 
solicitations and contracts that include or may include research 
involving human subjects in accordance with 32 CFR Part 219, DoD 
Directive 3216.02, and 10 U.S.C. 980, including research that meets 
exemption criteria under 32 CFR 219.101(b). The clause--
    (1) Applies to solicitations and contracts awarded by any DoD 
component, regardless of mission or funding Program Element Code; and
    (2) Does not apply to use of cadaver materials alone, which are not 
directly regulated by 32 CFR Part 219 or DoD Directive 3216.02, and 
which are governed by other DoD policies and applicable State and local 
laws.

[56 FR 36416, July 31, 1991, as amended at 60 FR 29500, June 5, 1995; 70 
FR 35545, June 21, 2005. Redesignated at 73 FR 42278, July 21, 2008; 74 
FR 37645, 37648, July 29, 2009; 79 FR 17447, Mar. 28, 2014; 79 FR 23501, 
Dec. 11, 2014]



PART 236_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS--
Table of Contents



                          Subpart 236.1_General

Sec.
236.102 Definitions.

      Subpart 236.2_Special Aspects of Contracting for Construction

236.203 Government estimate of construction costs.
236.204 Disclosure of the magnitude of construction projects.
236.206 Liquidated damages.
236.213 Special procedures for sealed bidding in construction 
          contracting.
236.215 Special procedures for cost-reimbursement contracts for 
          construction.
236.270 Expediting construction contracts.
236.271 Cost-plus-fixed-fee contracts.
236.272 Prequalification of sources.
236.273 Construction in foreign countries.
236.274 Restriction on acquisition of steel for use in military 
          construction projects.
236.275 Construction of industrial resources.

        SUBPART 236.3_Two	phase design	build selection procedures

236.303-1 Phase One.

                     Subpart 236.5_Contract Clauses

236.570 Additional provisions and clauses.

                Subpart 236.6_Architect-Engineer Services

236.601 Policy.
236.602 Selection of firms for architect-engineer contracts.
236.602-1 Selection criteria.
236.602-70 Restriction on award of overseas architect-engineer contracts 
          to foreign firms.
236.604 Performance evaluation.
236.606 Negotiations.
236.606-70 Statutory fee limitation.
236.609 Contract clauses.
236.609-70 Additional provision.

     Subpart 236.7_Standard and Optional Forms for Contracting for 
Construction, Architect-Engineer Services, and Dismantling, Demolition, 
                       or Removal of Improvements

236.701 Standard and optional forms for use in contracting for 
          construction or dismantling, demolition, or removal of 
          improvements.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36421, July 31, 1991, unless otherwise noted.



                          Subpart 236.1_General



236.102  Definitions.

    Construction activity means an activity at any organizational level 
of the DoD that--
    (1) Is responsible for the architectural, engineering, and other 
related technical aspects of the planning, design, and construction of 
facilities; and
    (2) Receives its technical guidance from the Army Office of the 
Chief of Engineers, Naval Facilities Engineering Command, or Air Force 
Directorate of Civil Engineering.
    Marshallese firm is defined in the provision at 252.236-7012, 
Military Construction on Kwajalein Atoll--Evaluation Preference.
    United States firm is defined in the provisions at 252.236-7010, 
Overseas Military Construction-Preference for United States Firms, and 
252.236-7011, Overseas Architect-Engineer Services-Restriction to United 
States firms.

[56 FR 36421, July 31, 1991, as amended at 62 FR 2857, Jan. 17, 1997; 63 
FR 11538, Mar. 9, 1998; 71 FR 9272, Feb. 23, 2006; 76 FR 58155, Sept. 
20, 2011]

[[Page 320]]



      Subpart 236.2_Special Aspects of Contracting for Construction



236.203  Government estimate of construction costs.

    Follow the procedures at PGI 236.203 for handling the Government 
estimate of construction costs.

[71 FR 9273, Feb. 23, 2006]



236.204  Disclosure of the magnitude of construction projects.

    Additional price ranges are--
    (i) Between $10,000,000 and $25,000,000;
    (ii) Between $25,000,000 and $100,000,000;
    (iii) Between $100,000,000 and $250,000,000;
    (iv) Between $250,000,000 and $500,000,000; and
    (v) Over $500,000,000.

[61 FR 7749, Feb. 29, 1996]



236.206  Liquidated damages.

    See 211.503 for instructions on use of liquidated damages.

[56 FR 36421, July 31, 1991, as amended at 66 FR 49861, Oct. 1, 2001]



236.213  Special procedures for sealed bidding in construction contracting.

    If it appears that sufficient funds may not be available for all the 
desired construction features, consider using a bid schedule with 
additive or deductive items in accordance with PGI 236.213.

[71 FR 9273, Feb. 23, 2006]



236.215  Special procedures for cost-reimbursement contracts for construction.

    For contracts in connection with a military construction project or 
military family housing project, see the prohibition at 216.301-3.

[81 FR 65564, Sept. 23, 2016]



236.270  Expediting construction contracts.

    (a) 10 U.S.C. 2858 requires agency head approval to expedite the 
completion date of a contract funded by a Military Construction 
Appropriations Act, if additional costs are involved. This approval 
authority may not be redelegated. The approval authority must--
    (1) Certify that the additional expenditures are necessary to 
protect the National interest; and
    (2) Establish a reasonable completion date for the project.
    (b) The contracting officer may approve an expedited completion date 
if no additional costs are involved.



236.271  Cost-plus-fixed-fee contracts.

    Annual military construction appropriations acts restrict the use of 
cost-plus-fixed-fee contracts (see 216.306(c)). See also 216.301-3 
regarding the prohibition on the use of certain cost-reimbursement 
contracts in connection with a military construction project or military 
family housing project.

[81 FR 65565, Sept. 23, 2016]



236.272  Prequalification of sources.

    (a) Prequalification procedures may be used when necessary to ensure 
timely and efficient performance of critical construction projects. 
Prequalification--
    (1) Results in a list of sources determined to be qualified to 
perform a specific construction contract; and
    (2) Limits offerors to those with proven competence to perform in 
the required manner.
    (b) The head of the contracting activity must--
    (1) Authorize the use of prequalification by determining, in 
writing, that a construction project is of an urgency or complexity that 
requires prequalification; and
    (2) Approve the prequalification procedures.
    (c) For small businesses, the prequalification procedures must 
require the qualifying authority to--
    (1) Request a preliminary recommendation from the appropriate Small 
Business Administration regional office, if the qualifying authority 
believes a small business is not responsible;
    (2) Permit the small business to submit a bid or proposal if the 
preliminary recommendation is that the small business is responsible; 
and
    (3) Follow the procedures in FAR 19.6, if the small business is in 
line for award and is found nonresponsible.

[[Page 321]]



236.273  Construction in foreign countries.

    (a) In accordance with section 112 of the Military Construction and 
Veterans Affairs and Related Agencies Appropriations Act, 2015 (Division 
I of Pub. L. 113-235) and the same provision in subsequent military 
construction appropriations acts, military construction contracts funded 
with military construction appropriations, that are estimated to exceed 
$1,000,000 and are to be performed in the United States outlying areas 
in the Pacific and on Kwajalein Atoll, or in countries bordering the 
Arabian Gulf (i.e., Iran, Oman, United Arab Emirates, Saudi Arabia, 
Qatar, Bahrain, Kuwait, and Iraq), shall be awarded only to United 
States firms, unless--
    (1) The lowest responsive and responsible offer of a United States 
firm exceeds the lowest responsive and responsible offer of a foreign 
firm by more than 20 percent; or
    (2) The contract is for military construction on Kwajalein Atoll and 
the lowest responsive and responsible offer is submitted by a 
Marshallese firm.
    (b) See PGI 236.273(b) for guidance on technical working agreements 
with foreign governments.

[56 FR 36421, July 31, 1991, as amended at 62 FR 2856, Jan. 17, 1997; 62 
FR 34127, June 24, 1997; 63 FR 11538, Mar. 9, 1998; 66 FR 49861, Oct. 1, 
2001; 70 FR 35545, June 21, 2005. Redesignated and amended at 71 FR 
9273, Feb. 23, 2006; 79 FR 44316, July 31, 2014; 80 FR 15911, Mar. 26, 
2015]



236.274  Restriction on acquisition of steel for use in military
construction projects.

    In accordance with section 108 of the Military Construction and 
Veterans Affairs Appropriations Act, 2009 ( Pub. L. 110-329, Division E) 
and the same provision in subsequent military construction 
appropriations acts), do not acquire, or allow a contractor to acquire, 
steel for any construction project or activity for which American steel 
producers, fabricators, or manufacturers have been denied the 
opportunity to compete for such acquisition of steel.

[74 FR 2418, Jan. 15, 2009, as amended at 80 FR 15911, Mar. 26, 2015]



236.275  Construction of industrial resources.

    See Subpart 237.75 for policy relating to facilities projects.

[74 FR 37646, July 29, 2009]



        Subpart 236.3_Two	phase design	Build selection procedures

    Source: 84 FR 4373, Feb. 15, 2019, unless otherwise noted.



236.303-1  Phase One.

    (a)(4) In lieu of the limitations on the maximum number of offerors 
that may be selected to submit phase-two proposals at FAR 36.303-
1(a)(4), for DoD--
    (i) If the contract value exceeds $4.5 million, the maximum number 
of offerors specified in the solicitation that are to be selected to 
submit phase-two proposals shall not exceed five, unless--
    (A) The solicitation is issued for an indefinite-delivery 
indefinite-quantity contract for design-build construction; or
    (B) The head of the contracting activity, delegable to a level no 
lower than the senior contracting official within the contracting 
activity, approves the contracting officer's decision with respect to an 
individual solicitation, that a maximum number greater than five is in 
the best interest of the Government and is consistent with the purposes 
and objectives of the two-phase selection procedures. The decision shall 
be documented in the contract file (10 U.S.C 2305a(d)).
    (ii) If the contract value is at or below $4.5 million, the maximum 
number of offerors specified in the solicitation that are to be selected 
to submit phase-two proposals is at the discretion of the contracting 
officer.

[84 FR 4373, Feb. 15, 2019, as amended at 85 FR 61504, Sept. 29, 2020]



                     Subpart 236.5_Contract Clauses



236.570  Additional provisions and clauses.

    (a) Use the following clauses in all fixed-price construction 
solicitations and contracts--

[[Page 322]]

    (1) 252.236-7000, Modification Proposals-Price Breakdown; and
    (2) 252.236-7001, Contract Drawings and Specifications.
    (b) Use the following provisions and clauses in fixed-price 
construction contracts and solicitations as applicable--
    (1) 252.236-7002, Obstruction of Navigable Waterways, when the 
contract will involve work near or on navigable waterways.
    (2) When the head of the contracting activity has approved use of a 
separate bid item for mobilization and preparatory work, use either--
    (i) 252.236-7003, Payment for Mobilization and Preparatory Work. Use 
this clause for major construction contracts that require--
    (A) Major or special items of plant and equipment; or
    (B) Large stockpiles of material which are in excess of the type, 
kind, and quantity which would be normal for a contractor qualified to 
undertake the work; or
    (ii) 252.236-7004, Payment for Mobilization and Demobilization. Use 
this clause for contracts involving major mobilization expense, or plant 
equipment and material (other than the situations covered in paragraph 
(b)(2)(i) of this section) made necessary by the location or nature of 
the work.
    (A) Generally, allocate 60 percent of the lump sum price in 
paragraph (a) of the clause to the cost of mobilization.
    (B) Vary this percentage to reflect the circumstances of the 
particular contract, but in no event should mobilization exceed 80 
percent of the payment item.
    (3) 252.236-7005, Airfield Safety Precautions, when construction 
will be performed on or near airfields.
    (4) 252.236-7006, Cost Limitation, if the solicitation's bid 
schedule contains one or more items subject to statutory cost 
limitations, and if a waiver has not been granted (FAR 36.205).
    (5) 252.236-7007, Additive or Deductive Items, if the procedures in 
236.213 are being used.
    (6) 252.236-7008, Contract Prices--Bidding Schedule, if the contract 
will contain only unit prices for some items.
    (c) Use the following provisions in solicitations for military 
construction contracts that are funded with military construction 
appropriations and are estimated to exceed $1,000,000:
    (1) 252.236-7010, Overseas Military Construction--Preference for 
United States Firms, when contract performance will be in a United 
States outlying area in the Pacific or in a country bordering the 
Arabian Gulf.
    (2) 252.236-7012, Military Construction on Kwajalein Atoll--
Evaluation Preference, when contract performance will be on Kwajalein 
Atoll.
    (d) Use the clause at 252.236-7013, Requirement for Competition 
Opportunity for American Steel Producers, Fabricators, and 
Manufacturers, in solicitations and contracts that--
    (1) Use funds appropriated for military construction); and
    (2) May require the acquisition of steel as a construction material.
    (e) Also see 246.710(4) for an additional clause applicable to 
construction contracts to be performed in Germany.

[56 FR 36421, July 31, 1991, as amended at 57 FR 42632, Sept. 15, 1992; 
62 FR 2856, Jan. 17, 1997; 62 FR 34127, June 24, 1997; 63 FR 11538, Mar. 
9, 1998; 65 FR 63804, Oct. 25, 2000; 68 FR 7440, Feb. 14, 2003; 70 FR 
35545, June 21, 2005; 73 FR 46817, Aug. 12, 2008; 74 FR 2418, Jan. 15, 
2009; 79 FR 44316, July 31, 2014; 80 FR 15911, Mar. 26, 2015]



                Subpart 236.6_Architect-Engineer Services



236.601  Policy.

    (1) Written notification to the congressional defense committees is 
required if the total estimated contract price for architect-engineer 
services or construction design, in connection with military 
construction, military family housing, or restoration or replacement of 
damaged or destroyed facilities, exceeds $1.5 million. In accordance 
with 10 U.S.C. 480, unclassified notifications must be provided by 
electronic medium.
    (i) For military construction or military family housing (10 U.S.C. 
2807(b)), the notification--
    (A) Must include the scope of the project and the estimated contract 
price; and
    (B)(1) If provided by electronic medium, must be provided at least 
14 days

[[Page 323]]

before the initial obligation of funds; or
    (2) If provided by other than electronic medium, must be received by 
the congressional defense committees at least 21 days before the initial 
obligation of funds.
    (ii) For restoration or replacement of damaged or destroyed 
facilities (10 U.S.C. 2854(b)), the notification--
    (A) Must include the justification for the project, the estimated 
contract price, and the source of the funds for the project; and
    (B)(1) If provided by electronic medium, must be provided at least 7 
days before the initial obligation of funds; or
    (2) If provided by other than electronic medium, must be received by 
the congressional defense committees at least 21 days before the initial 
obligation of funds.
    (2) During the applicable notice period, synopsis of the proposed 
contract action and administrative actions leading to the award may be 
started.

[71 FR 58541, Oct. 4, 2006, as amended at 80 FR 36905, June 26, 2015]



236.602  Selection of firms for architect-engineer contracts.



236.602-1  Selection criteria.

    (a) Establish the evaluation criteria before making the public 
announcement required by FAR 5.205(d) and include the criteria and their 
relative order of importance in the announcement. Follow the procedures 
at PGI 236.602-1(a).

[69 FR 75000, Dec. 15, 2004, as amended at 71 FR 53044, Sept. 8, 2006]



236.602-70  Restriction on award of overseas architect-engineer 
contracts to foreign firms.

    In accordance with section 111 of the Military Construction and 
Veterans Affairs and Related Agencies Appropriations Act, 2015 (Division 
I of Pub. L. 113-235) and the same provision in subsequent military 
construction appropriations acts, architect-engineer contracts funded by 
military construction appropriations that are estimated to exceed 
$500,000 and are to be performed in Japan, in any North Atlantic Treaty 
Organization member country, or in countries bordering the Arabian Gulf 
(i.e., Iran, Oman, United Arab Emirates, Saudi Arabia, Qatar, Bahrain, 
Kuwait, and Iraq), shall be awarded only to United States firms or to 
joint ventures of United States and host nation firms.

[80 FR 15911, Mar. 26, 2015]



236.604  Performance evaluation.

    Prepare a separate performance evaluation after actual construction 
of the project. Ordinarily, the evaluating official should be the person 
most familiar with the architect-engineer contractor's performance.

[76 FR 58155, Sept. 20, 2011]



236.606  Negotiations.



236.606-70  Statutory fee limitation.

    (a) 10 U.S.C. 4540, 7212, and 9540 limit the contract price (or fee) 
for architect-engineer services for the preparation of designs, plans, 
drawings, and specifications to six percent of the project's estimated 
construction cost.
    (b) The six percent limit also applies to contract modifications, 
including modifications involving--
    (1) Work not initially included in the contract. Apply the six 
percent limit to the revised total estimated construction cost.
    (2) Redesign. Apply the six percent limit as follows--
    (i) Add the estimated construction cost of the redesign features to 
the original estimated construction cost;
    (ii) Add the contract cost for the original design to the contract 
cost for redesign; and
    (iii) Divide the total contract design cost by the total estimated 
construction cost. The resulting percentage may not exceed the six 
percent statutory limitation.
    (c) The six percent limit applies only to that portion of the 
contract (or modification) price attributable to the preparation of 
designs, plans, drawings, and specifications. If a contract or 
modification also includes other services, the part of the price 
attributable to the other services is not subject to the six percent 
limit.

[56 FR 36421, July 31, 1991, as amended at 76 FR 58156, Sept. 20, 2011]

[[Page 324]]



236.609  Contract clauses.



236.609-70  Additional provision.

    Use the provision at 252.236-7011, Overseas Architect-Engineer 
Services--Restriction to United States Firms, in solicitations for 
architect-engineer contracts that are--
    (1) Funded with military construction appropriations;
    (2) Estimated to exceed $500,000; and
    (3) To be performed in Japan, in any North Atlantic Treaty 
Organization member country, or in countries bordering the Arabian Gulf.

[56 FR 36421, July 31, 1991, as amended at 62 FR 2858, Jan. 17, 1997; 63 
FR 11539, Mar. 9, 1998; 76 FR 58156, Sept. 20, 2011; 79 FR 44316, July 
31, 2014; 80 FR 15911, Mar. 26, 2015; 83 FR 54681, Oct. 31, 2018]



     Subpart 236.7_Standard and Optional Forms for Contracting for 
Construction, Architect-Engineer Services, and Dismantling, Demolition, 
                       or Removal of Improvements



236.701  Standard and optional forms for use in contracting for 
construction or dismantling, demolition, or removal of improvements.

    (c) Do not use Optional Form 347, Order for Supplies or Services 
(see 213.307).

[56 FR 36421, July 31, 1991, as amended at 65 FR 63804, Oct. 25, 2000]



PART 237_SERVICE CONTRACTING--Table of Contents



                 Subpart 237.1_Service Contracts_General

Sec.
237.101 Definitions.
237.102 Policy.
237.102-70 Prohibition on contracting for firefighting or security-guard 
          functions.
237.102-71 Limitation on service contracts for military flight 
          simulators.
237.102-72 Contracts for management services.
237.102-73 Prohibition on contracts for services of senior mentors.
237.102-74 Taxonomy for the acquisition of services, and supplies and 
          equipment.
237.102-75 Defense Acquisition Guidebook.
237.102-76 Review criteria for the acquisition of services.
237.102-77 Acquisition requirements roadmap tool.
237.102-78 Market research report guide for improving the tradecraft in 
          services acquisition.
237.102-79 Private sector notification requirements in support of in-
          sourcing actions.
237.104 Personal services contracts.
237.106 Funding and term of service contracts.
237.109 Services of quasi-military armed forces.
237.170 Approval of contracts and task orders for services.
237.170-1 Scope.
237.170-2 Approval requirements.
237.171 Training for contractor personnel interacting with detainees.
237.171-1 Scope.
237.171-2 Definition.
237.171-3 Policy.
237.171-4 Contract clause.
237.172 Service contracts surveillance.
237.173 Prohibition on interrogation of detainees by contractor 
          personnel.
237.173-1 Scope.
237.173-2 Definitions.
237.173-3 Policy.
237.173-4 Waiver.
237.173-5 Contract clause.
237.174 Disclosure of information to litigation support contractors.
237.175 Training that uses live vertebrate animals.

             Subpart 237.2_Advisory and Assistance Services

237.270 Acquisition of audit services.

         Subpart 237.5_Management Oversight of Service Contracts

237.503 Agency-head responsibilities.

                    Subpart 237.70_Mortuary Services

237.7000 Scope.
237.7001 Method of acquisition.
237.7002 Area of performance and distribution of contracts.
237.7003 Solicitation provisions and contract clauses.

            Subpart 237.71_Laundry and Dry Cleaning Services

237.7100 Scope.
237.7101 Solicitation provisions and contract clauses.

              Subpart 237.72_Educational Service Agreements

237.7200 Scope.
237.7201 Educational service agreement.
237.7202 Limitations.

[[Page 325]]

237.7203 Duration.
237.7204 Format and clauses for educational service agreements.

    Subpart 237.73_Services of Students at Research and Development 
                              Laboratories

237.7300 Scope.
237.7301 Definitions.
237.7302 General.
237.7303 Contract clauses.

          Subpart 237.74_Services at Installations Being Closed

237.7400 Scope.
237.7401 Policy.
237.7402 Contract clause.

    Subpart 237.75_Acquisition and Management of Industrial Resources

237.7501 Definition.
237.7502 Policy.

      Subpart 237.76_Continuation of Essential Contractor Services

237.7600 Scope.
237.7601 Definitions.
237.7602 Policy.
237.7603 Solicitation provision and contract clause.

        Subpart 237.77_Competition for Religious-Related Services

237.7700 Scope of subpart.
237.7701 Definition.
237.7702 Policy.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36424, July 31, 1991, unless otherwise noted.



                 Subpart 237.1_Service Contracts_General



237.101  Definitions.

    Increased performance of security-guard functions, as used in this 
subpart, means--
    (1) In the case of an installation or facility where no security-
guard functions were performed as of September 10, 2001, the entire 
scope or extent of the performance of security-guard functions at the 
installation or facility after such date; and
    (2) In the case of an installation or facility where security-guard 
functions were performed within a lesser scope of requirements or to a 
lesser extent as of September 10, 2001, than after such date, the 
increment of the performance of security-guard functions at the 
installation or facility that exceeds such lesser scope of requirements 
or extent of performance.
    Senior mentor means a retired flag, general, or other military 
officer or retired senior civilian official who provides expert 
experience-based mentoring, teaching, training, advice, and 
recommendations to senior military officers, staff, and students as they 
participate in war games, warfighting courses, operational planning, 
operational exercises, and decision-making exercises.

[68 FR 7443, Feb. 14, 2003, as amended at 75 FR 71564, Nov. 24, 2010]



237.102  Policy.

    (b)(1) Preference for certain commercial services. See 212.272 for 
procedures for implementation of the preference for commercial 
facilities-related services, knowledge-based services (except 
engineering services), medical services, or transportation services, as 
required by section 876 of the National Defense Authorization Act for 
Fiscal Year 2017 (Pub. L. 114-328).
    (2) Public-private competitions. 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.
    (c) In addition to the prohibition on award of contracts for the 
performance of inherently governmental functions, contracting officers 
shall not award contracts for functions that are exempt from private 
sector performance. See 207.503(e) for the associated documentation 
requirement.
    (e) Program officials shall obtain assistance from contracting 
officials through the Peer Review process at 201.170.

[73 FR 1826, Jan. 10, 2008, as amended at 74 FR 37626, July 29, 2009; 81 
FR 36473, June 7, 2016; 84 FR 39204, Aug. 9, 2019]



237.102-70  Prohibition on contracting for firefighting or security
-guard functions.

    (a) Under 10 U.S.C. 2465, the DoD is prohibited for entering into 
contracts for the performance of firefighting or

[[Page 326]]

security-guard functions at any military installation or facility 
unless--
    (1) The contract is to be carried out at a location outside the 
United States and its outlying areas at which members of the armed 
forces would have to be used for the performance of firefighting or 
security-guard functions at the expense of unit readiness;
    (2) The contract will be carried out on a Government-owned but 
privately operated installation;
    (3) The contract (or renewal of a contract) is for the performance 
of a function under contract on September 24, 1983; or
    (4) The contract--
    (i) Is for the performance of firefighting functions;
    (ii) Is for a period of 1 year or less; and
    (iii) Covers only the performance of firefighting functions that, in 
the absence of the contract, would have to be performed by members of 
the armed forces who are not readily available to perform such functions 
by reason of a deployment.
    (b) Under Section 2907 of Public Law 103-160, this prohibition does 
not apply to services at installations being closed (see subpart 
237.74).
    (c)(1) Under section 332 of Public Law 107-314, as amended by 
section 333 of Public Law 109-364 and section 343 of Public Law 110-181, 
this prohibition does not apply to any contract that is entered into for 
any increased performance of security-guard functions at a military 
installation or facility undertaken in response to the terrorist attacks 
on the United States on September 11, 2001, if--
    (i) Without the contract, members of the Armed Forces are or would 
be used to perform the increased security-guard functions;
    (ii) The agency has determined that--
    (A) Recruiting and training standards for the personnel who are to 
perform the security-guard functions are comparable to the recruiting 
and training standards for DoD personnel who perform the same security-
guard functions;
    (B) Contractor personnel performing such functions will be 
effectively supervised, reviewed, and evaluated; and
    (C) Performance of such functions will not result in a reduction in 
the security of the installation or facility;
    (iii) Contract performance will not extend beyond September 30, 
2012; and
    (iv) The total number of personnel employed to perform security-
guard functions under all contracts entered into pursuant to this 
authority does not exceed the following limitations:
    (A) For fiscal year 2007, the total number of such personnel 
employed under such contracts on October 1, 2006.
    (B) For fiscal year 2008, the number equal to 90 percent of the 
total number of such personnel employed under such contracts on October 
1, 2006.
    (C) For fiscal year 2009, the number equal to 80 percent of the 
total number of such personnel employed under such contracts on October 
1, 2006.
    (D) For fiscal year 2010, the number equal to 70 percent of the 
total number of such personnel employed under such contracts on October 
1, 2006.
    (E) For fiscal year 2011, the number equal to 60 percent of the 
total number of such personnel employed under such contracts on October 
1, 2006.
    (F) For fiscal year 2012, the number equal to 50 percent of the 
total number of such personnel employed under such contracts on October 
1, 2006.
    (2) Follow the procedures at PGI 237.102-70(c) to ensure that the 
personnel limitations specified in paragraph (c)(1)(iv) of this section 
are not exceeded.

[60 FR 61599, Nov. 30, 1995, as amended at 67 FR 11439, Mar. 14, 2002; 
68 FR 7443, Feb. 14, 2003; 69 FR 35533, June 25, 2004; 70 FR 14577, Mar. 
23, 2005; 70 FR 35545, June 21, 2005; 71 FR 34834, June 16, 2006; 72 FR 
51192, Sept. 6, 2007; 73 FR 53157, Sept. 15, 2008; 84 FR 65311, Nov. 27, 
2019]



237.102-71  Limitation on service contracts for military flight
simulators.

    (a) Definitions. As used in this subsection--
    (1) Military flight simulator means any system to simulate the form, 
fit, and function of a military aircraft that has no commonly available 
commercial variant.
    (2) Service contract means any contract entered into by DoD, the 
principal purpose of which is to furnish services in the United States 
through

[[Page 327]]

the use of service employees as defined in 41 U.S.C. 6701.
    (b) Under Section 832 of Public Law 109-364, as amended by Section 
883(b) of Public Law 110-181, DoD is prohibited from entering into a 
service contract to acquire a military flight simulator. However, the 
Secretary of Defense may waive this prohibition with respect to a 
contract, if the Secretary--
    (1) Determines that a waiver is in the national interest; and
    (2) Provides an economic analysis to the congressional defense 
committees at least 30 days before the waiver takes effect. This 
economic analysis shall include, at a minimum--
    (i) A clear explanation of the need for the contract; and
    (ii) An examination of at least two alternatives for fulfilling the 
requirements that the contract is meant to fulfill, including the 
following with respect to each alternative:
    (A) A rationale for including the alternative.
    (B) A cost estimate of the alternative and an analysis of the 
quality of each cost estimate.
    (C) A discussion of the benefits to be realized from the 
alternative.
    (D) A best value determination of each alternative and a detailed 
explanation of the life-cycle cost calculations used in the 
determination.
    (c) When reviewing requirements or participating in acquisition 
planning that would result in a military department or defense agency 
acquiring a military flight simulator, the contracting officer shall 
notify the program officials of the prohibition in paragraph (b) of this 
subsection. If the program officials decide to request a waiver from the 
Secretary of Defense under paragraph (b) of this subsection, the 
contracting officer shall follow the procedures at PGI 237.102-71.

[72 FR 51193, Sept. 6, 2007, as amended at 73 FR 53156, Sept. 15, 2008; 
76 FR 58137, Sept. 20, 2011]



237.102-72  Contracts for management services.

    In accordance with Section 802 of the National Defense Authorization 
Act for Fiscal Year 2008 (Pub. L. 110-181), DoD may award a contract for 
the acquisition of services the primary purpose of which is to perform 
acquisition support functions with respect to the development or 
production of a major system, only if--
    (a) The contract prohibits the contractor from performing inherently 
governmental functions;
    (b) The DoD organization responsible for the development or 
production of the major system ensures that Federal employees are 
responsible for determining--
    (1) Courses of action to be taken in the best interest of the 
Government; and
    (2) Best technical performance for the warfighter; and
    (c) The contract requires that the prime contractor for the contract 
may not advise or recommend the award of a contract or subcontract for 
the development or production of the major system to an entity owned in 
whole or in part by the prime contractor.

[74 FR 34269, July 15, 2009]



237.102-73  Prohibition on contracts for services of senior mentors.

    DoD is prohibited from entering into contracts for the services of 
senior mentors. See PGI 237.102-73 for references to DoD policy and 
implementation guidance.

[75 FR 71564, Nov. 24, 2010]



237.102-74  Taxonomy for the acquisition of services, and supplies
and equipment.

    See PGI 237.102-74 for further guidance on the taxonomy for the 
acquisition of services and the acquisition of supplies and equipment.

[79 FR 51264, Aug. 28, 2014]



237.102-75  Defense Acquisition Guidebook.

    See PGI 237.102-75 for information on the Defense Acquisition 
Guidebook, Chapter 10, Acquisition of Services.

[81 FR 36473, June 7, 2016, as amended at 82 FR 61481, Dec. 28, 2017]

[[Page 328]]



237.102-76  Review criteria for the acquisition of services.

    See PGI 237.102-76 for tenets and review criteria to be used when 
conducting preaward and postaward reviews for the acquisition of 
services.

[76 FR 76320, Dec. 7, 2011]



237.102-77  Acquisition requirements roadmap tool.

    See PGI 237.102-77 for guidance on using the Acquisition 
Requirements Roadmap Tool to develop and organize performance 
requirements into draft versions of the performance work statement, the 
quality assurance surveillance plan, and the performance requirements 
summary.

[77 FR 52254, Aug. 29, 2012, as amended at 81 FR 36473, June 7, 2016]



237.102-78  Market research report guide for improving the tradecraft
in services acquisition.

    See PGI 210.070 for guidance on use of the market research report 
guide to conduct and document market research for service acquisitions.

[77 FR 52254, Aug. 29, 2012]



237.102-79  Private sector notification requirements in support
of in-sourcing actions.

    In accordance with 10 U.S.C. 2463, contracting officers shall 
provide written notification to affected incumbent contractors of 
Government in-sourcing determinations. Notification shall be provided 
within 20 business days of the contracting officer's receipt of a 
decision from the cognizant component in-sourcing program official. The 
notification will summarize the requiring official's final determination 
as to why the service is being in-sourced and shall be coordinated with 
the component's in-sourcing program official. No formal hiring or 
contract-related actions may be initiated prior to such notification, 
except for preliminary internal actions associated with hiring or 
contract modification. See the OASD (RFM) memorandum entitled ``Private 
Sector Notification Requirements in Support of In-sourcing Actions,'' 
dated January 29, 2013, for further information, which is available at 
PGI 237.102-79.

[78 FR 65219, Oct. 31, 2013, as amended at 79 FR 35701, June 24, 2014]



237.104  Personal services contracts.

    (b)(i) Authorization to acquire the personal services of experts and 
consultants is included in 10 U.S.C. 129b. Personal service contracts 
for expert and consultant services must also be authorized by a 
determination and findings (D&F) in accordance with department/agency 
regulations.
    (A) Generally, the D&F should authorize one contract at a time; 
however, an authorizing official may issue a blanket D&F for classes of 
contracts.
    (B) Prepare each D&F in accordance with FAR 1.7 and include a 
determination that--
    (1) The duties are of a temporary or intermittent nature;
    (2) Acquisition of the services is advantageous to the national 
defense;
    (3) DoD personnel with necessary skills are not available;
    (4) Excepted appointment cannot be obtained;
    (5) A nonpersonal services contract is not practicable;
    (6) Statutory authority, 5 U.S.C. 3109 and other legislation, apply; 
and
    (7) Any other determination required by statutes has been made.
    (ii) Personal services contracts for health care are authorized by 
10 U.S.C. 1091.
    (A) This authority may be used to acquire--
    (1) Direct health care services provided in medical treatment 
facilities;
    (2) Health care services at locations outside of medical treatment 
facilities (such as the provision of medical screening examinations at 
military entrance processing stations); and
    (3) Services of clinical counselors, family advocacy program staff, 
and victim's services representatives to members of the Armed Forces and 
covered beneficiaries who require such services, provided in medical 
treatment facilities or elsewhere. Persons with whom a personal services 
contract may be entered into under this authority include clinical 
social workers, psychologists, psychiatrists, and other

[[Page 329]]

comparable professionals who have advanced degrees in counseling or 
related academic disciplines and who meet all requirements for State 
licensure and board certification requirements, if any, within their 
fields of specialization.
    (B) Sources for personal services contracts with individuals under 
the authority of 10 U.S.C. 1091 shall be selected through the procedures 
in this section. These procedures do not apply to contracts awarded to 
business entities other than individuals. Selections made using the 
procedures in this section are exempt by statute from FAR part 6 
competition requirements (see 206.001(b)).
    (C) Approval requirements for--
    (1) Direct health care personal services contracts (see paragraphs 
(b)(ii)(A)(1) and (2) of this section) and a pay cap are in DoDI 6025.5, 
Personal Services Contracts for Health Care Providers.
    (i) A request to enter into a personal services contract for direct 
health care services must be approved by the commander of the medical/
dental treatment facility where the services will be performed.
    (ii) A request to enter into a personal services contract for a 
location outside of a medical treatment facility must be approved by the 
chief of the medical facility who is responsible for the area in which 
the services will be performed.
    (2) Services of clinical counselors, family advocacy program staff, 
and victim's services representatives (see paragraph (b)(ii)(A)(3) of 
this section), shall be in accordance with agency procedures.
    (D) The contracting officer must ensure that the requiring activity 
provides a copy of the approval with the purchase request.
    (E) The contracting officer must provide adequate advance notice of 
contracting opportunities to individuals residing in the area of the 
facility. The notice must include the qualification criteria against 
which individuals responding will be evaluated. The contracting officer 
shall solicit applicants through at least one local publication which 
serves the area of the facility. Acquisitions under this section for 
personal service contracts are exempt from the posting and synopsis 
requirements of FAR part 5.
    (F) The contracting officer shall provide the qualifications of 
individuals responding to the notice to the commander of the facility 
for evaluation and ranking in accordance with agency procedures. 
Individuals must be considered solely on the basis of the professional 
qualifications established for the particular personal services being 
acquired and the Government's estimate of reasonable rates, fees, or 
other costs. The commander of the facility shall provide the contracting 
officer with rationale for the ranking of individuals, consistent with 
the required qualifications.
    (G) Upon receipt from the facility of the ranked listing of 
applicants, the contracting officer shall either--
    (1) Enter into negotiations with the highest ranked applicant. If a 
mutually satisfactory contract cannot be negotiated, the contracting 
officer shall terminate negotiations with the highest ranked applicant 
and enter into negotiations with the next highest.
    (2) Enter into negotiations with all qualified applicants and select 
on the basis of qualifications and rates, fees, or other costs.
    (H) In the event only one individual responds to an advertised 
requirement, the contracting officer is authorized to negotiate the 
contract award. In this case, the individual must still meet the minimum 
qualifications of the requirement and the contracting officer must be 
able to make a determination that the price is fair and reasonable.
    (I) If a fair and reasonable price cannot be obtained from a 
qualified individual, the requirement should be canceled and acquired 
using procedures other than those set forth in this section.
    (iii) (A) In accordance with 10 U.S.C. 129b(d), an agency may enter 
into a personal services contract if--
    (1) The personal services--
    (i) Are to be provided by individuals outside the United States, 
regardless of their nationality;
    (ii) Directly support the mission of a defense intelligence 
component or counter-intelligence organization of DoD; or

[[Page 330]]

    (iii) Directly support the mission of the special operations command 
of DoD; and
    (2) The head of the contracting activity provides written approval 
for the proposed contract. The approval shall include a determination 
that addresses the following:
    (i) The services to be procured are urgent or unique;
    (ii) It would not be practical to obtain such services by other 
means; and
    (iii) For acquisition of services in accordance with paragraph 
(b)(iii)(A)(1)(i) of this section, the services to be acquired are 
necessary and appropriate for supporting DoD activities and programs 
outside the United States.
    (B) The contracting officer shall ensure that the applicable 
requirements of paragraph (b)(iii)(A)(2) of this section have been 
satisfied and shall include the approval documentation in the contract 
file.
    (iv) The requirements of 5 U.S.C. 3109, Employment of Experts and 
Consultants; Temporary or Intermittent, do not apply to contracts 
entered into in accordance with paragraph (b)(iii) of this section.
    (d) See 237.503(c) for requirements for certification and approval 
of requirements for services to prevent contracts from being awarded or 
administered in a manner that constitutes an unauthorized personal 
services contract.
    (f)(i) Payment to each expert or consultant for personal services 
under 5 U.S.C. 3109 shall not exceed the highest rate fixed by the 
Classification Act Schedules for grade GS-15 (see 5 CFR 304.105(a)).
    (ii) The contract may provide for the same per diem and travel 
expenses authorized for a Government employee, including actual 
transportation and per diem in lieu of subsistence for travel between 
home or place of business and official duty station.
    (iii) Coordinate with the civilian personnel office on benefits, 
taxes, personnel ceilings, and maintenance of records.

[56 FR 36424, July 31, 1991, as amended at 60 FR 2888, Jan. 12, 1995; 60 
FR 61599, Nov. 30, 1995; 63 FR 11539, Mar. 9, 1998; 67 FR 61516, Oct. 1, 
2002; 69 FR 55992, Sept. 17, 2004; 76 FR 25566, May 5, 2011]



237.106  Funding and term of service contracts.

    (1) Personal service contracts for expert or consultant services 
shall not exceed 1 year. The nature of the duties must be--
    (i) Temporary (not more than 1 year); or
    (ii) Intermittent (not cumulatively more than 130 days in 1 year).
    (2) The contracting officer may enter into a contract, exercise an 
option, or place an order under a contract for severable services for a 
period that begins in one fiscal year and ends in the next fiscal year 
if the period of the contract awarded, option exercised, or order placed 
does not exceed 1 year (10 U.S.C. 2410a).

[64 FR 28110, May 25, 1999]



237.109  Services of quasi-military armed forces.

    See 237.102-70b for prohibition on contracting for firefighting or 
security-guard functions.

[60 FR 61599, Nov. 30, 1995]



237.170  Approval of contracts and task orders for services.



237.170-1  Scope.

    This section--
    (a) Implements 10 U.S.C. 2330; and
    (b) Applies to services acquired for DoD, regardless of whether the 
services are acquired through--
    (1) A DoD contract or task order; or
    (2) A contract or task order awarded by an agency other than DoD.

[68 FR 56564, Oct. 1, 2003]



237.170-2  Approval requirements.

    (a) Acquisition of services through a contract or task order that is 
not performance based. (1) For acquisitions at or below $100 million, 
obtain the approval of the official designated by the department or 
agency.
    (2) For acquisitions exceeding $100 million, obtain the approval of 
the senior procurement executive.
    (b) Acquisition of services through use of a contract or task order 
issued by a non-DoD agency. Comply with the review, approval, and 
reporting requirements established in accordance with subpart 217.7 when 
acquiring services

[[Page 331]]

through use of a contract or task order issued by a non-DoD agency.

[70 FR 29643, May 24, 2005, as amended at 71 FR 14104, Mar. 21, 2006; 71 
FR 75893, Dec. 19, 2006; 75 FR 45074, Aug. 2, 2010; 80 FR 36905, June 
26, 2015; 80 FR 67255, Oct. 30, 2015; 85 FR 61504, Sept. 29, 2020]



237.171  Training for contractor personnel interacting with detainees.



237.171-1  Scope.

    This section prescribes policies to prevent the abuse of detainees, 
as required by Section 1092 of the National Defense Authorization Act 
for Fiscal Year 2005 (Pub. L. 108-375).

[70 FR 52033, Sept. 1, 2005]



237.171-2  Definition.

    Combatant commander, detainee, and personnel interacting with 
detainees, as used in this section, are defined in the clause at 
252.237-7019, Training for Contractor Personnel Interacting with 
Detainees.

[71 FR 53048, Sept. 8, 2006]



237.171-3  Policy.

    (a) Each DoD contract in which contractor personnel, in the course 
of their duties, interact with detainees shall include a requirement 
that such contractor personnel--
    (1) Receive Government-provided training regarding the international 
obligations and laws of the United States applicable to the detention of 
personnel, including the Geneva Conventions; and
    (2) Provide a copy of the training receipt document to the 
contractor.
    (b) The combatant commander responsible for the area where the 
detention or interrogation facility is located will arrange for the 
training and a training receipt document to be provided to contractor 
personnel. For information on combatant commander geographic areas of 
responsibility and point of contact information for each command, see 
PGI 237.171-3(b).

[71 FR 53048, Sept. 8, 2006]



237.171-4  Contract clause.

    Use the clause at 252.237-7019, Training for Contractor Personnel 
Interacting with Detainees, in in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for the acquisition of 
services if--
    (a) The clause at 252.225-7040, Contractor Personnel Supporting U.S. 
Armed Forces Deployed Outside the United States, is included in the 
solicitation or contract; or
    (b) The services will be performed at a facility holding detainees, 
and contractor personnel in the course of their duties may be expected 
to interact with the detainees.

[70 FR 52033, Sept. 1, 2005, as amended at 78 FR 37989, June 25, 2013; 
79 FR 30471, May 28, 2014]



237.172  Service contracts surveillance.

    (a) Ensure that quality assurance surveillance plans are prepared in 
conjunction with the preparation of the statement of work or statement 
of objectives for solicitations and contracts for services. These plans 
should be tailored to address the performance risks inherent in the 
specific contract type and the work effort addressed by the contract. 
(See FAR subpart 46.4.) Retain quality assurance surveillance plans in 
the contract file. See http://sam.dau.mil, Step Four--Requirements 
Definition, for examples of quality assurance surveillance plans.
    (b) See PGI 216.505-70 for guidance regarding minimum labor category 
qualifications for orders issued under multiple award services 
contracts.

[80 FR 58632, Sept. 30, 2015, as amended at 84 FR 48510, Sept. 13, 2019]



237.173  Prohibition on interrogation of detainees by contractor
personnel.



237.173-1  Scope.

    This section prescribes policies that prohibit interrogation of 
detainees by contractor personnel, as required by section 1038 of the 
Fiscal Year 2010 National Defense Authorization Act (Pub. L. 111-84).

[75 FR 67633, Nov. 3, 2010]



237.173-2  Definitions.

    As used in this subpart--

[[Page 332]]

    Detainee means any person captured, detained, held, or otherwise 
under the effective control of DoD personnel (military or civilian) in 
connection with hostilities. This includes, but is not limited to, enemy 
prisoners of war, civilian internees, and retained personnel. This does 
not include DoD personnel or DoD contractor personnel being held for law 
enforcement purposes.
    Interrogation of detainees means a systematic process of formally 
and officially questioning a detainee for the purpose of obtaining 
reliable information to satisfy foreign intelligence collection 
requirements.

[75 FR 67633, Nov. 3, 2010]



237.173-3  Policy.

    (a) No detainee may be interrogated by contractor personnel.
    (b) Contractor personnel with proper training and security 
clearances may be used as linguists, interpreters, report writers, 
information technology technicians, and other employees filling 
ancillary positions, including as trainers of and advisors to 
interrogators, in interrogations of detainees if--
    (1) Such personnel are subject to the same laws, rules, procedures, 
and policies (including DoD Instruction 1100.22, Policy and Procedures 
for Determining Workforce Mix (http://www.dtic.mil/ whs/directives/ 
corres/pdf/110022p.pdf); DoD Directive 2310.01E, The Department of 
Defense Detainee Program (http://www.dtic.mil/ whs/directives/ corres/
pdf/231001p.pdf); and DoD Directive 3115.09, DoD Intelligence 
Interrogations, Detainee Debriefings, and Tactical Questioning (http://
www.dtic.mil/ whs/directives/ corres/pdf/311509p.pdf)); pertaining to 
detainee operations and interrogations as those that apply to Government 
personnel in such positions in such interrogations; and
    (2) Appropriately qualified and trained DoD personnel (military or 
civilian) are available to oversee the contractor's performance and to 
ensure that contractor personnel do not perform activities that are 
prohibited under this section.

[75 FR 67633, Nov. 3, 2010]



237.173-4  Waiver.

    The Secretary of Defense may waive the prohibition in 237.173-3(a) 
for a period of 60 days, if the Secretary determines such a waiver is 
vital to the national security interests of the United States. The 
Secretary may renew a waiver issued pursuant to this paragraph for an 
additional 30-day period, if the Secretary determines that such a 
renewal is vital to the national security interests of the United 
States. Not later than five days after issuance of the waiver, the 
Secretary shall submit written notification to Congress. See specific 
waiver procedures at DoDI 1100.22.

[75 FR 67633, Nov. 3, 2010]



237.173-5  Contract clause.

    Insert the clause at 252.237-7010, Prohibition on Interrogation of 
Detainees by Contractor Personnel, in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, that are for the provision of 
services.

[75 FR 67633, Nov. 3, 2010, as amended at 78 FR 37989, June 25, 2013]



237.174  Disclosure of information to litigation support contractors.

    See 204.74 for disclosure of information to litigation support 
contractors.

[79 FR 11340, Feb. 28, 2014]



237.175  Training that uses live vertebrate animals.

    Use the clause at 252.235-7002, Animal Welfare, as prescribed in 
235.072(a), when contracting for training that will use live vertebrate 
animals.

[79 FR 73501, Dec. 11, 2014]



             Subpart 237.2_Advisory and Assistance Services



237.270  Acquisition of audit services.

    (a) General policy. (1) Do not contract for audit services unless--
    (i) The cognizant DoD audit organization determines that expertise 
required to perform the audit is not available within the DoD audit 
organization; or

[[Page 333]]

    (ii) Temporary audit assistance is required to meet audit reporting 
requirements mandated by law or DoD regulation.
    (2) See 215.101-2-70(b)(3) for the prohibition on the use of the 
lowest price technically acceptable source selection process when 
acquiring audit services.
    (3) See PGI 237.270 for a list of DoD publications that govern the 
conduct of audits.
    (b) Contract period. Except in unusual circumstances, award 
contracts for recurring audit services for a 1-year period with at least 
2 option years.
    (c) Approvals. Do not issue a solicitation for audit services unless 
the requiring activity provides evidence that the cognizant DoD audit 
organization has approved the statement of work. The requiring agency 
shall obtain the same evidence of approval for subsequent material 
changes to the statement of work.
    (d) Solicitation provisions and contract clauses. (1) Use the 
provision at 252.237-7000, Notice of Special Standards of 
Responsibility, in solicitations for audit services.
    (2) Use the clause at 252.237-7001, Compliance with Audit Standards, 
in solicitations and contracts for audit services.

[70 FR 57193, Sept. 30, 2005, as amended at 84 FR 50789, Sept. 26, 2019]



         Subpart 237.5_Management Oversight of Service Contracts

    Source: 75 FR 54525, Sept. 8, 2010, unless otherwise noted.



237.503  Agency-head responsibilities.

    (c) The agency head or designee shall employ procedures to ensure 
that requirements for service contracts are vetted and approved as a 
safeguard to prevent contracts from being awarded or administered in a 
manner that constitutes an unauthorized personal services contract. 
Contracting officers shall follow the procedures at PGI 237.503, include 
substantially similar certifications in conjunction with service 
contract requirements, and place the certification in the contract file. 
The program manager or other official responsible for the requirement, 
at a level specified by the agency, should execute the certification. In 
addition, contracting officers and program managers should remain aware 
of the descriptive elements at FAR 37.104(d) to ensure that a service 
contract does not inadvertently become administered as a personal-
services contract.

[76 FR 25566, May 5, 2011]



                    Subpart 237.70_Mortuary Services

    Source: 71 FR 3416, Jan. 23, 2006, unless otherwise noted.



237.7000  Scope.

    This subpart--
    (a) Applies to contracts for mortuary services (the care of remains) 
for military personnel within the United States; and
    (b) May be used as guidance in areas outside the United States for 
mortuary services for deceased military and civilian personnel.



237.7001  Method of acquisition.

    (a) Requirements type contract. By agreement among the military 
activities, one activity in each geographical area will contract for the 
estimated requirements for the care of remains for all military 
activities in the area. Use a requirements type contract (see FAR 
16.503) when the estimated annual requirements for the activities in the 
area are ten or more.
    (b) Purchase order. Where no contract exists, use DD Form 1155, 
Order for Supplies or Services, to obtain mortuary services.



237.7002  Area of performance and distribution of contracts.

    Follow the procedures at PGI 237.7002 for--
    (a) Defining the geographical area to be covered by the contract; 
and
    (b) Distributing copies of the contract.



237.7003  Solicitation provisions and contract clauses.

    (a) Use the following clauses in all mortuary service solicitations 
and contracts, except do not use the clauses at 252.237-7004, Area of 
Performance, in

[[Page 334]]

solicitations or contracts that include port of entry requirements:
    (1) 252.237-7003, Requirements, (insert activities authorized to 
place orders in paragraph (e) of the clause).
    (2) 252.237-7004, Area of Performance.
    (3) 252.237-7005, Performance and Delivery.
    (4) 252.237-7006, Subcontracting.
    (5) 252.237-7007, Termination for Default.
    (6) 252.237-7008, Group Interment.
    (7) 252.237-7009, Permits.
    (8) 252.237-7011, Preparation History.
    (b) Use the clause at FAR 52.245-1, Government Property, with its 
Alternate I, in solicitations and contracts that include port of entry 
requirements.

[71 FR 3416, Jan. 23, 2006, as amended at 74 FR 37646, July 29, 2009; 79 
FR 65593, Nov. 5, 2014; 84 FR 48505, Sept. 13, 2019]



            Subpart 237.71_Laundry and Dry Cleaning Services



237.7100  Scope.

    This subpart--
    (a) Applies to contracts for laundry and dry cleaning services 
within the United States; and
    (b) May be used as guidance in areas outside the United States.

[71 FR 3416, Jan. 23, 2006]



237.7101  Solicitation provisions and contract clauses.

    (a) Use the provision at 252.237-7012, Instruction to Offerors 
(Count-of-Articles), in solicitations for laundry and dry cleaning 
services to be provided on a count-of-articles basis.
    (b) Use the provision at 252.237-7013, Instruction to Offerors (Bulk 
Weight), in solicitations for laundry services to be provided on a bulk 
weight basis.
    (c) Use the clause at 252.237-7014, Loss or Damage (Count-of-
Articles), in solicitations and contracts for laundry and dry cleaning 
services to be provided on a count-of-articles basis.
    (d) Use the clause at 252.237-7015, Loss or Damage (Weight of 
Articles), in solicitations and contracts for laundry and dry cleaning 
services to be provided on a bulk weight basis.
    (1) Insert a reasonable per pound price in paragraph (b) of the 
clause, based on the average per pound value. When the contract requires 
laundry services on a bag type basis, insert reasonable per pound prices 
by bag type.
    (2) Insert an appropriate percentage in paragraph (e) of the clause, 
not to exceed eight percent.
    (e) Use the basic or an alternate of the clause at 252.237-7016, 
Delivery Tickets, in all solicitations and contracts for laundry and dry 
cleaning services.
    (1) Use the basic clause when services are not to be provided on a 
bulk weight basis.
    (2) Use the alternate I clause when services are for bag type 
laundry to be provided on a bulk weight basis.
    (3) Use the alternate II clause when services are unsorted laundry 
to be provided on a bulk weight basis.
    (f) Use the clause at 252.237-7017, Individual Laundry, in 
solicitations and contracts for laundry and dry cleaning services to be 
provided to individual personnel.
    (1) Insert the number of pieces of outer garments in paragraphs (d) 
(1) and (2) of the clause.
    (2) The number of pieces and composition of a bundle in paragraphs 
(d) (1) and (2) of the clause may be modified to meet local conditions.
    (g) Use the clause at 252.237-7018, Special Definitions of 
Government Property, in all solicitations and contracts for laundry and 
dry cleaning services.

[56 FR 36424, July 31, 1991, as amended at 62 FR 34127, June 24, 1997. 
Redesignated at 71 FR 3416, Jan. 23, 2006; 79 FR 65593, Nov. 5, 2014]



              Subpart 237.72_Educational Service Agreements



237.7200  Scope.

    (a) This subpart prescribes acquisition procedures for educational 
services from schools, colleges, universities, or other educational 
institutions. This subpart does not include tuition assistance 
agreements, i.e., payment by the Government of partial tuition under the 
off-duty educational program.
    (b) As used in the subpart--
    (1) ``Facilities'' do not include the institution's dining rooms or 
dormitories; and

[[Page 335]]

    (2) ``Fees'' does not include charges for meals or lodging.



237.7201  Educational service agreement.

    (a) An educational service agreement is not a contract, but is an 
ordering agreement under which the Government may order educational 
services.
    (b) Educational service agreements provide for ordering educational 
services when--
    (1) The Government pays normal tuition and fees for educational 
services provided to a student by the institution under its normal 
schedule of tuition and fees applicable to all students generally; and
    (2) Enrollment is at the institution under the institution's normal 
rules and in courses and curricula which the institution offers to all 
students meeting admission requirements.



237.7202  Limitations.

    Educational service agreements are not used to provide special 
courses or special fees for Government students.

[56 FR 36424, July 31, 1991, as amended at 83 FR 16005, Apr. 13, 2018]



237.7203  Duration.

    (a) Educational service agreements are for an indefinite duration 
and remain in effect until terminated.
    (b) The issuing activity must establish procedures to review each 
educational service agreement at least once each year. Review dates 
should consider the institution's academic calendar and occur at least 
30 days before the beginning of a term. The purpose of the review is to 
incorporate changes to reflect requirements of any statute, Executive 
Order, FAR, or DFARS.
    (c) If the contracting officer and the institution do not agree on 
required changes, terminate the agreement.



237.7204  Format and clauses for educational service agreements.

    Educational service agreements under this subpart shall be in the 
following format. Add to the schedule any other provisions necessary to 
describe the requirements, if they are consistent with the following 
provisions and the policy of acquiring educational services in the form 
of standard course offerings at the prevailing rates of the institution.

                      Educational Service Agreement

                          Agreement No. ______

    1. This agreement entered into on the ____ day of _____ ____, is 
between the Government, represented by the Contracting Officer, and the 
Contractor, (name of institution), an educational institution located in 
____ (city), ____ (state).
    2. This agreement is for educational services to be provided by the 
Contractor to Government personnel at the Contractor's institution. The 
Contractor shall provide instruction with standard offerings of courses 
available to the public.
    3. The Government shall pay for services under the Contractor's 
normal schedule of tuition and fees applicable to the public and in 
effect at the time the services are performed.
    4. The Government will review this agreement annually before the 
anniversary of its effective date for the purpose of incorporating 
changes required by statutes, executive orders, the Federal Acquisition 
Regulation, or the Defense Federal Acquisition Regulation Supplement. 
Changes required to be made by modification to this agreement or by 
issuance of a superseding agreement. If mutual agreement on the changes 
cannot be reached, the Government will terminate this agreement.
    5. The parties may amend this agreement only by mutual consent.
    6. This agreement shall start on the date in paragraph 1 and shall 
continue until terminated.
    7. The estimated annual cost of this agreement is $_____. This 
estimate is for administrative purposes only and does not impose any 
obligation on the Government to request any services or make any 
payment.
    8. Advance payments are authorized by 10 U.S.C. 2396(a)(3).
    9. Submit invoices to: ______ (name and address of activity).

                           Schedule Provisions

    1. Ordering procedures and services to be provided. (a) The 
Contractor shall promptly deliver to the Contracting Officer one copy of 
each catalog applicable to this agreement, and one copy of any 
subsequent revision.
    (b) The Government will request educational services under this 
agreement by a (insert type of request, such as, delivery order, 
official Government order, or other written communication). The (insert 
type of request, such as, delivery order, official Government order, or 
other written communication) will contain the number of this agreement 
and will designate as students at the

[[Page 336]]

Contractor's institution one or more Government-selected persons who 
have already been accepted for admission under the Contractor's usual 
admission standards.
    (c) All students under this agreement shall register in the same 
manner, be subject to the same academic regulations, and have the same 
privileges, including the use of all facilities and equipment as any 
other students enrolled in the institution.
    (d) Upon enrolling each student under this agreement, the Contractor 
shall, where the resident or nonresident status involves a difference in 
tuition or fees--
    (i) Determine the resident or nonresident status of the student;
    (ii) Notify the student and the Contracting Officer of the 
determination. If there is an appeal of the determination;
    (iii) If there is an appeal of the determination, process the appeal 
under the Contractor's standard procedures;
    (iv) Notify the student and Contracting Officer of the result; and
    (v) Make the determination a part of the student's permanent record.
    (e) The Contractor shall not furnish any instruction or other 
services to any student under this agreement before the effective date 
of a request for services in the form specified in paragraph (b) of this 
schedule.
    2. Change in curriculum. The Contracting Officer may vary the 
curriculum for any student enrolled under this agreement but shall not 
require or make any change in any course without the Contractor's 
consent.
    3. Payment. (a) The Government shall pay the Contractor the normal 
tuition and fees which the Contractor charges any students pursuing the 
same or similar curricula, except for any tuition and fees which this 
agreement excludes. The Contractor may change any tuition and fees, 
provided--
    (1) The Contractor publishes the revisions in a catalog or otherwise 
publicly announces the revisions;
    (2) Applies the revisions uniformly to all students studying the 
same or similar curricula;
    (3) Provides the Contracting Officer notice of changes before their 
effective date.
    (b) The Contractor shall not establish any tuition or fees which 
apply solely to students under this agreement.
    (c) If the Contractor regularly charges higher tuition and fees for 
nonresident students, the Contractor may charge the Government the 
normal nonresident tuition and fees for students under this agreement 
who are nonresidents. The Government shall not claim resident tuition 
and fees for any student solely on the basis of the student residing in 
the State as a consequence of enrollment under this agreement.
    (d) The Contractor shall charge the Government only the tuition and 
fees which relate directly to enrollment as a student. Tuition and fees 
may include--
    (i) Penalty fees for late registration or change of course caused by 
the Government;
    (ii) Mandatory health fees and health insurance charges; and
    (iii) Any flat rate charge applicable to all students registered for 
research that appears in the Contractor's publicly announced fee 
schedule.
    (e) The Contractor shall not charge the Government for--
    (i) Permit charges, such as vehicle registration or parking fees, 
unless specifically authorized in the request for service; and
    (ii) Any equipment, refundable deposits, or any items or services 
(such as computer time) related to student research.
    (f) Normally, the Contractor shall not directly charge individual 
students for application fees or any other fee chargeable to this 
agreement. However, if the Contractor's standard procedures require 
payment of any fee before the student is enrolled under this agreement, 
the Contractor may charge the student. When the Contractor receives 
payment from the Government, the Contractor shall fully reimburse the 
student.
    (g) For each term the Contractor enrolls students under this 
agreement, the Contractor shall submit ____ copies of an invoice listing 
charges for each student separately. The Contractor shall submit 
invoices within ____ days after the start of the term and shall 
include--
    (i) Agreement number and inclusive dates of the term;
    (ii) Name of each student;
    (iii) A list showing each course for each student if the school 
charges by credit hour;
    (iv) The resident or nonresident status of each student (if 
applicable to the Contractor's school); and
    (v) A breakdown of charges for each student, including credit hours, 
tuition, application fee, and other fees. Provide a total for each 
student and a grand total for all students listed on the invoice.
    (h) If unforeseen events require additional charges that are 
otherwise payable under the Contractor's normal tuition and fee 
schedule, the Contractor may submit a supplemental invoice or make the 
adjustment on the next regular invoice under this agreement. The 
Contractor shall clearly identify and explain the supplemental invoice 
or the adjustment.
    (i) The Contractor shall apply any credits resulting from withdrawal 
of students, or from any other cause under its standard procedures, to 
subsequent invoices submitted under this agreement. Credits should 
appear on the first invoice submitted after the action resulting in the 
credits. If no subsequent invoice is submitted, the Contractor shall 
deliver to the Contracting Officer a

[[Page 337]]

check drawn to the order of the office designated for contract 
administration. The Contractor shall identify the reason for the credit 
and the applicable term dates in all cases.
    4. Withdrawal of students. (a) The Government may, at its option and 
at any time, withdraw financial support for any student by issuing 
official orders. The Government will furnish ____ copies of the orders 
to the Contractor within a reasonable time after publication.
    (b) The Contractor may request withdrawal by the Government of any 
student for academic or disciplinary reasons.
    (c) If withdrawal occurs before the end of a term, the Government 
will pay any tuition and fees due for the current term. The Contractor 
shall credit the Government with any charges eligible for refund under 
the Contractor's standard procedures for any students in effect on the 
date of withdrawal.
    (d) Withdrawal of students by the Government will not be the basis 
for any special charge or claim by the Contractor other than charges 
under the Contractor's standard procedures.
    5. Transcripts. Within a reasonable time after withdrawal of a 
student for any reason, or after graduation, the Contractor shall send 
to the Contracting Officer (or to an address supplied by the Contracting 
Officer) one copy of an official transcript showing all work by the 
student at the institution until such withdrawal or graduation.
    6. Student teaching. The Government does not anticipate the 
Contractor awarding fellowships and assistantships to students attending 
school under this agreement. However, for graduate students, should both 
the student and the Contractor decide it to be in the student's best 
interests to assist in the institution's teaching program, the 
Contractor may provide nominal compensation for part-time service. Base 
the compensation on the Contractor's practices and procedures for other 
students of similar accomplishment in that department or field. The 
Contractor shall apply the compensation as a credit against any invoices 
presented for payment for any period in which the student performed the 
part-time teaching service.
    7. Termination of agreement. (a) Either party may terminate this 
agreement by giving 30 days advance written notice of the effective date 
of termination. In the event of termination, the Government shall have 
the right, at its option, to continue to receive educational services 
for those students already enrolled in the contractor's institution 
under this agreement until such time that the students complete their 
courses or curricula or the Government withdraws them from the 
Contractor's institution. The terms and conditions of this agreement in 
effect on the effective date of the termination shall continue to apply 
to such students remaining in the Contractor's institution.
    (b) Withdrawal of students under Schedule provision 4 shall not be 
considered a termination within the meaning of this provision 7.
    (c) Termination by either party shall not be the basis for any 
special charge or claim by the Contractor, other than as provided by the 
Contractor's standard procedures.

                           General Provisions

    Use the following clauses in educational service agreements:
    1. FAR 52.202-1, Definitions, and add the following paragraphs (h) 
through (m).
    (h) ``Term'' means the period of time into which the Contractor 
divides the academic year for purposes of instruction. This includes 
``semester,'' ``trimester,'' ``quarter,'' or any similar word the 
Contractor may use.
    (i) ``Course'' means a series of lectures or instructions, and 
laboratory periods, relating to one specific representation of subject 
matter, such as Elementary College Algebra, German 401, or Surveying. 
Normally, a student completes a course in one term and receives a 
certain number of semester hours credit (or equivalent) upon successful 
completion.
    (j) ``Curriculum'' means a series of courses having a unified 
purpose and belonging primarily to one major academic field. It will 
usually include certain required courses and elective courses within 
established criteria. Examples include Business Administration, Civil 
Engineering, Fine and Applied Arts, and Physics. A curriculum normally 
covers more than one term and leads to a degree or diploma upon 
successful completion.
    (k) ``Catalog'' means any medium by which the Contractor publicly 
announces terms and conditions for enrollment in the Contractor's 
institution, including tuition and fees to be charged. This includes 
``bulletin,'' ``announcement,'' or any other similar word the Contractor 
may use.
    (l) ``Tuition'' means the amount of money charged by an educational 
institution for instruction, not including fees.
    (m) ``Fees'' means those applicable charges directly related to 
enrollment in the Contractor's institution. Unless specifically allowed 
in the request for services, fees shall not include--
    (1) Any permit charge, such as parking and vehicle registration; or
    (2) Charges for services of a personal nature, such as food, 
housing, and laundry.
    2. FAR 52.203-3, Gratuities.
    3. FAR 52.203-5, Covenant Against Contingent Fees.
    4. FAR 52.204-1, Approval of Contract, if required by department/
agency procedures.
    5. FAR 52.215-2, Audit and Records--Negotiation.

[[Page 338]]

    6. FAR 52.215-8, Order of Precedence--Uniform Contract Format.
    7. Conflicts Between Agreement and Catalog. Insert the following 
clause:

                 Conflicts Between Agreement and Catalog

    If there is any inconsistency between this agreement and any catalog 
or other document incorporated in this agreement by reference or any of 
the Contractor's rules and regulations, the provisions of this agreement 
shall govern.
    8. FAR 52.222-3, Convict Labor.
    9. Under FAR 22.802, FAR 22.807, and FAR 22.810, use the appropriate 
clause from FAR 52.222-26, Equal Opportunity.
    10. FAR 52.233-1, Disputes.
    11. Assignment of Claims. Insert the following clause:

                          Assignment of Claims

    No claim under this agreement shall be assigned.
    12. FAR 52.252-4, Alterations in Contract, if required by 
department/agency procedures.

                             Signature Page

Agreement No.___________________________________________________________
Date____________________________________________________________________

The United States of America
By:_____________________________________________________________________
 (Contracting Officer)
Activity________________________________________________________________
Location________________________________________________________________
 (Name of Contractor)
By:_____________________________________________________________________
(Title)_________________________________________________________________

[56 FR 36424, July 31, 1991, as amended at 60 FR 61599, Nov. 30, 1995; 
63 FR 55052, Oct. 14, 1998; 64 FR 49684, Sept. 14, 1999; 64 FR 53447, 
Oct. 1, 1999; 74 FR 42780, Aug. 25, 2009]



    Subpart 237.73_Services of Students at Research and Development 
                              Laboratories



237.7300  Scope.

    This subpart prescribes procedures for acquisition of temporary or 
intermittent services of students at institutions of higher learning for 
the purpose of providing technical support at Defense research and 
development laboratories (10 U.S.C. 2360).



237.7301  Definitions.

    As used in this subpart--
    (a) Institution of higher learning means any public or private post-
secondary school, junior college, college, university, or other degree 
granting educational institution that--
    (1) Is located in the United States or its outlying areas;
    (2) Has an accredited education program approved by an appropriate 
accrediting body; and
    (3) Offers a program of study at any level beyond high school.
    (b) Nonprofit organization means any organization described by 
section 501(c)(3) of title 26 of the U.S.C. which is exempt from 
taxation under section 501(a) of title 26.
    (c) Student means an individual enrolled (or accepted for 
enrollment) at an institution of higher learning before the term of the 
student technical support contract. The individual shall remain in good 
standing in a curriculum designed to lead to the granting of a 
recognized degree, during the term of the contract.
    (d) Technical support means any scientific or engineering work in 
support of the mission of the DoD laboratory involved. It does not 
include administrative or clerical services.

[56 FR 36424, July 31, 1991, as amended at 70 FR 35545, June 21, 2005]



237.7302  General.

    Generally, agencies will acquire services of students at 
institutions of higher learning by contract between a nonprofit 
organization employing the student and the Government. When it is in the 
best interest of the Government, contracts may be made directly with 
students. These services are not subject to the requirements of FAR part 
19, FAR 13.003(b)(1), or DFARS part 219. Award authority for these 
contracts is 10 U.S.C. 2304(a)(1) and 10 U.S.C. 2360.

[56 FR 36424, July 31, 1991, as amended at 60 FR 29500, June 5, 1995; 64 
FR 2598, Jan. 15, 1999]



237.7303  Contract clauses.

    Contracts made directly with students are nonpersonal service 
contracts but shall include the clauses at FAR 52.232-3, Payments Under 
Personal Services Contracts, and FAR 52.249-12, Termination (Personal 
Services).

[[Page 339]]



          Subpart 237.74_Services at Installations Being Closed

    Source: 59 FR 36089, July 15, 1994, unless otherwise noted.



237.7400  Scope.

    This subpart prescribes procedures for contracting, through use of 
other than full and open competition, with local governments for police, 
fire protection, airfield operation, or other community services at 
military installations to be closed under the Defense Authorization 
Amendments and Base Closure and Realignment Act (Pub. L. 100-526), as 
amended, and the Defense Base Closure and Realignment Act of 1990 (Pub. 
L. 101-510), as amended.

[59 FR 36089, July 15, 1994, as amended at 60 FR 29500, June 5, 1995]



237.7401  Policy.

    The authority in 206.302-5(b)(ii) to contract with local 
governments--
    (a) May be exercised without regard to the provisions of 10 U.S.C. 
Chapter 146, Contracting for Performance of Civilian Commercial or 
Industrial Type Functions;
    (b) May not be exercised earlier than 180 days before the date the 
installation is scheduled to be closed;
    (c) Requires a determination by the head of the contracting activity 
that the services being acquired under contract with the local 
government are in the best interests of the Department of Defense.

[59 FR 36089, July 15, 1994, as amended at 60 FR 29500, June 5, 1995; 83 
FR 24894, May 30, 2018]



237.7402  Contract clause.

    Use the clause at 252.237-7022, Services at Installations Being 
Closed, in solicitations and contracts based upon the authority of this 
subpart.

[59 FR 36089, July 15, 1994, as amended at 60 FR 29500, June 5, 1995]



    Subpart 237.75_Acquisition and Management of Industrial Resources

    Source: 74 FR 37646, July 29, 2009, unless otherwise noted.



237.7501  Definition.

    Facilities project, as used in this subpart, means a Government 
project to provide, modernize, or replace real property for use by a 
contractor in performing a Government contract or subcontract.



237.7502  Policy.

    (a) Comply with DoD Directive 4275.5, Acquisition and Management of 
Industrial Resources, in processing requests for facilities projects.
    (b) Departments and agencies shall submit reports of facilities 
projects to the House and Senate Armed Services Committees--
    (1) At least 30 days before starting facilities projects involving 
real property (10 U.S.C. 2662); and
    (2) In advance of starting construction for a facilities project 
regardless of cost. Use DD Form 1391, FY__ Military Construction Project 
Data, to notify congressional committees of projects that are not 
included in the annual budget.



      Subpart 237.76_Continuation of Essential Contractor Services

    Source: 75 FR 66682, Oct. 29, 2010, unless otherwise noted.



237.7600  Scope.

    This subpart prescribes procedures for the acquisition of essential 
contractor services which support mission-essential functions.



237.7601  Definitions.

    As used in this subpart, essential contractor service and mission-
essential functions are defined in the clause at 252.237-7023, 
Continuation of Essential Contractor Services.



237.7602  Policy.

    (a) Contractors providing services designated as essential 
contractor services shall be prepared to continue providing such 
services, in accordance with the terms and conditions of their 
contracts, during periods of crisis. As a general rule, the designation 
of services as essential contractor services will not apply to an entire 
contract but

[[Page 340]]

will apply only to those service functions that have been specifically 
identified as essential contractor services by the functional commander 
or civilian equivalent.
    (b) Contractors who provide Government-determined essential 
contractor services shall provide a written plan to be incorporated in 
the contract, to ensure the continuation of these services in crisis 
situations. Contracting officers shall consult with a functional manager 
to assess the sufficiency of the contractor-provided written plan. 
Contractors will activate such plans only during periods of crisis, as 
authorized by the contracting officer, who does so at the direction of 
the appropriate functional commander or civilian equivalent.
    (c) The contracting officer shall follow the procedures at PGI 
207.105U(b)(20)(C) in preparing an acquisition plan.



237.7603  Solicitation provision and contract clause.

    (a) Use the clause at 252.237-7023, Continuation of Essential 
Contractor Services in all solicitations and contracts for services that 
are in support of mission-essential functions.
    (b) Use the provision at 252.237-7024, Notice of Continuation of 
Essential Contractor Services in all solicitations for services that 
include the clause 252.237-7023.



        Subpart 237.77_Competition for Religious-Related Services

    Source: 83 FR 16002, Apr. 13, 2018, unless otherwise noted.



237.7700  Scope of subpart.

    This subpart provides policy and guidance for the acquisition of 
religious-related services to be performed on a U.S. military 
installation in accordance with section 898 of the National Defense 
Authorization Act for Fiscal Year 2016 (Pub. L. 114-92).



237.7701  Definition.

    As used in this subpart--
    Nonprofit organization means any organization that is--
    (1) Described in section 501(c) of the Internal Revenue Code of 
1986; and
    (2) Exempt from tax under section 501(a) of that Code.



237.7702  Policy.

    (a) A nonprofit organization shall not be precluded from competing 
for a contract for religious-related services to be performed on a U.S. 
military installation.
    (b) See 219.270 when an acquisition for religious-related services 
to be performed on a U.S. military installation is set aside for any of 
the small business concerns identified in FAR 19.000(a)(3).



PART 239_ACQUISITION OF INFORMATION TECHNOLOGY--Table of Contents



                          Subpart 239.1_General

Sec.
239.001 Applicability.
239.101 Policy.

        Subpart 239.70_Exchange or Sale of Information Technology

239.7001 Policy.

        Subpart 239.71_Security and Privacy for Computer Systems

239.7100 Scope of subpart.
239.7101 Definition.
239.7102 Policy and responsibilities.
239.7102-1 General.
239.7102-2 Compromising emanations--TEMPEST or other standard.
239.7102-3 Information assurance contractor training and certification.
239.7103 Contract clauses.

                        Subpart 239.72_Standards

239.7201 Solicitation requirements.

  Subpart 239.73_Requirements for Information Relating to Supply Chain 
                                  Risk

239.7300 Scope of subpart.
239.7301 Definitions.
239.7302 Applicability.
239.7303 Authorized individuals.
239.7304 Determination and notification.
239.7305 Exclusion and limitation on disclosure.
239.7306 Solicitation provision and contract clause.

               Subpart 239.74_Telecommunications Services

239.7400 Scope.
239.7401 Definitions.

[[Page 341]]

239.7402 Policy.
239.7403-239.7404 [Reserved]
239.7405 Delegated authority for telecommunications resources.
239.7406 Certified cost or pricing data and data other than certified 
          cost or pricing data.
239.7407 Type of contract.
239.7408 Special construction.
239.7408-1 General.
239.7408-2 Applicability of construction labor standards for special 
          construction.
239.7409 Special assembly.
239.7410 Cancellation and termination.
239.7411 Contract clauses.

                     Subpart 239.76_Cloud Computing

239.7600 Scope of subpart.
239.7601 Definitions.
239.7602 Policy and responsibilities.
239.7602-1 General.
239.7602-2 Required storage of data within the United States or outlying 
          areas.
239.7603 Procedures.
239.7604 Solicitation provision and contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36429, July 31, 1991, unless otherwise noted.



                          Subpart 239.1_General



239.001  Applicability.

    Notwithstanding FAR 39.001, this part applies to acquisitions of 
information technology, including national security systems.

[80 FR 67251, Oct. 30, 2015]



239.101  Policy.

    (1) A contracting officer may not enter into a contract in excess of 
the simplified acquisition threshold for information technology products 
or services that are not commercial items unless the head of the 
contracting activity determines in writing that no commercial items are 
suitable to meet the agency's needs, as determined through the use of 
market research appropriate to the circumstances (see FAR 10.001(a)(3)) 
(section 855 of the National Defense Authorization Act for Fiscal Year 
2016 (Pub. L. 114-92)).
    (2) See subpart 208.74 when acquiring commercial software or 
software maintenance.
    (3) See 227.7202 for policy on the acquisition of commercial 
computer software and commercial computer software documentation.

[83 FR 4445, Jan. 31, 2018]



        Subpart 239.70_Exchange or Sale of Information Technology



239.7001  Policy.

    Agencies shall follow the procedures in DoD Manual 4140.01, Volume 
9, DoD Supply Chain Materiel Management Procedures: Materiel Programs, 
when considering the exchange or sale of Government-owned information 
technology.

[71 FR 39010, July 11, 2006, as amended at 82 FR 61481, Dec. 28, 2017]



        Subpart 239.71_Security and Privacy for Computer Systems

    Source: 69 FR 35534, June 25, 2004, unless otherwise noted.



239.7100  Scope of subpart.

    This subpart includes information assurance and Privacy Act 
considerations. Information assurance requirements are in addition to 
provisions concerning protection of privacy of individuals (see FAR 
Subpart 24.1).



239.7101  Definition.

    Information assurance, as used in this subpart, means measures that 
protect and defend information, that is entered, processed, transmitted, 
stored, retrieved, displayed, or destroyed, and information systems, by 
ensuring their availability, integrity, authentication, confidentiality, 
and non-repudiation. This includes providing for the restoration of 
information systems by incorporating protection, detection, and reaction 
capabilities.



239.7102  Policy and responsibilities.



239.7102-1  General.

    (a) Agencies shall ensure that information assurance is provided for 
information technology in accordance with current policies, procedures, 
and statutes, to include--
    (1) The National Security Act;
    (2) The Clinger-Cohen Act;

[[Page 342]]

    (3) National Security Telecommunications and Information Systems 
Security Policy No. 11;
    (4) Federal Information Processing Standards;
    (5) DoD Directive 8500.1, Information Assurance;
    (6) DoD Instruction 8500.2, Information Assurance Implementation;
    (7) DoD Directive 8140.01, Cyberspace Workforce Management; and
    (8) DoD Manual 8570.01-M, Information Assurance Workforce 
Improvement Program.
    (b) For all acquisitions, the requiring activity is responsible for 
providing to the contracting officer--
    (1) Statements of work, specifications, or statements of objectives 
that meet information assurance requirements as specified in paragraph 
(a) of this subsection;
    (2) Inspection and acceptance contract requirements; and
    (3) A determination as to whether the information technology 
requires protection against compromising emanations.

[69 FR 35534, June 25, 2004, as amended at 73 FR 1829, Jan. 10, 2008; 75 
FR 34946, June 21, 2010; 80 FR 56930, Sept. 21, 2015]



239.7102-2  Compromising emanations--TEMPEST or other standard.

    For acquisitions requiring information assurance against 
compromising emanations, the requiring activity is responsible for 
providing to the contracting officer--
    (a) The required protections, i.e., an established National TEMPEST 
standard (e.g., NSTISSAM TEMPEST 1-92) or a standard used by other 
authority;
    (b) The required identification markings to include markings for 
TEMPEST or other standard, certified equipment (especially if to be 
reused);
    (c) Inspection and acceptance requirements addressing the validation 
of compliance with TEMPEST or other standards; and
    (d) A date through which the accreditation is considered current for 
purposes of the proposed contract.

[69 FR 35534, June 25, 2004, as amended at 84 FR 58337, Oct. 31, 2019]



239.7102-3  Information assurance contractor training and certification.

    (a) For acquisitions that include information assurance functional 
services for DoD information systems, or that require any appropriately 
cleared contractor personnel to access a DoD information system to 
perform contract duties, the requiring activity is responsible for 
providing to the contracting officer--(1) A list of information 
assurance functional responsibilities for DoD information systems by 
category (e.g., technical or management) and level (e.g., computing 
environment, network environment, or enclave); and
    (2) The information assurance training, certification, certification 
maintenance, and continuing education or sustainment training required 
for the information assurance functional responsibilities.
    (b) After contract award, the requiring activity is responsible for 
ensuring that the certifications and certification status of all 
contractor personnel performing information assurance functions as 
described in DoD 8570.01-M, Information Assurance Workforce Improvement 
Program, are in compliance with the manual and are identified, 
documented, and tracked.
    (c) The responsibilities specified in paragraphs (a) and (b) of this 
section apply to all DoD information assurance duties supported by a 
contractor, whether performed full-time or part-time as additional or 
embedded duties, and when using a DoD contract, or a contract or 
agreement administered by another agency (e.g., under an interagency 
agreement).
    (d) See PGI 239.7102-3 for guidance on documenting and tracking 
certification status of contractor personnel, and for additional 
information regarding the requirements of DoD 8570.01-M.

[73 FR 1829, Jan. 10, 2008]



239.7103  Contract clauses.

    (a) Use the clause at 252.239-7000, Protection Against Compromising 
Emanations, in solicitations and contracts involving information 
technology that requires protection against compromising emanations.

[[Page 343]]

    (b) Use the clause at 252.239-7001, Information Assurance Contractor 
Training and Certification, in solicitations and contracts involving 
contractor performance of information assurance functions as described 
in DoD 8570.01-M.

[73 FR 1829, Jan. 10, 2008]



                        Subpart 239.72_Standards



239.7201  Solicitation requirements.

    Contracting officers shall ensure that all applicable Federal 
Information Processing Standards are incorporated into solicitations.

[71 FR 39011, July 11, 2006]



  Subpart 239.73_Requirements for Information Relating to Supply Chain 
                                  Risk

    Source: 78 FR 69271, Nov. 18, 2013, unless otherwise noted.



239.7300  Scope of subpart.

    This subpart implements 10 U.S.C. 2339a and elements of DoD 
Instruction 5200.44, Protection of Mission Critical Functions to Achieve 
Trusted Systems and Networks (TSN), at https://www.esd.whs.mil/ Portals/
54/Documents/ DD/issuances/ dodi/520044p.pdf?ver=2 018-11-08-075800-903.

[84 FR 4369, Feb. 15, 2019]



239.7301  Definitions.

    As used in this subpart--
    Covered item of supply means an item of information technology that 
is purchased for inclusion in a covered system, and the loss of 
integrity of which could result in a supply chain risk for a covered 
system (see 10 U.S.C. 2339a).
    Covered system means a national security system, as that term is 
defined at 44 U.S.C. 3552(b) (see 10 U.S.C. 2339a). It is any 
information system, including any telecommunications system, used or 
operated by an agency or by a contractor of an agency, or other 
organization on behalf of an agency--
    (1) The function, operation, or use of which--
    (i) Involves intelligence activities;
    (ii) Involves cryptologic activities related to national security;
    (iii) Involves command and control of military forces;
    (iv) Involves equipment that is an integral part of a weapon or 
weapons system; or
    (v) Is critical to the direct fulfillment of military or 
intelligence missions but this does not include a system that is to be 
used for routine administrative and business applications, including 
payroll, finance, logistics, and personnel management applications; or
    (2) Is protected at all times by procedures established for 
information that have been specifically authorized under criteria 
established by an Executive order or an Act of Congress to be kept 
classified in the interest of national defense or foreign policy.
    Information technology (see 40 U.S.C 11101(6)) means, in lieu of the 
definition at FAR 2.1, any equipment, or interconnected system(s) or 
subsystem(s) of equipment, that is used in the automatic acquisition, 
storage, analysis, evaluation, manipulation, management, movement, 
control, display, switching, interchange, transmission, or reception of 
data or information by the agency.
    (1) For purposes of this definition, equipment is used by an agency 
if the equipment is used by the agency directly or is used by a 
contractor under a contract with the agency that requires--
    (i) Its use; or
    (ii) To a significant extent, its use in the performance of a 
service or the furnishing of a product.
    (2) The term ``information technology'' includes computers, 
ancillary equipment (including imaging peripherals, input, output, and 
storage devices necessary for security and surveillance), peripheral 
equipment designed to be controlled by the central processing unit of a 
computer, software, firmware and similar procedures, services (including 
support services), and related resources.
    (3) The term ``information technology'' does not include any 
equipment acquired by a contractor incidental to a contract.
    Supply chain risk means the risk that an adversary may sabotage, 
maliciously introduce unwanted function,

[[Page 344]]

or otherwise subvert the design, integrity, manufacturing, production, 
distribution, installation, operation, or maintenance of a covered 
system so as to surveil, deny, disrupt, or otherwise degrade the 
function, use, or operation of such system (see 10 U.S.C. 2339a).

[78 FR 69271, Nov. 18, 2013. Redesignated and amended at 80 FR 67251, 
Oct. 30, 2015; 83 FR 15995, Apr. 13, 2018; 84 FR 4369, Feb. 15, 2019]



239.7302  Applicability.

    Notwithstanding FAR 39.001, this subpart shall be applied to 
acquisition of information technology for covered systems (see 10 U.S.C. 
2339a), for procurements involving--
    (a) A source selection for a covered system or a covered item of 
supply involving either a performance specification (see 10 U.S.C. 
2305(a)(1)(C)(ii)), or an evaluation factor (see 10 U.S.C. 
2305(a)(2)(A)), relating to supply chain risk;
    (b) The consideration of proposals for and issuance of a task or 
delivery order for a covered system or a covered item of supply where 
the task or delivery order contract concerned includes a requirement 
relating to supply chain risk (see 10 U.S.C. 2304c(d)(3) and FAR 
16.505(b)(1)(iv)(D)); or
    (c) Any contract action involving a contract for a covered system or 
a covered item of supply where such contract includes a requirement 
relating to supply chain risk.

[78 FR 69271, Nov. 18, 2013. Redesignated and amended at 80 FR 67251, 
Oct. 30, 2015; 84 FR 4370, Feb. 15, 2019]



239.7303  Authorized individuals.

    (a) Subject to 239.7304, the following individuals are authorized to 
take the actions authorized by 239.7305:
    (1) The Secretary of Defense.
    (2) The Secretary of the Army.
    (3) The Secretary of the Navy.
    (4) The Secretary of the Air Force.
    (b) The individuals authorized at paragraph (a) may not delegate the 
authority to take the actions at 239.7305 or the responsibility for 
making the determination required by 239.7304 to an official below the 
level of--
    (1) For the Department of Defense, the Under Secretary of Defense 
for Acquisition and Sustainment; and,
    (2) For the military departments, the service acquisition executive 
for the department concerned.

[78 FR 69271, Nov. 18, 2013, as amended at 84 FR 4370, Feb. 15, 2019]



239.7304  Determination and notification.

    The individuals authorized in 239.7303 may exercise the authority 
provided in 239.7305 only after--
    (a) Obtaining a joint recommendation by the Under Secretary of 
Defense for Acquisition and Sustainment and the Chief Information 
Officer of the Department of Defense, on the basis of a risk assessment 
by the Under Secretary of Defense for Intelligence, that there is a 
significant supply chain risk to a covered system;
    (b) Making a determination in writing, in unclassified or classified 
form, with the concurrence of the Under Secretary of Defense for 
Acquisition and Sustainment, that--
    (1) Use of the authority in 239.7305(a), (b), or (c) is necessary to 
protect national security by reducing supply chain risk;
    (2) Less intrusive measures are not reasonably available to reduce 
such supply chain risk; and
    (3) In a case where the individual authorized in 239.7303 plans to 
limit disclosure of information under 239.7305(d), the risk to national 
security due to the disclosure of such information outweighs the risk 
due to not disclosing such information; and
    (c)(1) Providing a classified or unclassified notice of the 
determination made under paragraph (b) of this section--
    (i) In the case of a covered system included in the National 
Intelligence Program or the Military Intelligence Program, to the Select 
Committee on Intelligence of the Senate, the Permanent Select Committee 
on Intelligence of the House of Representatives, and the congressional 
defense committees; and
    (ii) In the case of a covered system not otherwise included in 
paragraph (a) of this section, to the congressional defense committees; 
and
    (2) The notice shall include--
    (i) The following information (see 10 U.S.C. 2304(f)(3)):

[[Page 345]]

    (A) A description of the agency's needs.
    (B) An identification of the statutory exception from the 
requirement to use competitive procedures and a demonstration, based on 
the proposed contractor's qualifications or the nature of the 
procurement, of the reasons for using that exception.
    (C) A determination that the anticipated cost will be fair and 
reasonable.
    (D) A description of the market survey conducted or a statement of 
the reasons a market survey was not conducted.
    (E) A listing of the sources, if any, that expressed in writing an 
interest in the procurement.
    (F) A statement of the actions, if any, the agency may take to 
remove or overcome any barrier to competition before a subsequent 
procurement for such needs;
    (ii) The joint recommendation by the Under Secretary of Defense for 
Acquisition and Sustainment and the Chief Information Officer of the 
Department of Defense as specified in paragraph (a) of this section;
    (iii) A summary of the risk assessment by the Under Secretary of 
Defense for Intelligence that serves as the basis for the joint 
recommendation specified in paragraph (a) of this section; and
    (iv) A summary of the basis for the determination, including a 
discussion of less intrusive measures that were considered and why they 
were not reasonably available to reduce supply chain risk.

[78 FR 69271, Nov. 18, 2013, as amended at 80 FR 67251, Oct. 30, 2015; 
84 FR 4370, Feb. 15, 2019]



239.7305  Exclusion and limitation on disclosure.

    Subject to 239.7304, the individuals authorized in 239.7303 may, in 
the course of procuring 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--
    (a) Exclude a source that fails to meet qualification standards 
established in accordance with the requirements of 10 U.S.C. 2319, for 
the purpose of reducing supply chain risk in the acquisition of covered 
systems;
    (b) Exclude a source that fails to achieve an acceptable rating with 
regard to an evaluation factor providing for the consideration of supply 
chain risk in the evaluation of proposals for the award of a contract or 
the issuance of a task or delivery order;
    (c) Withhold consent for a contractor to subcontract with a 
particular source or direct a contractor for a covered system to exclude 
a particular source from consideration for a subcontract under the 
contract; and
    (d) Limit, notwithstanding any other provision of law, in whole or 
in part, the disclosure of information relating to the basis for 
carrying out any of the actions authorized by paragraphs (a) through (c) 
of this section, and if such disclosures are so limited--
    (1) No action undertaken by the individual authorized under such 
authority shall be subject to review in a bid protest before the 
Government Accountability Office or in any Federal court; and
    (2) The authorized individual shall--
    (i) Notify appropriate parties of action taken under paragraphs (a) 
through (d) of this section and the basis for such action only to the 
extent necessary to effectuate the action;
    (ii) Notify other Department of Defense components or other Federal 
agencies responsible for procurements that may be subject to the same or 
similar supply chain risk, in a manner and to the extent consistent with 
the requirements of national security; and
    (iii) Ensure the confidentiality of any such notifications.

[78 FR 69271, Nov. 18, 2013, as amended at 80 FR 67251, Oct. 30, 2015]



239.7306  Solicitation provision and contract clause.

    (a) Insert the provision at 252.239-7017, Notice of Supply Chain 
Risk, in solicitations, including solicitations using FAR part 12 
procedures for the acquisition of commercial items, for information 
technology, whether acquired 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 at 239.7301.

[[Page 346]]

    (b) Insert the clause at 252.239-7018, Supply Chain Risk, in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, for 
information technology, whether acquired 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 at 239.7301.

[80 FR 67252, Oct. 30, 2015]



               Subpart 239.74_Telecommunications Services



239.7400  Scope.

    This subpart prescribes policy and procedures for acquisition of 
telecommunications services and maintenance of telecommunications 
security. Telecommunications services meet the definition of information 
technology.

[62 FR 1060, Jan. 8, 1997, as amended at 71 FR 39011, July 11, 2006]



239.7401  Definitions.

    As used in this subpart--
    ) Common carrier means any entity engaged in the business of 
providing telecommunications services which are regulated by the Federal 
Communications Commission or other governmental body.
    Foreign carrier means any person, partnership, association, joint-
stock company, trust, governmental body, or corporation not subject to 
regulation by a U.S. governmental regulatory body and not doing business 
as a citizen of the United States, providing telecommunications services 
outside the territorial limits of the United States.
    Governmental regulatory body means the Federal Communications 
Commission, any statewide regulatory body, or any body with less than 
statewide jurisdiction when operating under the State authority. The 
following are not ``governmental regulatory bodies''--
    (1) Regulatory bodies whose decisions are not subject to judicial 
appeal; and
    (2) Regulatory bodies which regulate a company owned by the same 
entity which creates the regulatory body.
    Long-haul telecommunications means all general and special purpose 
long-distance telecommunications facilities and services (including 
commercial satellite services, terminal equipment and local circuitry 
supporting the long-haul service) to or from the post, camp, base, or 
station switch and/or main distribution frame (except for trunk lines to 
the first-serving commercial central office for local communications 
services).
    Noncommon carrier means any entity other than a common carrier 
offering telecommunications facilities, services, or equipment for 
lease.
    Securing, sensitive information, and telecommunications systems have 
the meaning given in the clause at 252.239-7016, Telecommunications 
Security Equipment, Devices, Techniques, and Services.
    Telecommunications means the transmission, emission, or reception of 
signals, signs, writing, images, sounds, or intelligence of any nature, 
by wire, cable, satellite, fiber optics, laser, radio, or any other 
electronic, electric, electromagnetic, or acoustically coupled means.
    Telecommunications services means the services acquired, whether by 
lease or contract, to meet the Government's telecommunications needs. 
The term includes the telecommunications facilities and equipment 
necessary to provide such services.

[56 FR 36429, July 31, 1991, as amended at 70 FR 67918, Nov. 9, 2005; 81 
FR 28733, May 10, 2016]



239.7402  Policy.

    (a) Acquisition. DoD policy is to acquire telecommunications 
services from common and noncommon telecommunications carriers--
    (1) On a competitive basis, except when acquisition using other than 
full and open competition is justified;
    (2) Recognizing the regulations, practices, and decisions of the 
Federal Communications Commission (FCC) and other governmental 
regulatory bodies on rates, cost principles, and accounting practices; 
and
    (3) Making provision in telecommunications services contracts for 
adoption of--
    (i) FCC approved practices; or

[[Page 347]]

    (ii) The generally accepted practices of the industry on those 
issues concerning common carrier services where--
    (A) The governmental regulatory body has not expressed itself;
    (B) The governmental regulatory body has declined jurisdiction; or
    (C) There is no governmental regulatory body to decide.
    (b) Security. (1) The contracting officer shall ensure, in 
accordance with agency procedures, that purchase requests identify--
    (i) The nature and extent of information requiring security during 
telecommunications;
    (ii) The requirement for the contractor to secure telecommunications 
systems;
    (iii) The telecommunications security equipment, devices, 
techniques, or services with which the contractor's telecommunications 
security equipment, devices, techniques, or services must be 
interoperable; and
    (iv) The approved telecommunications security equipment, devices, 
techniques, or services, such as found in the National Security Agency's 
Information Systems Security Products and Services Catalogue.
    (2) Contractors and subcontractors shall provide all 
telecommunications security techniques or services required for 
performance of Government contracts.
    (3) Except as provided in paragraph (b)(4) of this section, 
contractors and subcontractors shall normally provide all required 
property, to include telecommunications security equipment or related 
devices, in accordance with FAR 45.102. In some cases, such as for 
communications security (COMSEC) equipment designated as controlled 
cryptographic item (CCI), contractors or subcontractors must also meet 
ownership eligibility conditions.
    (4) The head of the agency may authorize provision of the necessary 
property as Government-furnished property or acquisition as contractor-
acquired property, as long as conditions of FAR 45.102(b) are met.
    (c) Foreign carriers. For information on contracting with foreign 
carriers, see PGI 239.7402(c).

[56 FR 36429, July 31, 1991, as amended at 56 FR 67220, Dec. 30, 1991; 
62 FR 1060, Jan. 8, 1997; 71 FR 39011, July 11, 2006; 74 FR 37647, July 
29, 2009]



239.7403-239.7404  [Reserved]



239.7405  Delegated authority for telecommunications resources.

    The contracting officer may enter into a telecommunications service 
contract on a month-to-month basis or for any longer period or series of 
periods, not to exceed a total of 10 years. See PGI 239.7405 for 
documents relating to this contracting authority, which the General 
Services Administration has delegated to DoD.

[70 FR 67918, Nov. 9, 2005]



239.7406  Certified cost or pricing data and data other than 
certified cost or pricing data.

    (a) Common carriers are not required to submit certified cost or 
pricing data before award of contracts for tariffed services. Rates or 
preliminary estimates quoted by a common carrier for tariffed 
telecommunications services are considered to be prices set by 
regulation within the provisions of 10 U.S.C. 2306a. This is true even 
if the tariff is set after execution of the contract.
    (b) Rates or preliminary estimates quoted by a common carrier for 
nontariffed telecommunications services or by a noncommon carrier for 
any telecommunications service are not considered prices set by law or 
regulation.
    (c) Contracting officers shall obtain sufficient data to determine 
that the prices are reasonable in accordance with FAR 15.403-3 or 
15.403-4. See PGI 239.7406 for examples of instances where additional 
data may be necessary to determine price reasonableness.

[77 FR 76940, Dec. 31, 2012]



239.7407  Type of contract.

    When acquiring telecommunications services, the contracting officer 
may use a basic agreement (see FAR 16.702) in conjunction with 
communication

[[Page 348]]

service authorizations. When using this method, follow the procedures at 
PGI 239.7407.

[71 FR 27646, May 12, 2006]



239.7408  Special construction.



239.7408-1  General.

    (a) Special construction normally involves a common carrier giving a 
special service or facility related to the performance of the basic 
telecommunications service requirements.
    This may include--
    (1) Moving or relocating equipment;
    (2) Providing temporary facilities;
    (3) Expediting provision of facilities; or
    (4) Providing specially constructed channel facilities to meet 
Government requirements.
    (b) Use this subpart instead of FAR part 36 for acquisition of 
``special construction.''
    (c) Special construction costs may be--
    (1) A contingent liability for using telecommunications services for 
a shorter time than the minimum to reimburse the contractor for 
unamortized nonrecoverable costs. These costs are usually expressed in 
terms of a termination liability, as provided in the contract or by 
tariff;
    (2) A onetime special construction charge;
    (3) Recurring charges for constructed facilities;
    (4) A minimum service charge;
    (5) An expediting charge; or
    (6) A move or relocation charge.
    (d) When a common carrier submits a proposal or quotation which has 
special construction requirements, the contracting officer shall require 
a detailed special construction proposal. Analyze all special 
construction proposals to--
    (1) Determine the adequacy of the proposed construction;
    (2) Disclose excessive or duplicative construction; and
    (3) When different forms of charge are possible, provide for the 
form of charge most advantageous to the Government.
    (e) When possible, analyze and approve special construction charges 
before receiving the service. Impose a ceiling on the special 
construction costs before authorizing the contractor to proceed, if 
prior approval is not possible. The contracting officer must approve 
special construction charges before final payment.

[56 FR 36429, July 31, 1991, as amended at 71 FR 39011, July 11, 2006]



239.7408-2  Applicability of construction labor standards for special
construction.

    (a) The construction labor standards in FAR Subpart 22.4 ordinarily 
do not apply to special construction. However, if the special 
construction includes construction, alteration, or repair (as defined in 
FAR 22.401) of a public building or public work, the construction labor 
standards may apply. Determine applicability under FAR 22.402.
    (b) Each CSA or other type contract which is subject to construction 
labor standards under FAR 22.402 shall cite that fact.

[56 FR 36429, July 31, 1991, as amended at 71 FR 39011, July 11, 2006]



239.7409  Special assembly.

    (a) Special assembly is the designing, manufacturing, arranging, 
assembling, or wiring of equipment to provide telecommunications 
services that cannot be provided with general use equipment.
    (b) Special assembly rates and charges shall be based on estimated 
costs. The contracting officer should negotiate special assembly rates 
and charges before starting service. When it is not possible to 
negotiate in advance, use provisional rates and charges subject to 
adjustment, until final rates and charges are negotiated. The CSAs 
authorizing the special assembly shall be modified to reflect negotiated 
final rates and charges.

[56 FR 36429, July 31, 1991, as amended at 71 FR 39011, July 11, 2006]



239.7410  Cancellation and termination.

    (a)(1) Cancellation is stopping a requirement after placing of an 
order but before service starts.
    (2) Termination is stopping a requirement after placing an order and 
after service starts.
    (b) Determine cancellation or termination charges under the 
provisions of

[[Page 349]]

the applicable tariff or agreement/contract.



239.7411  Contract clauses.

    (a) In addition to other appropriate FAR and DFARS clauses, use the 
following clauses in solicitations, contracts, and basic agreements for 
telecommunications services. Modify the clauses only if necessary to 
meet the requirements of a governmental regulatory agency.
    (1) 252.239-7002, Access.
    (2) 252.239-7004, Orders for Facilities and Services.
    (3) 252.239-7007, Cancellation or Termination of Orders.
    (b) Use the following clauses in solicitations, contracts, and basic 
agreements for telecommunications services when the acquisition includes 
or may include special construction. Modify the clauses only if 
necessary to meet the requirements of a governmental regulatory agency--
    (1) 252.239-7011, Special Construction and Equipment Charges; and
    (2) 252.239-7012, Title to Telecommunication Facilities and 
Equipment.
    (c) Use the basic or alternate of the clause at 252.239-7013, Term 
of Agreement and Continuation of Services, in basic agreements for 
telecommunications services.
    (1) Use the basic clause in basic agreements that do not supersede 
an existing basic agreement with the contractor.
    (2) Use the alternate I clause in basic agreements that supersede an 
existing basic agreement with the contractor. Complete paragraph (c)(1) 
of the clause with the basic agreement number, date, and contacting 
office that issued the basic agreement being superseded.
    (d) Use the clause at 252.239-7016, Telecommunications Security 
Equipment, Devices, Techniques, and Services, in solicitations and 
contracts when performance of a contract requires secure 
telecommunications.

[56 FR 36429, July 31, 1991, as amended at 57 FR 42632, Sept. 15, 1992; 
62 FR 40473, July 29, 1997; 70 FR 67919, Nov. 9, 2005; 71 FR 39011, July 
11, 2006; 84 FR 48497, 48498, Sept. 13, 2019; 84 FR 58338, Oct. 31, 
2019; 86 FR 3837, Jan. 15, 2021]



                     Subpart 239.76_Cloud Computing

    Source: 80 FR 51743, Aug. 26, 2015, unless otherwise noted.



239.7600  Scope of subpart.

    This subpart prescribes policies and procedures for the acquisition 
of cloud computing services.



239.7601  Definitions.

    As used in this subpart--
    Authorizing official, as described in DoD Instruction 8510.01, Risk 
Management Framework (RMF) for DoD Information Technology (IT), means 
the senior Federal official or executive with the authority to formally 
assume responsibility for operating an information system at an 
acceptable level of risk to organizational operations (including 
mission, functions, image, or reputation), organizational assets, 
individuals, other organizations, and the Nation.
    Cloud computing means a model for enabling ubiquitous, convenient, 
on-demand network access to a shared pool of configurable computing 
resources (e.g., networks, servers, storage, applications, and services) 
that can be rapidly provisioned and released with minimal management 
effort or service provider interaction. This includes other commercial 
terms, such as on-demand self-service, broad network access, resource 
pooling, rapid elasticity, and measured service. It also includes 
commercial offerings for software-as-a-service, infrastructure-as-a-
service, and platform-as-a-service.
    Government data means any information, document, media, or machine 
readable material regardless of physical form or characteristics, that 
is created or obtained by the Government in the course of official 
Government business.
    Government-related data means any information, document, media, or 
machine readable material regardless of physical form or characteristics 
that is created or obtained by a contractor through the storage, 
processing, or communication of Government data. This does not include a 
contractor's business records (e.g., financial records, legal records, 
etc.) or data such as operating procedures, software coding, or

[[Page 350]]

algorithms that are not uniquely applied to the Government data.
    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 information is 
recorded, stored, or printed within an information system.

[80 FR 51743, Aug. 26, 2015, as amended at 81 FR 72999, Oct. 21, 2016]



239.7602  Policy and responsibilities.



239.7602-1  General.

    (a) Generally, DoD shall acquire cloud computing services using 
commercial terms and conditions that are consistent with Federal law, 
and an agency's needs, including those requirements specified in this 
subpart. Some examples of commercial terms and conditions are license 
agreements, End User License Agreements (EULAs), Terms of Service (TOS), 
or other similar legal instruments or agreements. Contracting officers 
shall incorporate any applicable service provider terms and conditions 
into the contract by attachment or other appropriate mechanism. 
Contracting officers shall carefully review commercial terms and 
conditions and consult counsel to ensure these are consistent with 
Federal law, regulation, and the agency's needs.
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
contracting officer shall only award a contract to acquire cloud 
computing services from a cloud service provider (e.g., contractor or 
subcontractor, regardless of tier) that has been granted provisional 
authorization by Defense Information Systems Agency, at the level 
appropriate to the requirement, to provide the relevant cloud computing 
services in accordance with the Cloud Computing Security Requirements 
Guide (SRG) (version in effect at the time the solicitation is issued or 
as authorized by the contracting officer) found at http://iase.disa.mil/ 
cloud_security/ Pages/index.aspx.
    (2) The contracting officer may award a contract to acquire cloud 
computing services from a cloud service provider that has not been 
granted provisional authorization when--
    (i) The requirement for a provisional authorization is waived by the 
DoD Chief Information Officer; or
    (ii) The cloud computing service requirement is for a private, on-
premises version that will be provided from U.S. Government facilities. 
Under this circumstance, the cloud service provider must obtain a 
provisional authorization prior to operational use.
    (c) When contracting for cloud computing services, the contracting 
officer shall ensure the following information is provided by the 
requiring activity:
    (1) Government data and Government-related data descriptions.
    (2) Data ownership, licensing, delivery and disposition instructions 
specific to the relevant types of Government data and Government-related 
data (e.g., DD Form 1423, Contract Data Requirements List; work 
statement task; line item). Disposition instructions shall provide for 
the transition of data in commercially available, or open and non-
proprietary format (and for permanent records, in accordance with 
disposition guidance issued by National Archives and Record 
Administration).
    (3) Appropriate requirements to support applicable inspection, 
audit, investigation, or other similar authorized activities specific to 
the relevant types of Government data and Government-related data, or 
specific to the type of cloud computing services being acquired.
    (4) Appropriate requirements to support and cooperate with 
applicable system-wide search and access capabilities for inspections, 
audits, investigations, , and similar authorized activities.

[80 FR 51743, Aug. 26, 2015, as amended at 81 FR 72999, Oct. 21, 2016]



239.7602-2  Required storage of data within the United States 
or outlying areas.

    (a) Cloud computing service providers are required to maintain 
within the 50 states, the District of Columbia,

[[Page 351]]

or outlying areas of the United States, all Government data that is not 
physically located on DoD premises, unless otherwise authorized by the 
authorizing official, as described in DoD Instruction 8510.01, in 
accordance with the SRG.
    (b) The contracting officer shall provide written notification to 
the contractor when the contractor is permitted to maintain Government 
data at a location outside the 50 States, the District of Columbia, and 
outlying areas of the United States.

[80 FR 51743, Aug. 26, 2015, as amended at 81 FR 72999, Oct. 21, 2016]



239.7603  Procedures.

    Follow the procedures relating to cloud computing at PGI 239.7603.

[80 FR 74695, Nov. 30, 2015]



239.7604  Solicitation provision and contract clause.

    (a) Use the provision at 252.239-7009, Representation of Use of 
Cloud Computing, in solicitations, including solicitations using FAR 
part 12 procedures for the acquisition of commercial item, for 
information technology services.
    (b) Use the clause at 252.239-7010, Cloud Computing Services, in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial item, for 
information technology services.

[80 FR 51743, Aug. 26, 2015. Redesignated at 80 FR 74695, Nov. 30, 2015]



PART 241_ACQUISITION OF UTILITY SERVICES--Table of Contents



                          Subpart 241.1_General

Sec.
241.101 Definitions.
241.102 Applicability.
241.103 Statutory and delegated authority.

                Subpart 241.2_Acquiring Utility Services

241.201 Policy.
241.202 Procedures.
241.205 Separate contracts.

        Subpart 241.5_Solicitation Provision and Contract Clauses

241.501 Solicitation provision and contract clauses.
241.501-70 Additional clauses.

    Authority: 48 U.S.C. 421 and 48 CFR Chapter 1.

    Source: 63 FR 11539, Mar. 9, 1998, unless otherwise noted.



                          Subpart 241.1_General



241.101  Definitions.

    As used in this part--
    Independent regulatory body means the Federal Energy Regulatory 
Commission, a state-wide agency, or an agency with less than state-wide 
jurisdiction when operating pursuant to state authority. The body has 
the power to fix, establish, or control the rates and services of 
utility suppliers.
    Nonindependent regulatory body means a body that regulates a utility 
supplier which is owned or operated by the same entity that created the 
regulatory body, e.g., a municipal utility.
    Regulated utility supplier means a utility supplier regulated by an 
independent regulatory body.
    Service power procurement officer means for the--
    (1) Army, the Chief of Engineers;
    (2) Navy, the Commander, Naval Facilities Engineering Command;
    (3) Air Force, the head of a contracting activity; and
    (4) Defense Logistics Agency, the head of a contracting activity.

[63 FR 11539, Mar. 9, 1998, as amended at 71 FR 3417, Jan. 23, 2006]



241.102  Applicability.

    (a) This part applies to purchase of utility services from 
nonregulated and regulated utility suppliers. It includes the 
acquisition of liquefied petroleum gas as a utility service when 
purchased from regulated utility suppliers.
    (b)(7) This part does not apply to third party financed projects. 
However, it may be used for any purchased utility services directly 
resulting from such projects, including those authorized by--
    (A) 10 U.S.C. 2394 for energy, fuels, and energy production 
facilities for periods not to exceed 30 years;

[[Page 352]]

    (B) 10 U.S.C. 2394a for renewable energy for periods not to exceed 
25 years;
    (C) 10 U.S.C. 2689 for geothermal resources that result in energy 
production facilities;
    (D) 10 U.S.C. 2809 for potable and waste water treatment plants for 
periods not to exceed 32 years; and
    (E) 10 U.S.C. 2812 for lease/purchase of energy production 
facilities for periods not to exceed 32 years.



241.103  Statutory and delegated authority.

    (1) The contracting officer may enter into a utility service 
contract related to the conveyance of a utility system for a period not 
to exceed 50 years (10 U.S.C. 2688(d)(2)).
    (2) The contracting officer may enter into an energy savings 
contract under 10 U.S.C. 2913 for a period not to exceed 25 years.
    (3) See 217.174 for authority to enter into multiyear contracts for 
electricity from renewable energy sources.
    (4) See PGI 241.103 for statutory authorities and maximum contract 
periods for utility and energy contracts.

[71 FR 3417, Jan. 23, 2006, as amended at 74 FR 52896, Oct. 15, 2009; 75 
FR 34943, June 21, 2010; 76 FR 58155, Sept. 20, 2011; 81 FR 28734, May 
10, 2016]



                Subpart 241.2_Acquiring Utility Services



241.201  Policy.

    (1) DoD, as a matter of comity, generally complies with the current 
regulations, practices, and decisions of independent regulatory bodies. 
This policy does not extend to nonindependent regulatory bodies.
    (2) Purchases of utility services outside the United States may 
use--
    (i) Formats and technical provisions consistent with local practice; 
and
    (ii) Dual language forms and contracts.
    (3) Rates established by an independent regulatory body--
    (i) Are considered ``prices set by law or regulation'';
    (ii) Are sufficient to set prices without obtaining certified cost 
or pricing data (see FAR subpart 15.4); and
    (iii) Are a valid basis on which prices can be determined fair and 
reasonable.
    (4) Compliance with the regulations, practices, and decisions of 
independent regulatory bodies as a matter of comity is not a substitute 
for the procedures at FAR 41.202(a).

[71 FR 3418, Jan. 23, 2006, as amended at 77 FR 76940, Dec. 31, 2012]



241.202  Procedures.

    (1) Connection and service charges. The Government may pay a 
connection charge when required to cover the cost of the necessary 
connecting facilities. A connection charge based on the estimated labor 
cost of installing and removing the facility shall not include salvage 
cost. A lump-sum connection charge shall be no more than the agreed cost 
of the connecting facilities less net salvage. The order of precedence 
for contractual treatment of connection and service charges is--
    (i) No connection charge.
    (ii) Termination liability. Use when an obligation is necessary to 
secure the required services. The obligation must be not more than the 
agreed connection charge, less any net salvage material costs. Use of a 
termination liability instead of a connection charge requires the 
approval of the service power procurement officer or designee.
    (iii) Connection charge, refundable. Use a refundable connection 
charge when the supplier refuses to provide the facilities based on lack 
of capital or published rules which prohibit providing up-front funding. 
The contract should provide for refund of the connection charge within 
five years unless a longer period or omission of the refund requirement 
is authorized by the service power procurement officer or designee.
    (iv) Connection and service charges, nonrefundable. The Government 
may pay certain nonrefundable, nonrecurring charges including service 
initiation charges, a contribution in aid of construction, membership 
fees, and charges required by the supplier's rules and regulations to be 
paid by the customer. If possible, consider sharing with other than 
Government users the use of (and costs for) facilities when large 
nonrefundable charges are required.
    (2) Construction and labor requirements. Follow the procedures at 
PGI

[[Page 353]]

241.202(2) for construction and labor requirements associated with 
connection and service charges.

[71 FR 3417, Jan. 23, 2006]



241.205  Separate contracts.

    Follow the procedures at PGI 241.205 when acquiring utility services 
by separate contract.

[71 FR 3417, Jan. 23, 2006]



        Subpart 241.5_Solicitation Provision and Contract Clauses



241.501  Solicitation provision and contract clauses.

    (d)(1) Use a clause substantially the same as the clause at FAR 
52.241-7, Change in Rates or Terms and Conditions of Service for 
Regulated Services, when the utility services to be provided are subject 
to an independent regulatory body.
    (2) Use a clause substantially the same as the clause at FAR 52.241-
8, Change in Rates or Terms and Conditions of Service for Unregulated 
Services, when the utility services to be provided are not subject to a 
regulatory body or are subject to a nonindependent regulatory body.

[71 FR 3418, Jan. 23, 2006]



241.501-70  Additional clauses.

    (a) If the Government must execute a superseding contract and 
capital credits, connection charge credits, or termination liability 
exist, use the clause at 252.241-7000, Superseding Contract.
    (b) Use the clause at 252.241-70001, Government Access, when the 
clause at FAR 52.241-5, Contractor's Facilities, is used.

[[Page 354]]



                    SUBCHAPTER G_CONTRACT MANAGEMENT





PART 242_CONTRACT ADMINISTRATION AND AUDIT SERVICES--Table of Contents



Sec.
242.002 Interagency agreements.

             Subpart 242.2_Contract Administration Services

242.200-70 Scope of subpart.
242.202 Assignment of contract administration.

         Subpart 242.3_Contract Administration Office Functions

242.301 General.
242.302 Contract administration functions.

                   Subpart 242.5_Postaward Orientation

242.503 Postaward conferences.
242.503-2 Post-award conference procedure.

       Subpart 242.6_Corporate Administrative Contracting Officer

242.602 Assignment and location.

                    Subpart 242.7_Indirect Cost Rates

242.705 Final indirect cost rates.
242.705-1 Contracting officer determination procedure.
242.705-2 Auditor determination procedure.
242.771 Independent research and development and bid and proposal costs.
242.771-1 Scope.
242.771-2 Policy.
242.771-3 Responsibilities.

                   Subpart 242.8_Disallowance of Costs

242.803 Disallowing costs after incurrence.

          Subpart 242.11_Production Surveillance and Reporting

242.1104 Surveillance requirements.
242.1105 Assignment of criticality designator.
242.1106 Reporting requirements.
242.1107 Contract clause.

          Subpart 242.12_Novation and Change-of-Name Agreements

242.1203 Processing agreements.
242.1204 Agreement to recognize a successor in interest (novation 
          agreement).

            Subpart 242.15_Contractor Performance Information

242.1502 Policy.

               Subpart 242.70_Contractor Business Systems

242.7000 Contractor business system deficiencies.
242.7001 Contract clause.

                    Subpart 242.71_Voluntary Refunds

242.7100 General.

   Subpart 242.72_Contractor Material Management and Accounting System

242.7200 Scope of subpart.
242.7201 Definitions.
242.7202 Policy.
242.7203 Review procedures.
242.7204 Contract clause.

           Subpart 242.73_Contractor Insurance/Pension Review

242.7301 General.
242.7302 Requirements.
242.7303 Responsibilities.

    Subpart 242.74_Technical Representation at Contractor Facilities

242.7400 General.
242.7401 Procedures.

    Subpart 242.75_Contractor Accounting Systems and Related Controls

242.7501 Definitions.
242.7502 Policy.
242.7503 Contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36437, July 31, 1991, unless otherwise noted.



242.002  Interagency agreements.

    (b)(i) DoD requires reimbursement, at a rate set by the Under 
Secretary of Defense (Comptroller/Chief Financial Officer), from non-DoD 
organizations, except for--
    (A) Quality assurance, contract administration, and audit services 
provided under a no-charge reciprocal agreement;

[[Page 355]]

    (B) Services performed under subcontracts awarded by the Small 
Business Administration under FAR subpart 19.8; and
    (C) Quality assurance requests performed for the Canadian Department 
of National Defence and pricing services performed for Public Works and 
Government Services Canada (PWGSC), operating as Public Services and 
Procurment Canada (PSPC).
    (ii) Departments and agencies may request an exception from the 
reimbursement policy in paragraph (b)(i) of this section from the Under 
Secretary of Defense (Comptroller/Chief Financial Officer). A request 
must show that an exception is in the best interest of the Government.
    (iii) Departments and agencies must pay for services performed by 
non-DoD activities, foreign governments, or international organizations, 
unless otherwise provided by reciprocal agreements.
    (S-70)(i) Foreign governments and international organizations may 
request contract administration services on their direct purchases from 
U.S. producers. Direct purchase is the purchase of defense supplies in 
the United States through commercial channels for use by the foreign 
government or international organization.
    (ii) PWGSC, operating as PSPC, is permitted to submit its requests 
for contract administration services directly to the cognizant contract 
administration office.
    (iii) Other foreign governments (including Canadian government 
organizations other than PSPC) and international organizations send 
their requests for contract administration services to the DoD Central 
Control Point (CCP) at the Headquarters, Defense Contract Management 
Agency, International and Federal Business Team. Contract administration 
offices provide services only upon request from the CCP. The CCP shall 
follow the procedures at PGI 242.002(S-70)(iii).

[64 FR 61029, Nov. 9, 1999, as amended at 65 FR 52952, Aug. 31, 2000; 65 
FR 63804, Oct. 25, 2000; 70 FR 67920, Nov. 9, 2005; 83 FR 12681, Mar. 
23, 2018]



             Subpart 242.2_Contract Administration Services

    Source: 64 FR 61029, Nov. 9, 1999, unless otherwise noted.



242.200-70  Scope of subpart.

    This subpart does not address the contract administration role of a 
contracting officer's representative (see 201.602).



242.202  Assignment of contract administration.

    (a)(i) DoD activities shall not retain any contract for 
administration that requires performance of any contract administration 
function at or near contractor facilities, except contracts for--
    (A) The National Security Agency;
    (B) Research and development with universities;
    (C) Flight training;
    (D) Management and professional support services;
    (E) Mapping, charting, and geodesy services;
    (F) Base, post, camp, and station purchases;
    (G) Operation or maintenance of, or installation of equipment at, 
radar or communication network sites;
    (H) Communications services;
    (I) Installation, operation, and maintenance of space-track sensors 
and relays;
    (J) Dependents Medicare program contracts;
    (K) Stevedoring contracts;
    (L) Construction and maintenance of military and civil public works, 
including harbors, docks, port facilities, military housing, development 
of recreational facilities, water resources, flood control, and public 
utilities;
    (M) Architect-engineer services;
    (N) Airlift and sealift services (Air Mobility Command and Military 
Sealift Command may perform contract administration services at 
contractor locations involved solely in performance of airlift or 
sealift contracts);
    (O) Subsistence supplies;
    (P) Ballistic missile sites (contract administration offices may 
perform supporting administration of these contracts at missile 
activation sites during the installation, test, and

[[Page 356]]

checkout of the missiles and associated equipment);
    (Q) Operation and maintenance of, or installation of equipment at, 
military test ranges, facilities, and installations; and
    (R) The Defense Energy Support Center, Defense Logistics Agency.
    (ii) Contract administration functions for base, post, camp, and 
station contracts on a military installation are normally the 
responsibility of the installation or tenant commander. However, the 
Defense Contract Management Agency (DCMA) shall, upon request of the 
military department, and subject to prior agreement, perform contract 
administration services on a military installation.
    (iii) DCMA shall provide preaward survey assistance for post, camp, 
and station work performed on a military installation. The contracting 
office and the DCMA preaward survey monitor should jointly determine the 
scope of the survey and individual responsibilities.
    (iv) To avoid duplication, contracting offices shall not locate 
their personnel at contractor facilities, except--
    (A) In support of contracts retained for administration in 
accordance with paragraph (a)(i) of this section; or
    (B) As permitted under subpart 242.74.
    (e)(1)(A) In special circumstances, a contract administration office 
may request support from a component not listed in the Federal Directory 
of Contract Administration Services Components (available via the 
internet at https://piee.eb.mil/pcm/xhtml/unauth/index.xhtml).
    (B) When requesting support on a subcontract that includes foreign 
contract military sale (FMS) requirements, the contract administration 
office shall--
    (1) Mark ``FMS Requirement'' on the face of the documents; and
    (2) For each FMS case involved, provide the FMS case identifier, 
associated item quantities, DoD prime contract number, and prime 
contract line/subline item number.

[64 FR 61029, Nov. 9, 1999, as amended at 65 FR 52953, Aug. 31, 2000; 66 
FR 49861, Oct. 1, 2001; 66 FR 63335, Dec. 6, 2001; 70 FR 52034, Sept. 1, 
2005; 70 FR 67920, Nov. 9, 2005; 77 FR 23632, Apr. 20, 2012; 86 FR 
27278, May 20, 2021]



         Subpart 242.3_Contract Administration Office Functions



242.301  General.

    Contract administration services performed outside the U.S. should 
be performed in accordance with FAR 42.301 unless there are no policies 
and procedures covering a given situation. In this case, coordinate 
proposed actions with the appropriate U.S. country teams or commanders 
of unified and specified commands.



242.302  Contract administration functions.

    (a) (7) See 242.7502 for ACO responsibilities with regard to receipt 
of an audit report identifying significant accounting system or related 
internal control deficiencies.
    (9) For additional contract administration functions related to 
IR&D/B&P projects performed by major contractors, see 242.771-3(a).
    (12) Also perform all payment administration in accordance with any 
applicable payment clauses.
    (13)(A) Do not delegate the responsibility to make payments to the 
Defense Contract Management Agency (DCMA).
    (B) Follow the procedures at PGI 242.302(a)(13)(B) for designation 
of payment offices.
    (39) See 223.370 for contract administration responsibilities on 
contracts for ammunition and explosives.
    (67) Also support program offices and buying activities in 
precontractual efforts leading to a solicitation or award.
    (S-70) Serve as the single point of contact for all Single Process 
Initiative (SPI) Management Council activities. The ACO shall negotiate 
and execute facilitywide class modifications and agreements for SPI 
processes, when authorized by the affected components.
    (S-71) DCMA has responsibility for reviewing earned value management 
system (EVMS) plans and for verifying initial and continuing contractor 
compliance with DoD EVMS criteria. The contracting officer shall not 
retain this function.

[[Page 357]]

    (S-72) Ensure implementation of the Synchronized Predeployment and 
Operational Tracker (SPOT) by the contractor and maintain surveillance 
over contractor compliance with SPOT business rules available at the Web 
site provided at PGI 207.105(b)(20)(C)(9) for contracts incorporating 
the clause at 252.225-7040, Contractor Personnel Supporting U.S. Armed 
Forces Deployed Outside the United States. See PGI 242.302(a)(S-72) for 
guidance on assessing contractor's implementation of SPOT.
    (S-73) Maintain surveillance over contractor compliance with 
trafficking in persons requirements for all DoD contracts for services 
incorporating the clause at FAR 52.222-50, Combating Trafficking in 
Persons, and, when necessary, its Alternate I, as identified in the 
clause prescription at FAR 22.1705. (See PGI 222.1703.)
    (S-74) Approve or disapprove contractor business systems, as 
identified in the clause at 252.242-7005, Contractor Business Systems.
    (S-75) See PGI 242.302(a)(S-75) for guidelines for monitoring 
contractor costs.
    (S-76) Review and audit contractor identification of contractor-
approved suppliers for the acquisition of electronic parts, as 
identified in the clause at 252.246-7008, Sources of Electronic Parts.
    (b)(S-70) Issue, negotiate, and execute orders under basic ordering 
agreements for overhaul, maintenance, and repair.

[71 FR 44928, Aug. 8, 2006, as amended at 76 FR 36884, June 23, 2011; 76 
FR 71830, Nov. 18, 2011; 77 FR 11365, Feb. 24, 2012; 77 FR 23632, Apr. 
20, 2012; 78 FR 13544, Feb. 28, 2013; 79 FR 30471, May 28, 2014; 80 FR 
36903, June 26, 2015; 81 FR 50648, Aug. 2, 2016]



                   Subpart 242.5_Postaward Orientation



242.503  Postaward conferences.



242.503-2  Post-award conference procedure.

    (a) DD Form 1484, Post-Award Conference Record, may be used in 
conducting the conference and in preparing the conference report.
    (b) For contracts that include the clause at 252.234-7004, Cost and 
Software Data Reporting, postaward conferences shall include a 
discussion of the contractor's standard cost and software data reporting 
(CSDR) process that satisfies the guidelines contained in the DoD 
5000.04-M-1, CSDR Manual, and the requirements in the Government-
approved CSDR plan for the contract, DD Form 2794, and related Resource 
Distribution Table.

[70 FR 67920, Nov. 9, 2005, as amended at 75 FR 71562, Nov. 24, 2010]



       Subpart 242.6_Corporate Administrative Contracting Officer



242.602  Assignment and location.

    (c)(2) If the agencies cannot agree, refer the matter to the 
Director of Defense Procurement and Acquisition Policy.

[56 FR 36437, July 31, 1991, as amended at 68 FR 7440, Feb. 14, 2003]



                    Subpart 242.7_Indirect Cost Rates



242.705  Final indirect cost rates.



242.705-1  Contracting officer determination procedure.

    (a) Applicability and responsibility. (1) The corporate 
administrative contracting officer and individual administrative 
contracting officers shall jointly decide how to conduct negotiations. 
Follow the procedures at PGI 242.705-1(a)(1) when negotiations are 
conducted on a coordinated basis.

[70 FR 67920, Nov. 9, 2005]



242.705-2  Auditor determination procedure.

    (b) Procedures. (2)(iii) When agreement cannot be reached with the 
contractor, the auditor will issue a DCAA Form 1, Notice of Contract 
Costs Suspended and/or Disapproved, in addition to the advisory report 
to the administrative contracting officer.

[56 FR 36437, July 31, 1991, as amended at 60 FR 61599, Nov. 30, 1995; 
64 FR 61030, Nov. 9, 1999; 70 FR 67920, Nov. 9, 2005]

[[Page 358]]



242.771  Independent research and development and bid and proposal costs.



242.771-1  Scope.

    This section implements 10 U.S.C. 2372, Independent research and 
development and bid and proposal costs: Payments to contractors.

[64 FR 8730, Feb. 23, 1999]



242.771-2  Policy.

    Defense contractors are encouraged to engage in independent research 
and development and bid and proposal (IR&D/B&P) activities of potential 
interest to DoD, including activities cited in 231.205-18(c)(iii)(B).

[64 FR 8730, Feb. 23, 1999]



242.771-3  Responsibilities.

    (a) The cognizant administrative contracting officer (ACO) or 
corporate ACO shall--
    (1) Determine cost allowability of IR&D/B&P costs as set forth in 
231.205-18 and FAR 31.205-18.
    (2) Determine whether IR&D/B&P projects performed by major 
contractors (see 231.205-18(a)) are of potential interest to DoD; and
    (3) Notify the contractor promptly of any IR&D/B&P activities that 
are not of potential interest to DoD.
    (b) The Defense Contract Management Agency or the military 
department responsible for performing contract administration functions 
is responsible for providing the Defense Contract Audit Agency (DCAA) 
with IR&D/B&P statistical information, as necessary, to assist DCAA in 
the annual report required by paragraph (c) of this subsection.
    (c) DCAA is responsible for submitting an annual report to the 
Director of Defense Procurement and Acquisition Policy, Office of the 
Under Secretary of Defense (Acquisition, Technology, and Logistics (OUSD 
(AT&L))) setting forth required statistical information relating to the 
DoD-wide IR&D/B&P program.
    (d) The Office of the Assistant Secretary of Defense for Research 
and Engineering (OASD R&E), is responsible for establishing a regular 
method for communication--
    (1) From DoD to contractors, of timely and comprehensive information 
regarding planned or expected DoD future needs; and
    (2) From contractors to DoD, of brief technical descriptions of 
contractor IR&D projects.

[64 FR 8730, Feb. 23, 1999, as amended at 65 FR 39706, June 27, 2000; 65 
FR 52953, Aug. 31, 2000; 68 FR 7440, Feb. 14, 2003; 81 FR 78011, Nov. 4, 
2016]



                   Subpart 242.8_Disallowance of Costs



242.803  Disallowing costs after incurrence.

    (a) Contracting officer receipt of vouchers. Contracting officer 
receipt of vouchers is applicable only for cost-reimbursement contracts 
with the Canadian Commercial Corporation. See 225.870-5(b) for invoice 
procedures.
    (b) Auditor receipt of voucher. (i) The contract auditor is the 
authorized representative of the contracting officer for--
    (A) Receiving vouchers from contractors electronically or by other 
delivery methods as directed by the terms of the contract;
    (B) Approving interim vouchers that were selected using sampling 
methodologies for provisional payment and sending them to the disbursing 
office after a pre-payment review. Interim vouchers not selected for a 
pre-payment review will be considered to be provisionally approved and 
will be sent directly to the disbursing office. All provisionally 
approved interim vouchers are subject to a later audit of actual costs 
incurred;
    (C) Reviewing completion/final vouchers and sending them to the 
administrative contracting officer; and
    (D) Issuing DCAA Forms 1, Notice of Contract Costs Suspended and/or 
Disapproved, to deduct costs where allowability is questionable.
    (ii) The administrative contracting officer--
    (A) Approves all completion/final vouchers and sends them to the 
disbursing officer; and
    (B) May issue or direct the issuance of DCAA Form 1 on any cost when

[[Page 359]]

there is reason to believe it should be suspended or disallowed.

[61 FR 25409, May 21, 1996, as amended at 61 FR 25409, May 21, 1996; 61 
FR 50454, Sept. 26, 1996; 77 FR 52259, Aug. 29, 2012]



          Subpart 242.11_Production Surveillance and Reporting



242.1104  Surveillance requirements.

    (a) The cognizant contract administration office (CAO)--
    (i) Shall perform production surveillance on all contractors that 
have Criticality Designator A or B contracts;
    (ii) Shall not perform production surveillance on contractors that 
have only Criticality Designator C contracts, unless specifically 
requested by the contracting officer; and
    (iii) When production surveillance is required, shall--
    (A) Conduct a periodic risk assessment of the contractor to 
determine the degree of production surveillance needed for all contracts 
awarded to that contractor. The risk assessment shall consider 
information provided by the contractor and the contracting officer;
    (B) Develop a production surveillance plan based on the risk level 
determined during a risk assessment;
    (C) Modify the production surveillance plan to incorporate any 
special surveillance requirements for individual contracts, including 
any requirements identified by the contracting officer; and
    (D) Monitor contract progress and identify potential contract 
delinquencies in accordance with the production surveillance plan. 
Contracts with Criticality Designator C are exempt from this requirement 
unless specifically requested by the contracting officer.

[69 FR 31912, June 8, 2004]



242.1105  Assignment of criticality designator.

    (1) Contracting officers shall--
    (i) Assign criticality designator A to items with a priority 01, 02, 
03, or 06 (if emergency supply of clothing) under DoD Manual 4140.01, 
Volume 5, DoD Supply Chain Materiel Management Procedures: Delivery of 
Materiel; and
    (ii) Ordinarily assign criticality designator C to unilateral 
purchase orders.
    (2) Only the contracting officer shall change the assigned 
designator.

[56 FR 36437, July 31, 1991, as amended at 67 FR 61516, Oct. 1, 2002, 82 
FR 61481, Dec. 28, 2017]



242.1106  Reporting requirements.

    (a) See DoDI 5000.2, Operation of the Defense Acquisition System, 
for reporting requirements for defense technology projects and 
acquisition programs.
    (b)(i) Within four working days after receipt of the contractor's 
report, the CAO must provide the report and any required comments to the 
contracting officer and, unless otherwise specified in the contract, the 
inventory control manager.
    (ii) If the contractor's report indicates that the contract is on 
schedule and the CAO agrees, the CAO does not need to add further 
comments. In all other cases, the CAO must add comments and recommend a 
course of action.

[65 FR 39723, June 27, 2000, as amended at 70 FR 14575, Mar. 23, 2005; 
73 FR 21848, Apr. 23, 2008]



242.1107  Contract clause.

    (b) When using the clause at FAR 52.242-2, include the following 
instructions in the contract schedule--
    (i) Frequency and timing of reporting (normally 5 working days after 
each reporting period);
    (ii) Contract line items, exhibits, or exhibit line items requiring 
reports;
    (iii) Offices (with addressees/codes) where reports should be sent 
(always include the contracting office and contract administration 
office); and
    (iv) The following requirements for report content--
    (A) The problem, actual or potential, and its cause;
    (B) Items and quantities affected;
    (C) When the delinquency started or will start;
    (D) Actions taken to overcome the delinquency;
    (E) Estimated recovery date; and/or
    (F) Proposed schedule revision.

[[Page 360]]



          Subpart 242.12_Novation and Change-of-Name Agreements



242.1203  Processing agreements.

    The responsible contracting officer shall process and execute 
novation and change-of-name agreements in accordance with the procedures 
at PGI 242.1203.

[70 FR 67920, Nov. 9, 2005]



242.1204  Agreement to recognize a successor in interest (novation agreement).

    (i) When a novation agreement is required and the transferee intends 
to incur restructuring costs as defined at 213.205-70, the cognizant 
contracting officer shall include the following provision as paragraph 
(b)(7) of the novation agreement instead of the paragraph (b)(7) 
provided in the sample format at FAR 42.1204(i):

    ``(7)(i) Except as set forth in subparagraph (7)(ii) below, the 
Transferor and the Transferee agree that the Government is not obligated 
to pay or reimburse either of them for, or otherwise give effect to, any 
costs, taxes, or other expenses, or any related increases, directly or 
indirectly arising out of or resulting from the transfer or this 
Agreement, other than those that the Government in the absence of this 
transfer or Agreement would have been obligated to pay or reimburse 
under the terms of the contracts.
    (ii) The Government recognizes that restructuring by the Transferee 
incidental to the acquisition/merger may be in the best interests of the 
Government. Restructuring costs that are allowable under Part 31 of the 
Federal Acquisition Regulation (FAR) or Part 231 of the Defense Federal 
Acquisition Regulation Supplement (DFARS) may be reimbursed under 
flexibily-priced novated contracts, provided the Transferee demonstrates 
that the restructuring will reduce overall costs to the Department of 
Defense (DoD) (and to the National Aeronautics and Space Administration 
(NASA), where there is a mix of DoD and NASA contracts), and the 
requirements included in DFARS 231.205-70 are met. Restructuring costs 
shall not be allowed on novated contracts unless there is an audit of 
the restructuring proposal; a determination by the contracting officer 
of overall reduced costs to DoD/NASA; and an Advance Agreement setting 
forth a cumulative cost ceiling for restructuring projects and the 
period to which such costs shall be assigned.''

[60 FR 1749, Jan. 5, 1995, as amended at 61 FR 16882, Apr. 18, 1996; 65 
FR 63805, Oct. 25, 2000]



            Subpart 242.15_Contractor Performance Information

    Source: 83 FR 15999, Apr. 13, 2018, unless otherwise noted.



242.1502  Policy.

    (g) Past performance evaluations in the Contractor Performance 
Assessment Reporting System shall include an assessment of the 
contractor's performance against, and efforts to achieve, the goals 
identified in its comprehensive small business subcontracting plan when 
the contract contains the clause at 252.219-7004, Small Business 
Subcontracting Plan (Test Program).



               Subpart 242.70_Contractor Business Systems

    Source: 76 FR 28868, May 18, 2011, unless otherwise noted.



242.7000  Contractor business system deficiencies.

    (a) Definitions. As used in this subpart--
    Acceptable contractor business systems and contractor business 
systems are defined in the clause at 252.242-7005, Contractor Business 
Systems.
    Covered contract means a contract that is subject to the Cost 
Accounting Standards under 41 U.S.C. chapter 15, as implemented in 
regulations found at 48 CFR 9903.201-1 (see the FAR Appendix) (10 U.S.C. 
2302 note, as amended by section 816 of Pub. L. 112-81).
    Significant deficiency is defined in the clause at 252.242-7005, 
Contractor Business Systems.
    (b) Determination to withhold payments. If the contracting officer 
makes a final determination to disapprove a contractor's business system 
in accordance with the clause at 252.242-7005, Contractor Business 
Systems, the contracting officer shall--
    (1) In accordance with agency procedures, identify one or more 
covered contracts containing the clause at 252.242-7005, Contractor 
Business Systems, from which payments will be withheld. When identifying 
the covered

[[Page 361]]

contracts from which to withhold payments, the contracting officer shall 
ensure that the total amount of payment withholding under 252.242-7005, 
does not exceed 10 percent of progress payments, performance-based 
payments, and interim payments under cost-reimbursement, labor-hour, and 
time-and-materials contracts billed under each of the identified covered 
contracts. Similarly, the contracting officer shall ensure that the 
total amount of payment withholding under the clause at 252.242-7005, 
Contractor Business Systems, for each business system does not exceed 
five percent of progress payments, performance-based payments, and 
interim payments under cost-reimbursement, labor-hour, and time-and-
materials contracts billed under each of the identified covered 
contracts. The contracting officer has the sole discretion to identify 
the covered contracts from which to withhold payments.
    (2) Promptly notify the contractor, in writing, of the contracting 
officer's determination to implement payment withholding in accordance 
with the clause at 252.242-7005, Contractor Business Systems. The notice 
of payment withholding shall be included in the contracting officer's 
written final determination for the contractor business system and shall 
inform the contractor that--
    (i) Payments shall be withheld from the contract or contracts 
identified in the written determination in accordance with the clause at 
252.242-7005, Contractor Business Systems, until the contracting officer 
determines that there are no remaining significant deficiencies; and
    (ii) The contracting officer reserves the right to take other 
actions within the terms and conditions of the contract.
    (3) Provide all contracting officers administering the selected 
contracts from which payments will be withheld, a copy of the 
determination. The contracting officer shall also provide a copy of the 
determination to the auditor; payment office; affected contracting 
officers at the buying activities; and cognizant contracting officers in 
contract administration activities.
    (c) Monitoring contractor's corrective action. The contracting 
officer, in consultation with the auditor or functional specialist, 
shall monitor the contractor's progress in correcting the deficiencies. 
The contracting officer shall notify the contractor of any decision to 
decrease or increase the amount of payment withholding in accordance 
with the clause at 252.242-7005, Contractor Business Systems.
    (d) Correction of significant deficiencies. (1) If the contractor 
notifies the contracting officer that the contractor has corrected the 
significant deficiencies, the contracting officer shall request the 
auditor or functional specialist to review the correction to verify that 
the deficiencies have been corrected. If, after receipt of verification, 
the contracting officer determines that the contractor has corrected all 
significant deficiencies as directed by the contracting officer's final 
determination, the contracting officer shall discontinue the withholding 
of payments, release any payments previously withheld, and approve the 
system, unless other significant deficiencies remain.
    (2) Prior to the receipt of verification, the contracting officer 
may discontinue withholding payments pending receipt of verification, 
and release any payments previously withheld, if the contractor submits 
evidence that the significant deficiencies have been corrected, and the 
contracting officer, in consultation with the auditor or functional 
specialist, determines that there is a reasonable expectation that the 
corrective actions have been implemented and are expected to correct the 
significant deficiencies.
    (3) Within 90 days of receipt of the contractor notification that 
the contractor has corrected the significant deficiencies, the 
contracting officer shall--
    (i) Make a determination that--
    (A) The contractor has corrected all significant deficiencies as 
directed by the contracting officer's final determination in accordance 
with paragraph (d)(1) of this section;
    (B) There is a reasonable expectation that the corrective actions 
have been implemented in accordance with paragraph (d)(2) of this 
section; or

[[Page 362]]

    (C) The contractor has not corrected all significant deficiencies as 
directed by the contracting officer's final determination in accordance 
with paragraph (d)(1) of this section, or there is not a reasonable 
expectation that the corrective actions have been implemented in 
accordance with paragraph (d)(2) of this section; or
    (ii) Reduce withholding directly related to the significant 
deficiencies covered under the corrective action plan by at least 50 
percent of the amount being withheld from progress payments and 
performance-based payments, and direct the contractor, in writing, to 
reduce the percentage withheld on interim cost vouchers by at least 50 
percent, until the contracting officer makes a determination in 
accordance with paragraph (d)(3)(i) of this section.
    (4) If, at any time, the contracting officer determines that the 
contractor has failed to correct the significant deficiencies identified 
in the contractor's notification, the contracting officer will continue, 
reinstate, or increase withholding from progress payments and 
performance-based payments, and direct the contractor, in writing, to 
continue, reinstate, or increase the percentage withheld on interim cost 
vouchers to the percentage initially withheld, until the contracting 
officer determines that the contractor has corrected all significant 
deficiencies as directed by the contracting officer's final 
determination.
    (e) For sample formats for written notifications of contracting 
officer determinations to initiate payment withholding, reduce payment 
withholding, and discontinue payment withholding in accordance with the 
clause at DFARS 252.242-7005, Contractor Business Systems, see PGI 
242.7000.

[76 FR 28868, May 18, 2011, as amended at 77 FR 11365, Feb. 24, 2012]



242.7001  Contract clause.

    Use the clause at 252.242-7005, Contractor Business Systems, in 
solicitations and contracts (other than in contracts with educational 
institutions, Federally Funded Research and Development Centers 
(FFRDCs), or University Associated Research Centers (UARCs) operated by 
educational institutions) when--
    (a) The resulting contract will be a covered contract as defined in 
242.7000(a); and
    (b) The solicitation or contract includes any of the following 
clauses:
    (1) 252.215-7002, Cost Estimating System Requirements.
    (2) 252.234-7002, Earned Value Management System.
    (3) 252.242-7004, Material Management and Accounting System.
    (4) 252.242-7006, Accounting System Administration.
    (5) 252.244-7001, Contractor Purchasing System Administration.
    (6) 252.245-7003, Contractor Property Management System 
Administration.

[76 FR 28868, May 18, 2011, as amended at 77 FR 11366, Feb. 24, 2012]



                    Subpart 242.71_Voluntary Refunds



242.7100  General.

    A voluntary refund is a payment or credit (adjustment under one or 
more contracts or subcontracts) to the Government from a contractor or 
subcontractor that is not required by any contractual or other legal 
obligation. Follow the procedures at PGI 242.7100 for voluntary refunds.

[70 FR 67920, Nov. 9, 2005]



   Subpart 242.72_Contractor Material Management and Accounting System

    Source: 65 FR 77833, Dec. 13, 2000, unless otherwise noted.



242.7200  Scope of subpart.

    (a) This subpart provides policies, procedures, and standards for 
use in the evaluation of a contractor's material management and 
accounting system (MMAS).
    (b) The policies, procedures, and standards in this subpart--
    (1) Apply only when the contractor has contracts exceeding the 
simplified acquisition threshold that are not for the acquisition of 
commercial items and are either--
    (i) Cost-reimbursement contracts; or

[[Page 363]]

    (ii) Fixed-price contracts with progress payments made on the basis 
of costs incurred by the contractor as work progresses under the 
contract; and
    (2) Do not apply to small businesses, educational institutions, or 
nonprofit organizations.



242.7201  Definitions.

    Acceptable material management and accounting system, material 
management and accounting system, and valid time-phased requirements are 
defined in the clause at 252.242-7004, Material Management and 
Accounting System.
    Significant deficiency is defined in the clause at 252.242.7004, 
Material Management and Accounting System.

[76 FR 28869, May 18, 2011]



242.7202  Policy.

    (a) DoD policy is for its contractors to have an MMAS that conforms 
to the standards in paragraph (d) of the clause at 252.242-7004, 
Material Management and Accounting System, so that the system--
    (1) Reasonably forecasts material requirements;
    (2) Ensures the costs of purchased and fabricated material charged 
or allocated to a contract are based on valid time-phased requirements; 
and
    (3) Maintains a consistent, equitable, and unbiased logic for 
costing of material transactions.
    (b) The cognizant contracting officer, in consultation with the 
auditor and functional specialist, if appropriate, shall--
    (1) Determine the acceptability of the contractor's MMAS and approve 
or disapprove the system; and
    (2) Pursue correction of any deficiencies.
    (c) In evaluating the acceptability of the contractor's MMAS, the 
contracting officer, in consultation with the auditor and functional 
specialist, if appropriate, shall determine whether the contractor's 
MMAS complies with the system criteria for an acceptable MMAS as 
prescribed in the clause at 252.242-7004, Material Management and 
Accounting System.

[76 FR 28869, May 18, 2011, as amended at 81 FR 36473, June 7, 2016]



242.7203  Review procedures.

    (a) Criteria for conducting reviews. Conduct an MMAS review when--
    (1) A contractor has $40 million of qualifying sales to the 
Government during the contractor's preceding fiscal year; and
    (2) The administrative contracting officer (ACO), with advice from 
the auditor, determines an MMAS review is needed based on a risk 
assessment of the contractor's past experience and current 
vulnerability.
    (b) Qualifying sales. Qualifying sales are sales for which certified 
cost or pricing data were required under 10 U.S.C. 2306a, as implemented 
in FAR 15.403, or that are contracts priced on other than a firm-fixed-
price or fixed-price with economic price adjustment basis. Sales include 
prime contracts, subcontracts, and modifications to such contracts and 
subcontracts.
    (c) Disposition of findings--(1) Reporting of findings. The auditor 
or functional specialist shall document findings and recommendations in 
a report to the contracting officer. If the auditor or functional 
specialist identifies any significant MMAS deficiencies, the report 
shall describe the deficiencies in sufficient detail to allow the 
contracting officer to understand the deficiencies.
    (2) Initial determination. (i) The contracting officer shall review 
findings and recommendations and, if there are no significant 
deficiencies, shall promptly notify the contractor, in writing, that the 
contractor's MMAS is acceptable and approved; or
    (ii) If the contracting officer finds that there are one or more 
significant deficiencies (as defined in the clause at 252.242-7004, 
Material Management and Accounting System) due to the contractor's 
failure to meet one or more of the MMAS system criteria in the clause at 
252.242-7004, Material Management and Accounting System, the contracting 
officer shall--
    (A) Promptly make an initial written determination on any 
significant deficiencies and notify the contractor, in writing, 
providing a description of each significant deficiency in sufficient 
detail to allow the contractor to understand the deficiency;

[[Page 364]]

    (B) Request the contractor to respond, in writing, to the initial 
determination within 30 days; and
    (C) Promptly evaluate the contractor's response to the initial 
determination in consultation with the auditor or functional specialist, 
and make a final determination.
    (3) Final determination. (i) The ACO shall make a final 
determination and notify the contractor that--
    (A) The contractor's MMAS is acceptable and approved, and no 
deficiencies remain, or
    (B) Significant deficiencies remain. The notice shall identify any 
remaining significant deficiencies, and indicate the adequacy of any 
proposed or completed corrective action. The contracting officer shall--
    (1) Request that the contractor, within 45 days of receipt of the 
final determination, either correct the deficiencies or submit an 
acceptable corrective action plan showing milestones and actions to 
eliminate the deficiencies;
    (2) Disapprove the system in accordance with the clause at 252.242-
7004, Material Management and Accounting System; and
    (3) Withhold payments in accordance with the clause at 252.242-7005, 
Contractor Business Systems, if the clause is included in the contract.
    (ii) Follow the procedures relating to monitoring a contractor's 
corrective action and the correction of significant deficiencies in PGI 
242.7203.
    (d) System approval. The contracting officer shall promptly approve 
a previously disapproved MMAS and notify the contractor when the 
contracting officer determines that there are no remaining significant 
deficiencies.
    (e) Contracting officer notifications. The cognizant contracting 
officer shall promptly distribute copies of a determination to approve a 
system, disapprove a system and withhold payments, or approve a 
previously disapproved system and release withheld payments to the 
auditor; payment office; affected contracting officers at the buying 
activities; and cognizant contracting officers in contract 
administration activities.

[65 FR 77833, Dec. 13, 2000, as amended at 76 FR 28869, May 18, 2011; 77 
FR 76940, Dec. 31, 2012]



242.7204  Contract clause.

    Use the clause at 252.242-7004, Material Management and Accounting 
System, in all solicitations and contracts exceeding the simplified 
acquisition threshold that are not for the acquisition of commercial 
items and--
    (a) Are not awarded to small businesses, educational institutions, 
or nonprofit organizations; and
    (b) Are either--
    (1) Cost-reimbursement contracts; or
    (2) Fixed-price contracts with progress payments made on the basis 
of costs incurred by the contractor as work progresses under the 
contract.



           Subpart 242.73_Contractor Insurance/Pension Review



242.7301  General.

    (a) The administrative contracting officer (ACO) is responsible for 
determining the allowability of insurance/pension costs in Government 
contracts and for determining the need for a Contractor/Insurance 
Pension Review (CIPR). Defense Contract Management Agency (DCMA) 
insurance/pension specialists and Defense Contract Audit Agency (DCAA) 
auditors assist ACOs in making these determinations, conduct CIPRs when 
needed, and perform other routine audits as authorized under FAR 42.705 
and 52.215-2. A CIPR is a DCMA/DCAA joint review that--
    (1) Provides an in-depth evaluation of a contractor's--
    (i) Insurance programs;
    (ii) Pension plans;
    (iii) Other deferred compensation plans; and
    (iv) Related policies, procedures, practices, and costs; or
    (2) Concentrates on specific areas of the contractor's insurance 
programs, pension plans, or other deferred compensation plans.
    (b) DCMA is the DoD Executive Agent for the performance of all 
CIPRs.
    (c) DCAA is the DoD agency designated for the performance of 
contract

[[Page 365]]

audit responsibilities related to Cost Accounting Standards 
administration as described in FAR subparts 30.2 and 30.6 as they relate 
to a contractor's insurance programs, pension plans, and other deferred 
compensation plans.

[71 FR 9273, Feb. 23, 2006, as amended at 77 FR 76940, Dec. 31, 2012; 82 
FR 61481, Dec. 28, 2017]



242.7302  Requirements.

    (a)(1) An in-depth CIPR as described at DFARS 242.7301(a)(1) shall 
be conducted only when--
    (i) A contractor has $50 million of qualifying sales to the 
Government during the contractor's preceding fiscal year; and
    (ii) The ACO, with advice from DCMA insurance/pension specialists 
and DCAA auditors, determines a CIPR is needed based on a risk 
assessment of the contractor's past experience and current 
vulnerability.
    (2) Qualifying sales are sales for which certified cost or pricing 
data were required under 10 U.S.C. 2306a, as implemented in FAR 15.403, 
or that are contracts priced on other than a firm-fixed-price or fixed-
price with economic price adjustment basis. Sales include prime 
contracts, subcontracts, and modifications to such contracts and 
subcontracts.
    (b) A special CIPR that concentrates on specific areas of a 
contractor's insurance programs, pension plans, or other deferred 
compensation plans shall be performed for a contractor (including, but 
not limited to, a contractor meeting the requirements in paragraph (a) 
of this section) when any of the following circumstances exists, but 
only if the circumstance(s) may result in a material impact on 
Government contract costs:
    (1) Information or data reveals a deficiency in the contractor's 
insurance/pension program.
    (2) The contractor proposes or implements changes in its insurance, 
pension, or deferred compensation plans.
    (3) The contractor is involved in a merger, acquisition, or 
divestiture.
    (4) The Government needs to follow up on contractor implementation 
of prior CIPR recommendations.
    (c) The DCAA auditor shall use relevant findings and recommendations 
of previously performed CIPRs in determining the scope of any audits of 
insurance and pension costs.
    (d) When a Government organization believes that a review of the 
contractor's insurance/pension program should be performed, that 
organization should provide a recommendation for a review to the ACO. If 
the ACO concurs, the review should be performed as part of an ACO-
initiated special CIPR or as part of a CIPR already scheduled for the 
near future.

[78 FR 13544, Feb. 28, 2013]



242.7303  Responsibilities.

    Follow the procedures at PGI 242.7303 when conducting a CIPR.

[71 FR 9273, Feb. 23, 2006]



    Subpart 242.74_Technical Representation at Contractor Facilities



242.7400  General.

    (a) Program managers may conclude that they need technical 
representation in contractor facilities to perform non-contract 
administration service (CAS) technical duties and to provide liaison, 
guidance, and assistance on systems and programs. In these cases, the 
program manager may assign technical representatives under the 
procedures in 242.7401.
    (b) A technical representative is a representative of a DoD program, 
project, or system office performing non-CAS technical duties at or near 
a contractor facility. A technical representative is not--
    (1) A representative of a contract administration or contract audit 
component; or
    (2) A contracting officer's representative (see 201.602).

[70 FR 67921, Nov. 9, 2005]



242.7401  Procedures.

    When the program, project, or system manager determines that a 
technical representative is required, follow the procedures at PGI 
242.7401.

[70 FR 67921, Nov. 9, 2005]

[[Page 366]]



    Subpart 242.75_Contractor Accounting Systems and Related Controls

    Source: 76 FR 28870, May 18, 2011, unless otherwise noted.



242.7501  Definitions.

    As used in this subpart--
    Acceptable accounting system, and accounting system are defined in 
the clause at 252.242-7006, Accounting System Administration.
    Significant deficiency is defined in the clause at 252.242-7006, 
Accounting System Administration.



242.7502  Policy.

    (a) Contractors receiving cost-reimbursement, incentive type, time-
and-materials, or labor-hour contracts, or contracts which provide for 
progress payments based on costs or on a percentage or stage of 
completion, shall maintain an accounting system.
    (b) The cognizant contracting officer, in consultation with the 
auditor or functional specialist, shall--
    (1) Determine the acceptability of a contractor's accounting system 
and approve or disapprove the system; and
    (2) Pursue correction of any deficiencies.
    (c) In evaluating the acceptability of a contractor's accounting 
system, the contracting officer, in consultation with the auditor or 
functional specialist, shall determine whether the contractor's 
accounting system complies with the system criteria for an acceptable 
accounting system as prescribed in the clause at 252.242-7006, 
Accounting System Administration.
    (d) Disposition of findings-- (1) Reporting of findings. The auditor 
shall document findings and recommendations in a report to the 
contracting officer. If the auditor identifies any significant 
accounting system deficiencies, the report shall describe the 
deficiencies in sufficient detail to allow the contracting officer to 
understand the deficiencies. Follow the procedures at PGI 242.7502 for 
reporting of deficiencies.
    (2) Initial determination. (i) The contracting officer shall review 
findings and recommendations and, if there are no significant 
deficiencies, shall promptly notify the contractor, in writing, that the 
contractor's accounting system is acceptable and approved; or
    (ii) If the contracting officer finds that there are one or more 
significant deficiencies (as defined in the clause at 252.242-7006, 
Accounting System Administration) due to the contractor's failure to 
meet one or more of the accounting system criteria in the clause at 
252.242-7006, the contracting officer shall--
    (A) Promptly make an initial written determination on any 
significant deficiencies and notify the contractor, in writing, 
providing a description of each significant deficiency in sufficient 
detail to allow the contractor to understand the deficiency;
    (B) Request the contractor to respond, in writing, to the initial 
determination within 30 days; and
    (C) Promptly evaluate the contractor's response to the initial 
determination, in consultation with the auditor or functional 
specialist, and make a final determination.
    (3) Final determination. (i) The contracting officer shall make a 
final determination and notify the contractor, in writing, that--
    (A) The contractor's accounting system is acceptable and approved, 
and no significant deficiencies remain, or
    (B) Significant deficiencies remain. The notice shall identify any 
remaining significant deficiencies, and indicate the adequacy of any 
proposed or completed corrective action. The contracting officer shall--
    (1) Request that the contractor, within 45 days of receipt of the 
final determination, either correct the deficiencies or submit an 
acceptable corrective action plan showing milestones and actions to 
eliminate the deficiencies;
    (2) Make a determination to disapprove the system in accordance with 
the clause at 252.242-7006, Accounting System Administration; and
    (3) Withhold payments in accordance with the clause at 252.242-7005, 
Contractor Business Systems, if the clause is included in the contract.
    (ii) Follow the procedures relating to monitoring a contractor's 
corrective

[[Page 367]]

action and the correction of significant deficiencies in PGI 242.7502.
    (e) System approval. The contracting officer shall promptly approve 
a previously disapproved accounting system and notify the contractor 
when the contracting officer determines that there are no remaining 
significant deficiencies.
    (f) Contracting officer notifications. The cognizant contracting 
officer shall promptly distribute copies of a determination to approve a 
system, disapprove a system and withhold payments, or approve a 
previously disapproved system and release withheld payments to the 
auditor; payment office; affected contracting officers at the buying 
activities; and cognizant contracting officers in contract 
administration activities.
    (g) Mitigating the risk of accounting system deficiencies on 
specific proposals.
    (1) Field pricing teams shall discuss identified accounting system 
deficiencies and their impact in all reports on contractor proposals 
until the deficiencies are resolved.
    (2) The contracting officer responsible for negotiation of a 
proposal generated by an accounting system with an identified deficiency 
shall evaluate whether the deficiency impacts the negotiations. See also 
PGI 242.7502(g)(2). If it does not, the contracting officer should 
proceed with negotiations. If it does, the contracting officer should 
consider other alternatives, e.g.--
    (i) Allowing the contractor additional time to correct the 
accounting system deficiency and submit a corrected proposal;
    (ii) Considering another type of contract;
    (iii) Using additional cost analysis techniques to determine the 
reasonableness of the cost elements affected by the accounting system's 
deficiency;
    (iv) Reducing the negotiation objective for profit or fee; or
    (v) Including a contract (reopener) clause that provides for 
adjustment of the contract amount after award.
    (3) The contracting officer who incorporates a reopener clause into 
the contract is responsible for negotiating price adjustments required 
by the clause. Any reopener clause necessitated by an accounting system 
deficiency should--
    (i) Clearly identify the amounts and items that are in question at 
the time of negotiation;
    (ii) Indicate a specific time or subsequent event by which the 
contractor will submit a supplemental proposal, including certified cost 
or pricing data, identifying the cost impact adjustment necessitated by 
the deficient accounting system;
    (iii) Provide for the contracting officer to adjust the contract 
price unilaterally if the contractor fails to submit the supplemental 
proposal; and
    (iv) Provide that failure of the Government and the contractor to 
agree to the price adjustment shall be a dispute under the Disputes 
clause.

[76 FR 28870, May 18, 2011, as amended at 77 FR 11366, Feb. 24, 2012; 77 
FR 76940, Dec. 31, 2012; 80 FR 10390, Feb. 26, 2015]



242.7503  Contract clause.

    Use the clause at 252.242-7006, Accounting System Administration, in 
solicitations and contracts when contemplating--
    (a) A cost-reimbursement, incentive type, time-and-materials, or 
labor-hour contract; or
    (b) A contract with progress payments made on the basis of costs 
incurred by the contractor or on a percentage or stage of completion.

[76 FR 28870, May 18, 2011, as amended at 77 FR 11366, Feb. 24, 2012; 82 
FR 61481, Dec. 28, 2017]



PART 243_CONTRACT MODIFICATIONS--Table of Contents



                          Subpart 243.1_General

Sec.
243.107-70 Notification of substantial impact on employment.
243.170 Identification of foreign military sale (FMS) requirements.
243.171 Obligation or deobligation of funds.
243.172 Application of modifications.

                       Subpart 243.2_Change Orders

243.204 Administration.
243.204-70 Definitization of change orders
243.204-70-2 Price ceiling.
243.204-70-4 Limitations on obligations.
243.204-70-5 Exceptions.
243.204-70-6 Allowable profit.

[[Page 368]]

243.204-70-7 Plans and reports.
243.204-71 Certification of requests for equitable adjustment.
243.205 Contract clauses.
243.205-70 Pricing of contract modifications.
243.205-71 Requests for equitable adjustment.
243.205-72 Unpriced change orders.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36446, July 31, 1991, unless otherwise noted.



                          Subpart 243.1_General



243.107-70  Notification of substantial impact on employment.

    The Secretary of Defense is required to notify the Secretary of 
Labor if a modification of a major defense contract or subcontract will 
have a substantial impact on employment. The clause prescribed at 
249.7003(c) requires that the contractor notify its employees, its 
subcontractors, and State and local officials when a contract 
modification will have a substantial impact on employment.

[56 FR 67220, Dec. 30, 1991, as amended at 70 FR 67922, Nov. 9, 2005]



243.170  Identification of foreign military sale (FMS) requirements.

    Follow the procedures at PGI 243.170 for identifying contract 
modifications that add FMS requirements.

[70 FR 67922, Nov. 9, 2005]



243.171  Obligation or deobligation of funds.

    Follow the procedures at PGI 243.171 when obligating or deobligating 
funds.

[70 FR 67922, Nov. 9, 2005]



243.172  Application of modifications.

    Follow the procedures in 204.1671 for determining the sequence for 
application of modifications to a contract or order.

[77 FR 30368, May 22, 2012, as amended at 81 FR 9786, Feb. 26, 2016]



                       Subpart 243.2_Change Orders



243.204  Administration.

    Follow the procedures at PGI 243.204 for administration of change 
orders.

[75 FR 48277, Aug. 10, 2010]



243.204-70  Definitization of change orders.



243.204-70-1  Scope.

    (a) This subsection applies to unpriced change orders with an 
estimated value exceeding $5 million.
    (b) Unpriced change orders for foreign military sales and special 
access programs are not subject to this subsection, but the contracting 
officer shall apply the policy and procedures to them to the maximum 
extent practicable. If the contracting officer determines that it is 
impracticable to adhere to the policy and procedures of this subsection 
for an unpriced change order for a foreign military sale or a special 
access program, the contracting officer shall provide prior notice, 
through agency channels, to the Deputy Director, Defense Procurement and 
Acquisition Policy (Contract Policy and International Contracting), 3060 
Defense Pentagon, Washington, DC 20301-3060.

[75 FR 48277, Aug. 10, 2010]



243.204-70-2  Price ceiling.

    Unpriced change orders shall include a not-to-exceed price.

[75 FR 48277, Aug. 10, 2010]



243.204-70-3  Definitization schedule.

    (a) Unpriced change orders shall contain definitization schedules 
that provide for definitization by the earlier of--
    (1) The date that is 180 days after issuance of the change order 
(this date may be extended but may not exceed the date that is 180 days 
after the contractor submits a qualifying proposal); or
    (2) The date on which the amount of funds obligated under the change 
order is equal to more than 50 percent of the not-to-exceed price.
    (b) Submission of a qualifying proposal in accordance with the 
definitization schedule is a material

[[Page 369]]

element of the contract. If the contractor does not submit a timely 
qualifying proposal, the contracting officer may suspend or reduce 
progress payments under FAR 32.503-6, or take other appropriate action.

[75 FR 48277, Aug. 10, 2010, as amended at 82 FR 61481, Dec. 28, 2017]



243.204-70-4  Limitations on obligations.

    (a) The Government shall not obligate more than 50 percent of the 
not-to-exceed price before definitization. However, if a contractor 
submits a qualifying proposal before 50 percent of the not-to-exceed 
price has been obligated by the Government, the limitation on 
obligations before definitization may be increased to no more than 75 
percent (see 232.102-70 for coverage on provisional delivery payments).
    (b) Obligations should be consistent with the contractor's 
requirements for the undefinitized period.

[75 FR 48277, Aug. 10, 2010]



243.204-70-5  Exceptions.

    (a) The limitations in 243.204-70-2, 243.204-70-3, and 243.204-70-4 
do not apply to unpriced change orders for the purchase of initial 
spares.
    (b) The limitations in 243.204-70-4(a) do not apply to unpriced 
change orders for ship construction and ship repair.
    (c) The head of the agency may waive the limitations in 243.204-70-
2, 243.204-70-3, and 243.204-70-4 for unpriced change orders if the head 
of the agency determines that the waiver is necessary to support--
    (1) A contingency operation; or
    (2) A humanitarian or peacekeeping operation.

[75 FR 48277, Aug. 10, 2010]



243.204-70-6  Allowable profit.

    When the final price of an unpriced change order is negotiated after 
a substantial portion of the required performance has been completed, 
the head of the contracting activity shall ensure the profit allowed 
reflects--
    (a) Any reduced cost risk to the contractor for costs incurred 
during contract performance before negotiation of the final price;
    (b) Any reduced cost risk to the contractor for costs expected to be 
incurred during performance of the remainder of the contract; and
    (c) The extent to which costs have been incurred prior to 
definitization of the unpriced change order (see 215.404-71-3(d)(2)). 
The risk assessment shall be documented in the price negotiation 
memorandum .

[75 FR 48277, Aug. 10, 2010, as amended at 83 FR 30587, June 29, 2018]



243.204-70-7  Plans and reports.

    To provide for enhanced management and oversight of unpriced change 
orders, departments and agencies shall--
    (a) Include in the Consolidated Undefinitized Contract Action (UCA) 
Management Plan required by 217.7405, the actions planned and taken to 
ensure that unpriced change orders are definitized in accordance with 
this subsection; and
    (b) Include in the Consolidated UCA Management Report required by 
217.7405, each unpriced change order with an estimated value exceeding 
$5 million.

[75 FR 48277, Aug. 10, 2010]



243.204-71  Certification of requests for equitable adjustment.

    (a) A request for equitable adjustment to contract terms that 
exceeds the simplified acquisition threshold may not be paid unless the 
contract certifies the request in accordance with the clause at 252.243-
7002.
    (b) To determine if the dollar threshold for requiring certification 
is met, add together the absolute value of each cost increase and each 
cost decrease. See PGI 243.204-71(b) for an example.
    (c) The certification required by 10 U.S.C. 2410(a), as implemented 
in the clause at 252.243-7002, is different from the certification 
required by 41 U.S.C. 7103, Disputes. If the contractor has certified a 
request for equitable adjustment in accordance with 10 U.S.C. 2410(a), 
and desires to convert the request to a claim under the Contract 
Disputes statute, the contractor shall

[[Page 370]]

certify the claim in accordance with FAR Subpart 33.2.

[62 FR 37147, July 11, 1997, as amended at 63 FR 11541, Mar. 9, 1998; 70 
FR 67922, Nov. 9, 2005; 76 FR 58137, Sept. 20, 2011; 76 FR 76320, Dec. 
7, 2011; 77 FR 35881, June 15, 2012]



243.205  Contract clauses.



243.205-70  Pricing of contract modifications.

    Use the clause at 252.243-7001, Pricing of Contract Modifications, 
in solicitations and contracts when anticipating and using a fixed price 
type contract.

[56 FR 36446, July 31, 1991. Redesignated at 66 FR 49865, Oct. 1, 2001]



243.205-71  Requests for equitable adjustment.

    Use the clause at 252.243-7002, Requests for Equitable Adjustment, 
in solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that are estimated to exceed the simplified acquisition threshold.

[63 FR 17124, Apr. 8, 1998. Redesignated at 66 FR 49865, Oct. 1, 2001; 
78 FR 37989, June 25, 2013]



243.205-72  Unpriced change orders.

    See the clause prescriptions at 217.7406 for all unpriced change 
orders with an estimated value exceeding $5 million.

[75 FR 48278, Aug. 10, 2010]



PART 244_SUBCONTRACTING POLICIES AND PROCEDURES--Table of Contents



                          Subpart 244.1_General

Sec.
244.101 Definitions

                  Subpart 244.2_Consent to Subcontracts

244.201 Consent and advance notification requirements.
244.201-1 Consent requirements.
244.202 Contracting officer's evaluation.
244.202-2 Considerations.

          Subpart 244.3_Contractors' Purchasing Systems Reviews

244.301 Objective.
244.302 Requirements.
244.303 Extent of review.
244.305 Granting, withholding, or withdrawing approval.
244.305-70 Policy.
244.305-71 Contract clause.

     Subpart 244.4_Subcontracts for Commercial Items and Commercial 
                               Components

244.402 Policy requirements.
244.403 Contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36447, July 31, 1991, unless otherwise noted.



                          Subpart 244.1_General



244.101  Definitions.

    As used in this subpart--
    Acceptable purchasing system and purchasing system are defined in 
the clause at 252.244-7001, Contractor Purchasing System Administration.
    Significant deficiency is defined in the clause at 252.244-7001, 
Contractor Purchasing System Administration.

[76 FR 28871, May 18, 2011]



                  Subpart 244.2_Consent to Subcontracts



244.201  Consent and advance notification requirements.

[78 FR 69272, Nov. 18, 2013]



244.201-1  Consent requirements.

    (a) In accordance with section 824 of the National Defense 
Authorization Act for Fiscal Year 2019 (Pub. L. 115-232), 
notwithstanding the requirements in FAR 44.201-1(a), the contracting 
officer shall not withhold consent to subcontract without the written 
approval of the program manager, or comparable requiring activity 
official exercising program management responsibilities, if the 
contractor has an approved purchasing system, as defined in FAR 44.101.
    (S-70) In solicitations and contracts for information technology, 
whether acquired as a service or as a supply, that is a covered system 
or covered item of supply as those terms are defined at 239.7301, 
consider the need for a consent to subcontract requirement regarding 
supply chain risk (see subpart

[[Page 371]]

239.73). For additional guidance see PGI 244.201-1.

[80 FR 67252, Oct. 30, 2015, as amended at 84 FR 12141, Apr. 1, 2019]



244.202  Contracting officer's evaluation.



244.202-2  Considerations.

    (a) Where other than lowest price is the basis for subcontractor 
selection, has the contractor adequately substantiated the selection as 
offering the greatest value to the Government?

[60 FR 29501, June 5, 1995]



          Subpart 244.3_Contractors' Purchasing Systems Reviews



244.301  Objective.

    The administrative contracting officer (ACO) is solely responsible 
for initiating reviews of the contractor's purchasing systems, but other 
organizations may request that the ACO initiate such reviews.

[70 FR 67922, Nov. 9, 2005]



244.302  Requirements.

    (a) In lieu of the threshold at FAR 44.302(a), the ACO shall 
determine the need for a CPSR if a contractor's sales to the Government 
are expected to exceed $50 million during the next 12 months.

[84 FR 72249, Dec. 31, 2019]



244.303  Extent of review.

    (a) Also review the adequacy of rationale documenting commercial 
item determinations to ensure compliance with the definition of 
``commercial item'' in FAR 2.101.
    (b) Also review the adequacy of the contractor's counterfeit 
electronic part detection and avoidance system under clause 252.246-
7007, Contractor Counterfeit Electronic Part Detection and Avoidance 
System.

[67 FR 38023, May 31, 2002, as amended at 79 FR 26106, May 6, 2014]



244.305  Granting, withholding, or withdrawing approval.



244.305-70  Policy.

    Use this subsection instead of FAR 44.305-2(c) and 44.305-3(b).
    (a) The cognizant contracting officer, in consultation with the 
purchasing system analyst or auditor, shall--
    (1) Determine the acceptability of the contractor's purchasing 
system and approve or disapprove the system; and
    (2) Pursue correction of any deficiencies.
    (b) In evaluating the acceptability of the contractor's purchasing 
system, the contracting officer, in consultation with the purchasing 
system analyst or auditor, shall determine whether the contractor's 
purchasing system complies with the system criteria for an acceptable 
purchasing system as prescribed in the clause at 252.244-7001, 
Contractor Purchasing System Administration.
    (c) Disposition of findings--(1) Reporting of findings. The 
purchasing system analyst or auditor shall document findings and 
recommendations in a report to the contracting officer. If the auditor 
or purchasing system analyst identifies any significant purchasing 
system deficiencies, the report shall describe the deficiencies in 
sufficient detail to allow the contracting officer to understand the 
deficiencies.
    (2) Initial determination. (i) The contracting officer shall review 
all findings and recommendations and, if there are no significant 
deficiencies, shall promptly notify the contractor that the contractor's 
purchasing system is acceptable and approved; or
    (ii) If the contracting officer finds that there are one or more 
significant deficiencies (as defined in the clause at 252.244-7001, 
Contractor Purchasing System Administration) due to the contractor's 
failure to meet one or more of the purchasing system criteria in the 
clause at 252.244-7001, the contracting officer shall--
    (A) Promptly make an initial written determination on any 
significant deficiencies and notify the contractor, in writing, 
providing a description of each significant deficiency in sufficient 
detail to allow the contractor to understand the deficiency;

[[Page 372]]

    (B) Request the contractor to respond, in writing, to the initial 
determination within 30 days; and
    (C) Evaluate the contractor's response to the initial determination 
in consultation with the auditor or purchasing system analyst, and make 
a final determination.
    (3) Final determination. (i) The contracting officer shall make a 
final determination and notify the contractor, in writing, that--
    (A) The contractor's purchasing system is acceptable and approved, 
and no significant deficiencies remain, or
    (B) Significant deficiencies remain. The notice shall identify any 
remaining significant deficiencies, and indicate the adequacy of any 
proposed or completed corrective action. The contracting officer shall--
    (1) Request that the contractor, within 45 days of receipt of the 
final determination, either correct the deficiencies or submit an 
acceptable corrective action plan showing milestones and actions to 
eliminate the deficiencies;
    (2) Disapprove the system in accordance with the clause at 252.244-
7001, Contractor Purchasing System Administration; and
    (3) Withhold payments in accordance with the clause at 252.242-7005, 
Contractor Business Systems, if the clause is included in the contract.
    (ii) Follow the procedures relating to monitoring a contractor's 
corrective action and the correction of significant deficiencies in PGI 
244.305-70.
    (d) System approval. The contracting officer shall promptly approve 
a previously disapproved purchasing system and notify the contractor 
when the contracting officer determines that there are no remaining 
significant deficiencies.
    (e) Contracting officer notifications. The cognizant contracting 
officer shall promptly distribute copies of a determination to approve a 
system, disapprove a system and withhold payments, or approve a 
previously disapproved system and release withheld payments to the 
auditor; payment office; affected contracting officers at the buying 
activities; and cognizant contracting officers in contract 
administration activities.
    (f) Mitigating the risk of purchasing system deficiencies on 
specific proposals.
    (1) Source selection evaluation teams shall discuss identified 
purchasing system deficiencies and their impact in all reports on 
contractor proposals until the deficiencies are resolved.
    (2) The contracting officer responsible for negotiation of a 
proposal generated by a purchasing system with an identified deficiency 
shall evaluate whether the deficiency impacts the negotiations. If it 
does not, the contracting officer should proceed with negotiations. If 
it does, the contracting officer should consider other alternatives, 
e.g.--
    (i) Allowing the contractor additional time to correct the 
purchasing system deficiency and submit a corrected proposal;
    (ii) Considering another type of contract, e.g., a fixed-price 
incentive (firm target) contract instead of firm-fixed-price;
    (iii) Using additional cost analysis techniques to determine the 
reasonableness of the cost elements affected by the purchasing system's 
deficiency;
    (iv) Segregating the questionable areas as a cost-reimbursable line 
item;
    (v) Reducing the negotiation objective for profit or fee; or
    (vi) Including a contract (reopener) clause that provides for 
adjustment of the contract amount after award.
    (3) The contracting officer who incorporates a reopener clause into 
the contract is responsible for negotiating price adjustments required 
by the clause. Any reopener clause necessitated by a purchasing system 
deficiency should--
    (i) Clearly identify the amounts and items that are in question at 
the time of negotiation;
    (ii) Indicate a specific time or subsequent event by which the 
contractor will submit a supplemental proposal, including certified cost 
or pricing data, identifying the cost impact adjustment necessitated by 
the deficient purchasing system;
    (iii) Provide for the contracting officer to adjust the contract 
price unilaterally if the contractor fails to submit the supplemental 
proposal; and
    (iv) Provide that failure of the Government and the contractor to 
agree to

[[Page 373]]

the price adjustment shall be a dispute under the Disputes clause.

[76 FR 28871, May 18, 2011, as amended at 77 FR 11366, Feb. 24, 2012]



244.305-71  Contract clause.

    Use the Contractor Purchasing System Administration basic clause or 
its alternate as follows:
    (a) Use the clause at 252.244-7001, Contractor Purchasing System 
Administration--Basic, in solicitations and contracts containing the 
clause at FAR 52.244-2, Subcontracts.
    (b) Use the clause at 252.244-7001, Contractor Purchasing System 
Administration--Alternate I, in solicitations and contracts that contain 
the clause at 252.246-7007, Contractor Counterfeit Electronic Part 
Detection and Avoidance System, but do not contain FAR 52.244-2, 
Subcontracts.

[79 FR 26106, May 6, 2014]



     Subpart 244.4_Subcontracts for Commercial Items and Commercial 
                               Components



244.402  Policy requirements.

    (a) Contractors are required to determine whether a particular 
subcontract item meets the definition of a commercial item. This 
requirement does not affect the contracting officer's responsibilities 
or determinations made under FAR 15.403-1(c)(3). Contractors are 
expected to exercise reasonable business judgment in making such 
determinations, consistent with the guidelines for conducting market 
research in FAR part 10.
    (S-70) In accordance with 10 U.S.C. 2380b, items that are valued at 
less than $10,000 per item that are purchased by a contractor for use in 
the performance of multiple contracts with the Department of Defense and 
other parties and are not identifiable to any particular contract when 
purchased shall be treated as commercial items, even though the items 
may not meet the definition of ``commercial item'' at FAR 2.101 and do 
not require a commercial item determination.

[67 FR 38023, May 31, 2002, as amended at 85 FR 60921, Sept. 29, 2020]



244.403  Contract clause.

    Use the clause at 252.244-7000, Subcontracts for Commercial Items, 
in solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items.

[78 FR 37989, June 25, 2013]



PART 245_GOVERNMENT PROPERTY--Table of Contents



                          Subpart 245.1_General

Sec.
245.101 Definitions.
245.102 Policy.
245.103-70 Furnishing Government property to contractors.
245.103-71 Transferring Government property accountability.
245.103-72 Government-furnished property attachments to solicitations 
          and awards.
245.103-73 Government property under sustainment contracts.
245.103-74 Contracting office responsibilities.
245.104 Responsibility and liability for Government property.
245.105 Contractor's property management system compliance.
245.107 Contract clause.

          Subpart 245.2_Solicitation and Evaluation Procedures

245.201 Solicitation.
245.201-70 Definitions.
245.201-71 Security classification.

   Subpart 245.3_Authorizing the Use and Rental of Government Property

245.302 Contracts with foreign governments or international 
          organizations.

               Subpart 245.4_Title to Government Property

245.402 Title to contractor-acquired property.
245.402-70 Policy.
245.402-71 Delivery of contractor-acquired property.

        Subpart 245.5_Support Government Property Administration

245.570 Storage at the Government's expense.

[[Page 374]]

          Subpart 245.6_ Reporting, Reutilization, and Disposal

245.602 Reutilization of Government property.
245.602-1 Inventory disposal schedules.
245.602-3 Screening.
245.602-70 Plant clearance procedures.
245.604 Disposal of surplus property.
245.604-3 Sale of surplus property.

                  Subpart 245.70_Plant Clearance Forms

245.7101 Forms.
245.7001 Forms.
245.7001-1 Standard Form 97, Certificate of Release of a Motor Vehicle 
          (Agency Record Copy).
245.7001-2 DD Form 1149, Requisition and Invoice Shipping Document.
245.7001-3 DD Form 1348-1, DoD Single Line Item Release/Receipt 
          Document.
245.7001-4 DD Form 1640, Request for Plant Clearance.
245.7001-5 DD Form 1641, Disposal Determination/Approval.
245.7001-6 Defense Logistics Agency DLA Form 1822, End Use Certificate.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36448, July 31, 1991, unless otherwise noted.



                          Subpart 245.1_General

    Source: 74 FR 37647, July 29, 2009, unless otherwise noted.



245.101  Definitions.

    Mapping, charting, and geodesy property, as used in this subpart, is 
defined in the clause at 252.245-7000, Government-Furnished Mapping, 
Charting, and Geodesy Property.



245.102  Policy.

    (See the policy guidance at PGI 245.102-70.)
    (1) Mapping, charting, and geodesy property. All Government-
furnished mapping, charting, and geodesy (MC&G) property is under the 
control of the Director, National Geospatial Intelligence Agency.
    (i) MC&G property shall not be duplicated, copied, or otherwise 
reproduced for purposes other than those necessary for contract 
performance.
    (ii) Upon completion of contract performance, the contracting 
officer shall--
    (A) Contact the Director, National Geospatial-Intelligence Agency, 
7500 Geoint Drive, Springfield, VA 22150, for disposition instructions;
    (B) Direct the contractor to destroy or return all Government-
furnished MC&G property not consumed during contract performance; and
    (C) Specify the destination and means of shipment for property to be 
returned to the Government.
    (2) Government supply sources. When a contractor will be responsible 
for preparing requisitioning documentation to acquire Government-
furnished property from Government supply sources, include in the 
contract the requirement to prepare the documentation in accordance with 
DoD 4000.25-1-M, Military Standard Requisitioning and Issue Procedures 
(MILSTRIP). Copies are available from the address cited at PGI 251.102.
    (3) Acquisition and management of industrial resources. See Subpart 
237.75 for policy relating to facilities projects.
    (4) Government-furnished property identification.
    (i) It is DoD policy that Government-furnished property be tagged, 
labeled, or marked based on DoD marking standards (MIL Standard 130) or 
other standards, when the requiring activity determines that such items 
are subject to serialized item management (serially-managed items). The 
list of Government-furnished property subject to serialized item 
management will be identified in the contract in accordance with PGI 
245.103-72, Government-furnished property attachments to solicitations 
and awards.
    (ii) Exceptions. The Contractor will not be required to tag, label, 
or mark--
    (A) Government-furnished property that was previously tagged, 
labeled, or marked;
    (B) Items, as determined by the head of the agency, that are to be 
used to support a contingency operation; or to facilitate defense 
against or recovery from nuclear, biological, chemical, or radiological 
attack;
    (C) Items for which a determination and findings has been executed 
concluding that it is more cost effective for the Government requiring 
activity to assign, mark, and register the

[[Page 375]]

unique item identification after delivery of an item acquired from a 
small business concern or a commercial item acquired under FAR part 12 
or part 8.
    (1) The determination and findings shall be executed by--
    (i) The Component Acquisition Executive for an Acquisition Category 
(ACAT) I program; or
    (ii) The head of the contracting activity for all other programs.
    (2) A copy of the executed determination and findings shall be 
provided to the DoD Unique Item Identification Policy Office at this 
address: OUSD (AT&L) DPAP/Program Development and Implementation, Room 
3B855, 3060 Defense Pentagon, Washington, DC 20301-3060; or by facsimile 
to 703-602-6047.
    (D) Items that are contractor-acquired property;
    (E) Property under any statutory leasing authority;
    (F) Property to which the Government has acquired a lien or title 
solely because of partial, advance, progress, or performance-based 
payments;
    (G) Intellectual property or software; or
    (H) Real property.
    (5) Reporting loss of Government property. The Government-Furnished 
Property module of the Procurement Integrated Enterprise Environment is 
the DoD data repository for reporting loss of Government property in the 
possession of contractors. The requirements and procedures for reporting 
loss of Government property to the Government-Furnished Property module 
are set forth in the clause at 252.245-7002, Reporting Loss of 
Government Property, prescribed at 245.107.

[74 FR 37647, July 29, 2009, as amended at 76 FR 3537, Jan. 20, 2011; 76 
FR 6006, 6008, Feb. 2, 2011; 80 FR 2021, Jan. 15, 2015; 81 FR 36473, 
June 7, 2016; 86 FR 3839, Jan. 15, 2021]



245.103-70  Furnishing Government property to contractors.

    Follow the procedures at PGI 245.103-70 for furnishing Government 
property to contractors.

[76 FR 3537, Jan. 20, 2011. Redesignated and amended at 77 FR 76937, 
Dec. 31, 2012]



245.103-71  Transferring Government property accountability.

    Follow the procedures at PGI 245.103-71 for transferring Government 
property accountability.

[76 FR 3537, Jan. 20, 2011. Redesignated and amended at 77 FR 76937, 
Dec. 31, 2012]



245.103-72  Government-furnished property attachments to 
solicitations and awards.

    When performance will require the use of Government-furnished 
property, contracting officers shall use the fillable electronic 
``Requisitioned Government Furnished Property'' and/or ``Scheduled 
Government Furnished Property'' formats as attachments to solicitations 
and awards. See PGI 245.103-72 for links to the formats and procedures 
for preparing Government-furnished property attachments to solicitations 
and awards.

[77 FR 76937, Dec. 31, 2012, as amended at 78 FR 13544, Feb. 28, 2013]



245.103-73  Government property under sustainment contracts.

    See PGI 245.103-73 for information on the reporting requirements for 
Government inventory held by contractors under sustainment contracts in 
accordance with DoD Manual 4140.01, Volume 6, DoD Supply Chain Materiel 
Management Procedures: Materiel Returns, Retention, and Disposition.

[82 FR 61481, Dec. 28, 2017]



245.103-74  Contracting office responsibilities.

    See PGI 245.103-74 for contracting office responsibilities.

[77 FR 76937, Dec. 31, 2012. Redesignated at 82 FR 61481, Dec. 28, 2017; 
83 FR 12681, Mar. 23, 2018]



245.104  Responsibility and liability for Government property.

    In addition to the contract types listed at FAR 45.104, contractors 
are not held liable for loss of Government property under negotiated 
fixed-price contracts awarded on a basis other than submission of 
certified cost or pricing data.

[76 FR 71826, Nov. 18, 2011]

[[Page 376]]



245.105  Contractors' property management system compliance.

    (a) Definitions--
    (1) Acceptable property management system and property management 
system are defined in the clause at 252.245-7003, Contractor Property 
Management System Administration.
    (2) Significant deficiency is defined in the clause at 252.245-7003, 
Contractor Property Management System Administration.
    (b) Policy. The cognizant contracting officer, in consultation with 
the property administrator, shall--
    (1) Determine the acceptability of the system and approve or 
disapprove the system; and
    (2) Pursue correction of any deficiencies.
    (c) In evaluating the acceptability of a contractor's property 
management system, the contracting officer, in consultation with the 
property administrator, shall determine whether the contractor's 
property management system complies with the system criteria for an 
acceptable property management system as prescribed in the clause at 
252.245-7003, Contractor Property Management System Administration.
    (d) Disposition of findings--(1) Reporting of findings. The property 
administrator shall document findings and recommendations in a report to 
the contracting officer. If the property administrator identifies any 
significant property system deficiencies, the report shall describe the 
deficiencies in sufficient detail to allow the contracting officer to 
understand the deficiencies.
    (2) Initial determination. (i) The contracting officer shall review 
findings and recommendations and, if there are no significant 
deficiencies, shall promptly notify the contractor, in writing, that the 
contractor's property management system is acceptable and approved; or
    (ii) If the contracting officer finds that there are one or more 
significant deficiencies (as defined in the clause at 252.245-7003, 
Contractor Property Management System Administration) due to the 
contractor's failure to meet one or more of the property management 
system criteria in the clause at 252.245-7003, the contracting officer 
shall--
    (A) Promptly make an initial written determination on any 
significant deficiencies and notify the contractor, in writing, 
providing a description of each significant deficiency in sufficient 
detail to allow the contractor to understand the deficiency;
    (B) Request the contractor to respond, in writing, to the initial 
determination within 30 days and;
    (C) Evaluate the contractor's response to the initial determination, 
in consultation with the property administrator, and make a final 
determination.
    (3) Final determination. (i) The contracting officer shall make a 
final determination and notify the contractor, in writing, that--
    (A) The contractor's property management system is acceptable and 
approved, and no significant deficiencies remain, or
    (B) Significant deficiencies remain. The notice shall identify any 
remaining significant deficiencies, and indicate the adequacy of any 
proposed or completed corrective action. The contracting officer shall--
    (1) Request that the contractor, within 45 days of receipt of the 
final determination, either correct the deficiencies or submit an 
acceptable corrective action plan showing milestones and actions to 
eliminate the deficiencies;
    (2) Disapprove the system in accordance with the clause at 252.245-
7003, Contractor Property Management System Administration; and
    (3) Withhold payments in accordance with the clause at 252.242-7005, 
Contractor Business Systems, if the clause is included in the contract.
    (ii) Follow the procedures relating to monitoring a contractor's 
corrective action and the correction of significant deficiencies in PGI 
245.105.
    (e) System approval. The contracting officer shall promptly approve 
a previously disapproved property management system and notify the 
contractor when the contracting officer determines, in consultation with 
the property administrator, that there are no remaining significant 
deficiencies.
    (f) Contracting officer notifications. The cognizant contracting 
officer shall

[[Page 377]]

promptly distribute copies of a determination to approve a system, 
disapprove a system and withhold payments, or approve a previously 
disapproved system and release withheld payments to the auditor; payment 
office; affected contracting officers at the buying activities; and 
cognizant contracting officers in contract administration activities.

[76 FR 28872, May 18, 2011]



245.107  Contract clauses.

    (1)(i) In lieu of the prescription at FAR 45.107(d), use the clause 
at FAR 52.245-1, Government Property, in all purchase orders for repair, 
maintenance, overhaul, or modification of Government property regardless 
of the unit acquisition cost of the items to be repaired.
    (ii) For negotiated fixed-price contracts awarded on a basis other 
than submission of certified cost or pricing data for which Government 
property is provided, use the clause at FAR 52.245-1, Government 
Property, without its Alternate I.
    (2) Use the clause at 252.245-7000, Government-Furnished Mapping, 
Charting, and Geodesy Property, in solicitations and contracts when 
mapping, charting, and geodesy property is to be furnished.
    (3) Use the clause at 252.245-7001, Tagging, Labeling, and Marking 
of Government-Furnished Property, in solicitations and contracts that 
contain the clause at FAR 52.245-1, Government Property.
    (4) Use the clause at 252.245-7002, Reporting Loss of Government 
Property, in solicitations and contracts that contain the clause at FAR 
52.245-1, Government Property.
    (5) Use the clause at 252.245-7003, Contractor Property Management 
System Administration, in solicitations and contracts containing the 
clause at FAR 52.245-1, Government Property.
    (6) Use the clause at 252.245-7004, Reporting, Reutilization, and 
Disposal, in solicitations and contracts that contain the clause at FAR 
52.245-1, Government Property.

[76 FR 6006, 6008, Feb. 2, 2011, as amended at 76 FR 28872, May 18, 
2011; 76 FR 52142, Aug. 19, 2011; 76 FR 71826, Nov. 18, 2011; 84 FR 
18162, Apr. 30, 2019]



          Subpart 245.2_Solicitation and Evaluation Procedures

    Source: 76 FR 3537, Jan. 20, 2011, unless otherwise noted.



245.201  Solicitation.



245.201-70  Definitions.

    See the definitions at PGI 245.201-70.



245.201-71  Security classification.

    Follow the procedures at PGI 245.201-71 for security classification.

[76 FR 3537, Jan. 20, 2011. Redesignated and amended at 77 FR 76937, 
Dec. 31, 2012]



   Subpart 245.3_Authorizing the Use and Rental of Government Property

    Source: 74 FR 37647, July 29, 2009, unless otherwise noted.



245.302  Contracts with foreign governments or international organizations.

    (1) General.
    (i) Approval. A contractor may use Government property on work for 
foreign governments and international organizations only when approved 
in writing by the contracting officer having cognizance of the property. 
The contracting officer may grant approval, provided--
    (A) The use will not interfere with foreseeable requirements of the 
United States;
    (B) The work is undertaken as a DoD foreign military sale; or
    (C) For a direct commercial sale, the foreign country or 
international organization would be authorized to contract with the 
department concerned under the Arms Export Control Act.
    (ii) Use charges.
    (A) The Use and Charges clause is applicable on direct commercial 
sales to foreign governments or international organizations.
    (B) When a particular foreign government or international 
organization has funded the acquisition of property, do not assess the 
foreign government or international organization rental charges or 
nonrecurring recoupments for the use of such property.

[[Page 378]]

    (2) Special tooling and special test equipment.
    (i) DoD normally recovers a fair share of nonrecurring costs of 
special tooling and special test equipment by including these costs in 
its calculation of the nonrecurring cost recoupment charge when major 
defense equipment is sold by foreign military sales or direct commercial 
sales to foreign governments or international organizations. ``Major 
defense equipment'' is defined in DoD Directive 2140.2, Recoupment of 
Nonrecurring Costs on Sales of U.S. Items, as any item of significant 
military equipment on the United States Munitions List having a 
nonrecurring research, development, test, and evaluation cost of more 
than $50 million or a total production cost of more than $200 million.
    (ii) When the cost thresholds in paragraph (2)(i) of this section 
are not met, the contracting officer shall assess rental charges for use 
of special tooling and special test equipment pursuant to the Use and 
Charges clause if administratively practicable.
    (3) Waivers.
    (i) Rental charges for use of U.S. production and research property 
on commercial sales transactions to the Government of Canada are waived 
for all commercial contracts. This waiver is based on an understanding 
wherein the Government of Canada has agreed to waive its rental charges.
    (ii) Requests for waiver or reduction of charges for the use of 
Government property on work for foreign governments or international 
organizations shall be submitted to the contracting officer, who is 
authorized to approve the requests in consultation with the appropriate 
functional specialist.

[74 FR 37647, July 29, 2009, as amended at 78 FR 65220, Oct. 31, 2013]



               Subpart 245.4_Title to Government Property

    Source: 76 FR 3537, Jan. 20, 2011, unless otherwise noted.



245.402  Title to contractor-acquired property.



245.402-70  Policy.

    Review the guidance at PGI 245.402-70 with regard to oversight and 
surveillance of contractor-acquired property.

[81 FR 50652, Aug. 2, 2016]



245.402-71  Delivery of contractor-acquired property.

    Follow the procedures at PGI 245.402-71 for the delivery of 
contractor-acquired property.



        Subpart 245.5_Support Government Property Administration

    Source: 76 FR 52142, Aug. 19, 2011, unless otherwise noted.



245.570  Storage at the Government's expense.

    All storage contracts or agreements shall be separately priced and 
shall include all costs associated with the storage.



          Subpart 245.6_Reporting, Reutilization, and Disposal

    Source: 76 FR 52142, Aug. 19, 2011, unless otherwise noted.



245.602  Reutilization of Government property.



245.602-1  Inventory disposal schedules.

    For termination inventory, plant clearance officers shall verify 
inventory schedules, either directly or through appropriate technical 
personnel, to determine the following:
    (a) Allocability.
    (1) Review contract requirements, delivery schedules, bills of 
material, and other pertinent documents to determine whether schedules 
include property that--
    (i) Is appropriate for use on the contract; or
    (ii) Exceeds the quantity required for completion of the contract, 
but could be diverted to other commercial work or Government use.
    (2) Review the contractor's--

[[Page 379]]

    (i) Recent purchases of similar material;
    (ii) Plans for current and scheduled production;
    (iii) Stock record entries; and
    (iv) Bills of material for similar items.
    (b) Quantity. Take measures to provide assurance that available 
inventory is in accordance with quantities listed on the inventory 
schedules. Quantities may be verified by actual item count, acceptance 
of labeled quantities in unopened/sealed packages, scale counts, or 
other appropriate methods.
    (c) Condition. Ensure that the physical condition of the property is 
reasonably consistent with the Federal Condition Code supplied by the 
contractor.



245.602-3  Screening.

    Property will be screened DoD-wide, including the contracting 
agency, requiring agency, and, as appropriate, the General Services 
Administration. The requiring agency shall have priority for retention 
of listed items. All required screening must be completed before any 
sale of contractor inventory, including contractor inventory in overseas 
locations (foreign excess personal property) can take place. Upon 
request of the prospective reutilization, transfer, donation, or sales 
customer, the plant clearance officer shall arrange for inspection of 
property at the contractor's plant in such a manner as to avoid 
interruption of the contractor's operations, and consistent with any 
security requirements.



245.602-70  Plant clearance procedures.

    Follow the procedures at PGI 245.602-70 for establishing and 
processing a plant clearance case.



245.604  Disposal of surplus property.



245.604-3  Sale of surplus property.

    (a) Plant clearance officers shall determine a best value sales 
approach (formal or informal sales), to include due consideration for 
costs, risks, and benefits, e.g., potential sales proceeds.
    (b) Informal bid procedures. The plant clearance officer may direct 
the contractor to issue informal invitations for bid (orally, 
telephonically, or by other informal media), provided--
    (1) Maximum practical competition is obtained;
    (2) Sources solicited are recorded; and
    (3) Informal bids are confirmed in writing.
    (c) Sale approval and award. Plant clearance officers shall--
    (1) Evaluate bids to establish that the sale price is fair and 
reasonable, taking into consideration--
    (i) Knowledge or tests of the market;
    (ii) Current published prices for the property;
    (iii) The nature, condition, quantity, and location of the property; 
and
    (iv) Past sale history for like or similar items;
    (2) Approve award to the responsible bidder whose bid is most 
advantageous to the Government. The plant clearance officer shall not 
approve award to any bidder who is an ineligible transferee, as defined 
in 252.245-7004, Reporting, Reutilization, and Disposal; and
    (3) Notify the contractor of the bidder to whom an award will be 
made within five working days from receipt of bids.
    (d) Noncompetitive sales.
    (1) Noncompetitive sales include purchases or retention at less than 
cost by the contractor. Noncompetitive sales may be made when--
    (i) The plant clearance officer determines that this method is 
essential to expeditious plant clearance; and
    (ii) The Government's interests are adequately protected.
    (2) Noncompetitive sales shall be at fair and reasonable prices, not 
less than those reasonably expected under competitive sales.
    (3) Conditions justifying noncompetitive sales are--
    (i) No acceptable bids are received under competitive sale;
    (ii) Anticipated sales proceeds do not warrant competitive sale;
    (iii) Specialized nature of the property would not create bidder 
interest;
    (iv) Removal of the property would reduce its value or result in 
disproportionate handling expenses; or
    (v) Such action is essential to the Government's interests.

[[Page 380]]

    (e) Plant clearance officers shall consider any special disposal 
requirements such as demilitarization or trade security control 
requirements in accordance with DoDM 4160.28-M, Defense Demilitarization 
Manual, and DoDI 2030.08, Implementation of Trade Security Controls, 
respectively (See PGI 245.6).]



                  Subpart 245.70_Plant Clearance Forms



245.7001  Forms.

    Use the forms listed below in performance of plant clearance 
actions.



245.7001-1  Standard Form 97, Certificate of Release of a Motor
Vehicle (Agency Record Copy).

    Use for transfers, donations, and sales of motor vehicles. The 
contracting officer shall execute the SF 97 and furnish it to the 
purchaser.



245.7001-2  DD Form 1149, Requisition and Invoice Shipping Document.

    Use for transfer and donation of contractor inventory.



245.7001-3  DD Form 1348-1, DoD Single Line Item Release/Receipt
Document.

    Use when authorized by the plant clearance officer.



245.7001-4  DD Form 1640, Request for Plant Clearance.

    Use to request plant clearance assistance or transfer plant 
clearance.



245.7001-5  DD Form 1641, Disposal Determination/Approval.

    Use to record rationale for the following disposal determinations:
    (a) Downgrade useable property to scrap.
    (b) Abandonment or destruction.
    (c) Noncompetitive sale of surplus property.
    (d) Other disposal actions.



245.7001-6  DLA Form 1822, End Use Certificate.

    Use when directed by the plant clearance officer.

[56 FR 36448, July 31, 1991, as amended at 77 FR 52254, Aug. 29, 2012]



PART 246_QUALITY ASSURANCE--Table of Contents



                          Subpart 246.1_General

Sec.
246.101 Definitions.
246.102 Policy.
246.103 Contracting office responsibilities.

               Subpart 246.2_Contract Quality Requirements

246.202 Types of contract quality requirements.
246.202-4 Higher-level contract quality requirements.
246.270 Safety of facilities, infrastructure, and equipment for military 
          operations.
246.270-1 Scope.
246.270-2 Policy.
246.270-3 Exceptions.
246.270-4 Contract clause.

                     Subpart 246.3_Contract Clauses

246.370 Notification of potential safety issues.

           Subpart 246.4_Government Contract Quality Assurance

246.401 General.
246.402 Government contract quality assurance at source.
246.404 Government contract quality assurance for acquisitions at or 
          below the simplified acquisition threshold.
246.406 Foreign governments.
246.407 Nonconforming supplies or services.
246.408 Single-agency assignments of Government contract quality 
          assurance.
246.408-70 Subsistence.
246.408-71 Aircraft.
246.470 Government contract quality assurance actions.
246.470-1 Assessment of additional costs.
246.470-2 Quality evaluation data.
246.471 Authorizing shipment of supplies.
246.472 Inspection stamping.

                        Subpart 246.5_Acceptance

246.504 Certificate of conformance.

         Subpart 246.6_Material Inspection and Receiving Reports

246.601 General.

                        Subpart 246.7_Warranties

246.701 Definitions.
246.704 Authority for use of warranties.
246.705 Limitations.
246.706 Warranty terms and conditions.
246.708 Warranties of data.
246.710 Solicitation provision and contract clauses.

[[Page 381]]

246.710-70 Warranty attachments.

Subpart 246.8_Contractor Liability for Loss of or Damage to Property of 
                             the Government

246.870 Contractor counterfeit electronic part detection and avoidance.
246.870-0 Scope.
246.870-1 Definition.
246.870-2 Policy.
246.870-3 Contract clauses.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36460, July 31, 1991, unless otherwise noted.



                          Subpart 246.1_General



246.101  Definitions.

    Discipline Working Group, as used in this subpart, is defined in the 
clause at 252.246-7004, Safety of Facilities, Infrastructure, and 
Equipment for Military Operations.

[75 FR 66685, Oct. 29, 2010]



246.102  Policy.

    Departments and agencies shall also--
    (1) Develop and manage a systematic, cost-effective Government 
contract quality assurance program to ensure that contract performance 
conforms to specified requirements. Apply Government quality assurance 
to all contracts for services and products designed, developed, 
purchased, produced, stored, distributed, operated, maintained, or 
disposed of by contractors.
    (2) Conduct quality audits to ensure the quality of products and 
services meet contractual requirements.
    (3) Base the type and extent of Government contract quality 
assurance actions on the particular acquisition.
    (4) Provide contractors the maximum flexibility in establishing 
efficient and effective quality programs to meet contractual 
requirements. Contractor quality programs may be modeled on military, 
commercial, national, or international quality standards.

[56 FR 36460, July 31, 1991, as amended at 60 FR 33145, June 27, 1995; 
71 FR 27646, May 12, 2006]



246.103  Contracting office responsibilities.

    (1) The contracting office must coordinate with the quality 
assurance activity before changing any quality requirement.
    (2) The activity responsible for technical requirements may prepare 
instructions covering the type and extent of Government inspections for 
acquisitions that are complex, have critical applications, or have 
unusual requirements. Follow the procedures at PGI 246.103(2) for 
preparation of instructions.

[71 FR 27647, May 12, 2006]



               Subpart 246.2_Contract Quality Requirements



246.202  Types of contract quality requirements.



246.202-4  Higher-level contract quality requirements.

    (1) Higher-level contract quality requirements are used in addition 
to a standard inspection requirement.
    (2) Higher-level contract quality requirements, including 
nongovernment quality system standards adopted to meet DoD needs, are 
listed in the DoD Index of Specifications and Standards.

[60 FR 33145, June 27, 1995. Redesignated and amended at 60 FR 61599, 
Nov. 30, 1995]



246.270  Safety of facilities, infrastructure, and equipment for 
military operations.



246.270-1  Scope.

    This section implements section 807 of the National Defense 
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84). It establishes 
policies and procedures intended to ensure the safety and habitability 
of facilities, infrastructure, and equipment acquired for use by DoD 
military or civilian personnel during military operations performed 
outside the United States, Guam, Puerto Rico, and the Virgin Islands.

[75 FR 66685, Oct. 29, 2010]

[[Page 382]]



246.270-2  Policy.

    (a) Contracts (including task and delivery orders) for the 
construction, installation, repair, maintenance, or operation of 
facilities, infrastructure, and equipment configured for occupancy, 
including but not limited to, existing host nation facilities, new 
construction, and relocatable buildings acquired for use by DoD military 
or civilian personnel, shall require a pre-occupancy safety and 
habitability inspection.
    (b) To minimize safety and health risks, each contract covered by 
this policy shall require the contractor's compliance with the Unified 
Facilities Criteria (UFC) 1-200-01 and its referenced standards for--
    (1) Fire protection;
    (2) Structural integrity;
    (3) Electrical systems;
    (4) Plumbing;
    (5) Water treatment;
    (6) Waste disposal; and
    (7) Telecommunications networks.
    (c) Existing host nation facilities constructed to standards 
equivalent to or more stringent than UFC 1-200-01 are acceptable upon a 
written determination of the acceptability of the standards by the 
Discipline Working Group.
    (d) Inspections to ensure compliance with UFC 1-200-01 standards 
shall be conducted in accordance with the inspection clause of the 
contract.

[75 FR 66685, Oct. 29, 2010]



246.270-3  Exceptions.

    The combatant commander may waive compliance with the foregoing 
standards when it is impracticable to comply with such standards under 
prevailing operational conditions.

[75 FR 66685, Oct. 29, 2010]



246.270-4  Contract clause.

    Use the clause at 252.246-7004, Safety of Facilities, 
Infrastructure, and Equipment for Military Operations, in solicitations 
and contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, for the 
construction, installation, repair, maintenance, or operation of 
facilities, infrastructure, or for equipment configured for occupancy, 
planned for use by DoD military or civilian personnel during military 
operations.

[75 FR 66685, Oct. 29, 2010, as amended at 78 FR 37989, June 25, 2013]



                     Subpart 246.3_Contract Clauses



246.370  Notification of potential safety issues.

    (a) Use the clause at 252.246-7003, Notification of Potential Safety 
Issues, in solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of commercial 
items, for the acquisition of--
    (1) Repairable or consumable parts identified as critical safety 
items;
    (2) Systems and subsystems, assemblies, and subassemblies integral 
to a system; or
    (3) Repair, maintenance, logistics support, or overhaul services for 
systems and subsystems, assemblies, subassemblies, and parts integral to 
a system.
    (b) Follow the procedures at PGI 246.370 for the handling of 
notifications received under the clause at 252.246-7003.

[72 FR 2636, Jan. 22, 2007, as amended at 78 FR 37989, June 25, 2013. 
Redesignated and amended at 83 FR 66064, Dec. 21, 2018]



           Subpart 246.4_Government Contract Quality Assurance



246.401  General.

    The requirement for a quality assurance surveillance plan shall be 
addressed and documented in the contract file for each contract except 
for those awarded using simplified acquisition procedures. For contracts 
for services, the contracting officer should prepare a quality assurance 
surveillance plan to facilitate assessment of contractor performance, 
see 237.172. For contracts for supplies, the contracting officer should 
address the need for a quality assurance surveillance plan.

[75 FR 22706, Apr. 30, 2010]

[[Page 383]]



246.402  Government contract quality assurance at source.

    Do not require Government contract quality assurance at source for 
contracts or delivery orders valued below $350,000, unless--
    (1) Mandated by DoD regulation;
    (2) Required by a memorandum of agreement between the acquiring 
department or agency and the contract administration agency; or
    (3) The contracting officer determines that--
    (i) Contract technical requirements are significant (e.g., the 
technical requirements include drawings, test procedures, or performance 
requirements);
    (ii) The product being acquired--
    (A) Has critical characteristics;
    (B) Has specific features identified that make Government contract 
quality assurance at source necessary; or
    (C) Has specific acquisition concerns identified that make 
Government contract quality assurance at source necessary; and
    (iii) The contract is being awarded to--
    (A) A manufacturer or producer; or
    (B) A non-manufacturer or non-producer and specific Government 
verifications have been identified as necessary and feasible to perform.

[70 FR 8543, Feb. 22, 2005, as amended at 75 FR 45074, Aug. 2, 2010; 85 
FR 61504, Sept. 29, 2020]



246.404  Government contract quality assurance for acquisitions at
or below the simplified acquisition threshold.

    Do not require Government contract quality assurance at source for 
contracts or delivery orders valued at or below the simplified 
acquisition threshold unless the criteria at 246.402 have been met.

[70 FR 8543, Feb. 22, 2005]



246.406  Foreign governments.

    (1) Quality assurance among North Atlantic Treaty Organization 
(NATO) countries. (i) NATO Standardization Agreement (STANAG) 4107, 
Mutual Acceptance of Government Quality Assurance and Usage of the 
Allied Quality Assurance Publications--
    (A) Contains the processes, procedures, terms, and conditions under 
which one NATO member nation will perform quality assurance for another 
NATO member nation or NATO organization;
    (B) Standardizes the development, updating, and application of the 
Allied Quality Assurance Publications; and
    (C) Has been ratified by the United States and other nations in NATO 
with certain reservations identified in STANAG 4107.
    (ii) Departments and agencies shall follow STANAG 4107 when--
    (A) Asking a NATO member nation to perform quality assurance; or
    (B) Performing quality assurance when requested by a NATO member 
nation or NATO organization.
    (2) International military sales (non-NATO). Departments and 
agencies shall--
    (i) Perform quality assurance services on international military 
sales contracts or in accordance with existing agreements;
    (ii) Inform host or U.S. Government personnel and contractors on the 
use of quality assurance publications; and
    (iii) Delegate quality assurance to the host government when 
satisfactory services are available.
    (3) Reciprocal quality assurance agreements. A Memorandum of 
Understanding (MOU) with a foreign country may contain an annex that 
provides for the reciprocal performance of quality assurance services. 
MOUs should be checked to determine whether such an annex exists for the 
country where a defense contract will be performed. (See subpart 225.8 
for more information about MOUs.)

[56 FR 36460, July 31, 1991, as amended at 63 FR 43890, Aug. 17, 1998; 
63 FR 47439, Sept. 8, 1998; 71 FR 27647, May 12, 2006]



246.407  Nonconforming supplies or services.

    (f) If nonconforming material or services are discovered after 
acceptance, the defect appears to be the fault of the contractor, any 
warranty has expired, and there are no other contractual remedies, the 
contracting officer--
    (i) Shall notify the contractor in writing of the nonconforming 
material or service;

[[Page 384]]

    (ii) Shall request that the contractor repair or replace the 
material, or perform the service, at no cost to the Government; and
    (iii) May accept consideration if offered. For guidance on 
solicitation of a refund, see subpart 242.71.
    (S-70) The head of the design control activity is the approval 
authority for acceptance of any nonconforming aviation or ship critical 
safety items or nonconforming modification, repair, or overhaul of such 
items (see 209.270). Authority for acceptance of minor nonconformances 
in aviation or ship critical safety items may be delegated as determined 
appropriate by the design control activity. See additional information 
at PGI 246.407.

[56 FR 36460, July 31, 1991, as amended at 67 FR 4208, Jan. 29, 2002; 69 
FR 55989, Sept. 17, 2004; 70 FR 57190, Sept. 30, 2005; 73 FR 1828, Jan. 
10, 2008]



246.408  Single-agency assignments of Government contract quality assurance.



246.408-70  Subsistence.

    (a) The Surgeons General of the military departments are responsible 
for--
    (1) Acceptance criteria;
    (2) Technical requirements; and
    (3) Inspection procedures needed to assure wholesomeness of foods.
    (b) The contracting office may designate any Federal activity, 
capable of assuring wholesomeness and quality in food, to perform 
quality assurance for subsistence contract items. The designation may--
    (1) Include medical service personnel of the military departments; 
and
    (2) Be on a reimbursable basis.



246.408-71  Aircraft.

    (a) The Federal Aviation Administration (FAA) has certain 
responsibilities and prerogatives in connection with some commercial 
aircraft and of aircraft equipment and accessories (Pub. L. 85-726 (72 
Stat 776, 49 U.S.C. 1423)). This includes the issuance of various 
certificates applicable to design, manufacture, and airworthiness.
    (b) FAA evaluations are not a substitute for normal DoD evaluations 
of the contractor's quality assurance measures. Actual records of FAA 
evaluations may be of use to the contract administration office (CAO) 
and should be used to their maximum advantage.
    (c) The CAO shall ensure that the contractor possesses any required 
FAA certificates prior to acceptance.

[56 FR 36460, July 31, 1991, as amended at 71 FR 27647, May 12, 2006]



246.470  Government contract quality assurance actions.



246.470-1  Assessment of additional costs.

    (a) Under the clause at FAR 52.246-2, Inspection of Supplies--Fixed-
Price, after considering the factors in paragraph (c) of this 
subsection, the quality assurance representative (QAR) may believe that 
the assessment of additional costs is warranted. If so, the 
representative shall recommend that the contracting officer take the 
necessary action and provide a recommendation as to the amount of 
additional costs. Costs are based on the applicable Federal agency, 
foreign military sale, or public rate in effect at the time of the 
delay, reinspection, or retest.
    (b) If the contracting officer agrees with the QAR, the contracting 
officer shall--
    (1) Notify the contractor, in writing, of the determination to 
exercise the Government's right under the clause at FAR 52.246-2, 
Inspection of Supplies--Fixed-Price; and
    (2) Demand payment of the costs in accordance with the collection 
procedures contained in FAR Subpart 32.6.
    (c) In making a determination to assess additional costs, the 
contracting officer shall consider--
    (1) The frequency of delays, reinspection, or retest under both 
current and prior contracts;
    (2) The cause of such delay, reinspection, or retest; and
    (3) The expense of recovering the additional costs.

[71 FR 27647, May 12, 2006]



246.470-2  Quality evaluation data.

    The contract administration office shall establish a system for the 
collection, evaluation, and use of the types

[[Page 385]]

of quality evaluation data specified in PGI 246.470-2.

[71 FR 27647, May 12, 2006]



246.471  Authorizing shipment of supplies.

    (a) General. (1) Ordinarily, a representative of the contract 
administration office signs or stamps the shipping papers that accompany 
Government source-inspected supplies to release them for shipment. This 
is done for both prime and subcontracts.
    (2) An alternative procedure (see paragraph (b) of this section) 
permits the contractor to assume the responsibility for releasing the 
supplies for shipment.
    (3) The alternative procedure may include prime contractor release 
of supplies inspected at a subcontractor's facility.
    (4) The use of the alternative procedure releases DoD manpower to 
perform technical functions by eliminating routine signing or stamping 
of the papers accompanying each shipment.
    (b) Alternative Procedures--Contract Release for Shipment.
    (1) For foreign military sales contracts, do not use alternative 
procedures.(2) The contract administration office may authorize, in 
writing, the contractor to release supplies for shipment when--
    (i) The stamping or signing of the shipping papers by a 
representative of the contract administration office interferes with the 
operation of the Government contract quality assurance program or takes 
too much of the Government representative's time;
    (ii) There is sufficient continuity of production to permit the 
Government to establish a systematic and continuing evaluation of the 
contractor's control of quality; and
    (iii) The contractor has a record of satisfactory quality, including 
that pertaining to preparation for shipment.
    (3) The contract administration office shall withdraw, in writing, 
the authorization when there is an indication that the conditions in 
paragraph (b)(2) of this subsection no longer exist.
    (4) When the alternative procedure is used, require the contractor 
to--
    (i) Type or stamp, and sign, the following statement on the required 
copy or copies of the shipping paper(s), or on an attachment--

    The supplies in this shipment--
    1. Have been subjected to and have passed all examinations and tests 
required by the contract;
    2. Were shipped in accordance with authorized shipping instructions;
    3. Conform to the quality, identity, and condition called for by the 
contract; and
    4. Are of the quantity shown on this document.
    This shipment was--
    1. Released in accordance with section 246.471 of the Defense FAR 
Supplement; and
    2. Authorized by (name and title of the authorized representative of 
the contract administration office) in a letter dated (date of 
authorizing letter). (Signature and title of contractor's designated 
official.)

    (ii) Release and process, in accordance with established 
instructions, the DD Form 250, Material Inspection and Receiving Report, 
or other authorized receiving report.

[56 FR 36460, July 31, 1991, as amended at 83 FR 66064, Dec. 21, 2018]



246.472  Inspection stamping.

    (a) DoD quality inspection approval marking designs (stamps) may be 
used for both prime contracts and subcontracts. Follow the procedures at 
PGI 246.472(a) for use of DoD inspection stamps.
    (b) Policies and procedures regarding the use of National 
Aeronautics and Space Administration (NASA) quality status stamps are 
contained in NASA publications. When requested by NASA centers, the DoD 
inspector shall use NASA quality status stamps in accordance with 
current NASA requirements.

[71 FR 27647, May 12, 2006]



                        Subpart 246.5_Acceptance



246.504  Certificate of conformance.

    Before authorizing a certificate of conformance for aviation or ship 
critical safety items, obtain the concurrence of the head of the design 
control activity (see 209.270).

[73 FR 1828, Jan. 10, 2008]

[[Page 386]]



         Subpart 246.6_Material Inspection and Receiving Reports



246.601  General.

    See Appendix F, Material Inspection and Receiving Report, for 
procedures and instructions for the use, preparation, and distribution 
of--
    (1) The Material Inspection and Receiving Report (DD Form 250 
series); and
    (2) Supplier's commercial shipping/packing lists used to evidence 
Government contract quality assurance.

[71 FR 27647, May 12, 2006]



                        Subpart 246.7_Warranties



246.701    Definitions.

    As used in this subpart--
    Acceptance as used in this subpart and in the warranty clauses at 
FAR 52.246-17, Warranty of Supplies of a Noncomplex Nature; FAR 52.246-
18, Warranty of Supplies of a Complex Nature; FAR 52.246-19, Warranty of 
Systems and Equipment Under Performance Specifications or Design 
Criteria; and FAR 52.246-20, Warranty of Services, includes the 
execution of an official document (e.g., DD Form 250, Material 
Inspection and Receiving Report) by an authorized representative of the 
Government.
    Defect means any condition or characteristic in any supply or 
service furnished by the contractor under the contract that is not in 
compliance with the requirements of the contract.
    Enterprise means the entity (e.g., a manufacturer or vendor) 
responsible for granting the warranty and/or assigning unique item 
identifiers to serialized warranty items.
    Enterprise identifier means a code that is uniquely assigned to an 
enterprise by an issuing agency.
    Issuing agency means an organization responsible for assigning a 
globally unique identifier to an enterprise, as indicated in the 
Register of Issuing Agency Codes for International Standards 
Organization/International Electrotechnical Commission 15459, located at 
http://www.aimglobal.org/?Reg_Authority15459.
    Serialized item means each item produced is assigned a serial number 
that is unique among all the collective tangible items produced by the 
enterprise, or each item of a particular part, lot, or batch number is 
assigned a unique serial number within that part, lot, or batch number 
assignment within the enterprise identifier. The enterprise is 
responsible for ensuring unique serialization within the enterprise 
identifier or within the part, lot, or batch numbers, and that serial 
numbers, once assigned, are never used again.
    Unique item identifier means a set of data elements marked on an 
item that is globally unique and unambiguous.
    Warranty tracking means the ability to trace a warranted item from 
delivery through completion of the effectivity of the warranty.

[76 FR 33168, June 8, 2011, as amended at 81 FR 17043, Mar. 25, 2016]



246.704  Authority for use of warranties.

    (1) The chief of the contracting office must approve use of a 
warranty, except in acquisitions for--
    (i) Commercial items (see FAR 46.709);
    (ii) Technical data, unless the warranty provides for extended 
liability (see 246.708);
    (iii) Supplies and services in fixed-price type contracts containing 
quality assurance provisions that reference higher-level contract 
quality requirements (see 246.202-4); or
    (iv) Supplies and services in construction contracts when using the 
warranties that are contained in Federal, military, or construction 
guide specifications.
    (2) The chief of the contracting office shall approve the use of a 
warranty only when the benefits are expected to outweigh the cost.

[71 FR 27647, May 12, 2006]



246.705  Limitations.

    (a) In addition to the exceptions provided in FAR 46.705(a), 
warranties in the clause at 252.246-7001, Warranty of Data, may be used 
in cost-reimbursement contracts.

[71 FR 27647, May 12, 2006]

[[Page 387]]



246.706  Warranty terms and conditions.

    (b)(5) Markings. For non-commercial items, use MIL-STD-129, Marking 
for Shipments and Storage, and MIL-STD-130, Identification Marking of 
U.S. Military Property, when marking warranty items.

[71 FR 27647, May 12, 2006]



246.708  Warranties of data.

    Obtain warranties on technical data when practicable and cost 
effective. Consider the factors in FAR 46.703 in deciding whether to 
obtain warranties of technical data. Consider the following in deciding 
whether to use extended liability provisions--
    (1) The likelihood that correction or replacement of the 
nonconforming data, or a price adjustment, will not give adequate 
protection to the Government; and
    (2) The effectiveness of the additional remedy as a deterrent 
against furnishing nonconforming data.



246.710  Solicitation provision and contract clauses.

    (1) Use a clause substantially the same as the basic or one of the 
alternates of the clause at 252.246-7001, Warranty of Data, in 
solicitations and contracts that include the clause at 252.227-7013, 
Rights in Technical Data and Computer Software, when there is a need for 
greater protection or period of liability than provided by the 
inspection and warranty clauses prescribed in FAR part 46.
    (i) Use the basic clause in solicitations and contracts that are not 
firm-fixed price or fixed-price incentive.
    (ii) Use alternate I in fixed-price-incentive solicitations and 
contracts.
    (iii) Use alternate II in firm-fixed-price solicitations and 
contracts.
    (2) Use the clause at 252.246-7002, Warranty of Construction 
(Germany), instead of the clause at FAR 52.246-21, Warranty of 
Construction, in solicitations and contracts for construction when a 
fixed-price contract will be awarded and contract performance will be in 
Germany.
    (3) When the solicitation includes the clause at 252.211-7003, Item 
Unique Identification and Valuation, which is prescribed in 211.274-
6(a), and it is anticipated that the resulting contract will include a 
warranty for serialized items--
    (i) Use the provision at 252.246-7005, Notice of Warranty Tracking 
of Serialized Items, in the solicitation if the Government does not 
specify a warranty and offerors will be required to enter data with the 
offer;
    (ii) Use the clause at 252.246-7006, Warranty Tracking of Serialized 
Items, in the solicitation and contract; and
    (iii) Include the following warranty attachments, available at 
https://www.pdrep.csd.disa.mil/ pdrep_files/other/wsr.htm, in the 
solicitation and contract and see 246.710-70:
    (A) Warranty Tracking Information.
    (B) Source of Repair Instructions.

[56 FR 36460, July 31, 1991, as amended at 62 FR 34128, June 24, 1997; 
64 FR 51077, Sept. 21, 1999; 71 FR 27647, May 12, 2006; 76 FR 33168, 
June 8, 2011; 78 FR 76072, Dec. 16, 2013; 79 FR 17449, Mar. 28, 2014; 79 
FR 18654, Apr. 3, 2014; 81 FR 17043, Mar. 25, 2016]



246.710-70  Warranty attachments.

    Follow the procedures at PGI 246.710-70 regarding warranty 
attachments.

[81 FR 17043, Mar. 25, 2016]



Subpart 246.8_Contractor Liability for Loss of or Damage to Property of 
                             the Government

    Source: 79 FR 26106, May 6, 2014, unless otherwise noted.



246.870  Contractor counterfeit electronic part detection and avoidance.



246.870-0  Scope.

    This section--
    (a) Partially implements section 818(c) and (e) of the National 
Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81), as 
amended by section 817 of the National Defense Authorization Act for 
Fiscal Year 2015 (Pub. L. 113-291 and section 885 of the National 
Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92); and
    (b) Prescribes policy and procedures for preventing counterfeit 
electronic parts and suspect counterfeit electronic parts from entering 
the supply chain when procuring electronic parts

[[Page 388]]

or end items, components, parts, or assemblies that contain electronic 
parts.

[79 FR 26106, May 6, 2014. Redesignated and amended at 81 FR 50648, Aug. 
2, 2016; 83 FR 19645, May 4, 2018]



246.870-1  Definition.

    Authorized supplier, as used in this subpart, means a supplier, 
distributor, or an aftermarket manufacturer with a contractual 
arrangement with, or the express written authority of, the original 
manufacturer or current design activity to buy, stock, repackage, sell, 
or distribute the part.

[81 FR 50648, Aug. 2, 2016]



246.870-2  Policy.

    (a) Sources of electronic parts. (1) Except as provided in paragraph 
(a)(2) of this section, the Government requires contractors and 
subcontractors at all tiers, to--
    (i) Obtain electronic parts that are in production by the original 
manufacturer or an authorized aftermarket manufacturer or currently 
available in stock from--
    (A) The original manufacturers of the parts;
    (B) Their authorized suppliers; or
    (C) Suppliers that obtain such parts exclusively from the original 
manufacturers of the parts or their authorized suppliers; and
    (ii) Obtain electronic parts that are not in production by the 
original manufacturer or an authorized aftermarket manufacturer, and 
that are not currently available in stock from a source listed in 
paragraph (a)(1)(i) of this section, from suppliers identified by the 
Contractor as contractor-approved suppliers, provided that--
    (A) For identifying and approving such contractor-approved 
suppliers, the contractor uses established counterfeit prevention 
industry standards and processes (including inspection, testing, and 
authentication), such as the DoD-adopted standards at https://
assist.dla.mil;
    (B) The contractor assumes responsibility for the authenticity of 
parts provided by such contractor-approved suppliers (see 231.205-71); 
and
    (C) The selection of such contractor-approved suppliers is subject 
to review, audit, and approval by the Government, generally in 
conjunction with a contractor purchasing system review or other 
surveillance of purchasing practices by the contract administration 
office, or if the Government obtains credible evidence that a 
contractor-approved supplier has provided counterfeit parts. The 
contractor may proceed with the acquisition of electronic parts from a 
contractor-approved supplier unless otherwise notified by DoD.
    (2) The Government requires contractors and subcontractors to comply 
with the notification, inspection, testing, and authentication 
requirements of paragraph (b)(3)(ii) through (b)(3)(iv) of the clause at 
252.246-7008, Sources of Electronic Parts, if the contractor--
    (i) Obtains an electronic part from--
    (A) A source other than any of the sources identified in paragraph 
(a)(1) of this section, due to nonavailability from such sources; or
    (B) A subcontractor (other than the original manufacturer) that 
refuses to accept flowdown of this clause; or
    (ii) Cannot confirm that an electronic part is new or not previously 
used and that it has not been comingled in supplier new production or 
stock with used, refurbished, reclaimed, or returned parts.
    (3) Contractors and subcontractors are still required to comply with 
the requirements of paragraphs (a)(1) or (2) of this section, as 
applicable, if--
    (i) Authorized to purchase electronic parts from the Federal Supply 
Schedule;
    (ii) Purchasing electronic parts from suppliers accredited by the 
Defense Microelectronics Activity; or
    (iii) Requisitioning electronic parts from Government inventory/
stock under the authority of the clause at 252.251-7000, Ordering from 
Government Supply Sources.
    (A) The cost of any required inspection, testing, and authentication 
of such parts may be charged as a direct cost.
    (B) The Government is responsible for the authenticity of the 
requisitioned electronic parts. If any such part is subsequently found 
to be counterfeit or suspect counterfeit, the Government will--

[[Page 389]]

    (1) Promptly replace such part at no charge; and
    (2) Consider an adjustment in the contract schedule to the extent 
that replacement of the counterfeit or suspect counterfeit electronic 
parts caused a delay in performance.
    (b) Contractor counterfeit electronic part detection and avoidance 
system. (1) Contractors that are subject to the cost accounting 
standards and that supply electronic parts or products that include 
electronic parts, and their subcontractors that supply electronic parts 
or products that include electronic parts, are required to establish and 
maintain an acceptable counterfeit electronic part detection and 
avoidance system. Failure to do so may result in disapproval of the 
purchasing system by the contracting officer and/or withholding of 
payments (see 252.244-7001, Contractor Purchasing System 
Administration).
    (2) System criteria. A counterfeit electronic part detection and 
avoidance system shall include risk-based policies and procedures that 
address, at a minimum,the following areas (see the clause at 252.246-
7007, Contractor Counterfeit Electronic Part Detection and Avoidance 
System):
    (i) The training of personnel.
    (ii) The inspection and testing of electronic parts, including 
criteria for acceptance and rejection.
    (iii) Processes to abolish counterfeit parts proliferation.
    (iv) Processes for maintaining electronic part traceability.
    (v) Use of suppliers in accordance with paragraph (a) of this 
section.
    (vi) The reporting and quarantining of counterfeit electronic parts 
and suspect counterfeit electronic parts.
    (vii) Methodologies to identify suspect counterfeit electronic parts 
and to rapidly determine if a suspect counterfeit electronic part is, in 
fact, counterfeit.
    (viii) Design, operation, and maintenance of systems to detect and 
avoid counterfeit electronic parts and suspect counterfeit electronic 
parts.
    (ix) Flow down of counterfeit detection and avoidance requirements.
    (x) Process for keeping continually informed of current 
counterfeiting information and trends.
    (xi) Process for screening the Government-Industry Data Exchange 
Program (GIDEP) reports and other credible sources of counterfeiting 
information.
    (xii) Control of obsolete electronic parts.

[81 FR 50648, Aug. 2, 2016, as amended at 83 FR 19645, May 4, 2018]

    Editorial Note: At 81 FR 72738, Oct. 21, 2016, Sec. 246.870-2(a)(2) 
introductory text was to be amended by removing ``(b)(3)(ii) through 
(b)(3)(iv)'' and adding ``(b)(3)(ii)'' in its place; however, the 
amendment could not be incorporated due to inaccurate amendatory 
instruction.



246.870-3  Contract clauses.

    (a)(1) Except as provided in paragraph (a)(2) of this section, use 
the clause at 252.246-7007, Contractor Counterfeit Electronic Part 
Detection and Avoidance System, in solicitations and contracts when 
procuring--
    (i) Electronic parts;
    (ii) End items, components, parts, or assemblies containing 
electronic parts; or
    (iii) Services, if the contractor will supply electronic parts or 
components, parts, or assemblies containing electronic parts as part of 
the service.
    (2) Do not use the clause in solicitations and contracts that are 
set aside for small business.
    (b) Use the clause at 252.246-7008, Sources of Electronic Parts, in 
solicitations and contracts, including solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items, when 
procuring--
    (1) Electronic parts;
    (2) End items, components, parts, or assemblies containing 
electronic parts; or
    (3) Services, if the contractor will supply electronic parts or 
components, parts, or assemblies containing electronic parts as part of 
the service.

[79 FR 26106, May 6, 2014, as amended at 81 FR 50649, Aug. 2, 2016]



PART 247_TRANSPORTATION--Table of Contents



Sec.
247.001 Definitions.

                          Subpart 247.1_General

247.101 Policies.

[[Page 390]]

Subpart 247.2_Contracts for Transportation or for Transportation-Related 
                                Services

247.200 Scope of subpart.
247.206 Preparation of solicitations and contracts.
247.207 Solicitation provisions, contract clauses, and special 
          requirements.
247.270 Stevedoring contracts.
247.270-1 Definitions.
247.270-2 Technical provisions.
247.270-3 Evaluation of bids and proposals.
247.270-4 Contract clauses.
247.271 Contracts for the preparation of personal property for shipment 
          or storage or for performance of intra-city or intra-area 
          movement.
247.271-1 Policy.
247.271-2 Procedures.
247.271-3 Solicitation provisions, schedule formats, and contract 
          clauses.

            Subpart 247.3_Transportation in Supply Contracts

247.301 General.
247.301-70 Definition.
247.301-71 Evaluation factor or subfactor.
247.305 Solicitation provisions, contract clauses, and transportation 
          factors.
247.305-10 Packing, marking, and consignment instructions.
247.371 DD Form 1384, Transportation Control and Movement Document.
247.372 DD Form 1653, Transportation Data for Solicitations.
247.372 DD Form 1654, Evaluation of Transportation Cost Factors.

         Subpart 247.5_Ocean Transportation by U.S.-Flag Vessels

247.570 Scope.
247.571 Definitions.
247.572 Policy.
247.573 General.
247.574 Solicitation provisions and contract clauses.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36466, July 31, 1991, unless otherwise noted.



247.001  Definitions.

    For definitions of ``Civil Reserve Air Fleet'' and ``Voluntary 
Intermodal Sealift Agreement,'' see Joint Pub 1-02, DoD Dictionary of 
Military and Associated Terms. See additional information at PGI 247.001 
for the Voluntary Intermodal Sealift Agreement program.

[75 FR 51417, Aug. 20, 2010]



                          Subpart 247.1_General



247.101  Policies.

    (h) Shipping documents covering f.o.b. origin shipments.
    (i) Procedures for the contractor to obtain bills of lading are in 
the clause at 252.247-7028, Application for U.S. Government Shipping 
Documentation/Instructions.
    (ii) The term ``commercial bills of lading'' includes the use of any 
commercial form or procedure.

[77 FR 39140, June 29, 2012]



Subpart 247.2_Contracts for Transportation or for Transportation-Related 
                                Services



247.200  Scope of subpart.

    This subpart does not apply to the operation of vessels owned by, or 
bareboat chartered by, the Government. See additional guidance at PGI 
247.200 for procurement of transportation or related services.

[75 FR 51417, Aug. 20, 2010]



247.206  Preparation of solicitations and contracts.

    Consistent with FAR 15.304 and 215.304, consider using the following 
as evaluation factors or subfactors:
    (1) Record of claims involving loss or damage; and
    (2) Commitment of transportation assets to readiness support (e.g., 
Civil Reserve Air Fleet and Voluntary Intermodal Sealift Agreement).

[75 FR 51417, Aug. 20, 2010]



247.207  Solicitation provisions, contract clauses, and special requirements.

    (1) Use the clause at 252.247-7003, Pass-Through of Motor Carrier 
Fuel Surcharge Adjustment to the Cost Bearer, in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that are for 
carriage in which a motor carrier, broker, or freight forwarder will 
provide or arrange truck transportation services that provide for a 
fuel-related adjustment.

[[Page 391]]

    (2) Use the clause at 252.247-7028, Application for U.S. Government 
Shipping Documentation/Instructions in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, when shipping under Bills of Lading 
and Domestic Route Order under FOB origin contracts, Export Traffic 
Release regardless of FOB terms, or foreign military sales shipments.

[77 FR 39140, June 29, 2012, as amended at 78 FR 37989, June 25, 2013]



247.270  Stevedoring contracts.



247.270-1  Definitions.

    Commodity rate is--
    (1) The price quoted for handling a ton (weight or measurement) of a 
specified commodity; and
    (2) Computed by dividing the hourly stevedoring gang cost by the 
estimated number of tons of the specified commodity that can be handled 
in 1 hour.
    Gang cost is--
    (1) The total hourly wages paid to the workers in the gang, in 
accordance with the collective bargaining agreement between the maritime 
industry and the unions at a specific port; and
    (2) Payments for workmen's compensation, social security taxes, 
unemployment insurance, taxes, liability and property damage insurance, 
general and administrative expenses, and profit.
    Stevedoring is the--
    (1) Loading of cargo from an agreed point of rest on a pier or 
lighter and its storage aboard a vessel; or
    (2) Breaking out and discharging of cargo from any space in the 
vessel to an agreed point of rest dockside or in a lighter.

[56 FR 36466, July 31, 1991, as amended at 65 FR 50144, Aug. 17, 2000. 
Redesignated at 75 FR 51417, Aug. 20, 2010]



247.270-2  Technical provisions.

    (a) Because conditions vary at different ports, and sometimes within 
the same port, it is not practical to develop standard technical 
provisions covering all phases of stevedoring operations.
    (b) When including rail car, truck, or intermodal equipment loading 
and unloading, or other dock and terminal work under a stevedoring 
contract, include these requirements as separate items of work.

[65 FR 50144, Aug. 17, 2000. Redesignated at 75 FR 51417, Aug. 20, 2010]



247.270-3  Evaluation of bids and proposals.

    As a minimum, require that offers include--
    (a) Tonnage or commodity rates that apply to the bulk of the cargo 
worked under normal conditions;
    (b) Labor-hour rates that apply to services not covered by commodity 
rates, or to work performed under hardship conditions; and
    (c) Rates for equipment rental.

[65 FR 50144, Aug. 17, 2000. Redesignated at 75 FR 51417, Aug. 20, 2010]



247.270-4  Contract clauses.

    Use the following clauses in solicitations and contracts for 
stevedoring services as indicated:
    (a) 252.247-7000, Hardship Conditions.
    (b) 252.247-7002, Revision of Prices, when using negotiation.
    (c) 252.247-7007, Liability and Insurance.

[84 FR 30953, June 28, 2019]



247.271  Contracts for the preparation of personal property
for shipment or storage or for performance of intra-city or
intra-area movement.



247.271-1  Policy.

    (a) Annual contracts. Normally--
    (1) Use requirements contracts to acquire services for the--
    (i) Preparation of personal property for shipment or storage; and
    (ii) Performance of intra-area movement.
    (2) Award contracts on a calendar year basis.
    (3) Provide for option years.
    (4) Award contracts, or exercise option years, before November 1 of 
each year, if possible.
    (b) Areas of performance. Define clearly in the solicitation each 
area of performance.
    (1) Establish one or more areas; however, hold the number to a 
minimum consistent with local conditions.

[[Page 392]]

    (2) Each schedule may provide for the same or different areas of 
performance. Determine the areas as follows--
    (i) Use political boundaries, streets, or any other features as 
lines of demarcation. Consider such matters as--
    (A) Total volume;
    (B) Size of overall area; and
    (C) The need to service isolated areas of high population density.
    (ii) Specifically identify frequently used terminals, and consider 
them as being included in each area of performance described in the 
solicitation.
    (c) Maximum requirements-minimum capability. The contracting officer 
must--
    (1) Establish realistic quantities on the Estimated Quantities 
Report in DoD 4500.9-R, Defense Transportation Regulation, Part IV;
    (2) Ensure that the Government's minimum acceptable daily 
capability--
    (i) Will at least equal the maximum authorized individual weight 
allowance as prescribed by the Joint Federal Travel Regulations; and
    (ii) Will encourage maximum participation of small business concerns 
as offerors.

[56 FR 36466, July 31, 1991, as amended at 65 FR 50145, Aug. 17, 2000. 
Redesignated at 75 FR 51417, Aug. 20, 2010]



247.271-2  Procedures.

    Follow the procedures at PGI 247.271-2 for contracting for the 
preparation of personal property for shipment or storage.

[75 FR 51417, Aug. 20, 2010]



247.271-3  Solicitation provisions, schedule formats, and contract clauses.

    When acquiring services for the preparation of personal property for 
movement or storage, or for performance of intra-city or intra-area 
movement, use the following provisions, clauses, and schedules. Revise 
solicitation provisions and schedules, as appropriate, if using 
negotiation rather than sealed bidding. Overseas commands, except those 
in Alaska and Hawaii, may modify these clauses to conform to local 
practices, laws, and regulations.
    (a) In solicitations and resulting contracts, the schedules provided 
by the installation personal property shipping office. Follow the 
procedures at PGI 247.271-3(c) for use of schedules.
    (b) In addition to designating each ordering activity, as required 
by the clause at FAR 52.216-18, Ordering, identify by name or position 
title the individuals authorized to place orders for each activity. When 
provisions are made for placing oral orders in accordance with FAR 
16.504(a)(4)(vii), document the oral orders in accordance with 
department or agency instructions.
    (c) The clause at 252.247-7014, Demurrage. See additional 
information at PGI 247.271-3(c)(1) for demurrage and detention charges.
    (d) The clause at 252.247-7016, Contractor Liability for Loss and 
Damage.
    (e) The clauses at FAR 52.247-8, Estimated Weight or Quantities Not 
Guaranteed, and FAR 52.247-13, Accessorial Services--Moving Contracts.

[56 FR 36466, July 31, 1991, as amended at 65 FR 50145, Aug. 17, 2000. 
Redesignated and amended at 75 FR 51417, Aug. 20, 2010; 78 FR 38235, 
June 26, 2013; 79 FR 22037, Apr. 21, 2014; 83 FR 30588, June 29, 2018; 
83 FR 49179, Sept. 28, 2018; 84 FR 25195, May 31, 2019; 84 FR 30951, 
June 28, 2019]



            Subpart 247.3_Transportation in Supply Contracts



247.301  General.

    See PGI 247.301 for transportation guidance relating to Government 
Purchase Card purchases.

[75 FR 51417, Aug. 20, 2010, as amended at 81 FR 78012, Nov. 4, 2016]



247.301-70  Definition.

    ``Integrated logistics managers'' or ``third-party logistics 
providers'' means providers of multiple logistics services. Some 
examples of logistics services are the management of transportation, 
demand forecasting, information management, inventory maintenance, 
warehousing, and distribution.

[65 FR 50145, Aug. 17, 2000]



247.301-71  Evaluation factor or subfactor.

    For contracts that will include a significant requirement for 
transportation of items outside the contiguous

[[Page 393]]

United States, include an evaluation factor or subfactor that favors 
suppliers, third-party logistics providers, and integrated logistics 
managers that commit to using carriers that participate in one of the 
readiness programs (e.g., Civil Reserve Air Force Fleet and Voluntary 
Intermodal Sealift Agreement).

[65 FR 50145, Aug. 17, 2000, as amended at 81 FR 78012, Nov. 4, 2016]



247.305  Solicitation provisions, contract clauses, and transportation 
factors.



247.305-10  Packing, marking, and consignment instructions.

    Follow the procedures at PGI 247.305-10 for preparation of 
consignment instructions.

[75 FR 51417, Aug. 20, 2010]



247.370  DD Form 1384, Transportation Control and Movement Document.

    The transportation office of the shipping activity prepares the DD 
Form 1384 to accompany all shipments made through a military air or 
water port, in accordance with DoD 4500.9-R, Defense Transportation 
Regulation, Part II, Chapter 203. A link to this document is available 
in PGI 247.370.

[75 FR 51418, Aug. 20, 2010]



247.371  DD Form 1653, Transportation Data for Solicitations.

    The transportation specialist prepares the DD Form 1653 to accompany 
requirements for the acquisition of supplies. The completed form should 
contain recommendations for suitable f.o.b. terms and other suggested 
transportation provisions for inclusion in the solicitation.

[75 FR 51418, Aug. 20, 2010]



247.372  DD Form 1654, Evaluation of Transportation Cost Factors.

    Contracting personnel may use the DD Form 1654 to furnish 
information to the transportation office for development of cost factors 
for use by the contracting officer in the evaluation of f.o.b. origin 
offers.

[56 FR 36466, July 31, 1991. Redesignated at 75 FR 51418, Aug. 20, 2010]



         Subpart 247.5_Ocean Transportation by U.S.-Flag Vessels



247.570  Scope.

    This subpart--
    (a) Implements--
    (1) The Cargo Preference Act of 1904 (``the 1904 Act''), 10 U.S.C. 
2631, which applies to the ocean transportation of cargo owned by, or 
destined for use by, DoD;
    (2) Section 1017 of the National Defense Authorization Act for 
Fiscal Year 2007 (Pub. L. 109-364), which requires consideration, in 
solicitations requiring a covered vessel, of the extent to which 
offerors have had overhaul, repair, and maintenance work performed in 
shipyards located in the United States or Guam; and
    (3) Section 3504 of the National Defense Authorization Act for 
Fiscal Year 2009 (Pub. L. 110-417), which addresses requirements that 
apply to riding gang members and DoD-exempted individuals (see 252.247-
7027(c)) who perform work on U.S.-flag vessels under DoD contracts for 
transportation services documented under chapter 121, title 46 U.S.C.
    (b) Does not specifically implement the Cargo Preference Act of 1954 
(``the 1954 Act''), 46 U.S.C. 1241(b). The 1954 Act is applicable to 
DoD, but DFARS coverage is not required because compliance with the 1904 
Act historically has resulted in DoD exceeding the 1954 Act's 
requirements; and
    (c) Does not apply to ocean transportation of the following 
products, in which case FAR subpart 47.5 applies:
    (1) Products obtained for contributions to foreign assistance 
programs.
    (2) Products owned by agencies other than DoD, unless the products 
are clearly identifiable for eventual use by DoD.

[65 FR 50146, Aug. 17, 2000, as amended at 72 FR 49205, Aug. 28, 2007; 
73 FR 70911, Nov. 24, 2008; 75 FR 65438, Oct. 25, 2010]



247.571  Definitions.

    As used in this subpart--
    (a) Components, foreign flag vessel, ocean transportation, supplies, 
and U.S.-flag vessel have the meaning given in the clause at 252.247-
7023, Transportation of Supplies by Sea.

[[Page 394]]

    (b) Reflagging or repair work has the meaning given in the clause at 
252.247-7025, Reflagging or Repair Work.
    (c) Covered vessel, foreign shipyard, overhaul, repair, and 
maintenance work, shipyard, and U.S. shipyard have the meaning given in 
the provision at 252.247-7026, Evaluation Preference for Use of Domestic 
Shipyards--Applicable to Acquisition of Carriage by Vessel for DoD Cargo 
in the Coastwise or Noncontiguous Trade.

[78 FR 37989, June 25, 2013]



247.572  Policy.

    (a) In accordance with 10 U.S.C. 2631(a), DoD contractors shall 
transport supplies, as defined in the clause at 252.247-7023, 
Transportation of Supplies by Sea, exclusively on U.S.-flag vessels 
unless--
    (1) Those vessels are not available;
    (2) The proposed charges to the Government are higher than charges 
to private persons for the transportation of like goods; or
    (3) The proposed freight charges are excessive or unreasonable.
    (b) Contracts must provide for the use of Government-owned vessels 
when security classifications prohibit the use of other than Government-
owned vessels.
    (c) In accordance with 10 U.S.C. 2631(b)--
    (1) Any vessel used under a time charter contract for the 
transportation of supplies under this section shall have any reflagging 
or repair work, as defined in the clause at 252.247-7025, Reflagging or 
Repair Work, performed in the United States or its outlying areas, if 
the reflagging or repair work is performed--
    (i) On a vessel for which the contractor submitted an offer in 
response to the solicitation for the contract; and
    (ii) Prior to the acceptance of the vessel by the Government.
    (2) The Secretary of Defense may waive this requirement if the 
Secretary determines that such waiver is critical to the national 
security of the United States.
    (d) In accordance with Section 1017 of the National Defense 
Authorization Act for Fiscal Year 2007 (Public Law 109-364)--
    (1) When obtaining carriage requiring a covered vessel, the 
contracting officer must consider the extent to which offerors have had 
overhaul, repair, and maintenance work for covered vessels performed in 
shipyards located in the United States or Guam; and
    (2) DoD must submit an annual report to the congressional defense 
committees, addressing the information provided by offerors with regard 
to overhaul, repair, and maintenance for covered vessels performed in 
the United States or Guam.
    (e) In accordance with section 3504 of the National Defense 
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417), DoD may not 
award, renew or extend, or exercise an option under a charter of, or 
contract for carriage of cargo by, a U.S.-flag vessel documented under 
chapter 121 of title 46 U.S.C., unless the contract contains the clause 
at 252.247-7027.

[65 FR 50146, Aug. 17, 2000, as amended at 70 FR 35545, June 21, 2005. 
Redesignated and amended at 72 FR 49206, Aug. 28, 2007; 73 FR 70911, 
Nov. 24, 2008; 75 FR 65438, Oct. 25, 2010; 78 FR 37990, June 25, 2013; 
79 FR 61583, Oct. 14, 2014]



247.573  General.

    (a) Delegated authority. Pursuant to 10 U.S.C. 2631(a) and Secretary 
of Defense Memorandum dated February 7, 2012, (see PGI 245.573) the 
authority to make determinations of excessive ocean liner rates and 
excessive charter rates is delegated to--
    (1) The Commander, United States Transportation Command, for 
excessive ocean liner rate determinations; and
    (2) The Secretary of the Navy for excessive charter rate 
determinations.
    (b) Procedures. (1) Contracting officers shall follow the procedures 
at PGI 247.573(b)(1) when purchase of ocean transportation services is 
incidental to a contract for supplies, services, or construction.
    (2) Contracting officers shall follow the procedures at PGI 
247.573(b)(2) when direct purchase of ocean transportation services is 
the principal purpose of the contract.
    (3) Agency and department procedures relating to annual reporting 
requirements of information received

[[Page 395]]

from offerors in response to solicitation provision 252.247-7026, 
Evaluation Preference for Use of Domestic Shipyards--Applicable to 
Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise of 
Noncontiguous Trade, are found at PGI 247.573(b)(3).
    (4) Procedures are provided at PGI 247.573(b)(4) to accomplish 
security background checks pursuant to clause 252.247-7027, Riding Gang 
Member Requirements.

[79 FR 61583, Oct. 14, 2014]



247.574  Solicitation provisions and contract clauses.

    (a)(1) Use the provision at 252.247-7022, Representation of Extent 
of Transportation by Sea, in all solicitations, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items, 
except--
    (i) Those for direct purchase of ocean transportation services; or
    (ii) Those with an anticipated value at or below the simplified 
acquisition threshold.
    (2) If the solicitation includes the provision at FAR 52.204-7, do 
not separately list 252.247-7022 in the solicitation.
    (b) Use the basic or one of the alternates of the clause at 252.247-
7023, Transportation of Supplies by Sea, in all solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, except those for 
direct purchase of ocean transportation services.
    (1) Use the basic clause unless any of the supplies to be 
transported are commercial items that are--
    (i) Shipped in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations when the contract is not a construction 
contract; or
    (ii) Commissary or exchange cargoes transported outside of the 
Defense Transportation System when the contract is not a construction 
contract.
    (2) Use the alternate I clause if any of the supplies to be 
transported are commercial items that are shipped in direct support of 
U.S. military contingency operations, exercises, or forces deployed in 
humanitarian or peacekeeping operations when the contract is not a 
construction contract.
    (3) Use the alternate II clause if any of the supplies to be 
transported are commercial items that are commissary or exchange cargoes 
transported outside of the Defense Transportation System (10 U.S.C. 
2643), when the contract is not a construction contract.
    (c) Use the clause at 252.247-7025, Reflagging or Repair Work, in 
all time charter solicitations and contracts, including time charter 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for the use of a vessel for 
the transportation of supplies, unless a waiver has been granted in 
accordance with 247.572(c)(2).
    (d) Use the provision at 252.247-7026, Evaluation Preference for Use 
of Domestic Shipyards--Applicable to Acquisition of Carriage by Vessel 
for DoD Cargo in the Coastwise or Noncontiguous Trade, in solicitations, 
including solicitations using FAR part 12 procedures for the acquisition 
of commercial items, that require a covered vessel for carriage of cargo 
for DoD.
    (e) Use the clause at 252.247-7027, Riding Gang Member Requirements, 
in solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that are for the charter of, or contract for carriage of cargo by, a 
U.S.-flag vessel documented under chapter 121 of title 46 U.S.C.

[56 FR 36466, July 31, 1991, as amended at 59 FR 10580, Mar. 7, 1994; 60 
FR 29501, June 5, 1995; 64 FR 2598, Jan. 15, 1999; 65 FR 14401. Mar. 16, 
2000; 67 FR 38021, May 31, 2002. Redesignated and amended at 72 FR 
49206, Aug. 28, 2007; 73 FR 70911, Nov. 24, 2008; 75 FR 65438, Oct. 25, 
2010; 76 FR 61281, Oct. 4, 2011; 78 FR 37990, June 25, 2013; 78 FR 
40043, July 3, 2013; 79 FR 22038, Apr. 21, 2014; 79 FR 61584, Oct. 14, 
2014; 84 FR 4371, Feb. 15, 2019]



PART 249_TERMINATION OF CONTRACTS--Table of Contents



                    Subpart 249.1_General Principles

Sec.
249.105 Duties of termination contracting officer after issuance of 
          notice of termination.
249.105-1 Termination status reports.
249.105-2 Release of excess funds.
249.109 Settlement agreements.

[[Page 396]]

249.109-7 Settlement by determination.
249.109-70 Limitation on pricing of the terminated effort.
249.110 Settlement negotiation memorandum.

               Subpart 249.5_Contract Termination Clauses

249.501 General.
249.501-70 Special termination costs.

             Subpart 249.70_Special Termination Requirements

249.7000 Terminated contracts with Canadian Commercial Corporation.
249.7001 Congressional notification on significant contract 
          terminations.
249.7002 [Reserved]
249.7003 Notification of anticipated contract terminations or 
          reductions.
249.7004 Contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36471, July 31, 1991, unless otherwise noted.



                    Subpart 249.1_General Principles



249.105  Duties of termination contracting officer after issuance
of notice of termination.



249.105-1  Termination status reports.

    Follow the procedures at PGI 249.105-1 for reporting status of 
termination actions.

[71 FR 27645, May 12, 2006]



249.105-2  Release of excess funds.

    See PGI 249.105-2 for guidance on recommending the release 
    of excess 
funds.

[71 FR 27645, May 12, 2006]



249.109  Settlement agreements.



249.109-7  Settlement by determination.

    Follow the procedures at PGI 249.109-7 for settlement of a 
convenience termination by determination.

[71 FR 27645, May 12, 2006]



249.109-70  Limitation on pricing of the terminated effort.

    When there is a termination for convenience (partial or whole) or a 
change that reduces scope, follow the procedures at PGI 249.109-70 for 
limitation on pricing of the terminated or reduced effort.

[84 FR 30953, June 28, 2019]



249.110  Settlement negotiation memorandum.

    Follow the procedures at PGI 249.110 for preparation of a settlement 
negotiation memorandum.

[71 FR 27645, May 12, 2006]



               Subpart 249.5_Contract Termination Clauses



249.501  General.



249.501-70  Special termination costs.

    (a) The clause at 252.249-7000, Special Termination Costs, may be 
used in an incrementally funded contract when its use is approved by the 
agency head.
    (b) The clause is authorized when--
    (1) The contract term is 2 years or more;
    (2) The contract is estimated to require--
    (i) Total RDT&E financing in excess of $25 million; or
    (ii) Total production investment in excess of $100 million; and
    (3) Adequate funds are available to cover the contingent reserve 
liability for special termination costs.
    (c) The contractor and the contracting officer must agree upon an 
amount that represents their best estimate of the total special 
termination costs to which the contractor would be entitled in the event 
of termination of the contract. Insert this amount in paragraph (c) of 
the clause.
    (d)(1) Consider substituting an alternate paragraph (c) for 
paragraph (c) of the basic clause when--
    (i) The contract covers an unusually long performance period; or
    (ii) The contractor's cost risk associated with contingent special 
termination costs is expected to fluctuate extensively over the period 
of the contract.
    (2) The alternate paragraph (c) should provide for periodic 
negotiation and adjustment of the amount reserved for special 
termination costs. Occasions for periodic adjustment may include--

[[Page 397]]

    (i) The Government's incremental assignment of funds to the 
contract;
    (ii) The time when certain performance milestones are accomplished 
by the contractor; or
    (iii) Other specific time periods agreed upon by the contracting 
officer and the contractor.



             Subpart 249.70_Special Termination Requirements



249.7000  Terminated contracts with Canadian Commercial Corporation.

    (a) Terminate contracts with the Canadian Commercial Corporation in 
accordance with--
    (1) The Letter of Agreement (LOA) between the Department of Defence 
Production (Canada) and the U.S. DoD, ``Canadian Agreement'' (for a copy 
of the LOA or for questions on its currency, contact the Office of the 
Director of Defense Procurement and Acquisition Policy (Contract Policy 
and International Contracting), osd.pentagon.ousd-
[email protected]);
    (2) Policies in the Canadian Agreement and part 249; and
    (3) The Canadian Supply Manual, Chapter 8, Annex 8.3, available at 
http://www.tpsgc-pwgsc.gc.ca/ app-acq/ga-sm/index-eng.html, 
``Termination for Convenience Process, Public Works and Government 
Services Canada.''
    (b) Contracting officers shall ensure that the Canadian Commercial 
Corporation submits termination settlement proposals in the format 
prescribed in FAR 49.602 and that they contain the amount of settlements 
with subcontractors. The termination contracting officer (TCO) shall 
prepare an appropriate settlement agreement. (See FAR 49.603.) The 
letter transmitting a settlement proposal must certify--
    (1) That disposition of inventory has been completed; and
    (2) That the Contract Claims Resolution Board of the Public Works 
and Government Services Canada has approved settlements with Canadian 
subcontractors when the Procedures Manual on Termination of Contracts 
requires such approval.
    (c)(1) The Canadian Commercial Corporation will--
    (i) Settle all Canadian subcontractor termination claims under the 
Canadian Agreement; and
    (ii) Submit schedules listing serviceable and usable contractor 
inventory for screening to the TCO (see FAR 45.6).
    (2) After screening, the TCO must provide guidance to the Canadian 
Commercial Corporation for disposition of the contractor inventory.
    (3) Settlement of Canadian subcontractor claims are not subject to 
the approval and ratification of the TCO. However, when the proposed 
negotiated settlement exceeds the total contract price of the prime 
contract, the TCO shall obtain from the U.S. contracting officer prior 
to final settlement--
    (i) Ratification of the proposed settlement; and
    (ii) A contract modification increasing the contract price and 
obligating the additional funds.
    (d) The Canadian Commercial Corporation should send all termination 
settlement proposals submitted by U.S. subcontractors and suppliers to 
the TCO of the cognizant contract administration office of the Defense 
Contract Management Agency for settlement. The TCO will inform the 
Canadian Commercial Corporation of the amount of the net settlement of 
U.S. subcontractors and suppliers so that this amount can be included in 
the Canadian Commercial Corporation termination proposal. The Canadian 
Commercial Corporation is responsible for execution of the settlement 
agreement with these subcontractors.
    (e) The Canadian Commercial Corporation will continue administering 
contracts that the U.S. contracting officer terminates.
    (f) The Canadian Commercial Corporation will settle all Canadian 
subcontracts in accordance with the policies, practices, and procedures 
of the Canadian Government.
    (g) The U.S. agency administering the contract with the Canadian 
Commercial Corporation shall provide any services required by the 
Canadian Commercial Corporation, including disposal of inventory, for 
settlement of any subcontracts placed in the United States. Settlement 
of such U.S. subcontracts

[[Page 398]]

will be in accordance with this regulation.

[56 FR 36471, July 31, 1991, as amended at 65 FR 39706, June 27, 2000; 
68 FR 7440, Feb. 14, 2003; 71 FR 27645, May 12, 2006; 72 FR 30278, May 
31, 2007; 76 FR 3537, Jan. 20, 2011; 79 FR 56279, Sept. 19, 2014]



249.7001  Congressional notification on significant contract 
terminations.

    Congressional notification is required for any termination involving 
a reduction in employment of 100 or more contractor employees. Proposed 
terminations must be cleared through department/agency liaison offices 
before release of the termination notice, or any information on the 
proposed termination, to the contractor. Follow the procedures at PGI 
249.7001 for congressional notification and release of information.

[71 FR 27645, May 12, 2006]



249.7002  [Reserved]



249.7003  Notification of anticipated contract terminations or reductions.

    (a) Section 1372 of the National Defense Authorization Act for 
Fiscal Year 1994 (Pub. L. 103-160) and section 824 of the National 
Defense Authorization Act for Fiscal Year 1997 (Pub. L. 104-201) are 
intended to help establish benefit eligibility under the Workforce 
Innovation and Opportunity Act (29 U.S.C. Chapter 32) for employees of 
DoD contractors and subcontractors adversely affected by termination or 
substantial reductions in major defense programs.
    (b) Departments and agencies are responsible for establishing 
procedures to--
    (1) Identify which contracts (if any) under major defense programs 
will be terminated or substantially reduced as a result of the funding 
levels provided in an appropriations act; and
    (2) Within 60 days of the enactment of such an act, provide notice 
of the anticipated termination of or substantial reduction in the 
funding of affected contracts--
    (i) Directly to the Secretary of Labor; and
    (ii) Through the contracting officer to each prime contractor.
    (c) When subcontracts have been issued, the prime contractor is 
responsible for--
    (1) Providing notice of the termination or substantial reduction in 
funding to all first-tier subcontractors with a subcontract valued equal 
to or greater than $700,000; and
    (2) Requiring that each subcontractor--
    (i) Provide such notice to each of its subcontractors for 
subcontracts valued greater than $150,000; and
    (ii) Impose a similar notice and flowdown requirement in 
subcontracts valued greater than $150,000 at all tiers.

[61 FR 64637, Dec. 6, 1996; 61 FR 66077, Dec. 16, 1996; 62 FR 49304, 
Sept. 19, 1997; 85 FR 34535, June 5, 2020]



249.7004  Contract clause.

    Use the clause at 252.249-7002, Notification of Anticipated Contract 
Termination or Reduction, in all contracts under a major defense 
program.

[85 FR 34536, June 5, 2020]



PART 250_EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT--
Table of Contents



             Subpart 250.1_Extraordinary Contractual Actions

Sec.
250.100 Definitions.
250.101 General.
250.101-2 Policy.
250.101-2-70 Limitations on payment.
250.101-3 Records.
250.102 Delegation of and limitations on exercise of authority.
250.102-1 Delegation of authority.
250.102-1-70 Delegations.
250.102-2 Contract adjustment boards.
250.103 Contract adjustments.
250.103-3 Contract adjustment.
250.103-5 Processing cases.
250.103-6 Disposition.
250.104 Residual powers.
250.104-3 Special procedures for unusually hazardous or nuclear risks.
250.104-3-70 Indemnification under contracts involving both research and 
          development and other work.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 73 FR 46815, Aug. 12, 2008, unless otherwise noted.

[[Page 399]]



             Subpart 250.1_Extraordinary Contractual Actions



250.100  Definitions.

    Secretarial level, as used in this subpart, means--
    (1) An official at or above the level of an Assistant Secretary (or 
Deputy) of Defense or of the Army, Navy, or Air Force; and
    (2) A contract adjustment board established by the Secretary 
concerned.



250.101  General.



250.101-2  Policy.



250.101-2-70  Limitations on payment.

    See 10 U.S.C. 2410(b) for limitations on Congressionally directed 
payment of a request for equitable adjustment to contract terms or a 
request for relief under Public Law 85-804.



250.101-3  Records.

    Follow the procedures at PGI 250.101-3 for preparation of records.



250.102  Delegation of and limitations on exercise of authority.



250.102-1  Delegation of authority.

    (b) Authority under FAR 50.104 to approve actions obligating $75,000 
or less may not be delegated below the level of the head of the 
contracting activity.
    (d) In accordance with the acquisition authority of the Under 
Secretary of Defense (Acquisition, Technology, and Logistics (USD 
(AT&L)) under 10 U.S.C. 133, in addition to the Secretary of Defense and 
the Secretaries of the military departments, the USD (AT&L) may exercise 
authority to indemnify against unusually hazardous or nuclear risks.

[73 FR 46815, Aug. 12, 2008, as amended at 75 FR 45074, Aug. 2, 2010; 80 
FR 36905, June 26, 2015; 85 FR 61504, Sept. 29, 2020]



250.102-1-70  Delegations.

    (a) Military departments. The Departments of the Army, Navy, and Air 
Force will specify delegations and levels of authority for actions under 
the Act and the Executive Order in departmental supplements or agency 
acquisition guidance.
    (b) Defense agencies. Subject to the restrictions on delegations of 
authority in 250.102-1(b) and FAR 50.102-1, the directors of the defense 
agencies may exercise and redelegate the authority contained in the Act 
and the Executive Order. The agency supplements or agency acquisition 
guidance shall specify the delegations and levels of authority.
    (1) Requests to obligate the Government in excess of $75,000 must be 
submitted to the USD (AT&L) for approval.
    (2) Requests for indemnification against unusually hazardous or 
nuclear risks must be submitted to the USD(AT&L) for approval before 
using the indemnification clause at FAR 52.250-1, Indemnification Under 
Public Law 85-804.
    (c) Approvals. The Secretary of the military department or the 
agency director must approve any delegations in writing.

[73 FR 46815, Aug. 12, 2008, as amended at 75 FR 45074, Aug. 2, 2010; 80 
FR 36905, June 26, 2015; 85 FR 61504, Sept. 29, 2020]



250.102-2  Contract adjustment boards.

    The Departments of the Army, Navy, and Air Force each have a 
contract adjustment board. The board consists of a Chair and not less 
than two nor more than six other members, one of whom may be designated 
the Vice-Chair. A majority constitutes a quorum for any purpose and the 
concurring vote of a majority of the total board membership constitutes 
an action of the board. Alternates may be appointed to act in the 
absence of any member.



250.103  Contract adjustments.



250.103-3  Contract adjustment.

    (a) Contractor requests should be filed with the procuring 
contracting officer (PCO). However, if filing with the PCO is 
impractical, requests may be filed with an authorized representative, an 
administrative contracting officer, or the Office of General Counsel of 
the applicable department or agency, for forwarding to the cognizant 
PCO.



250.103-5  Processing cases.

    (1) At the time the request is filed, the activity shall prepare the 
record

[[Page 400]]

described at PGI 250.101-3(1)(i) and forward it to the appropriate 
official within 30 days after the close of the month in which the record 
is prepared.
    (2) The officer or official responsible for the case shall forward 
to the contract adjustment board, through departmental channels, the 
documentation described at PGI 250.103-5.
    (3) Contract adjustment boards will render decisions as 
expeditiously as practicable. The Chair shall sign a memorandum of 
decision disposing of the case. The decision shall be dated and shall 
contain the information required by FAR 50.103-6. The memorandum of 
decision shall not contain any information classified ``Confidential'' 
or higher. The board's decision will be sent to the appropriate official 
for implementation.



250.103-6  Disposition.

    For requests denied or approved below the Secretarial level, follow 
the disposition procedures at PGI 250.103-6.



250.104  Residual powers.



250.104-3  Special procedures for unusually hazardous or nuclear risks.



250.104-3-70  Indemnification under contracts involving both research
and development and other work.

    When indemnification is to be provided on contracts requiring both 
research and development work and other work, the contracting officer 
shall insert an appropriate clause using the authority of both 10 U.S.C. 
2354 and Public Law 85-804.
    (a) The use of Public Law 85-804 is limited to work which cannot be 
indemnified under 10 U.S.C. 2354 and is subject to compliance with FAR 
50.104.
    (b) Indemnification under 10 U.S.C. 2354 is covered by 235.070.



PART 251_USE OF GOVERNMENT SOURCES BY CONTRACTORS--Table of Contents



        Subpart 251.1_Contractor Use of Government Supply Sources

Sec.
251.101 Policy.
251.102 Authorization to use Government supply sources.
251.107 Contract clause.

  Subpart 251.2_Contractor Use of Interagency Fleet Management System 
                             (IFMS) Vehicles

251.202 Authorization.
251.205 Contract clause.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36479, July 31, 1991, unless otherwise noted.



        Subpart 251.1_Contractor Use of Government Supply Sources



251.101  Policy.

    (a)(1) Notwithstanding the restriction at FAR 51.101(a)(1), 
contracting officers may authorize contractors to use Defense Logistics 
Agency Energy as a source of fuel in performance of other than cost-
reimbursement contracts, when the fuel is funded by the Defense Working 
Capital Fund. When providing this authorization to contractors, follow 
the procedures at PGI 251.101.

[85 FR 53684, Aug. 31, 2020]



251.102  Authorization to use Government supply sources.

    (e) When authorizing contractor use of Government supply sources, 
follow the procedures at PGI 251.102.
    (3)(ii) The contracting officer may also authorize the contractor to 
use the DD Form 1155 when requisitioning from the Department of Veterans 
Affairs.
    (f) The authorizing agency is also responsible for promptly 
considering requests of the DoD supply source for authority to refuse to 
honor requisitions from a contractor that is indebted to DoD and has 
failed to pay proper invoices in a timely manner.

[69 FR 67858, Nov. 22, 2004]



251.107  Contract clause.

    Use the clause at 252.251-7000, Ordering From Government Supply 
Sources, in solicitations and contracts which include the clause at FAR 
52.251-1, Government Supply Sources.

[[Page 401]]



  Subpart 251.2_Contractor Use of Interagency Fleet Management System 
                             (IFMS) Vehicles



251.202  Authorization.

    (a)(2)(A) See FAR 28.307-2(c) for policy on contractor insurance.
    (B) See FAR 28.308 for policy on self-insurance.
    (C) See FAR 31.205-19 for allowability of insurance costs.
    (5) Paragraph (d) of the clause at 252.251-7001 satisfies the 
requirement of FAR 51.202(a)(5) for a written statement.



251.205  Contract clause.

    Use the clause at 252.251-7001, Use of Interagency Fleet Management 
System (IFMS)Vehicles and Related Services, in solicitations and 
contracts which include the clause at FAR 52.251-2, Interagency Fleet 
Management System (IFMS) Vehicles and Related Services.

[[Page 402]]



                     SUBCHAPTER H_CLAUSES AND FORMS





PART 252_SOLICITATION PROVISIONS AND CONTRACT CLAUSES--
Table of Contents



       Subpart 252.1_Instructions for Using Provisions and Clauses

Sec.
252.101 Using part 252.
252.102 Identification of provisions and clauses.

              Subpart 252.2_Text of provisions and clauses

252.201-7000 Contracting officer's representative.
252.203-7000 Requirements relating to compensation of former DoD 
          officials.
252.203-7001 Prohibition on persons convicted of fraud or other defense-
          contract-related felonies.
252.203-7002 Requirement to inform employees of whistleblower rights.
252.203-7003 Agency Office of the Inspector General.
252.203-7004 Display of Hotline Posters.
252.203-7004 Display of fraud hotline poster(s).
252.203-7005 Representation Relating to Compensation of Former DoD 
          Officials.
252.204-7000 Disclosure of information.
252.204-7001 [Reserved]
252.204-7002 Payment for Contract Line or Subline Items Not Separately 
          Priced.
252.204-7003 Control of government personnel work product.
252.204-7005 [Reserved]
252.204-7006 Billing instructions.
252.204-7007 Alternate A, Annual Representations and Certifications.
252.204-7008 Compliance with safeguarding covered defense information 
          controls.
252.204-7009 Limitations on the use or disclosure of third-party 
          contractor reported cyber incident information.
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.
252.204-7011 [Reserved]
252.204-7012 Safeguarding covered defense information and cyber incident 
          reporting.
252.204-7013 [Reserved]
252.204-7014 Limitations on the Use or Disclosure of Information by 
          Litigation Support Contractors.
252.204-7015 Notice of Authorized Disclosure of Information for 
          Litigation Support.
252.204-7016 Covered Defense Telecommunications Equipment or Services--
          Representation.
252.204-7017 Prohibition on the Acquisition of Covered Defense 
          Telecommunications Equipment or Services--Representation.
252.204-7018 Prohibition on the Acquisition of Covered Defense 
          Telecommunications Equipment or Services.
252.204-7019 Notice of NIST SP 800-171 DoD Assessment Requirements.
252.204-7020 NIST SP 800-171 DoD Assessment Requirements.
252.204-7021 Contractor Compliance with the Cybersecurity Maturity Model 
          Certification Level Requirement.
252.204-7022 Expediting Contract Closeout.
252.204-7023 Reporting Requirements for Contracted Services.
252.205-7000 Provision of information to cooperative agreement holders.
252.206-7000 Domestic source restriction.
252.208-7000 Intent to furnish precious metals as Government-furnished 
          material.
252.209-7001 [Reserved]
252.209-7002 Disclosure of ownership or control by a foreign government.
252.209-7003 [Reserved]
252.209-7004 Subcontracting with Firms that are Owned or Controlled by 
          the Government of a Country that is a State Sponsor of 
          Terrorism.
252.209-7005 [Reserved]
252.209-7006 Limitations on Contractors Acting as Lead System 
          Integrators.
252.209-7007 Prohibited Financial Interests for Lead System Integrators.
252.209-7008 Notice of Prohibition Relating to Organizational Conflict 
          of Interest--Major Defense Acquisition Program.
252.209-7009 Organizational Conflict of Interest--Major Defense 
          Acquisition Program.
252.209-7010 Critical safety items.
252.211-7000--252.211-7001 [Reserved]
252.211-7002 Availability for examination of specifications, standards, 
          plans, drawings, data item descriptions, and other pertinent 
          documents.
252.211-7003 Item unique identification and valuation.
252.211-7004 [Reserved]
252.211-7005 [Reserved]
252.211-7006 Passive Radio Frequency Identification.
252.211-7007 Reporting of Government-Furnished Property.
252.211-7008 Use of Government-assigned serial numbers.
252.212-7000--252.212-7001 [Reserved]
252.212-7002 Pilot Program for Acquisition of Military-Purpose 
          Nondevelopmental Items.

[[Page 403]]

252.213-7000 Notice to Prospective Suppliers on Use of Supplier 
          Performance Risk System in Past Performance Evaluations.
252.215-7000--252.215-7001 [Reserved]
252.215-7002 Cost estimating system requirements.
252.215-7003 Requirement for submission of data other than certified 
          cost or pricing data--Canadian Commercial Corporation.
252.215-7004 Requirement for submission of data other than certified 
          cost or pricing data--Modifications-Canadian Commercial 
          Corporation.
252.215-7005 Evaluation Factor for Employing or Subcontracting With 
          Members of the Selected Reserve.
252.215-7006 Use of Employees or Individual Subcontractors Who Are 
          Members of the Selected Reserve.
252.215-7007 Notice of Intent to Resolicit.
252.215-7008 Only One Offer.
252.215-7009 Proposal adequacy checklist.
252.215-7010 Requirements for Certified Cost or Pricing Data and Data 
          Other Than Certified Cost or Pricing Data.
252.215-7011 Requirements for Submission of Proposals to the 
          Administrative Contracting Officer and Contract Auditor.
252.215-7012 Requirements for Submission of Proposals via Electronic 
          Media.
252.215-7013 Supplies and Services Provided by Nontraditional Defense 
          Contractors.
252.215-7014 Exception from Certified Cost or Pricing Data Requirements 
          for Foreign Military Sales Indirect Offsets.
252.215-7015 Program Should-Cost Review.
252.216-7000 Economic price adjustment--basic steel, aluminum, brass, 
          bronze, or copper mill products.
252.216-7001 Economic price adjustment--nonstandard steel items.
252.216-7002 Alternate A, Time-and-Materials/Labor-Hour Proposal 
          Requirements--Non-Commercial Item Acquisition with Adequate 
          Price Competition.
252.216-7003 Economic price adjustment--wage rates or material prices 
          controlled by a foreign government.
252.216-7004 Award Fee Reduction or Denial for Jeopardizing the Health 
          or Safety of Government Personnel.
252.216-7005 [Reserved]
252.216-7006 [Reserved]
252.216-7007 Economic price adjustment--basic steel, aluminum, brass, 
          bronze, or copper mill products-representation.
252.216-7008 Economic price adjustment--wage rates or material prices 
          controlled by a foreign government--representation.
252.216-7009 Allowability of legal costs incurred in connection with a 
          whistleblower proceeding.
252.217-7000 Exercise of option to fulfill foreign military sales 
          commitments.
252.217-7001 Surge option.
252.217-7002 Offering property for exchange.
252.217-7003 Changes.
252.217-7004 Job orders and compensation.
252.217-7005 Inspection and manner of doing work.
252.217-7006 Title.
252.217-7007 Payments.
252.217-7008 Bonds.
252.217-7009 Default.
252.217-7010 Performance.
252.217-7011 Access to vessel.
252.217-7012 Liability and insurance.
252.217-7013 Guarantees.
252.217-7014 Discharge of liens.
252.217-7015 Safety and health.
252.217-7016 Plant protection.
252.217-7017--252.217-7025 [Reserved]
252.217-7026 Identification of sources of supply.
252.217-7027 Contract definitization.
252.217-7028 Over and above work.
252.219-7000 Advancing Small Business Growth.
252.219-7001--252.219-7002 [Reserved]
252.219-7003 Small Business Subcontracting Plan (DoD Contracts).
252.219-7004 Small Business Subcontracting Plan (Test Program).
252.219-7005--252.219-7008 [Reserved]
252.219-7009 Section 8(a) direct award.
252.219-7010 Notification of Competition Limited to Eligible 8(a) 
          Participants--Partnership Agreement
252.219-7011 Notification to delay performance.
252.219-7012 Competition for Religious-Related Services.
252.222-7000 Restrictions on employment of personnel.
252.222-7001 [Reserved]
252.222-7002 Compliance with local labor laws (overseas).
252.222-7003 Permit from Italian Inspectorate of Labor.
252.222-7004 Compliance with Spanish social security laws and 
          regulations.
252.222-7005 Prohibition on use of nonimmigrant aliens--Guam.
252.222-7006 Restrictions on the Use of Mandatory Arbitration 
          Agreements.
252.223-7000 [Reserved]
252.223-7001 Hazard warning labels.
252.223-7002 Safety precautions for ammunition and explosives.
252.223-7003 Change in place of performance--ammunition and explosives.
252.223-7004 Drug-free work force.
252.223-7005 [Reserved]
252.223-7006 Prohibition on storage, treatment, and disposal of toxic or 
          hazardous materials.
252.223-7007 Safeguarding sensitive conventional arms, ammunition, and 
          explosives.
252.223-7008 Prohibition of Hexavalent Chromium.

[[Page 404]]

252.225-7000 Buy American--Balance of Payments Program Certificate.
252.225-7001 Buy American and Balance of Payments Program.
252.225-7002 Qualifying country sources as subcontractors.
252.225-7003 Report of intended performance outside the United States 
          and Canada--Submission with offer.
252.225-7004 Reporting of intended performance outside the United States 
          and Canada--Submission after award.
252.225-7005 Identification of Expenditures in the United States.
252.225-7006 Acquisition of the American flag.
252.225-7007 Prohibition on Acquisition of Certain Items from Communist 
          Chinese Military Companies.
252.225-7008 Restriction on Acquisition of Specialty Metals.
252.225-7009 Restriction on Acquisition of Certain Articles Containing 
          Specialty Metals.
252.225-7010 Commercial Derivative Military Article--Specialty Metals 
          Compliance Certificate.
252.225-7011 Restriction on acquisition of supercomputers.
252.225-7012 Preference for certain domestic commodities.
252.225-7013 Duty-free entry.
252.225-7014 [Reserved]
252.225-7015 Restriction on acquisition of hand or measuring tools.
252.225-7016 Restriction on acquisition of ball and roller bearings.
252.225-7017 Photovoltaic devices.
252.225-7018 Photovoltaic devices--certificate.
252.225-7019 Restriction on acquisition of anchor and mooring chain.
252.225-7020 Trade agreements certificate.
252.225-7021 Trade agreements.
252.225-7022 [Reserved]
252.225-7023 Preference for products or services from Afghanistan.
252.225-7024 Requirement for products or services from Afghanistan.
252.225-7025 Restriction on acquisition of forgings.
252.225-7026 Acquisition restricted to products or services from 
          Afghanistan.
252.225-7027 Restriction on contingent fees for foreign military sales.
252.225-7028 Exclusionary policies and practices of foreign governments.
252.225-7029 Acquisition of uniform components for Afghan military or 
          Afghan National Police.
252.225-7030 [Reserved]
252.225-7031 Secondary Arab boycott of Israel.
252.225-7032 Waiver of United Kingdom levies--Evaluation of offers.
252.225-7033 Waiver of United Kingdom Levies.
252.225-7034 [Reserved]
252.225-7035 Buy American--Free Trade Agreements--Balance of Payments 
          Program Certificate.
252.225-7036 Buy American--Free Trade Agreements--Balance of Payments 
          Program.
252.225-7037 Evaluation of offers for air circuit breakers.
252.225-7038 Restriction on acquisition of air circuit breakers.
252.225-7039 Defense Contractors Performing Private Security Functions 
          Outside the United States.
252.225-7040 Contractor Personnel Supporting U.S. Armed Forces Deployed 
          Outside the United States.
252.225-7041 Correspondence in English.
252.225-7042 Authorization to perform.
252.225-7043 Antiterrorism/force protection policy for defense 
          contractors outside the United States.
252.225-7044 Balance of Payments Program--Construction Material.
252.225-7045 Balance of Payments Program--Construction Material Under 
          Trade Agreements.
252.225-7046 Exports by approved community members in response to the 
          solicitation.
252.225-7047 Exports by approved community members in performance of the 
          contract.
252.225-7048 Export-controlled items.
252.225-7049 Prohibition on Acquisition of Certain Foreign Commercial 
          Satellite Services--Representations.
252.225-7050 Disclosure of Ownership or Control by the Government of a 
          Country that is a State Sponsor of Terrorism.
252.225-7051 Prohibition on Acquisition of Certain Foreign Commercial 
          Satellite Services.
252.225-7052 Restriction on the Acquisition of Certain Magnets, 
          Tantalum, and Tungsten.
252.225-7053 Representation Regarding Prohibition on Use of Certain 
          Energy Sourced from Inside the Russian Federation.
252.225-7054 Prohibition on Use of Certain Energy Sourced from Inside 
          the Russian Federation.
252.226-7001 Utilization of Indian organizations, Indian-owned economic 
          enterprises, and native Hawaiian small business concerns.
252.226-7002 Representation for Demonstration Project for Contractors 
          Employing Persons with Disabilities.
252.227-7000 Non-estoppel.
252.227-7001 Release of past infringement.
252.227-7002 Readjustment of payments.
252.227-7003 Termination.
252.227-7004 License grant.
252.227-7005 License term.
252.227-7006 License grant--running royalty.

[[Page 405]]

252.227-7007 License term--running royalty.
252.227-7008 Computation of royalties.
252.227-7009 Reporting and payment of royalties.
252.227-7010 License to other Government agencies.
252.227-7011 Assignments.
252.227-7012 Patent license and release contract.
252.227-7013 Rights in technical data--Noncommercial items.
252.227-7014 Rights in noncommercial computer software and noncommercial 
          computer software documentation.
252.227-7015 Technical data--Commercial items.
252.227-7016 Rights in bid or proposal information.
252.227-7017 Identification and assertion of use, release, or disclosure 
          restrictions.
252.227-7018 Rights in noncommercial technical data and computer 
          software--Small Business Innovation Research (SBIR) Program.
252.227-7019 Validation of asserted restrictions--Computer software.
252.227-7020 Rights in special works.
252.227-7021 Rights in data--existing works.
252.227-7022 Government rights (unlimited).
252.227-7023 Drawings and other data to become property of Government.
252.227-7024 Notice and approval of restricted designs.
252.227-7025 Limitations on the use or disclosure of government-
          furnished information marked with restrictive legends.
252.227-7026 Deferred delivery of technical data or computer software.
252.227-7027 Deferred ordering of technical data or computer software.
252.227-7028 Technical data or computer software previously delivered to 
          the government.
252.227-7029 [Reserved]
252.227-7030 Technical data--withholding of payment.
252.227-7031 [Reserved]
252.227-7032 Rights in technical data and computer software (foreign).
252.227-7033 Rights in shop drawings.
252.227-7034--252.227-7036 [Reserved]
252.227-7037 Validation of restrictive markings on technical data.
252.227-7038 Patent Rights--Ownership by the Contractor (Large 
          Business).
252.227-7039 Patents--reporting of subject inventions.
252.228-7000 Reimbursement for war-hazard losses.
252.228-7001 Ground and flight risk.
252.228-7002 Aircraft flight risk.
252.228-7003 Capture and detention.
252.228-7004 [Reserved]
252.228-7005 Mishap reporting and investigation involving aircraft, 
          missiles, and space launch vehicles.
252.228-7006 Compliance with Spanish laws and insurance.
252.229-7000 [Reserved]
252.229-7001 Tax relief.
252.229-7002 Customs exemptions (Germany).
252.229-7003 Tax exemptions (Italy).
252.229-7004 Status of contractors as a direct contractor (Spain).
252.229-7005 Tax exemptions (Spain).
252.229-7006 Value added tax exclusion (United Kingdom).
252.229-7007 Verification of United States receipt of goods.
252.229-7008 Relief from import duty (United Kingdom).
252.229-7009 Relief from customs duty and value added tax on fuel 
          (passenger vehicles) (United Kingdom).
252.229-7010 Relief from customs duty on fuel (United Kingdom).
252.229-7011 Reporting of Foreign Taxes--U.S. Assistance Programs.
252.229-7012 Tax exemptions (Italy)--representation.
252.229-7013 Tax exemptions (Spain)--representation.
252.231-7000 Supplemental cost principles.
252.232-7000 Advance payment pool.
252.232-7001 [Reserved]
252.232-7002 Progress payments for foreign military sales acquisitions.
252.232-7003 Electronic submission of payment requests and receiving 
          reports.
252.232-7004 DoD progress payment rates.
252.232-7005 Reimbursement of subcontractor advance payments--DoD pilot 
          mentor-prot[eacute]g[eacute] program.
252.232-7006 Wide Area WorkFlow payment instructions.
252.232-7007 Limitation of Government's obligation.
252.232-7008 Assignment of claims (overseas).
252.232-7009 Mandatory payment by Governmentwide commercial purchase 
          card.
252.232-7010 Levies on contract payments.
252.232-7011 Payments in support of emergencies and contingency 
          operations.
252.232-7012 Performance-Based Payments--Whole-Contract Basis.
252.232-7013 Performance-Based Payments--Deliverable-Item Basis.
252.232-7014 Notification of Payment in Local Currency (Afghanistan).
252.232-7015 Performance-Based Payments--Representation..
252.232-7016 Notice of Progress Payments or Performance-Based Payments.
252.232-7017 Accelerating Payments to Small Business Subcontractors--
          Prohibition on Fees and Consideration.
252.233-7000 [Reserved]
252.233-7001 Choice of law (overseas).
252.234-7001 Notice of Earned Value Management System.

[[Page 406]]

252.234-7002 Earned Value Management System.
252.234-7003 Notice of Cost and Software Data Reporting System.
252.234-7004 Cost and Software Data Reporting System.
252.235-7000 Indemnification under 10 U.S.C. 2354--fixed price.
252.235-7001 Indemnification under 10 U.S.C. 2354--cost reimbursement.
252.235-7002 Animal Welfare.
252.235-7003 Frequency Authorization.
252.235-7004 Protection of Human Subjects.
252.235-7005--252.235-7009 [Reserved]
252.235-7010 Acknowledgement of support and disclaimer.
252.235-7011 Final scientific or technical report.
252.236-7000 Modification proposals--price breakdown.
252.236-7001 Contract drawings and specifications.
252.236-7002 Obstruction of navigable waterways.
252.236-7003 Payment for mobilization and preparatory work.
252.236-7004 Payment for mobilization and demobilization.
252.236-7005 Airfield safety precautions.
252.236-7006 Cost limitation.
252.236-7007 Additive or deductive items.
252.236-7008 Contract prices--bidding schedules.
252.236-7009 [Reserved]
252.236-7010 Overseas military construction--Preference for United 
          States firms.
252.236-7011 Overseas architect-engineer services--Restriction to United 
          States firms.
252.236-7012 Military construction on Kwajalein Atoll--evaluation 
          preference.
252.236-7013 Requirement for competition opportunity for American steel 
          producers, fabricators, and manufacturers.
252.237-7000 Notice of special standards of responsibility.
252.237-7001 Compliance with audit standards.
252.237-7002 [Reserved]
252.237-7003 Requirements.
252.237-7004 Area of performance.
252.237-7005 Performance and delivery.
252.237-7006 Subcontracting.
252.237-7007 Termination for default.
252.237-7008 Group interment.
252.237-7009 Permits.
252.237-7010 Prohibition on interrogation of detainees by contractor 
          personnel.
252.237-7011 Preparation history.
252.237-7012 Instruction to offerors (count-of-articles).
252.237-7013 Instruction to offerors (bulk weight).
252.237-7014 Loss or damage (count-of-articles).
252.237-7015 Loss or damage (weight of articles).
252.237-7016 Delivery tickets.
252.237-7017 Individual laundry.
252.237-7018 Special definitions of Government property.
252.237-7019 Training for contractor personnel interacting with 
          detainees.
252.237-7020--252.237-7021 [Reserved]
252.237-7022 Services at installations being closed.
252.237-7023 Continuation of essential contractor services.
252.237-7024 Notice of continuation of essential contractor services.
252.239-7000 Protection against compromising emanations.
252.239-7001 Information Assurance Contractor Training and 
          Certification.
252.239-7002 Access.
252.239-7003 [Reserved]
252.239-7004 Orders for facilities and services.
252.239-7005 [Reserved]
252.239-7006 [Reserved]
252.239-7007 Cancellation or termination of orders.
252.239-7008 [Reserved]
252.239-7009 Representation of use of cloud computing.
252.239-7010 Cloud computing services.
252.239-7011 Special construction and equipment charges.
252.239-7012 Title to telecommunication facilities and equipment.
252.239-7013 Term of agreement and continuation of services.
252.239-7014 [Reserved]
252.239-7015 [Reserved]
252.239-7016 Telecommunications security equipment, devices, techniques, 
          and services.
252.239-7017 Notice of supply chain risk.
252.239-7018 Supply chain risk.
252.241-7000 Superseding contract.
252.241-7001 Government access.
252.242-7000--252.242-7002 [Reserved]
252.242-7004 Material management and accounting system.
252.242-7005 Contractor business systems.
252.242-7006 Accounting system administration.
252.243-7000 [Reserved]
252.243-7001 Pricing of contract modifications.
252.243-7002 Requests for equitable adjustment.
252.244-7000 Subcontracts for commercial items.
252.244-7001 Contractor purchasing system administration.
252.245-7000 Government-furnished mapping, charting, and geodesy 
          property.
252.245-7001 Tagging, labeling, and marking of government-furnished 
          property
252.245-7002 Reporting Loss of Government Property.
252.245-7003 Contractor Property Management System Administration.

[[Page 407]]

252.245-7004 Reporting, Reutilization, and Disposal.
252.246-7000 [Reserved]
252.246-7001 Warranty of data.
252.246-7002 Warranty of construction (Germany).
252.246-7003 Notification of Potential Safety Issues.
252.246-7004 Safety of Facilities, Infrastructure, and Equipment for 
          Military Operations.
252.246-7005 Notice of Warranty Tracking of Serialized Items.
252.246-7006 Warranty Tracking of Serialized Items.
252.246-7007 Contractor Counterfeit Electronic Part Detection and 
          Avoidance System.
252.246-7008 Sources of electronic parts.
252.247-7000 Hardship conditions.
252.247-7001 [Reserved]
252.247-7002 Revision of prices.
252.247-7003 Pass-through of motor carrier fuel surcharge adjustment to 
          the cost bearer.
252.247-7004--252.247-7006 [Reserved]
252.247-7007 Liability and insurance.
252.247-7008--252.247-7013 [Reserved]
252.247-7014 Demurrage.
252.247-7015 [Reserved]
252.247-7016 Contractor liability for loss or damage.
252.247-7017--252.247-7021 [Reserved]
252.247-7022 Representation of extent of transportation by sea.
252.247-7023 Transportation of supplies by sea.
252.247-7024 [Reserved]
252.247-7025 Reflagging or repair work.
252.247-7026 Evaluation preference for use of domestic shipyards--
          applicable to acquisition of carriage by vessel for DoD cargo 
          in the coastwise or noncontiguous trade.
252.247-7027 Riding gang member requirements.
252.247-7028 Application for U.S. Government Shipping Documentation/
          Instructions.
252.249-7000 Special termination costs.
252.249-7001 [Reserved]
252.249-7002 Notification of Anticipated Contract Termination or 
          Reduction.
252.251-7000 Ordering from Government supply sources.
252.251-7001 Use of Interagency Fleet Management System (IFMS) vehicles 
          and related services.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

    Source: 56 FR 36479, July 31, 1991, unless otherwise noted.



       Subpart 252.1_Instructions for Using Provisions and Clauses



252.101  Using part 252.

    (b) Numbering. (2) Provisions or clauses that supplement the FAR.
    (ii)(B) DFARS provisions or clauses use a four digit sequential 
number in the 7000 series, e.g., -7000, -7001, -7002. Department or 
agency supplemental provisions or clauses use four digit sequential 
numbers in the 9000 series.



252.102  Identification of provisions and clauses.

    For guidance on numbering department or agency provisions and 
clauses, see PGI 252.103.

[80 FR 36718, June 26, 2015]



              Subpart 252.2_Text of Provisions and Clauses



252.201-7000  Contracting officer's representative.

    As prescribed in 201.602-70, use the following clause:

             Contracting Officer's Representative (DEC 1991)

    (a) Definition. Contracting officer's representative means an 
individual designated in accordance with subsection 201.602-2 of the 
Defense Federal Acquisition Regulation Supplement and authorized in 
writing by the contracting officer to perform specific technical or 
administrative functions.
    (b) If the Contracting Officer designates a contracting officer's 
representative (COR), the Contractor will receive a copy of the written 
designation. It will specify the extent of the COR's authority to act on 
behalf of the contracting officer. The COR is not authorized to make any 
commitments or changes that will affect price, quality, quantity, 
delivery, or any other term or condition of the contract.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 57 FR 42633, Sept. 15, 1992]



252.203-7000  Requirements Relating to Compensation of Former DoD Officials.

    As prescribed in 203.171-4(a), use the following clause:

[[Page 408]]

Requirements Relating to Compensation of Former DoD Officials (SEP 2011)

    (a) Definition. Covered DoD official, as used in this clause, means 
an individual that--
    (1) Leaves or left DoD service on or after January 28, 2008; and
    (2)(i) Participated personally and substantially in an acquisition 
as defined in 41 U.S.C. 131 with a value in excess of $10 million, and 
serves or served--
    (A) In an Executive Schedule position under subchapter II of chapter 
53 of Title 5, United States Code;
    (B) In a position in the Senior Executive Service under subchapter 
VIII of chapter 53 of Title 5, United States Code; or
    (C) In a general or flag officer position compensated at a rate of 
pay for grade O-7 or above under section 201 of Title 37, United States 
Code; or
    (ii) Serves or served in DoD in one of the following positions: 
Program manager, deputy program manager, procuring contracting officer, 
administrative contracting officer, source selection authority, member 
of the source selection evaluation board, or chief of a financial or 
technical evaluation team for a contract in an amount in excess of $10 
million.
    (b) The Contractor shall not knowingly provide compensation to a 
covered DoD official within 2 years after the official leaves DoD 
service, without first determining that the official has sought and 
received, or has not received after 30 days of seeking, a written 
opinion from the appropriate DoD ethics counselor regarding the 
applicability of post-employment restrictions to the activities that the 
official is expected to undertake on behalf of the Contractor.
    (c) Failure by the Contractor to comply with paragraph (b) of this 
clause may subject the Contractor to rescission of this contract, 
suspension, or debarment in accordance with 41 U.S.C. 2105(c).

                             (End of clause)

[74 FR 2409, Jan. 15, 2009, as amended at 76 FR 58137, Sept. 20, 2011; 
78 FR 37990, June 25, 2013]



252.203-7001  Prohibition on persons convicted of fraud or other 
defense-contract-related felonies.

    As prescribed in 203.570-3, use the following clause:

  Prohibition on Persons Convicted of Fraud or Other Defense-Contract-
                       Related Felonies (DEC 2008)

    (a) Definitions. As used in this clause--
    (1) Arising out of a contract with the DoD means any act in 
connection with--
    (i) Attempting to obtain;
    (ii) Obtaining; or
    (iii) Performing a contract or first-tier subcontract of any agency, 
department, or component of the Department of Defense (DoD).
    (2) Conviction of fraud or any other felony means any conviction for 
fraud or a felony in violation of state or Federal criminal statutes, 
whether entered on a verdict or plea, including a plea of nolo 
contendere, for which sentence has been imposed.
    (3) Date of conviction means the date judgment was entered against 
the individual.
    (b) Any individual who is convicted after September 29, 1988, of 
fraud or any other felony arising out of a contract with the DoD is 
prohibited from serving--
    (1) In a management or supervisory capacity on this contract;
    (2) On the board of directors of the Contractor;
    (3) As a consultant, agent, or representative for the Contractor; or
    (4) In any other capacity with the authority to influence, advise, 
or control the decisions of the Contractor with regard to this contract.
    (c) Unless waived, the prohibition in paragraph (b) of this clause 
applies for not less than 5 years from the date of conviction.
    (d) 10 U.S.C. 2408 provides that the Contractor shall be subject to 
a criminal penalty of not more than $500,000 if convicted of knowingly--
    (1) Employing a person under a prohibition specified in paragraph 
(b) of this clause; or
    (2) Allowing such a person to serve on the board of directors of the 
contractor or first-tier subcontractor.
    (e) In addition to the criminal penalties contained in 10 U.S.C. 
2408, the Government may consider other available remedies, such as--
    (1) Suspension or debarment;
    (2) Cancellation of the contract at no cost to the Government; or
    (3) Termination of the contract for default.
    (f) The Contractor may submit written requests for waiver of the 
prohibition in paragraph (b) of this clause to the Contracting Officer. 
Requests shall clearly identify--
    (1) The person involved;
    (2) The nature of the conviction and resultant sentence or 
punishment imposed;
    (3) The reasons for the requested waiver; and
    (4) An explanation of why a waiver is in the interest of national 
security.
    (g) The Contractor agrees to include the substance of this clause, 
appropriately modified to reflect the identity and relationship of the 
parties, in all first-tier subcontracts exceeding the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation, 
except those for commercial items or components.

[[Page 409]]

    (h) Pursuant to 10 U.S.C. 2408(c), defense contractors and 
subcontractors may obtain information as to whether a particular person 
has been convicted of fraud or any other felony arising out of a 
contract with the DoD by contacting The Office of Justice Programs, The 
Denial of Federal Benefits Office, U.S. Department of Justice, telephone 
(301) 937-1542; www.ojp.usdoj.gov/BJA/grant/DPFC.html.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 58 FR 28471, May 13, 1993; 59 
FR 27675, May 27, 1994; 60 FR 61600, Nov. 30, 1995; 62 FR 34128, June 
24, 1997; 64 FR 14398, Mar. 25, 1999; 69 FR 74990, Dec. 15, 2004; 73 FR 
76972, Dec. 18, 2008]



252.203-7002  Requirement to Inform Employees of Whistleblower Rights.

    As prescribed in 203.970, use the following clause:

   Requirement To Inform Employees of Whistleblower Rights (SEP 2013)

    (a) The Contractor shall inform its employees in writing, in the 
predominant native language of the workforce, of contractor employee 
whistleblower rights and protections under 10 U.S.C. 2409, as described 
in subpart 203.9 of the Defense Federal Acquisition Regulation 
Supplement.
    (b) The Contractor shall include the substance of this clause, 
including this paragraph (b), in all subcontracts.

                             (End of clause)

[74 FR 2411, Jan. 15, 2009, as amended at 78 FR 59854, Sept. 30, 2013]



252.203-7003  Agency Office of the Inspector General.

    As prescribed in 203.1004(a), use the following clause:

            Agency Office of the Inspector General (AUG 2019)

    The agency office of the Inspector General referenced in paragraphs 
(c) and (d) of FAR clause 52.203-13, Contractor Code of Business Ethics 
and Conduct, is the DoD Office of Inspector General at the following 
address:

Department of Defense Office of Inspector General, Administrative 
Investigations, Contractor Disclosure Program, 4800 Mark Center Drive, 
Suite 14L25, Alexandria, VA 22350-1500.
Toll Free Telephone: 866-429-8011. Website: https://www.dodig.mil/ 
Programs/Contractor-Disclosure-Program/.

                             (End of clause)

[77 FR 76937, Dec. 31, 2012, as amended at 84 FR 39203, Aug. 9, 2019]



252.203-7004  Display of Hotline Posters.

    As prescribed in 203.1004(b)(2)(ii), use the following clause:

                  Display of Hotline Posters (AUG 2019)

    (a) Definition. As used in this clause--
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Display of hotline poster(s). (1)(i) The Contractor shall 
display prominently the DoD fraud, waste, and abuse hotline poster 
prepared by the DoD Office of the Inspector General, in effect at time 
of contract award, in common work areas within business segments 
performing work under Department of Defense (DoD) contracts.
    (ii) 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, such as private employee written instructions and briefings.
    (2) If the contract is funded, in whole or in part, by Department of 
Homeland Security (DHS) disaster relief funds and the work is to be 
performed in the United States, the DHS fraud hotline poster shall be 
displayed in addition to the DoD hotline poster. If a display of a DHS 
fraud hotline poster is required, the Contractor may obtain such poster 
from--
    (i) DHS Office of Inspector General/MAIL STOP 0305, Attn: Office of 
Investigations--Hotline, 245 Murray Lane SW., Washington, DC 20528-0305; 
or
    (ii) Via the Internet at https://www.oig.dhs.gov/ assets/Hotline/
DHS_OIG_Hotline -optimized.jpg.
    (c)(1) These DoD hotline poster may be obtained from: Defense 
Hotline, The Pentagon, Washington, DC 20301-1900, or is also available 
via the internet at https://www.dodig.mil/ Resources/Posters-and- 
Brochures/.
    (2) If a significant portion of the employee workforce does not 
speak English, then the poster is to be displayed in the foreign 
languages that a significant portion of the employees speak.
    (3) Additionally, if the Contractor maintains a company Web site as 
a method of providing information to employees, the Contractor shall 
display an electronic version of the required poster at the Web site.
    (d) Subcontracts. The Contractor shall include the substance of this 
clause, including this paragraph (d), in all subcontracts that exceed 
the threshold specified in Defense Federal Acquisition Regulation 
Supplement 203.1004(b)(2)(ii) on the date of subcontract

[[Page 410]]

award, except when the subcontract is for the acquisition of a 
commercial item.

                             (End of clause)

[80 FR 5001, Jan. 29, 2015, as amended at 80 FR 36905, June 26, 2015; 81 
FR 73006, Oct. 21, 2016; 84 FR 25187, May 31, 2019; 84 FR 39203, Aug. 9, 
2019]



252.203-7005  Representation Relating to Compensation of Former DoD
Officials.

    As prescribed in 203.171-4(b), insert the following provision:

  Representation Relating to Compensation of Former DoD Officials (NOV 
                                  2011)

    (a) Definition. Covered DoD official is defined in the clause at 
252.203-7000, Requirements Relating to Compensation of Former DoD 
Officials.
    (b) By submission of this offer, the offeror represents, to the best 
of its knowledge and belief, that all covered DoD officials employed by 
or otherwise receiving compensation from the offeror, and who are 
expected to undertake activities on behalf of the offeror for any 
resulting contract, are presently in compliance with all post-employment 
restrictions covered by 18 U.S.C. 207, 41 U.S.C. 2101-2107, and 5 CFR 
parts 2637 and 2641, including Federal Acquisition Regulation 3.104-2.

[76 FR 71830, Nov. 18, 2011]



252.204-7000  Disclosure of information.

    As prescribed in 204.404-70(a), use the following clause:

                  Disclosure of Information (OCT 2016)

    (a) The Contractor shall not release to anyone outside the 
Contractor's organization any unclassified information, regardless of 
medium (e.g., film, tape, document), pertaining to any part of this 
contract or any program related to this contract, unless--
    (1) The Contracting Officer has given prior written approval;
    (2) The information is otherwise in the public domain before the 
date of release; or
    (3) The information results from or arises during the performance of 
a project that involves no covered defense information (as defined in 
the clause at DFARS 252.204-7012, Safeguarding Covered Defense 
Information and Cyber Incident Reporting) and has been scoped and 
negotiated by the contracting activity with the contractor and research 
performer and determined in writing by the contracting officer to be 
fundamental research (which by definition cannot involve any covered 
defense information), in accordance with National Security Decision 
Directive 189, National Policy on the Transfer of Scientific, Technical 
and Engineering Information, in effect on the date of contract award and 
the Under Secretary of Defense (Acquisition, Technology, and Logistics) 
memoranda on Fundamental Research, dated May 24, 2010, and on Contracted 
Fundamental Research, dated June 26, 2008 (available at DFARS PGI 
204.4).
    (b) Requests for approval under paragraph (a)(1) shall identify the 
specific information to be released, the medium to be used, and the 
purpose for the release. The Contractor shall submit its request to the 
Contracting Officer at least 10 business days before the proposed date 
for release.
    (c) The Contractor agrees to include a similar requirement, 
including this paragraph (c), in each subcontract under this contract. 
Subcontractors shall submit requests for authorization to release 
through the prime contractor to the Contracting Officer.

                             (End of clause)

[78 FR 48333, Aug. 8, 2013, as amended at 81 FR 72999, Oct. 21, 2016]



252.204-7001  [Reserved]



252.204-7002  Payment for Contract Line or Subline Items Not 
Separately Priced.

    As prescribed in 204.7109(a), use the following clause:

 Payment for Contract Line or Subline Items Not Separately Priced (APR 
                                  2020)

    (a) If the schedule in this contract contains any contract line or 
subline items identified as not separately priced (NSP), it means that 
the unit price for the NSP line or subline item is included in the unit 
price of another, related line or subline item.
    (b) The Contractor shall not invoice the Government for an item that 
includes in its price an NSP item until--
    (1) The Contractor has also delivered the NSP item included in the 
price of the item being invoiced; and
    (2) The Government has accepted the NSP item.
    (c) This clause does not apply to technical data.

                             (End of clause)

[85 FR 19692, Apr. 8, 2020]



252.204-7003  Control of government personnel work product.

    As prescribed in 204.404-70(b), use the following clause:

[[Page 411]]

         Control of Government Personnel Work Product (APR 1992)

    The Contractor's procedures for protecting against unauthorized 
disclosure of information shall not require Department of Defense 
employees or members of the Armed Forces to relinquish control of their 
work products, whether classified or not, to the contractor.

                             (End of clause)

[57 FR 14996, Apr. 23, 1992]



252.204-7004  Antiterrorism Awareness Training for Contractors.

    As prescribed in 204.7203, use the following clause:

   Level I Antiterrorism Awareness Training for Contractors (FEB 2019)

    (a) Definition. As used in this clause--
    Military installation means a base, camp, post, station, yard, 
center, or other activity under the jurisdiction of the Secretary of a 
military department or, in the case of an activity in a foreign country, 
under the operational control of the Secretary of a military department 
or the Secretary of Defense (see 10 U.S.C. 2801(c)(4)).
    (b) Training. Contractor personnel who require routine physical 
access to a Federally-controlled facility or military installation shall 
complete Level I antiterrorism awareness training within 30 days of 
requiring access and annually thereafter. In accordance with Department 
of Defense Instruction O-2000.16 Volume 1, DoD Antiterrorism (AT) 
Program Implementation: DoD AT Standards, Level I antiterrorism 
awareness training shall be completed--
    (1) Through a DoD-sponsored and certified computer or web-based 
distance learning instruction for Level I antiterrorism awareness; or
    (2) Under the instruction of a Level I antiterrorism awareness 
instructor.
    (c) Additional information. Information and guidance pertaining to 
DoD antiterrorism awareness training is available at https://
jko.jten.mil/ or as otherwise identified in the performance work 
statement.
    (d) Subcontracts. The Contractor shall include the substance of this 
clause, including this paragraph (d), in subcontracts, including 
subcontracts for commercial items, when subcontractor performance 
requires routine physical access to a Federally-controlled facility or 
military installation.

                             (End of clause)

[84 FR 4364, Feb. 15, 2019]



252.204-7005  [Reserved]



252.204-7006  Billing instructions.

    As prescribed in 204.7109(b), use the following clause:

                     Billing Instructions (OCT 2005)

    When submitting a request for payment, the Contractor shall--
    (a) Identify the contract line item(s) on the payment request that 
reasonably reflect contract work performance; and
    (b) Separately identify a payment amount for each contract line item 
included in the payment request.

                             (End of clause)

[70 FR 58983, Oct. 11, 2005, as amended at 85 FR 19692, Apr. 8, 2020]



252.204-7007  Alternate A, Annual Representations and Certifications.

    As prescribed in 204.1202, use the following provision:

    Alternate A, Annual Representations and Certifications (MAY 2021)

    Substitute the following paragraphs (b), (d), and (e) for paragraphs 
(b) and (d) of the provision at FAR 52.204-8:
    (b)(1) If the provision at FAR 52.204-7, System for Award 
Management, is included in this solicitation, paragraph (e) of this 
provision applies.
    (2) If the provision at FAR 52.204-7, System for Award Management, 
is not included in this solicitation, and the Offeror has an active 
registration in the System for Award Management (SAM), the Offeror may 
choose to use paragraph (e) of this provision instead of completing the 
corresponding individual representations and certifications in the 
solicitation. The Offeror shall indicate which option applies by 
checking one of the following boxes:
    __ (i) Paragraph (e) applies.
    __ (ii) Paragraph (e) does not apply and the Offeror has completed 
the individual representations and certifications in the solicitation.
    (d)(1) The following representations or certifications in the SAM 
database are applicable to this solicitation as indicated:
    (i) 252.204-7016, Covered Defense Telecommunications Equipment or 
Services--Representation. Applies to all solicitations.
    (ii) 252.216-7008, Economic Price Adjustment--Wage Rates or Material 
Prices Controlled by a Foreign Government. Applies to solicitations for 
fixed-price supply and service contracts when the contract is to be 
performed wholly or in part in a foreign country, and a foreign 
government controls wage

[[Page 412]]

rates or material prices and may during contract performance impose a 
mandatory change in wages or prices of materials.
    (iii) 252.225-7042, Authorization to Perform. Applies to all 
solicitations when performance will be wholly or in part in a foreign 
country.
    (iv) 252.225-7049, Prohibition on Acquisition of Certain Foreign 
Commercial Satellite Services--Representations. Applies to solicitations 
for the acquisition of commercial satellite services.
    (v) 252.225-7050, Disclosure of Ownership or Control by the 
Government of a Country that is a State Sponsor of Terrorism. Applies to 
all solicitations expected to result in contracts of $150,000 or more.
    (vi) 252.229-7012, Tax Exemptions (Italy)--Representation. Applies 
to solicitations when contract performance will be in Italy.
    (vii) 252.229-7013, Tax Exemptions (Spain)--Representation. Applies 
to solicitations when contract performance will be in Spain.
    (viii) 252.247-7022, Representation of Extent of Transportation by 
Sea. Applies to all solicitations except those for direct purchase of 
ocean transportation services or those with an anticipated value at or 
below the simplified acquisition threshold.
    (2) The following representations or certifications in SAM are 
applicable to this solicitation as indicated by the Contracting Officer: 
[Contracting Officer check as appropriate.]

__(i) 252.209-7002, Disclosure of Ownership or Control by a Foreign 
          Government.
__(ii) 252.225-7000, Buy American--Balance of Payments Program 
          Certificate.
__(iii) 252.225-7020, Trade Agreements Certificate.
__Use with Alternate I.
__(iv) 252.225-7031, Secondary Arab Boycott of Israel.
__(v) 252.225-7035, Buy American--Free Trade Agreements--Balance of 
          Payments Program Certificate.
__Use with Alternate I.
__Use with Alternate II.
__Use with Alternate III.
__Use with Alternate IV.
__Use with Alternate V.
__ (vi) 252.226-7002, Representation for Demonstration Project for 
          Contractors Employing Persons with Disabilities.
__ (vii) 252.232-7015, Performance-Based Payments--Representation.
    (e) The Offeror has completed the annual representations and 
certifications electronically via the SAM website at https://
www.acquisition.gov/. After reviewing the SAM database information, the 
Offeror verifies by submission of the offer that the representations and 
certifications currently posted electronically that apply to this 
solicitation as indicated in FAR 52.204-8(c) and paragraph (d) of this 
provision have been entered or updated within the last 12 months, are 
current, accurate, complete, and applicable to this solicitation 
(including the business size standard applicable to the NAICS code 
referenced for this solicitation), as of the date of this offer, and are 
incorporated in this offer by reference (see FAR 4.1201); except for the 
changes identified below [Offeror to insert changes, identifying change 
by provision number, title, date]. These amended representation(s) and/
or certification(s) are also incorporated in this offer and are current, 
accurate, and complete as of the date of this offer.

----------------------------------------------------------------------------------------------------------------
       FAR/DFARS provision No.                  Title                     Date                    Change
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

    Any changes provided by the Offeror are applicable to this 
solicitation only, and do not result in an update to the representations 
and certifications located in the SAM database.

                           (End of provision)

[76 FR 58141, Sept. 20, 2011, as amended at 76 FR 71464, Nov. 18, 2011; 
77 FR 19130, Mar. 30, 2012; 77 FR 30357, May 22, 2012; 77 FR 35881, June 
15, 2012; 77 FR 43470, July 24, 2012; 78 FR 28758, May 16, 2013; 78 FR 
30232, May 22, 2013; 79 FR 17446, Mar. 28, 2014; 79 FR 45664, Aug. 5, 
2014; 79 FR 73490, Dec. 11, 2014; 80 FR 5001, Jan. 29, 2015; 83 FR 
66073, Dec. 21, 2018; 84 FR 12140, Apr. 1, 2019; 84 FR 30947, June 28, 
2019; 84 FR 72237, 72560, Dec. 31, 2019; 85 FR 19688, Apr. 8, 2020; 85 
FR 74611, Nov. 23, 2020; 86 FR 27278, May 20, 2021]



252.204-7008  Compliance with safeguarding covered defense 
information controls.

    As prescribed in 204.7304(a), use the following provision:

 Compliance With Safeguarding Covered Defense Information Controls (OCT 
                                  2016)

    (a) Definitions. As used in this provision--
    Controlled technical information, covered contractor information 
system, covered defense information, cyber incident, information system, 
and technical information are defined in clause 252.204-7012, 
Safeguarding Covered Defense Information and Cyber Incident Reporting.
    (b) The security requirements required by contract clause 252.204-
7012, shall be implemented for all covered defense information

[[Page 413]]

on all covered contractor information systems that support the 
performance of this contract.
    (c) For covered contractor information systems that are not part of 
an information technology service or system operated on behalf of the 
Government (see 252.204-7012(b)(2))--
    (1) By submission of this offer, the Offeror represents that it will 
implement the security requirements specified by National Institute of 
Standards and Technology (NIST) Special Publication (SP) 800-171, 
``Protecting Controlled Unclassified Information in Nonfederal 
Information Systems and Organizations'' (see http://dx.doi.org/10.6028/
NIST.SP.800-171)that are in effect at the time the solicitation is 
issued or as authorized by the contracting officer, not later than 
December 31, 2017.
    (2)(i) If the Offeror proposes to vary from any of the security 
requirements specified by NIST SP 800-171 that are in effect at the time 
the solicitation is issued or as authorized by the Contracting Officer, 
the Offeror shall submit to the Contracting Officer, for consideration 
by the DoD Chief Information Officer (CIO), a written explanation of--
    (A) Why a particular security requirement is not applicable; or
    (B) How an alternative but equally effective, security measure is 
used to compensate for the inability to satisfy a particular requirement 
and achieve equivalent protection.
    (ii) An authorized representative of the DoD CIO will adjudicate 
offeror requests to vary from NIST SP 800-171 requirements in writing 
prior to contract award. Any accepted variance from NIST SP 800-171 
shall be incorporated into the resulting contract.

                           (End of provision)

[80 FR 51744, Aug. 26, 2015, as amended at 80 FR 81473, Dec. 30, 2015; 
81 FR 72999, Oct. 21, 2016]



252.204-7009  Limitations on the use or disclosure of third-party
contractor reported cyber incident information.

    As prescribed in 204.7304(b), use the following clause:

Limitations on the Use or Disclosure of Third-Party Contractor Reported 
                  Cyber Incident Information (OCT 2016)

    (a) Definitions. As used in this clause--
    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.
    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 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.
    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.
    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 is 
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.
    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--Noncommercial 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.

[[Page 414]]

    (b) Restrictions. The Contractor agrees that the following 
conditions apply to any information it receives or creates in the 
performance of this contract that is information obtained from a third-
party's reporting of a cyber incident pursuant to DFARS clause 252.204-
7012, Safeguarding Covered Defense Information and Cyber Incident 
Reporting (or derived from such information obtained under that clause):
    (1) The Contractor shall access and use the information only for the 
purpose of furnishing advice or technical assistance directly to the 
Government in support of the Government's activities related to clause 
252.204-7012, and shall not be used for any other purpose.
    (2) The Contractor shall protect the information against 
unauthorized release or disclosure.
    (3) The Contractor shall ensure that its employees are subject to 
use and non-disclosure obligations consistent with this clause prior to 
the employees being provided access to or use of the information.
    (4) The third-party contractor that reported the cyber incident is a 
third-party beneficiary of the non-disclosure agreement between the 
Government and Contractor, as required by paragraph (b)(3) of this 
clause.
    (5) A breach of these obligations or restrictions may subject the 
Contractor to--
    (i) Criminal, civil, administrative, and contractual actions in law 
and equity for penalties, damages, and other appropriate remedies by the 
United States; and
    (ii) Civil actions for damages and other appropriate remedies by the 
third party that reported the cyber incident, as a third party 
beneficiary of this clause.
    (c) Subcontracts. The Contractor shall include this clause, 
including this paragraph (c), in subcontracts, or similar contractual 
instruments, for services that include support for the Government's 
activities related to safeguarding covered defense information and cyber 
incident reporting, including subcontracts for commercial items, without 
alteration, except to identify the parties.

                             (End of clause)

[80 FR 51745, Aug. 26, 2015, as amended at 80 FR 81474, Dec. 30, 2015; 
81 FR 73000, Oct. 21, 2016]



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.
          

    As prescribed in 204.470-3, use the following clause:

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 (JAN 2009)

    (a) If the Contractor is required to report any of its activities in 
accordance with Department of Commerce regulations (15 CFR part 781 et 
seq.) or Nuclear Regulatory Commission regulations (10 CFR part 75) in 
order to implement the declarations required by the U.S.-International 
Atomic Energy Agency Additional Protocol (U.S.-IAEA AP), the Contractor 
shall--
    (1) Immediately provide written notification to the following DoD 
Program Manager:
    [Contracting Officer to insert Program Manager's name, mailing 
address, e-mail address, telephone number, and facsimile number];
    (2) Include in the notification--
    (i) Where DoD contract activities or information are located 
relative to the activities or information to be declared to the 
Department of Commerce or the Nuclear Regulatory Commission; and
    (ii) If or when any current or former DoD contract activities and 
the activities to be declared to the Department of Commerce or the 
Nuclear Regulatory Commission have been or will be co-located or located 
near enough to one another to result in disclosure of the DoD activities 
during an IAEA inspection or visit; and
    (3) Provide a copy of the notification to the Contracting Officer.
    (b) After receipt of a notification submitted in accordance with 
paragraph (a) of this clause, the DoD 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 a national security exclusion, 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. DoD will notify the Contractor if a 
national security exclusion is applied at the Contractor's location to 
prohibit access by the IAEA.
    (c) If the DoD Program Manager determines that a security assessment 
is required--
    (1) DoD will, at a minimum--
    (i) Notify the Contractor that DoD officials intend to conduct an 
assessment of vulnerabilities to IAEA inspections or visits;
    (ii) Notify the Contractor of the time at which the assessment will 
be conducted, at least 30 days prior to the assessment;
    (iii) Provide the Contractor with advance notice of the credentials 
of the DoD officials who will conduct the assessment; and

[[Page 415]]

    (iv) To the maximum extent practicable, conduct the assessment in a 
manner that does not impede or delay operations at the Contractor's 
facility; and
    (2) The Contractor shall provide access to the site and shall 
cooperate with DoD officials in the assessment of vulnerabilities to 
IAEA inspections or visits.
    (d) Following a security assessment of the Contractor's facility, 
DoD officials will notify the Contractor as to--
    (1) Whether the Contractor's facility has any vulnerabilities where 
potentially declarable activities under the U.S.-IAEA AP are taking 
place;
    (2) Whether additional security measures are needed; and
    (3) Whether DoD will apply a national security exclusion.
    (e) If DoD applies a national security exclusion, the Contractor 
shall not grant access to IAEA inspectors.
    (f) If DoD does not apply a national security exclusion, the 
Contractor shall apply managed access to prevent disclosure of program 
activities, locations, or information in the U.S. declaration.
    (g) The Contractor shall not delay submission of any reports 
required by the Department of Commerce or the Nuclear Regulatory 
Commission while awaiting a DoD response to a notification provided in 
accordance with this clause.
    (h) The Contractor shall incorporate the substance of this clause, 
including this paragraph (h), in all subcontracts that are subject to 
the provisions of the U.S.-IAEA AP.

                             (End of clause)

[74 FR 2412, Jan. 15, 2009]



252.204-7011  [Reserved]



252.204-7012  Safeguarding covered defense information and cyber
incident reporting.

    As prescribed in 204.7304c, use the following clause:

 Safeguarding Covered Defense Information and Cyber Incident Reporting 
                               (DEC 2019)

    (a) Definitions. As used in this clause--
    Adequate security means protective measures that are commensurate 
with the consequences and probability of loss, misuse, or unauthorized 
access to, or modification of information.
    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.
    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.
    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.
    Forensic analysis means the practice of gathering, retaining, and 
analyzing computer-related data for investigative purposes in a manner 
that maintains the integrity of the data.
    Information system means a discrete set of information resources 
organized for the collection, processing, maintenance, use, sharing, 
dissemination, or disposition of information.
    Malicious software means computer software or firmware intended to 
perform an unauthorized process that will have adverse impact on the 
confidentiality, integrity, or

[[Page 416]]

availability of an information system. This definition includes a virus, 
worm, Trojan horse, or other code-based entity that infects a host, as 
well as spyware and some forms of adware.
    Media means physical devices or writing surfaces including, but is 
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.
    Operationally critical support means supplies or services designated 
by the Government as critical for airlift, sealift, intermodal 
transportation services, or logistical support that is essential to the 
mobilization, deployment, or sustainment of the Armed Forces in a 
contingency operation.
    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--Noncommercial 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.
    (b) Adequate security. The Contractor shall provide adequate 
security on all covered contractor information systems. To provide 
adequate security, the Contractor shall implement, at a minimum, the 
following information security protections:
    (1) For covered contractor information systems that are part of an 
information technology (IT) service or system operated on behalf of the 
Government, the following security requirements apply:
    (i) Cloud computing services shall be subject to the security 
requirements specified in the clause 252.239-7010, Cloud Computing 
Services, of this contract.
    (ii) Any other such IT service or system (i.e., other than cloud 
computing) shall be subject to the security requirements specified 
elsewhere in this contract.
    (2) For covered contractor information systems that are not part of 
an IT service or system operated on behalf of the Government and 
therefore are not subject to the security requirement specified at 
paragraph (b)(1) of this clause, the following security requirements 
apply:
    (i) Except as provided in paragraph (b)(2)(ii) of this clause, the 
covered contractor information system shall be subject to the security 
requirements in National Institute of Standards and Technology (NIST) 
Special Publication (SP) 800-171, ``Protecting Controlled Unclassified 
Information in Nonfederal Information Systems and Organizations'' 
(available via the internet at http://dx.doi.org/10.6028/NIST.SP.800-
171) in effect at the time the solicitation is issued or as authorized 
by the Contracting Officer.
    (ii)(A) The Contractor shall implement NIST SP 800-171, as soon as 
practical, but not later than December 31, 2017. For all contracts 
awarded prior to October 1, 2017, the Contractor shall notify the DoD 
Chief Information Officer (CIO), via email at [email protected], 
within 30 days of contract award, of any security requirements specified 
by NIST SP 800-171 not implemented at the time of contract award.
    (B) The Contractor shall submit requests to vary from NIST SP 800-
171 in writing to the Contracting Officer, for consideration by the DoD 
CIO. The Contractor need not implement any security requirement 
adjudicated by an authorized representative of the DoD CIO to be 
nonapplicable or to have an alternative, but equally effective, security 
measure that may be implemented in its place.
    (C) If the DoD CIO has previously adjudicated the contractor's 
requests indicating that a requirement is not applicable or that an 
alternative security measure is equally effective, a copy of that 
approval shall be provided to the Contracting Officer when requesting 
its recognition under this contract.
    (D) If the Contractor intends to use an external cloud service 
provider to store, process, or transmit any covered defense information 
in performance of this contract, the Contractor shall require and ensure 
that the cloud service provider meets security requirements equivalent 
to those established by the Government for the Federal Risk and 
Authorization Management Program (FedRAMP) Moderate baseline (https://
www.fedramp.gov/ resources/documents/) and that the cloud service 
provider complies with requirements in paragraphs (c) through (g) of 
this clause for cyber incident reporting, malicious software, media 
preservation and protection, access to additional information and 
equipment necessary for forensic analysis, and cyber incident damage 
assessment.
    (3) Apply other information systems security measures when the 
Contractor reasonably determines that information systems security 
measures, in addition to those identified in paragraphs (b)(1) and (2) 
of this clause, may be required to provide adequate security in a 
dynamic environment or to accommodate special circumstances (e.g., 
medical devices) and any individual, isolated, or temporary deficiencies 
based on an assessed risk or vulnerability. These measures may be 
addressed in a system security plan.
    (c) Cyber incident reporting requirement.

[[Page 417]]

    (1) When the Contractor discovers a cyber incident that affects a 
covered contractor information system or the covered defense information 
residing therein, or that affects the contractor's ability to perform 
the requirements of the contract that are designated as operationally 
critical support and identified in the contract, the Contractor shall--
    (i) Conduct a review for evidence of compromise of covered defense 
information, including, but not limited to, identifying compromised 
computers, servers, specific data, and user accounts. This review shall 
also include analyzing covered contractor information system(s) that 
were part of the cyber incident, as well as other information systems on 
the Contractor's network(s), that may have been accessed as a result of 
the incident in order to identify compromised covered defense 
information, or that affect the Contractor's ability to provide 
operationally critical support; and
    (ii) Rapidly report cyber incidents to DoD at  https://
dibnet.dod.mil.
    (2) Cyber incident report. The cyber incident report shall be 
treated as information created by or for DoD and shall include, at a 
minimum, the required elements at https://dibnet.dod.mil.
    (3) Medium assurance certificate requirement. In order to report 
cyber incidents in accordance with this clause, the Contractor or 
subcontractor shall have or acquire a DoD-approved medium assurance 
certificate to report cyber incidents. For information on obtaining a 
DoD-approved medium assurance certificate, see https://public.cyber.mil/
eca/.
    (d) Malicious software. When the Contractor or subcontractors 
discover and isolate malicious software in connection with a reported 
cyber incident, submit the malicious software to DoD Cyber Crime Center 
(DC3) in accordance with instructions provided by DC3 or the Contracting 
Officer. Do not send the malicious software to the Contracting Officer.
    (e) Media preservation and protection. When a Contractor discovers a 
cyber incident has occurred, the Contractor shall preserve and protect 
images of all known affected information systems identified in paragraph 
(c)(1)(i) of this clause and all relevant monitoring/packet capture data 
for at least 90 days from the submission of the cyber incident report to 
allow DoD to request the media or decline interest.
    (f) Access to additional information or equipment necessary for 
forensic analysis. Upon request by DoD, the Contractor shall provide DoD 
with access to additional information or equipment that is necessary to 
conduct a forensic analysis.
    (g) Cyber incident damage assessment activities. If DoD elects to 
conduct a damage assessment, the Contracting Officer will request that 
the Contractor provide all of the damage assessment information gathered 
in accordance with paragraph (e) of this clause.
    (h) DoD safeguarding and use of contractor attributional/proprietary 
information. The Government shall protect against the unauthorized use 
or release of information obtained from the contractor (or derived from 
information obtained from the contractor) under this clause that 
includes contractor attributional/proprietary information, including 
such information submitted in accordance with paragraph (c). To the 
maximum extent practicable, the Contractor shall identify and mark 
attributional/proprietary information. In making an authorized release 
of such information, the Government will implement appropriate 
procedures to minimize the contractor attributional/proprietary 
information that is included in such authorized release, seeking to 
include only that information that is necessary for the authorized 
purpose(s) for which the information is being released.
    (i) Use and release of contractor attributional/proprietary 
information not created by or for DoD. Information that is obtained from 
the contractor (or derived from information obtained from the 
contractor) under this clause that is not created by or for DoD is 
authorized to be released outside of DoD--
    (1) To entities with missions that may be affected by such 
information;
    (2) To entities that may be called upon to assist in the diagnosis, 
detection, or mitigation of cyber incidents;
    (3) To Government entities that conduct counterintelligence or law 
enforcement investigations;
    (4) For national security purposes, including cyber situational 
awareness and defense purposes (including with Defense Industrial Base 
(DIB) participants in the program at 32 CFR part 236); or
    (5) To a support services contractor (``recipient'') that is 
directly supporting Government activities under a contract that includes 
the clause at 252.204-7009, Limitations on the Use or Disclosure of 
Third-Party Contractor Reported Cyber Incident Information.
    (j) Use and release of contractor attributional/proprietary 
information created by or for DoD. Information that is obtained from the 
contractor (or derived from information obtained from the contractor) 
under this clause that is created by or for DoD (including the 
information submitted pursuant to paragraph (c) of this clause) is 
authorized to be used and released outside of DoD for purposes and 
activities authorized by paragraph (i) of this clause, and for any other 
lawful Government purpose or activity, subject to all applicable 
statutory, regulatory, and policy based restrictions on the Government's 
use and release of such information.

[[Page 418]]

    (k) The Contractor shall conduct activities under this clause in 
accordance with applicable laws and regulations on the interception, 
monitoring, access, use, and disclosure of electronic communications and 
data.
    (l) Other safeguarding or reporting requirements. The safeguarding 
and cyber incident reporting required by this clause in no way abrogates 
the Contractor's responsibility for other safeguarding or cyber incident 
reporting pertaining to its unclassified information systems as required 
by other applicable clauses of this contract, or as a result of other 
applicable U.S. Government statutory or regulatory requirements.
    (m) Subcontracts. The Contractor shall--
    (1) Include this clause, including this paragraph (m), in 
subcontracts, or similar contractual instruments, for operationally 
critical support, or for which subcontract performance will involve 
covered defense information, including subcontracts for commercial 
items, without alteration, except to identify the parties. The 
Contractor shall determine if the information required for subcontractor 
performance retains its identity as covered defense information and will 
require protection under this clause, and, if necessary, consult with 
the Contracting Officer; and
    (2) Require subcontractors to--
    (i) Notify the prime Contractor (or next higher-tier subcontractor) 
when submitting a request to vary from a NIST SP 800-171 security 
requirement to the Contracting Officer, in accordance with paragraph 
(b)(2)(ii)(B) of this clause; and
    (ii) Provide the incident report number, automatically assigned by 
DoD, to the prime Contractor (or next higher-tier subcontractor) as soon 
as practicable, when reporting a cyber incident to DoD as required in 
paragraph (c) of this clause.

                             (End of clause)

[80 FR 51745, Aug. 26, 2015, as amended at 80 FR 56930, Sept. 21, 2015; 
80 FR 81474, Dec. 30, 2015; 81 FR 73000, Oct. 21, 2016; 84 FR 72563, 
Dec. 31, 2019]



252.204-7013  [Reserved]



252.204-7014  Limitations on the Use or Disclosure of Information
by Litigation Support Contractors.

    As prescribed in 204.7403(a), use the following clause:

   Limitations on the Use or Disclosure of Information by Litigation 
                     Support Contractors (MAY 2016)

    (a) Definitions. As used in this clause--
    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 this clause.
    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.
    (b) Limitations on use or disclosure of litigation information. 
Notwithstanding any other provision of this contract, the Contractor 
shall--
    (1) Access and use litigation information only for the purpose of 
providing litigation support under this contract;
    (2) Not disclose litigation information to any entity outside the 
Contractor's organization unless, prior to such disclosure the 
Contracting Officer has provided written consent to such disclosure;
    (3) Take all precautions necessary to prevent unauthorized 
disclosure of litigation information;
    (4) Not use litigation information to compete against a third party 
for Government or nongovernment contracts; and
    (5) Upon completion of the authorized litigation support activities, 
destroy or return to the Government at the request of the Contracting 
Officer all litigation information in its possession.
    (c) Violation of paragraph (b)(1),(b)(2), (b)(3), (b)(4), or (b)(5) 
of this clause is a basis for the Government to terminate this contract.

[[Page 419]]

    (d) Indemnification and creation of third party beneficiary rights. 
The Contractor agrees--
    (1) To indemnify and hold harmless the Government, its agents, and 
employees from any claim or liability, including attorneys' fees, court 
costs, and expenses, arising out of, or in any way related to, the 
misuse or unauthorized modification, reproduction, release, performance, 
display, or disclosure of any litigation information; and
    (2) That any third party holding proprietary rights or any other 
legally protectable interest in any litigation information, in addition 
to any other rights it may have, is a third party beneficiary under this 
contract who shall have a right of direct action against the Contractor, 
and against any person to whom the Contractor has released or disclosed 
such litigation information, for any such unauthorized use or disclosure 
of such information.
    (e) Contractor employees. The Contractor shall ensure that its 
employees are subject to use and nondisclosure obligations consistent 
with this clause prior to the employees being provided access to or use 
of any litigation information covered by this clause.
    (f) Flowdown. Include the substance of this clause, including this 
paragraph (f), in all subcontracts, including subcontracts for 
commercial items.

                             (End of clause)

[79 FR 11340, Feb. 28, 2014, as amended at 81 FR 28729, May 10, 2016; 84 
FR 58332, Oct. 31, 2019]



252.204-7015  Notice of Authorized Disclosure of Information for 
Litigation Support.

    As prescribed in 204.7403(b), use the following clause:

 Notice of Authorized Disclosure of Information for Litigation Support 
                               (MAY 2016)

    (a) Definitions. As used in this clause--
    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 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.
    (b) Notice of authorized disclosures Notwithstanding any other 
provision of this solicitation or contract, the Government may disclose 
to a litigation support contractor, for the sole purpose of litigation 
support activities, any information, including sensitive information, 
received--
    (1) Within or in connection with a quotation or offer; or
    (2) In the performance of or in connection with a contract.
    (c) Flowdown. Include the substance of this clause, including this 
paragraph (c), in all subcontracts, including subcontracts for 
commercial items.

                             (End of clause)

[79 FR 11341, Feb. 28, 2014, as amended at 81 FR 28729, May 10, 2016; 84 
FR 58332, Oct. 31, 2019]



252.204-7016  Covered Defense Telecommunications Equipment or Services
--Representation.

    As prescribed in 204.2105(a), use the following provision:

Covered Defense Telecommunications Equipment or Services--Representation 
                               (DEC 2019)

    (a) Definitions. As used in this provision, covered defense 
telecommunications equipment or services has the meaning provided in the 
clause 252.204-7018, Prohibition on the Acquisition of Covered Defense 
Telecommunications Equipment or Services.
    (b) Procedures. The Offeror shall review the list of excluded 
parties in the System for Award Management (SAM) (https://www.sam.gov) 
for entities excluded from receiving federal awards for ``covered 
defense telecommunications equipment or services''.
    (c) Representation. The Offeror represents that it [ ] does, [ ] 
does not provide covered defense telecommunications equipment or 
services as a part of its offered products or

[[Page 420]]

services to the Government in the performance of any contract, 
subcontract, or other contractual instrument.

                           (End of provision)

[84 FR 72237, Dec. 31, 2019]



252.204-7017  Prohibition on the Acquisition of Covered Defense 
Telecommunications Equipment or Services--Representation.

    As prescribed in 204.2105(b), use the following provision:

  Prohibition on the Acquisition of Covered Defense Telecommunications 
            Equipment or Services--Representation (May 2021)

    The Offeror is not required to complete the representation in this 
provision if the Offeror has represented in the provision at 252.204-
7016, Covered Defense Telecommunications Equipment or Services--
Representation, that it ``does not provide covered defense 
telecommunications equipment or services as a part of its offered 
products or services to the Government in the performance of any 
contract, subcontract, or other contractual instrument.''
    (a) Definitions. Covered defense telecommunications equipment or 
services, covered mission, critical technology, and substantial or 
essential component, as used in this provision, have the meanings given 
in the 252.204-7018 clause, Prohibition on the Acquisition of Covered 
Defense Telecommunications Equipment or Services, of this solicitation.
    (b) Prohibition. Section 1656 of the National Defense Authorization 
Act for Fiscal Year 2018 (Pub. L. 115-91) prohibits agencies from 
procuring or obtaining, or extending or renewing a contract to procure 
or obtain, any equipment, system, or service to carry out covered 
missions that uses covered defense telecommunications equipment or 
services as a substantial or essential component of any system, or as 
critical technology as part of any system.
    (c) Procedures. The Offeror shall review the list of excluded 
parties in the System for Award Management (SAM) at https://www.sam.gov 
for entities that are excluded when providing any equipment, system, or 
service to carry out covered missions that uses covered defense 
telecommunications equipment or services as a substantial or essential 
component of any system, or as critical technology as part of any 
system, unless a waiver is granted.
    (d) Representation. If in its annual representations and 
certifications in SAM the Offeror has represented in paragraph (c) of 
the provision at 252.204-7016, Covered Defense Telecommunications 
Equipment or Services--Representation, that it ``does'' provide covered 
defense telecommunications equipment or services as a part of its 
offered products or services to the Government in the performance of any 
contract, subcontract, or other contractual instrument, then the Offeror 
shall complete the following additional representation:
    The Offeror represents that it [ ] will [ ] will not provide covered 
defense telecommunications equipment or services as a part of its 
offered products or services to DoD in the performance of any award 
resulting from this solicitation.
    (e) Disclosures. If the Offeror has represented in paragraph (d) of 
this provision that it ``will provide covered defense telecommunications 
equipment or services,'' the Offeror shall provide the following 
information as part of the offer:
    (1) A description of all covered defense telecommunications 
equipment and services offered (include brand or manufacturer; product, 
such as model number, original equipment manufacturer (OEM) number, 
manufacturer part number, or wholesaler number; and item description, as 
applicable).
    (2) An explanation of the proposed use of covered defense 
telecommunications equipment and services and any factors relevant to 
determining if such use would be permissible under the prohibition 
referenced in paragraph (b) of this provision.
    (3) For services, the entity providing the covered defense 
telecommunications services (include entity name, unique entity 
identifier, and Commercial and Government Entity (CAGE) code, if known).
    (4) For equipment, the entity that produced or provided the covered 
defense telecommunications equipment (include entity name, unique entity 
identifier, CAGE code, and whether the entity was the OEM or a 
distributor, if known).

                           (End of provision)

[84 FR 72237, Dec. 31, 2019, as amended at 86 FR 27278, May 20, 2021]



252.204-7018  Prohibition on the Acquisition of Covered Defense 
Telecommunications Equipment or Services.

    As prescribed in 204.2105(c), use the following clause:

  Prohibition on the Acquisition of Covered Defense Telecommunications 
                    Equipment or Services (JAN 2021)

    (a) Definitions. As used in this clause--
    Covered defense telecommunications equipment or services means--
    (1) Telecommunications equipment produced by Huawei Technologies 
Company or ZTE Corporation, or any subsidiary or affiliate of such 
entities;

[[Page 421]]

    (2) Telecommunications services provided by such entities or using 
such equipment; or
    (3) Telecommunications equipment or services produced or provided by 
an entity that the Secretary of Defense reasonably believes to be an 
entity owned or controlled by, or otherwise connected to, the government 
of a covered foreign country.
    Covered foreign country means--
    (1) The People's Republic of China; or
    (2) The Russian Federation.
    Covered missions means--
    (1) The nuclear deterrence mission of DoD, including with respect to 
nuclear command, control, and communications, integrated tactical 
warning and attack assessment, and continuity of Government; or
    (2) The homeland defense mission of DoD, including with respect to 
ballistic missile defense.
    ``Critical technology'' means--
    (1) Defense articles or defense services included on the United 
States Munitions List set forth in the International Traffic in Arms 
Regulations under subchapter M of chapter I of title 22, Code of Federal 
Regulations;
    (2) Items included on the Commerce Control List set forth in 
Supplement No. 1 to part 774 of the Export Administration Regulations 
under subchapter C of chapter VII of title 15, Code of Federal 
Regulations, and controlled--
    (i) Pursuant to multilateral regimes, including for reasons relating 
to national security, chemical and biological weapons proliferation, 
nuclear nonproliferation, or missile technology; or
    (ii) For reasons relating to regional stability or surreptitious 
listening;
    (3) Specially designed and prepared nuclear equipment, parts and 
components, materials, software, and technology covered by part 810 of 
title 10, Code of Federal Regulations (relating to assistance to foreign 
atomic energy activities);
    (4) Nuclear facilities, equipment, and material covered by part 110 
of title 10, Code of Federal Regulations (relating to export and import 
of nuclear equipment and material);
    (5) Select agents and toxins covered by part 331 of title 7, Code of 
Federal Regulations, part 121 of title 9 of such Code, or part 73 of 
title 42 of such Code; or
    (6) Emerging and foundational technologies controlled pursuant to 
section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).
    Substantial or essential component means any component necessary for 
the proper function or performance of a piece of equipment, system, or 
service.
    (b) Prohibition. In accordance with section 1656 of the National 
Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91), the 
contractor shall not provide to the Government any equipment, system, or 
service to carry out covered missions that uses covered defense 
telecommunications equipment or services as a substantial or essential 
component of any system, or as critical technology as part of any 
system, unless the covered defense telecommunication equipment or 
services are covered by a waiver described in Defense Federal 
Acquisition Regulation Supplement 204.2104.
    (c) Procedures. The Contractor shall review the list of excluded 
parties in the System for Award Management (SAM) at https://www.sam.gov 
for entities that are excluded when providing any equipment, system, or 
service, to carry out covered missions, that uses covered defense 
telecommunications equipment or services as a substantial or essential 
component of any system, or as critical technology as part of any 
system, unless a waiver is granted.
    (d) Reporting. (1) In the event the Contractor identifies covered 
defense telecommunications equipment or services used as a substantial 
or essential component of any system, or as critical technology as part 
of any system, during contract performance, the Contractor shall report 
at https://dibnet.dod.mil the information in paragraph (d)(2) of this 
clause.
    (2) The Contractor shall report the following information pursuant 
to paragraph (d)(1) of this clause:
    (i) Within 3 business days from the date of such identification or 
notification: The contract number; the order number(s), if applicable; 
supplier name; brand; model number (original equipment manufacturer 
number, manufacturer part number, or wholesaler number); item 
description; and any readily available information about mitigation 
actions undertaken or recommended.
    (ii) Within 30 business days of submitting the information in 
paragraph (d)(2)(i) of this clause: Any further available information 
about mitigation actions undertaken or recommended. In addition, the 
Contractor shall describe the efforts it undertook to prevent use or 
submission of a covered defense telecommunications equipment or 
services, and any additional efforts that will be incorporated to 
prevent future use or submission of covered telecommunications equipment 
or services.
    (e) Subcontracts. The Contractor shall insert the substance of this 
clause, including this paragraph (e), in all subcontracts and other 
contractual instruments, including subcontracts for the acquisition of 
commercial items.

                             (End of clause)

[84 FR 72237, Dec. 31, 2019, as amended at 86 FR 3835, Jan. 15, 2021]

[[Page 422]]



252.204-7019  Notice of NIST SP 800-171 DoD Assessment Requirements.

    As prescribed in 204.7304(d), use the following provision:

    NOTICE OF NIST SP 800-171 DOD ASSESSMENT REQUIREMENTS (NOV 2020)

    (a) Definitions.
    Basic Assessment, Medium Assessment, and High Assessment have the 
meaning given in the clause 252.204-7020, NIST SP 800-171 DoD 
Assessments.
    Covered contractor information system has the meaning given in the 
clause 252.204-7012, Safeguarding Covered Defense Information and Cyber 
Incident Reporting, of this solicitation.
    (b) Requirement. In order to be considered for award, if the Offeror 
is required to implement NIST SP 800-171, the Offeror shall have a 
current assessment (i.e., not more than 3 years old unless a lesser time 
is specified in the solicitation) (see 252.204-7020) for each covered 
contractor information system that is relevant to the offer, contract, 
task order, or delivery order. The Basic, Medium, and High NIST SP 800-
171 DoD Assessments are described in the NIST SP 800-171 DoD Assessment 
Methodology located at https://www.acq.osd.mil/dpap/pdi/cyber/
strategically_assessing_ contractor_implementation_ of_NIST_SP_800-
171.html.
    (c) Procedures. (1) The Offeror shall verify that summary level 
scores of a current NIST SP 800-171 DoD Assessment (i.e., not more than 
3 years old unless a lesser time is specified in the solicitation) are 
posted in the Supplier Performance Risk System (SPRS) (https://
www.sprs.csd.disa.mil/) for all covered contractor information systems 
relevant to the offer.
    (2) If the Offeror does not have summary level scores of a current 
NIST SP 800-171 DoD Assessment (i.e., not more than 3 years old unless a 
lesser time is specified in the solicitation) posted in SPRS, the 
Offeror may conduct and submit a Basic Assessment to [email protected] 
for posting to SPRS in the format identified in paragraph (d) of this 
provision.
    (d) Summary level scores. Summary level scores for all assessments 
will be posted 30 days post-assessment in SPRS to provide DoD Components 
visibility into the summary level scores of strategic assessments.
    (1) Basic Assessments. An Offeror may follow the procedures in 
paragraph (c)(2) of this provision for posting Basic Assessments to 
SPRS.
    (i) The email shall include the following information:
    (A) Cybersecurity standard assessed (e.g., NIST SP 800-171 Rev 1).
    (B) Organization conducting the assessment (e.g., Contractor self-
assessment).
    (C) For each system security plan (security requirement 3.12.4) 
supporting the performance of a DoD contract--
    (1) All industry Commercial and Government Entity (CAGE) code(s) 
associated with the information system(s) addressed by the system 
security plan; and
    (2) A brief description of the system security plan architecture, if 
more than one plan exists.
    (D) Date the assessment was completed.
    (E) Summary level score (e.g., 95 out of 110, NOT the individual 
value for each requirement).
    (F) Date that all requirements are expected to be implemented (i.e., 
a score of 110 is expected to be achieved) based on information gathered 
from associated plan(s) of action developed in accordance with NIST SP 
800-171.
    (ii) If multiple system security plans are addressed in the email 
described at paragraph (d)(1)(i) of this section, the Offeror shall use 
the following format for the report:

----------------------------------------------------------------------------------------------------------------
                                                        Brief
                                   CAGE codes      description of        Date of        Total     Date score of
     System security plan      supported by this      the plan         assessment       score       110 will
                                      plan          architecture                                    achieved
----------------------------------------------------------------------------------------------------------------
                               .................  ................  ................
----------------------------------------------------------------------------------------------------------------
                               .................  ................  ................
----------------------------------------------------------------------------------------------------------------
                               .................  ................  ................  ........  ................
----------------------------------------------------------------------------------------------------------------

    (2) Medium and High Assessments. DoD will post the following Medium 
and/or High Assessment summary level scores to SPRS for each system 
assessed:
    (i) The standard assessed (e.g., NIST SP 800-171 Rev 1).
    (ii) Organization conducting the assessment, e.g., DCMA, or a 
specific organization (identified by Department of Defense Activity 
Address Code (DoDAAC)).
    (iii) All industry CAGE code(s) associated with the information 
system(s) addressed by the system security plan.
    (iv) A brief description of the system security plan architecture, 
if more than one system security plan exists.
    (v) Date and level of the assessment, i.e., medium or high.
    (vi) Summary level score (e.g., 105 out of 110, not the individual 
value assigned for each requirement).

[[Page 423]]

    (vii) Date that all requirements are expected to be implemented 
(i.e., a score of 110 is expected to be achieved) based on information 
gathered from associated plan(s) of action developed in accordance with 
NIST SP 800-171.
    (3) Accessibility. (i) Assessment summary level scores posted in 
SPRS are available to DoD personnel, and are protected, in accordance 
with the standards set forth in DoD Instruction 5000.79, Defense-wide 
Sharing and Use of Supplier and Product Performance Information (PI).
    (ii) Authorized representatives of the Offeror for which the 
assessment was conducted may access SPRS to view their own summary level 
scores, in accordance with the SPRS Software User's Guide for Awardees/
Contractors available at https://www.sprs.csd.disa.mil/pdf/
SPRS_Awardee.pdf.
    (iii) A High NIST SP 800-171 DoD Assessment may result in 
documentation in addition to that listed in this section. DoD will 
retain and protect any such documentation as ``Controlled Unclassified 
Information (CUI)'' and intended for internal DoD use only. The 
information will be protected against unauthorized use and release, 
including through the exercise of applicable exemptions under the 
Freedom of Information Act (e.g., Exemption 4 covers trade secrets and 
commercial or financial information obtained from a contractor that is 
privileged or confidential).

(End of provision)

[85 FR 61520, Sept. 29, 2020]



252.204-7020  NIST SP 800-171 DoD Assessment Requirements.

    As prescribed in 204.7304(e), use the following clause:

         NIST SP 800-171 DOD ASSESSMENT REQUIREMENTS (NOV 2020)

    (a) Definitions.
    Basic Assessment means a contractor's self-assessment of the 
contractor's implementation of NIST SP 800-171 that--
    (1) Is based on the Contractor's review of their system security 
plan(s) associated with covered contractor information system(s);
    (2) Is conducted in accordance with the NIST SP 800-171 DoD 
Assessment Methodology; and
    (3) Results in a confidence level of ``Low'' in the resulting score, 
because it is a self-generated score.
    Covered contractor information system has the meaning given in the 
clause 252.204-7012, Safeguarding Covered Defense Information and Cyber 
Incident Reporting, of this contract.
    High Assessment means an assessment that is conducted by Government 
personnel using NIST SP 800-171A, Assessing Security Requirements for 
Controlled Unclassified Information that--
    (1) Consists of--
    (i) A review of a contractor's Basic Assessment;
    (ii) A thorough document review;
    (iii) Verification, examination, and demonstration of a Contractor's 
system security plan to validate that NIST SP 800-171 security 
requirements have been implemented as described in the contractor's 
system security plan; and
    (iv) Discussions with the contractor to obtain additional 
information or clarification, as needed; and
    (2) Results in a confidence level of ``High'' in the resulting 
score.
    Medium Assessment means an assessment conducted by the Government 
that--
    (1) Consists of--
    (i) A review of a contractor's Basic Assessment;
    (ii) A thorough document review; and
    (iii) Discussions with the contractor to obtain additional 
information or clarification, as needed; and
    (2) Results in a confidence level of ``Medium'' in the resulting 
score.
    (b) Applicability. This clause applies to covered contractor 
information systems that are required to comply with the National 
Institute of Standards and Technology (NIST) Special Publication (SP) 
800-171, in accordance with Defense Federal Acquisition Regulation 
System (DFARS) clause at 252.204-7012, Safeguarding Covered Defense 
Information and Cyber Incident Reporting, of this contract.
    (c) Requirements. The Contractor shall provide access to its 
facilities, systems, and personnel necessary for the Government to 
conduct a Medium or High NIST SP 800-171 DoD Assessment, as described in 
NIST SP 800-171 DoD Assessment Methodology at https://www.acq.osd.mil/
dpap/pdi/cyber/strategically_assessing_ contractor_implementation_ 
of_NIST_SP_800-171.html, if necessary.
    (d) Procedures. Summary level scores for all assessments will be 
posted in the Supplier Performance Risk System (SPRS) (https://
www.sprs.csd.disa.mil/) to provide DoD Components visibility into the 
summary level scores of strategic assessments.
    (1) Basic Assessments. A contractor may submit, via encrypted email, 
summary level scores of Basic Assessments conducted in accordance with 
the NIST SP 800-171 DoD Assessment Methodology to [email protected] for 
posting to SPRS.
    (i) The email shall include the following information:
    (A) Version of NIST SP 800-171 against which the assessment was 
conducted.
    (B) Organization conducting the assessment (e.g., Contractor self-
assessment).

[[Page 424]]

    (C) For each system security plan (security requirement 3.12.4) 
supporting the performance of a DoD contract--
    (1) All industry Commercial and Government Entity (CAGE) code(s) 
associated with the information system(s) addressed by the system 
security plan; and
    (2) A brief description of the system security plan architecture, if 
more than one plan exists.
    (D) Date the assessment was completed.
    (E) Summary level score (e.g., 95 out of 110, NOT the individual 
value for each requirement).
    (F) Date that all requirements are expected to be implemented (i.e., 
a score of 110 is expected to be achieved) based on information gathered 
from associated plan(s) of action developed in accordance with NIST SP 
800-171.
    (ii) If multiple system security plans are addressed in the email 
described at paragraph (b)(1)(i) of this section, the Contractor shall 
use the following format for the report:

----------------------------------------------------------------------------------------------------------------
                                                        Brief
                                   CAGE codes      description of        Date of        Total     Date score of
     System security plan      supported by this      the plan         assessment       score       110 will
                                      plan          architecture                                    achieved
----------------------------------------------------------------------------------------------------------------
                               .................  ................  ................
----------------------------------------------------------------------------------------------------------------
                               .................  ................  ................
----------------------------------------------------------------------------------------------------------------
                               .................  ................  ................  ........  ................
----------------------------------------------------------------------------------------------------------------

    (2) Medium and High Assessments. DoD will post the following Medium 
and/or High Assessment summary level scores to SPRS for each system 
security plan assessed:
    (i) The standard assessed (e.g., NIST SP 800-171 Rev 1).
    (ii) Organization conducting the assessment, e.g., DCMA, or a 
specific organization (identified by Department of Defense Activity 
Address Code (DoDAAC)).
    (iii) All industry CAGE code(s) associated with the information 
system(s) addressed by the system security plan.
    (iv) A brief description of the system security plan architecture, 
if more than one system security plan exists.
    (v) Date and level of the assessment, i.e., medium or high.
    (vi) Summary level score (e.g., 105 out of 110, not the individual 
value assigned for each requirement).
    (vii) Date that all requirements are expected to be implemented 
(i.e., a score of 110 is expected to be achieved) based on information 
gathered from associated plan(s) of action developed in accordance with 
NIST SP 800-171.
    (e) Rebuttals. (1) DoD will provide Medium and High Assessment 
summary level scores to the Contractor and offer the opportunity for 
rebuttal and adjudication of assessment summary level scores prior to 
posting the summary level scores to SPRS (see SPRS User's Guide https://
www.sprs.csd.disa.mil/pdf/SPRS_Awardee.pdf).
    (2) Upon completion of each assessment, the contractor has 14 
business days to provide additional information to demonstrate that they 
meet any security requirements not observed by the assessment team or to 
rebut the findings that may be of question.
    (f) Accessibility. (1) Assessment summary level scores posted in 
SPRS are available to DoD personnel, and are protected, in accordance 
with the standards set forth in DoD Instruction 5000.79, Defense-wide 
Sharing and Use of Supplier and Product Performance Information (PI).
    (2) Authorized representatives of the Contractor for which the 
assessment was conducted may access SPRS to view their own summary level 
scores, in accordance with the SPRS Software User's Guide for Awardees/
Contractors available at https://www.sprs.csd.disa.mil/pdf/
SPRS_Awardee.pdf.
    (3) A High NIST SP 800-171 DoD Assessment may result in 
documentation in addition to that listed in this clause. DoD will retain 
and protect any such documentation as ``Controlled Unclassified 
Information (CUI)'' and intended for internal DoD use only. The 
information will be protected against unauthorized use and release, 
including through the exercise of applicable exemptions under the 
Freedom of Information Act (e.g., Exemption 4 covers trade secrets and 
commercial or financial information obtained from a contractor that is 
privileged or confidential).
    (g) Subcontracts. (1) The Contractor shall insert the substance of 
this clause, including this paragraph (g), in all subcontracts and other 
contractual instruments, including subcontracts for the acquisition of 
commercial items (excluding COTS items).
    (2) The Contractor shall not award a subcontract or other 
contractual instrument, that is subject to the implementation of NIST SP 
800-171 security requirements, in accordance with DFARS clause 252.204-
7012 of this contract, unless the subcontractor has completed, within 
the last 3 years, at least a Basic NIST SP 800-171 DoD Assessment, as 
described in https://www.acq.osd.mil/dpap/pdi/cyber/
strategically_assessing_ contractor_implementation_ of_NIST_SP_800-

[[Page 425]]

171.html, for all covered contractor information systems relevant to its 
offer that are not part of an information technology service or system 
operated on behalf of the Government.
    (3) If a subcontractor does not have summary level scores of a 
current NIST SP 800-171 DoD Assessment (i.e., not more than 3 years old 
unless a lesser time is specified in the solicitation) posted in SPRS, 
the subcontractor may conduct and submit a Basic Assessment, in 
accordance with the NIST SP 800-171 DoD Assessment Methodology, to 
[email protected] for posting to SPRS along with the information 
required by paragraph (d) of this clause.

(End of clause)

[85 FR 61520, Sept. 29, 2020]



252.204-7021  Contractor Compliance with the Cybersecurity Maturity
Model Certification Level Requirement.

    As prescribed in 204.7503(a) and (b), insert the following clause:

      CONTRACTOR COMPLIANCE WITH THE CYBERSECURITY MATURITY MODEL 
               CERTIFICATION LEVEL REQUIREMENT (NOV 2020)

    (a) Scope. The Cybersecurity Maturity Model Certification (CMMC) 
CMMC is a framework that measures a contractor's cybersecurity maturity 
to include the implementation of cybersecurity practices and 
institutionalization of processes (see https://www.acq.osd.mil/cmmc/
index.html).
    (b) Requirements. The Contractor shall have a current (i.e. not 
older than 3 years) CMMC certificate at the CMMC level required by this 
contract and maintain the CMMC certificate at the required level for the 
duration of the contract.
    (c) Subcontracts. The Contractor shall--
    (1) Insert the substance of this clause, including this paragraph 
(c), in all subcontracts and other contractual instruments, including 
subcontracts for the acquisition of commercial items, excluding 
commercially available off-the-shelf items; and
    (2) Prior to awarding to a subcontractor, ensure that the 
subcontractor has a current (i.e., not older than 3 years) CMMC 
certificate at the CMMC level that is appropriate for the information 
that is being flowed down to the subcontractor.

(End of clause)

[85 FR 61520, Sept. 29, 2020]



252.204-7022  Expediting Contract Closeout.

    As prescribed in 204.804-70, use the following clause:

                 Expediting Contract Closeout (MAY 2021)

    (a) At the conclusion of all applicable closeout requirements of 
Federal Acquisition Regulation 4.804, the Government and Contractor 
shall mutually agree on the residual dollar amount remaining on the 
contract. Both the Government and Contractor agree to waive payment of 
any residual dollar amount of $1,000 or less to which either party may 
be entitled at the time of contract closeout.
    (b) A residual dollar amount includes all money owed to either party 
at the end of the contract and as a result of the contract, excluding 
amounts connected in any way with taxation or a violation of law or 
regulation.
    (c) For purposes of determining residual dollar amounts, offsets 
(e.g., across multiple contracts or orders) may be considered only to 
the extent permitted by law.


(End of clause)

[86 FR 27277, May 20, 2021]



252.204-7023  Reporting Requirements for Contracted Services.

    Basic. As prescribed in 204.1705(a)(i) and (ii), use the following 
clause:

    Reporting Requirements for Contracted Services--Basic (Jul 2021)

    (a) Definition. As used in this clause--
    First-tier subcontract means a subcontract awarded directly by the 
contractor for the purpose of acquiring services for performance of a 
prime contract. It does not include the contractor's supplier agreements 
with vendors, such as long-term arrangements for materials or supplies 
or services that benefit multiple contracts and/or the costs of which 
are normally applied to a contractor's general and administrative 
expenses or indirect costs.
    (b) The Contractor shall report annually, by October 31, at https://
www.sam.gov, on the services performed under this contract or order, 
including any first-tier subcontracts, during the preceding Government 
fiscal year (October 1-September 30).
    (c) The Contractor shall report the following information for the 
contract or order:
    (1) The total dollar amount invoiced for services performed during 
the preceding Government fiscal year under the contract or order.
    (2) The number of Contractor direct labor hours, to include first-
tier subcontractor direct labor hours, as applicable, expended on the 
services performed under the contract or order during the previous 
Government fiscal year.

[[Page 426]]

    (d) The Government will review the Contractor's reported information 
for reasonableness and consistency with available contract information. 
In the event the Government believes that revisions to the Contractor's 
reported information are warranted, the Government will notify the 
Contractor. Upon notification, the Contractor shall revise the reported 
information or provide the Government with a supporting rationale for 
the information.


(End of clause)
    Alternate I. As prescribed in 204.1705 (a)(i) and (iii), use the 
following clause, which substitutes ``contract or agreement for each 
order'' in lieu of ``contract or order'' in paragraph (b) and ``order'' 
in lieu of ``contract or order'' in paragraphs (c) and (c)(1) and (2), 
and identifies the dollar threshold and service acquisition portfolio 
groups for which orders under the contract or agreement require service 
contract reporting.

 Reporting Requirements for Contracted Services--Alternate I (Jul 2021)

    (a) Definition. As used in this clause--
    First-tier subcontract means a subcontract awarded directly by the 
contractor for the purpose of acquiring services for performance of a 
prime contract. It does not include the contractor's supplier agreements 
with vendors, such as long-term arrangements for materials or supplies 
or services that benefit multiple contracts and/or the costs of which 
are normally applied to a contractor's general and administrative 
expenses or indirect costs.
    (b) The contractor shall report annually, by October 31, at https://
www.sam.gov, on services performed during the preceding Government 
fiscal year (October 1-September 30) under this contract or agreement 
for each order, including any first-tier subcontract, which exceeds $3 
million for services in the following service acquisition portfolio 
groups:
    (1) Logistics management services.
    (2) Equipment-related services.
    (3) Knowledge-based services.
    (4) Electronics and communications services.
    (c) The Contractor shall report the following information for the 
order:
    (1) The total dollar amount invoiced for services performed during 
the preceding Government fiscal year under the order.
    (2) The number of Contractor direct labor hours, to include first-
tier subcontractor direct labor hours, as applicable, expended on the 
services performed under the order during the previous Government fiscal 
year.
    (d) The Government will review the Contractor's reported information 
for reasonableness and consistency with available contract information. 
In the event the Government believes that revisions to the Contractor's 
reported information are warranted, the Government will notify the 
Contractor. Upon notification, the Contractor shall revise the reported 
information or provide the Government with a supporting rationale for 
the information.

                             (End of clause)

[86 FR 36236, July 9, 2021]



252.205-7000  Provision of information to cooperative agreement
holders.

    As prescribed in 205.470, use the following clause:

  Provision of Information to Cooperative Agreement Holders (DEC 1991)

    (a) Definition. Cooperative agreement holder means a State or local 
government; a private, nonprofit organization; a tribal organization (as 
defined in section 4(c) of the Indian Self-Determination and Education 
Assistance Act (Pub. L. 93-268; 25 U.S.C. 450(c))); or an economic 
enterprise (as defined in section 3(e) of the Indian Financing Act of 
1974 (Pub. L. 93-362; 25 U.S.C. 1452(e))) whether such economic 
enterprise is organized for profit or nonprofit purposes; which has an 
agreement with the Defense Logistics Agency to furnish procurement 
technical assistance to business entities.
    (b) The Contractor shall provide cooperative agreement holders, upon 
their request, with a list of those appropriate employees or offices 
responsible for entering into subcontracts under defense contracts. The 
list shall include the business address, telephone number, and area of 
responsibility of each employee or office.
    (c) The Contractor need not provide the listing to a particular 
cooperative agreement holder more frequently than once a year.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 69 FR 63328, Nov. 1, 2004]



252.206-7000  Domestic source restriction.

    As prescribed at 206.302-3-70, use the following provision:

                 Domestic Source Restriction (DEC 1991)

    This solicitation is restricted to domestic sources under the 
authority of 10 U.S.C.

[[Page 427]]

2304(c)(3). Foreign sources, except Canadian sources, are not eligible 
for award.

                           (End of provision)



252.208-7000  Intent to furnish precious metals as Government-
furnished material.

    As prescribed in 208.7305(a), use the following clause:

Intent To Furnish Precious Metals as Government-Furnished Material (DEC 
                                  1991)

    (a) The Government intends to furnish precious metals required in 
the manufacture of items to be delivered under the contract if the 
Contracting Officer determines it to be in the Government's best 
interest. The use of Government-furnished silver is mandatory when the 
quantity required is one hundred troy ounces or more. The precious 
metal(s) will be furnished pursuant to the Government Furnished Property 
clause of the contract.
    (b) The Offeror shall cite the type (silver, gold, platinum, 
palladium, iridium, rhodium, and ruthenium) and quantity in whole troy 
ounces of precious metals required in the performance of this contract 
(including precious metals required for any first article or production 
sample), and shall specify the national stock number (NSN) and 
nomenclature, if known, of the deliverable item requiring precious 
metals.

------------------------------------------------------------------------
                                                       Deliverable item
        Precious metal*               Quantity             (NSN and
                                                      nomenclature)!!rs
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 *If platinum or palladium, specify whether sponge or granules are
  required.

    (c) Offerors shall submit two prices for each deliverable item which 
contains precious metals--one based on the Government furnishing 
precious metals, and one based on the Contractor furnishing precious 
metals. Award will be made on the basis which is in the best interest of 
the Government.
    (d) The Contractor agrees to insert this clause, including this 
paragraph (d), in solicitations for subcontracts and purchase orders 
issued in performance of this contract, unless the Contractor knows that 
the item being purchased contains no precious metals.

                             (End of clause)



252.209-7000--252.209-7001  [Reserved]



252.209-7002  Disclosure of ownership or control by a foreign 
government.

    As prescribed in 209.104-70, use the following provision:

  Disclosure of Ownership or Control by a Foreign Government (JUN 2010)

    (a) Definitions. As used in this provision--
    (1) Effectively owned or controlled means that a foreign government 
or any entity controlled by a foreign government has the power, either 
directly or indirectly, whether exercised or exercisable, to control the 
election, appointment, or tenure of the Offeror's officers or a majority 
of the Offeror's board of directors by any means, e.g., ownership, 
contract, or operation of law (or equivalent power for unincorporated 
organizations).
    (2) Entity controlled by a foreign government--
    (i) Means--
    (A) Any domestic or foreign organization or corporation that is 
effectively owned or controlled by a foreign government; or
    (B) Any individual acting on behalf of a foreign government.
    (ii) Does not include an organization or corporation that is owned, 
but is not controlled, either directly or indirectly, by a foreign 
government if the ownership of that organization or corporation by that 
foreign government was effective before October 23, 1992.
    (3) Foreign government includes the state and the government of any 
country (other than the United States and its outlying areas) as well as 
any political subdivision, agency, or instrumentality thereof.
    (4) Proscribed information means--
    (i) Top Secret information;
    (ii) Communications security (COMSEC) material, excluding controlled 
cryptographic items when unkeyed or utilized with unclassified keys;
    (iii) Restricted Data as defined in the U.S. Atomic Energy Act of 
1954, as amended;
    (iv) Special Access Program (SAP) information; or
    (v) Sensitive Compartmented Information (SCI).
    (b) Prohibition on award. No 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, unless the Secretary of Defense or a designee has waived 
application of 10 U.S.C. 2536(a).
    (c) Disclosure. The Offeror shall disclose any interest a foreign 
government has in the Offeror when that interest constitutes control by 
a foreign government as defined in this provision. If the Offeror is a 
subsidiary, it shall also disclose any reportable interest a foreign 
government has in any entity that owns or controls the subsidiary, 
including reportable interest concerning the Offeror's immediate parent, 
intermediate parents, and the ultimate parent. Use separate paper as 
needed, and provide the information in the following format: Offeror's 
Point of Contact for Questions about Disclosure (Name and

[[Page 428]]

Phone Number with Country Code, City Code and Area Code, as applicable)

Name and Address of Offeror...............
Name and Address of Entity Controlled by a  Description of Interest,
 Foreign Government.                         Ownership Percentage, and
                                             Identification of Foreign
                                             Government
 

                           (End of provision)

[58 FR 28471, May 13, 1993, as amended at 59 FR 51133, Oct. 7, 1994; 70 
FR 35546, June 21, 2005; 75 FR 35685, June 23, 2010; 79 FR 73490, Dec. 
11, 2014]



252.209-7003  [Reserved]



252.209-7004  Subcontracting with Firms that are Owned or Controlled
by the Government of a Country that is a State Sponsor of Terrorism.

    As prescribed in 209.409, use the following clause:

Subcontracting With Firms That Are Owned or Controlled by the Government 
      of a Country That Is a State Sponsor of Terrorism (MAY 2019)

    (a) Unless the Government determines that there is a compelling 
reason to do so, the Contractor shall not enter into any subcontract in 
excess of the threshold specified in Federal Acquisition Regulation 
9.405-2(b) on the date of subcontract award with a firm, or a subsidiary 
of a firm, that is identified in the Exclusions section of the System 
for Award Management System (SAM Exclusions) as being ineligible for the 
award of Defense contracts or subcontracts because it is owned or 
controlled by the government of a country that is a state sponsor of 
terrorism.
    (b) A corporate officer or a designee of the Contractor shall notify 
the Contracting Officer, in writing, before entering into a subcontract 
with a party that is identified, in SAM Exclusions, as being ineligible 
for the award of Defense contracts or subcontracts because it is owned 
or controlled by the government of a country that is a state sponsor of 
terrorism. The notice must include the name of the proposed 
subcontractor and the compelling reason(s) for doing business with the 
subcontractor notwithstanding its inclusion in SAM Exclusions.

                             (End of clause)

[79 FR 73490, Dec. 11, 2014, as amended at 80 FR 36905, June 26, 2015; 
84 FR 25187, May 31, 2019]



252.209-7005  [Reserved]



252.209-7006  Limitations on Contractors Acting as Lead System 
Integrators.

    As prescribed in 209.570-4(a), use the following provision:

 Limitations on Contractors Acting As Lead System Integrators (JAN 2008)

    (a) Definitions. Lead system integrator, lead system integrator with 
system responsibility, and lead system integrator without system 
responsibility, as used in this provision, have the meanings given in 
the clause of this solicitation entitled ``Prohibited Financial 
Interests for Lead System Integrators'' (DFARS 252.209-7007).
    (b) General. Unless an exception is granted, no contractor 
performing lead system integrator functions in the acquisition of a 
major system by the Department of Defense may have any direct financial 
interest in the development or construction of any individual system or 
element of any system of systems.
    (c) Representations. (1) The offeror represents that it does
    [ ] does not [ ] propose to perform this contract as a lead system 
integrator with system responsibility.
    (2) The offeror represents that it does [ ] does not [ ] propose to 
perform this contract as a lead system integrator without system 
responsibility.
    (3) If the offeror answered in the affirmative in paragraph (c)(1) 
or (2) of this provision, the offeror represents that it does [ ] does 
not [ ] have any direct financial interest as described in paragraph (b) 
of this provision with respect to the system(s), subsystem(s), system of 
systems, or services described in this solicitation.
    (d) If the offeror answered in the affirmative in paragraph (c)(3) 
of this provision, the offeror should contact the Contracting Officer 
for guidance on the possibility of submitting a mitigation plan and/or 
requesting an exception.
    (e) If the offeror does have a direct financial interest, the 
offeror may be prohibited from receiving an award under this 
solicitation, unless the offeror submits to the Contracting Officer 
appropriate evidence that the offeror was selected by a subcontractor to 
serve as a lower-tier subcontractor through a process over which the 
offeror exercised no control.
    (f) This provision implements the requirements of 10 U.S.C. 2410p, 
as added by section 807 of the National Defense Authorization Act for 
Fiscal Year 2007 (Pub. L. 109-364).

[[Page 429]]

                           (End of provision)

[73 FR 1825, Jan. 10, 2007]



252.209-7007  Prohibited Financial Interests for Lead System 
Integrators.

    As prescribed in 209.570-4(b), use the following clause:

  Prohibited Financial Interests for Lead System Integrators (JUL 2009)

    (a) Definitions. As used in this clause--
    (1) Lead system integrator includes lead system integrator with 
system responsibility and lead system integrator without system 
responsibility.
    (2) Lead system integrator with system responsibility means a prime 
contractor for the development or production of a major system, if the 
prime contractor is not expected at the time of award to perform a 
substantial portion of the work on the system and the major subsystems.
    (3) Lead system integrator without system responsibility means a 
prime contractor under a contract for the procurement of services, the 
primary purpose of which is to perform acquisition functions closely 
associated with inherently governmental functions (see section 7.503(d) 
of the Federal Acquisition Regulation) with respect to the development 
or production of a major system.
    (b) Limitations. The Contracting Officer has determined that the 
Contractor meets the definition of lead system integrator with [ ] 
without [ ] system responsibility. Unless an exception is granted, the 
Contractor shall not have any direct financial interest in the 
development or construction of any individual system or element of any 
system of systems while performing lead system integrator functions in 
the acquisition of a major system by the Department of Defense under 
this contract.
    (c) Agreement. The Contractor agrees that during performance of this 
contract it will not acquire any direct financial interest as described 
in paragraph (b) of this clause, or, if it does acquire or plan to 
acquire such interest, it will immediately notify the Contracting 
Officer. The Contractor further agrees to provide to the Contracting 
Officer all relevant information regarding the change in financial 
interests so that the Contracting Officer can determine whether an 
exception applies or whether the Contractor will be allowed to continue 
performance on this contract. If a direct financial interest cannot be 
avoided, eliminated, or mitigated to the Contracting Officer's 
satisfaction, the Contracting Officer may terminate this contract for 
default for the Contractor's material failure to comply with the terms 
and conditions of award or may take other remedial measures as 
appropriate in the Contracting Officer's sole discretion.
    (d) Notwithstanding any other clause of this contract, if the 
Contracting Officer determines that the Contractor misrepresented its 
financial interests at the time of award or has violated the agreement 
in paragraph (c) of this clause, the Government may terminate this 
contract for default for the Contractor's material failure to comply 
with the terms and conditions of award or may take other remedial 
measures as appropriate in the Contracting Officer's sole discretion.
    (e) This clause implements the requirements of 10 U.S.C. 2410p, as 
added by Section 807 of the National Defense Authorization Act for 
Fiscal Year 2007 (Pub. L. 109-364), and Section 802 of the National 
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).

                             (End of clause)

[73 FR 1825, Jan. 10, 2007, as amended at 74 FR 34269, July 15, 2009]



252.209-7008  Notice of Prohibition Relating to Organizational
Conflict of Interest--Major Defense Acquisition Program.

    As prescribed in 209.571-8(a), use the following provision:

 Notice of Prohibition Relating to Organizational Conflict of Interest--
              Major Defense Acquisition Program (DEC 2010)

    (a) Definitions. ``Major subcontractor'' is defined in the clause at 
252.209-7009, Organizational Conflict of Interest--Major Defense 
Acquisition Program.
    (b) This solicitation is for the performance of systems engineering 
and technical assistance for a major defense acquisition program or a 
pre-major defense acquisition program.
    (c) Prohibition. As required by paragraph (b)(3) of section 207 of 
the Weapons System Acquisition Reform Act of 2009 (Pub. L. 111-23), if 
awarded the contract, the contractor or any affiliate of the contractor 
is prohibited from participating as a prime contractor or a major 
subcontractor in the development or production of a weapon system under 
the major defense acquisition program or pre-major defense acquisition 
program, unless the offeror submits, and the Government approves, an 
Organizational Conflict of Interest Mitigation Plan.
    (d) Request for an exception. If the offeror requests an exception 
to the prohibition of paragraph (c) of this provision, then the offeror 
shall submit an Organizational Conflict of Interest Mitigation Plan with 
its offer for evaluation.
    (e) Incorporation of Organizational Conflict of Interest Mitigation 
Plan in contract. If the apparently successful offeror submitted an

[[Page 430]]

acceptable Organizational Conflict of Interest Mitigation Plan, and the 
head of the contracting activity determines that DoD needs the domain 
experience and expertise of the highly qualified, apparently successful 
offeror in accordance with FAR 209.571-7(c), then the Contracting 
Officer will incorporate the Organizational Conflict of Interest 
Mitigation Plan into the resultant contract, and paragraph (d) of the 
clause at 252.209-7009 will become applicable.

                           (End of provision)

[75 FR 81914, Dec. 29, 2010]



252.209-7009  Organizational Conflict of Interest--Major Defense 
Acquisition Program.

    As prescribed in 209.571-8(b), use the following clause:

 Organizational Conflict of Interest--Major Defense Acquisition Program 
                               (MAY 2019)

    (a) Definition. As used in this clause--
    Major subcontractor means a subcontractor that is awarded a 
subcontract that equals or exceeds--
    (1) Both the certified cost or pricing data threshold and 10 percent 
of the value of the contract under which the subcontract is awarded; or
    (2) The threshold specified in the definition of ``major 
subcontractor'' at Defense Federal Acquisition Regulation Supplement 
209.571-1 on the date of subcontract award.
    (b) This contract is for the performance of systems engineering and 
technical assistance for a major defense acquisition program or a pre-
major defense acquisition program.
    (c) Prohibition. Except as provided in paragraph (d) of this clause, 
as required by paragraph (b)(3) of section 207 of the Weapons System 
Acquisition Reform Act of 2009 (Pub. L. 111-23), the Contractor or any 
affiliate of the Contractor is prohibited from participating as a prime 
contractor or major subcontractor in the development or production of a 
weapon system under the major defense acquisition program or pre-major 
defense acquisition program.
    (d) Organizational Conflict of Interest Mitigation Plan. If the 
Contractor submitted an acceptable Organizational Conflict of Interest 
Mitigation Plan that has been incorporated into this contract, then the 
prohibition in paragraph (c) of this clause does not apply. The 
Contractor shall comply with the Organizational Conflict of Interest 
Mitigation Plan. Compliance with the Organizational Conflict of Interest 
Mitigation Plan is a material requirement of the contract. Failure to 
comply may result in the Contractor or any affiliate of the Contractor 
being prohibited from participating as a contractor or major 
subcontractor in the development or production of a weapon system under 
the program, in addition to any other remedies available to the 
Government for noncompliance with a material requirement of a contract.

                             (End of clause)

[75 FR 81914, Dec. 29, 2010, as amended at 77 FR 76940, Dec. 31, 2012; 
80 FR 36905, June 26, 2015; 84 FR 25187, May 31, 2019]



252.209-7010  Critical Safety Items.

    As prescribed in 209.270-5, use the following clause:

                    Critical Safety Items (AUG 2011)

    (a) Definitions.
    Aviation critical safety item means a part, an assembly, 
installation equipment, launch equipment, recovery equipment, or support 
equipment for an aircraft or aviation weapon system if the part, 
assembly, or equipment contains a characteristic any failure, 
malfunction, or absence of which could cause--
    (i) A catastrophic or critical failure resulting in the loss of, or 
serious damage to, the aircraft or weapon system;
    (ii) An unacceptable risk of personal injury or loss of life; or
    (iii) An uncommanded engine shutdown that jeopardizes safety.
    Design control activity. (i) With respect to an aviation critical 
safety item, means the systems command of a military department that is 
specifically responsible for ensuring the airworthiness of an aviation 
system or equipment, in which an aviation critical safety item is to be 
used; and
    (ii) With respect to a ship critical safety item, means the systems 
command of a military department that is specifically responsible for 
ensuring the seaworthiness of a ship or ship equipment, in which a ship 
critical safety item is to be used.
    Ship critical safety item means any ship part, assembly, or support 
equipment containing a characteristic, the failure, malfunction, or 
absence of which could cause--
    (i) A catastrophic or critical failure resulting in loss of, or 
serious damage to, the ship; or
    (ii) An unacceptable risk of personal injury or loss of life.
    (b) Identification of critical safety items. One or more of the 
items being procured under this contract is an aviation or ship critical 
safety item. The following items have been designated aviation critical 
safety items or ship critical safety items by the designated design 
control activity:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

[[Page 431]]

________________________________________________________________________

(Insert additional lines as necessary)

    (c) Heightened quality assurance surveillance. Items designated in 
paragraph (b) of this clause are subject to heightened, risk-based 
surveillance by the designated quality assurance representative.

                             (End of clause)

[76 FR 52139, Aug. 19, 2011]



252.211-7000--252.211-7001  [Reserved]



252.211-7002  Availability for examination of specifications, 
standards, plans, drawings, data item descriptions, and other 
pertinent documents.

    As prescribed in 211.204(c), use the following provision:

   Availability for Examination of Specifications, Standards, Plans, 
  Drawings, Data Item Descriptions, and Other Pertinent Documents (DEC 
                                  1991)

    The specifications, standards, plans, drawings, data item 
descriptions, and other pertinent documents cited in this solicitation 
are not available for distribution but may be examined at the following 
location:

________________________________________________________________________
(Insert complete address)

                           (End of provision)

[56 FR 36479, July 31, 1991. Redesignated and amended at 60 FR 61600, 
Nov. 30, 1995]



252.211-7003  Item unique identification and valuation.

    As prescribed in 211.274-6(a)(1), use the following clause:

           Item Unique Identification and Valuation (MAR 2016)

    (a) Definitions. As used in this clause--
    Automatic identification device means a device, such as a reader or 
interrogator, used to retrieve data encoded on machine-readable media.
    Concatenated unique item identifier means--
    (1) For items that are serialized within the enterprise identifier, 
the linking together of the unique identifier data elements in order of 
the issuing agency code, enterprise identifier, and unique serial number 
within the enterprise identifier; or
    (2) For items that are serialized within the original part, lot, or 
batch number, the linking together of the unique identifier data 
elements in order of the issuing agency code; enterprise identifier; 
original part, lot, or batch number; and serial number within the 
original part, lot, or batch number.
    Data matrix means a two-dimensional matrix symbology, which is made 
up of square or, in some cases, round modules arranged within a 
perimeter finder pattern and uses the Error Checking and Correction 200 
(ECC200) specification found within International Standards Organization 
(ISO)/International Electrotechnical Commission (IEC) 16022.
    Data qualifier means a specified character (or string of characters) 
that immediately precedes a data field that defines the general category 
or intended use of the data that follows.
    DoD recognized unique identification equivalent means a unique 
identification method that is in commercial use and has been recognized 
by DoD. All DoD recognized unique identification equivalents are listed 
at http://www.acq.osd.mil/dpap/pdi/uid/iuid_equivalents.html.
    DoD item unique identification means a system of marking items 
delivered to DoD with unique item identifiers that have machine-readable 
data elements to distinguish an item from all other like and unlike 
items. For items that are serialized within the enterprise identifier, 
the unique item identifier shall include the data elements of the 
enterprise identifier and a unique serial number. For items that are 
serialized within the part, lot, or batch number within the enterprise 
identifier, the unique item identifier shall include the data elements 
of the enterprise identifier; the original part, lot, or batch number; 
and the serial number.
    Enterprise means the entity (e.g., a manufacturer or vendor) 
responsible for assigning unique item identifiers to items.
    Enterprise identifier means a code that is uniquely assigned to an 
enterprise by an issuing agency.
    Government's unit acquisition cost means--
    (1) For fixed-price type line, subline, or exhibit line items, the 
unit price identified in the contract at the time of delivery;
    (2) For cost-type or undefinitized line, subline, or exhibit line 
items, the Contractor's estimated fully burdened unit cost to the 
Government at the time of delivery; and
    (3) For items produced under a time-and-materials contract, the 
Contractor's estimated fully burdened unit cost to the Government at the 
time of delivery.
    Issuing agency means an organization responsible for assigning a 
globally unique identifier to an enterprise, as indicated in the 
Register of Issuing Agency Codes for ISO/IEC 15459, located at http://
www.aimglobal.org/?Reg_Authority15459.
    Issuing agency code means a code that designates the registration 
(or controlling) authority for the enterprise identifier.

[[Page 432]]

    Item means a single hardware article or a single unit formed by a 
grouping of subassemblies, components, or constituent parts.
    Lot or batch number means an identifying number assigned by the 
enterprise to a designated group of items, usually referred to as either 
a lot or a batch, all of which were manufactured under identical 
conditions.
    Machine-readable means an automatic identification technology media, 
such as bar codes, contact memory buttons, radio frequency 
identification, or optical memory cards.
    Original part number means a combination of numbers or letters 
assigned by the enterprise at item creation to a class of items with the 
same form, fit, function, and interface.
    Parent item means the item assembly, intermediate component, or 
subassembly that has an embedded item with a unique item identifier or 
DoD recognized unique identification equivalent.
    Serial number within the enterprise identifier means a combination 
of numbers, letters, or symbols assigned by the enterprise to an item 
that provides for the differentiation of that item from any other like 
and unlike item and is never used again within the enterprise.
    Serial number within the part, lot, or batch number means a 
combination of numbers or letters assigned by the enterprise to an item 
that provides for the differentiation of that item from any other like 
item within a part, lot, or batch number assignment.
    Serialization within the enterprise identifier means each item 
produced is assigned a serial number that is unique among all the 
tangible items produced by the enterprise and is never used again. The 
enterprise is responsible for ensuring unique serialization within the 
enterprise identifier.
    Serialization within the part, lot, or batch number means each item 
of a particular part, lot, or batch number is assigned a unique serial 
number within that part, lot, or batch number assignment. The enterprise 
is responsible for ensuring unique serialization within the part, lot, 
or batch number within the enterprise identifier.
    Type designation means a combination of letters and numerals 
assigned by the Government to a major end item, assembly or subassembly, 
as appropriate, to provide a convenient means of differentiating between 
items having the same basic name and to indicate modifications and 
changes thereto.
    Unique item identifier means a set of data elements marked on items 
that is globally unique and unambiguous. The term includes a 
concatenated unique item identifier or a DoD recognized unique 
identification equivalent.
    Unique item identifier type means a designator to indicate which 
method of uniquely identifying a part has been used. The current list of 
accepted unique item identifier types is maintained at http://
www.acq.osd.mil/dpap/pdi/uid/uii_types.html.
    (b) The Contractor shall deliver all items under a contract line, 
subline, or exhibit line item.
    (c) Unique item identifier. (1) The Contractor shall provide a 
unique item identifier for the following:
    (i) Delivered items for which the Government's unit acquisition cost 
is $5,000 or more, except for the following line items:

------------------------------------------------------------------------
 Contract line, subline, or exhibit
           line item No.                       Item description
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------

    (ii) Items for which the Government's unit acquisition cost is less 
than $5,000 that are identified in the Schedule or the following table:

------------------------------------------------------------------------
 Contract line, subline, or exhibit
           line item No.                       Item description
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------

(If items are identified in the Schedule, insert ``See Schedule'' in 
this table.)

    (iii) Subassemblies, components, and parts embedded within delivered 
items, items with warranty requirements, DoD serially managed reparables 
and DoD serially managed nonreparables as specified in Attachment Number 
__.
    (iv) Any item of special tooling or special test equipment as 
defined in FAR 2.101 that have been designated for preservation and 
storage for a Major Defense Acquisition Program as specified in 
Attachment Number __.
    (v) Any item not included in paragraphs (c)(1)(i), (ii), (iii), or 
(iv) of this clause for which the contractor creates and marks a unique 
item identifier for traceability.
    (2) The unique item identifier assignment and its component data 
element combination shall not be duplicated on any other item marked or 
registered in the DoD Item Unique Identification Registry by the 
contractor.
    (3) The unique item identifier component data elements shall be 
marked on an item using two dimensional data matrix symbology that 
complies with ISO/IEC International Standard 16022, Information 
technology--International symbology specification--Data matrix; ECC200 
data matrix specification.
    (4) Data syntax and semantics of unique item identifiers. The 
Contractor shall ensure that--
    (i) The data elements (except issuing agency code) of the unique 
item identifier are encoded within the data matrix symbol that is

[[Page 433]]

marked on the item using one of the following three types of data 
qualifiers, as determined by the Contractor:
    (A) Application Identifiers (AIs) (Format Indicator 05 of ISO/IEC 
International Standard 15434), in accordance with ISO/IEC International 
Standard 15418, Information Technology--EAN/UCC Application Identifiers 
and Fact Data Identifiers and Maintenance and ANSI MH 10.8.2 Data 
Identifier and Application Identifier Standard.
    (B) Data Identifiers (DIs) (Format Indicator 06 of ISO/IEC 
International Standard 15434), in accordance with ISO/IEC International 
Standard 15418, Information Technology--EAN/UCC Application Identifiers 
and Fact Data Identifiers and Maintenance and ANSI MH 10.8.2 Data 
Identifier and Application Identifier Standard.
    (C) Text Element Identifiers (TEIs) (Format Indicator 12 of ISO/IEC 
International Standard 15434), in accordance with the Air Transport 
Association Common Support Data Dictionary; and
    (ii) The encoded data elements of the unique item identifier conform 
to the transfer structure, syntax, and coding of messages and data 
formats specified for Format Indicators 05, 06, and 12 in ISO/IEC 
International Standard 15434, Information Technology-Transfer Syntax for 
High Capacity Automatic Data Capture Media.
    (5) Unique item identifier.
    (i) The Contractor shall--
    (A) Determine whether to--
    (1) Serialize within the enterprise identifier;
    (2) Serialize within the part, lot, or batch number; or
    (3) Use a DoD recognized unique identification equivalent (e.g. 
Vehicle Identification Number); and
    (B) Place the data elements of the unique item identifier 
(enterprise identifier; serial number; DoD recognized unique 
identification equivalent; and for serialization within the part, lot, 
or batch number only: Original part, lot, or batch number) on items 
requiring marking by paragraph (c)(1) of this clause, based on the 
criteria provided in MIL-STD-130, Identification Marking of U.S. 
Military Property, latest version;
    (C) Label shipments, storage containers and packages that contain 
uniquely identified items in accordance with the requirements of MIL-
STD-129, Military Marking for Shipment and Storage, latest version; and
    (D) Verify that the marks on items and labels on shipments, storage 
containers, and packages are machine readable and conform to the 
applicable standards. The contractor shall use an automatic 
identification technology device for this verification that has been 
programmed to the requirements of Appendix A, MIL-STD-130, latest 
version.
    (ii) The issuing agency code--
    (A) Shall not be placed on the item; and
    (B) Shall be derived from the data qualifier for the enterprise 
identifier.
    (d) For each item that requires item unique identification under 
paragraph (c)(1)(i), (ii), or (iv) of this clause or when item unique 
identification is provided under paragraph (c)(1)(v), in addition to the 
information provided as part of the Material Inspection and Receiving 
Report specified elsewhere in this contract, the Contractor shall report 
at the time of delivery, as part of the Material Inspection and 
Receiving Report, the following information:
    (1) Unique item identifier.
    (2) Unique item identifier type.
    (3) Issuing agency code (if concatenated unique item identifier is 
used).
    (4) Enterprise identifier (if concatenated unique item identifier is 
used).
    (5) Original part number (if there is serialization within the 
original part number).
    (6) Lot or batch number (if there is serialization within the lot or 
batch number).
    (7) Current part number (optional and only if not the same as the 
original part number).
    (8) Current part number effective date (optional and only if current 
part number is used).
    (9) Serial number (if concatenated unique item identifier is used).
    (10) Government's unit acquisition cost.
    (11) Unit of measure.
    (12) Type designation of the item as specified in the contract 
schedule, if any.
    (13) Whether the item is an item of Special Tooling or Special Test 
Equipment.
    (14) Whether the item is covered by a warranty.
    (e) For embedded subassemblies, components, and parts that require 
DoD item unique identification under paragraph (c)(1)(iii) of this 
clause or when item unique identification is provided under paragraph 
(c)(1)(v), the Contractor shall report as part of the Material 
Inspection and Receiving Report specified elsewhere in this contract, 
the following information:
    (1) Unique item identifier of the parent item under paragraph (c)(1) 
of this clause that contains the embedded subassembly, component, or 
part.
    (2) Unique item identifier of the embedded subassembly, component, 
or part.
    (3) Unique item identifier type.**
    (4) Issuing agency code (if concatenated unique item identifier is 
used).**
    (5) Enterprise identifier (if concatenated unique item identifier is 
used).**
    (6) Original part number (if there is serialization within the 
original part number).**
    (7) Lot or batch number (if there is serialization within the lot or 
batch number).**
    (8) Current part number (optional and only if not the same as the 
original part number).**

[[Page 434]]

    (9) Current part number effective date (optional and only if current 
part number is used).**
    (10) Serial number (if concatenated unique item identifier is 
used).**
    (11) Description.

** Once per item.

    (f) The Contractor shall submit the information required by 
paragraphs (d) and (e) of this clause as follows:
    (1) End items shall be reported using the receiving report 
capability in Wide Area WorkFlow (WAWF) in accordance with the clause at 
252.232-7003. If WAWF is not required by this contract, and the 
contractor is not using WAWF, follow the procedures at http://
dodprocurementtoolbox.com/site/uidregistry/.
    (2) Embedded items shall be reported by one of the following 
methods--
    (i) Use of the embedded items capability in WAWF;
    (ii) Direct data submission to the IUID Registry following the 
procedures and formats at http://dodprocurementtoolbox.com/site/
uidregistry/; or
    (iii) Via WAWF as a deliverable attachment for exhibit line item 
number (fill in) __, Unique Item Identifier Report for Embedded Items, 
Contract Data Requirements List, DD Form 1423.
    (g) Subcontracts. If the Contractor acquires by contract any items 
for which item unique identification is required in accordance with 
paragraph (c)(1) of this clause, the Contractor shall include this 
clause, including this paragraph (g), in the applicable subcontract(s), 
including subcontracts for commercial items.

                             (End of clause)

[70 FR 20836, Apr. 22, 2005, as amended at 70 FR 35549, June 21, 2005; 
72 FR 52298, Sept. 13, 2007; 73 FR 27464, May 13, 2008; 73 FR 46820, 
Aug. 12, 2008; 75 FR 59103, Sept. 27, 2010; 76 FR 33169, June 8, 2011; 
76 FR 76320, Dec. 7, 2011; 78 FR 37990, June 25, 2013; 78 FR 76072, Dec. 
16, 2013; 79 FR 30474, May 28, 2014; 81 FR 17043, Mar. 25, 2016]



252.211-7004  [Reserved]



252.211-7005  [Reserved]



252.211-7006  Passive Radio Frequency Identification.

    As prescribed in 211.275-3, use the following clause:

            Passive Radio Frequency Identification (DEC 2019)

    (a) Definitions. As used in this clause--
    Advance shipment notice means an electronic notification used to 
list the contents of a shipment of goods as well as additional 
information relating to the shipment, such as passive radio frequency 
identification (RFID) or item unique identification (IUID) information, 
order information, product description, physical characteristics, type 
of packaging, marking, carrier information, and configuration of goods 
within the transportation equipment.
    Bulk commodities means the following commodities, when shipped in 
rail tank cars, tanker trucks, trailers, other bulk wheeled conveyances, 
or pipelines:
    (1) Sand.
    (2) Gravel.
    (3) Bulk liquids (water, chemicals, or petroleum products).
    (4) Ready-mix concrete or similar construction materials.
    (5) Coal or combustibles such as firewood.
    (6) Agricultural products such as seeds, grains, or animal feed.
    Case means either a MIL-STD-129 defined exterior container within a 
palletized unit load or a MIL-STD-129 defined individual shipping 
container.
    Electronic Product Code \TM\ (EPC [supreg]) means an identification 
scheme for universally identifying physical objects via RFID tags and 
other means. The standardized EPC \TM\ data consists of an EPC \TM\ (or 
EPC \TM\ identifier) that uniquely identifies an individual object, as 
well as an optional filter value when judged to be necessary to enable 
effective and efficient reading of the EPC \TM\ tags. In addition to 
this standardized data, certain classes of EPC \TM\ tags will allow 
user-defined data. The EPC \TM\ Tag Data Standards will define the 
length and position of this data, without defining its content.
    EPCglobal [supreg] means a subscriber-driven organization comprised 
of industry leaders and organizations focused on creating global 
standards for the adoption of passive RFID technology.
    Exterior container means a MIL-STD-129 defined container, bundle, or 
assembly that is sufficient by reason of material, design, and 
construction to protect unit packs and intermediate containers and their 
contents during shipment and storage. It can be a unit pack or a 
container with a combination of unit packs or intermediate containers. 
An exterior container may or may not be used as a shipping container.
    Palletized unit load means a MIL-STD-129 defined quantity of items, 
packed or unpacked, arranged on a pallet in a specified manner and 
secured, strapped, or fastened on the pallet so that the whole 
palletized load is handled as a single unit. A palletized or skidded 
load is not considered to be a shipping container. A loaded 463L System 
pallet is not considered to be a palletized unit load. Refer to the 
Defense Transportation Regulation, DoD 4500.9-R, Part II, Chapter 203, 
for marking of 463L System pallets.

[[Page 435]]

    Passive RFID tag means a tag that reflects energy from the reader/
interrogator or that receives and temporarily stores a small amount of 
energy from the reader/interrogator signal in order to generate the tag 
response. The only acceptable tags are EPC Class 1 passive RFID tags 
that meet the EPCglobal \TM\ Class 1 Generation 2 standard.
    Radio frequency identification (RFID) means an automatic 
identification and data capture technology comprising one or more 
reader/interrogators and one or more radio frequency transponders in 
which data transfer is achieved by means of suitably modulated inductive 
or radiating electromagnetic carriers.
    Shipping container means a MIL-STD-129 defined exterior container 
that meets carrier regulations and is of sufficient strength, by reason 
of material, design, and construction, to be shipped safely without 
further packing (e.g., wooden boxes or crates, fiber and metal drums, 
and corrugated and solid fiberboard boxes).
    (b)(1) Except as provided in paragraph (b)(2) of this clause, the 
Contractor shall affix passive RFID tags, at the case- and palletized- 
unit-load packaging levels, for shipments of items that--
    (i) Are in any of the following classes of supply, as defined in DoD 
Manual 4140.01, Volume 6, DoD Supply Chain Materiel Management 
Procedures: Materiel Returns, Retention, and Disposition:
    (A) Subclass of Class I--Packaged operational rations.
    (B) Class II--Clothing, individual equipment, tentage, 
organizational tool kits, hand tools, and administrative and 
housekeeping supplies and equipment.
    (C) Class IIIP--Packaged petroleum, lubricants, oils, preservatives, 
chemicals, and additives.
    (D) Class IV--Construction and barrier materials.
    (E) Class VI--Personal demand items (non-military sales items).
    (F) Subclass of Class VIII--Medical materials (excluding 
pharmaceuticals, biologicals, and reagents--suppliers should limit the 
mixing of excluded and non-excluded materials).
    (G) Class IX--Repair parts and components including kits, assemblies 
and subassemblies, reparable and consumable items required for 
maintenance support of all equipment, excluding medical-peculiar repair 
parts; and
    (ii) Are being shipped to one of the locations listed at https://
www.acq.osd.mil/log/sci/RFID_ship-to-locations.html or to--
    (A) A location outside the contiguous United States when the 
shipment has been assigned Transportation Priority 1, or to--
    (B) The following location(s) deemed necessary by the requiring 
activity:

----------------------------------------------------------------------------------------------------------------
    Contract line,
 subline, or exhibit       Location name               City                  State                 DoDAAC
   line item number
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

    (2) The following are excluded from the requirements of paragraph 
(b)(1) of this clause:
    (i) Shipments of bulk commodities.
    (ii) Shipments to locations other than Defense Distribution Depots 
when the contract includes the clause at FAR 52.213-1, Fast Payment 
Procedures.
    (c) The Contractor shall--
    (1) Ensure that the data encoded on each passive RFID tag are 
globally unique (i.e., the tag ID is never repeated across two or more 
RFID tags) and conforms to the requirements in paragraph (d) of this 
clause;
    (2) Use passive tags that are readable; and
    (3) Ensure that the passive tag is affixed at the appropriate 
location on the specific level of packaging, in accordance with MIL-STD-
129 (Section 4.9.2) tag placement specifications.
    (d) Data syntax and standards. The Contractor shall encode an 
approved RFID tag using the instructions provided in the EPC \TM\ Tag 
Data Standards in effect at the time of contract award. The EPC \TM\ Tag 
Data Standards are available at http://www.gs1.org/epc-rfid''.
    (1) If the Contractor is an EPCglobal \TM\ subscriber and possesses 
a unique EPC \TM\ company prefix, the Contractor may use any of the 
identifiers and encoding instructions described in the most recent EPC 
\TM\ Tag Data Standards document to encode tags.
    (2) If the Contractor chooses to employ the DoD identifier, the 
Contractor shall use its previously assigned Commercial and Government 
Entity (CAGE) code and shall encode the tags in accordance with the tag 
identifier details located in the DoD Suppliers' Passive RFID 
Information Guide at http://www.acq.osd.mil/log/sci/ait.html. If the 
Contractor uses a third-party packaging house to encode its tags, the 
CAGE code of the third-party packaging house is acceptable.
    (3) Regardless of the selected encoding scheme, the Contractor with 
which the Department holds the contract is responsible

[[Page 436]]

for ensuring that the tag ID encoded on each passive RFID tag is 
globally unique, per the requirements in paragraph (c)(1) of this 
clause.
    (e) Advance shipment notice. The Contractor shall use Wide Area 
WorkFlow (WAWF), as required by DFARS 252.232-7003, Electronic 
Submission of Payment Requests, to electronically submit advance 
shipment notice(s) with the RFID tag ID(s) (specified in paragraph (d) 
of this clause) in advance of the shipment in accordance with the 
procedures at https://wawf.eb.mil/.

                             (End of clause)

[70 FR 53968, Sept. 13, 2005, as amended at 71 FR 29086, May 19, 2006; 
72 FR 6483, Feb. 12, 2007; 81 FR 36474, June 7, 2016; 82 FR 61481, Dec. 
28, 2017; 83 FR 12681, Mar. 23, 2018; 84 FR 72563, Dec. 31, 2019]



252.211-7007  Reporting of Government-Furnished Property.

    As prescribed in 211.274-6(b), use the following clause:

          Reporting of Government-Furnished Property (AUG 2012)

    (a) Definitions. As used in this clause--
    ``Commercial and Government entity (CAGE) code'' means--
    (i) A code assigned by the Defense Logistics Agency Logistics 
Information Service to identify a commercial or Government entity; or
    (ii) A code assigned by a member of the North Atlantic Treaty 
Organization that the Defense Logistics Agency Logistics Information 
Service records and maintains in the CAGE master file. The type of code 
is known as an ``NCAGE code.''
    ``Contractor-acquired property'' has the meaning given in FAR clause 
52.245-1. Upon acceptance by the Government, contractor-acquired 
property becomes Government-furnished property.
    ``Government-furnished property'' has the meaning given in FAR 
clause 52.245-1.
    ``Item unique identification (IUID)'' means a system of assigning, 
reporting, and marking DoD property with unique item identifiers that 
have machine-readable data elements to distinguish an item from all 
other like and unlike items.
    ``IUID Registry'' means the DoD data repository that receives input 
from both industry and Government sources and provides storage of, and 
access to, data that identifies and describes tangible Government 
personal property. The IUID Registry is--
    (i) The authoritative source of Government unit acquisition cost for 
items with unique item identification (see DFARS 252.211-7003) that were 
acquired after January 1, 2004;
    (ii) The master data source for Government-furnished property; and
    (iii) An authoritative source for establishing the acquisition cost 
of end-item equipment.
    ``National stock number (NSN)'' means a 13-digit stock number used 
to identify items of supply. It consists of a four-digit Federal Supply 
Code and a nine-digit National Item Identification Number.
    ``Nomenclature'' means--
    (i) The combination of a Government-assigned type designation and an 
approved item name;
    (ii) Names assigned to kinds and groups of products; or
    (iii) Formal designations assigned to products by customer or 
supplier (such as model number or model type, design differentiation, or 
specific design series or configuration).
    ``Part or identifying number (PIN)'' means the identifier assigned 
by the original design activity, or by the controlling nationally 
recognized standard, that uniquely identifies (relative to that design 
activity) a specific item.
    ``Reparable'' means an item, typically in unserviceable condition, 
furnished to the Contractor for maintenance, repair, modification, or 
overhaul.
    ``Serially managed item'' means an item designated by DoD to be 
uniquely tracked, controlled, or managed in maintenance, repair, and/or 
supply systems by means of its serial number.
    ``Supply condition code'' means a classification of materiel in 
terms of readiness for issue and use or to identify action underway to 
change the status of materiel (see http://www2.dla.mil/j-6/dlmso/
elibrary/manuals/dlm/dlm_pubs.asp).
    ``Unique item identifier (UII)'' means a set of data elements 
permanently marked on an item that is globally unique and unambiguous 
and never changes, in order to provide traceability of the item 
throughout its total life cycle. The term includes a concatenated UII or 
a DoD recognized unique identification equivalent.
    ``Unit acquisition cost'' has the meaning given in FAR clause 
52.245-1.
    (b) Reporting Government-furnished property to the IUID Registry. 
Except as provided in paragraph (c) of this clause, the Contractor shall 
report, in accordance with paragraph (f), Government-furnished property 
to the IUID Registry as follows:--
    (1) Up to and including December 31, 2013, report serially managed 
Government-furnished property with a unit-acquisition cost of $5,000 or 
greater.
    (2) Beginning January 1, 2014, report--
    (i) All serially managed Government-furnished property, regardless 
of unit-acquisition cost; and

[[Page 437]]

    (ii) Contractor receipt of non-serially managed items. Unless 
tracked as an individual item, the Contractor shall report non-serially 
managed items to the Registry in the same unit of packaging, e.g., 
original manufacturer's package, box, or container, as it was received.
    (c) Exceptions. Paragraph (b) of this clause does not apply to--
    (1) Contractor-acquired property;
    (2) Property under any statutory leasing authority;
    (3) Property to which the Government has acquired a lien or title 
solely because of partial, advance, progress, or performance-based 
payments;
    (4) Intellectual property or software;
    (5) Real property; or
    (6) Property released for work in process.
    (d) Data for reporting to the IUID Registry. To permit reporting of 
Government-furnished property to the IUID Registry, the Contractor's 
property management system shall enable the following data elements in 
addition to those required by paragraph (f)(1)(iii)(A)(1) through (3), 
(5), (7), (8), and (10) of the Government Property clause of this 
contract (FAR 52.245-1):
    (1) Received/Sent (shipped) date.
    (2) Status code.
    (3) Accountable Government contract number.
    (4) Commercial and Government Entity (CAGE) code on the accountable 
Government contract.
    (5) Mark record.
    (i) Bagged or tagged code (for items too small to individually tag 
or mark).
    (ii) Contents (the type of information recorded on the item, e.g., 
item internal control number).
    (iii) Effective date (date the mark is applied).
    (iv) Added or removed code/flag.
    (v) Marker code (designates which code is used in the marker 
identifier, e.g., D = CAGE, UN = DUNS, LD = DODAAC).
    (vi) Marker identifier, e.g., Contractor's CAGE code or DUNS number.
    (vii) Medium code; how the data is recorded, e.g., barcode, contact 
memory button.
    (viii) Value, e.g., actual text or data string that is recorded in 
its human-readable form.
    (ix) Set (used to group marks when multiple sets exist.
    (6) Appropriate supply condition code, required only for reporting 
of reparables, per Appendix 2 of DoD 4000.25-2-M, Military Standard 
Transaction Reporting and Accounting Procedures manual (http://
www2.dla.mil/j-6/dlmso/elibrary/manuals/dlm/dlm_pubs.asp).
    (e) When Government-furnished property is in the possession of 
subcontractors, Contractors shall ensure that reporting is accomplished 
using the data elements required in paragraph (d) of this clause.
    (f) Procedures for reporting of Government-furnished property. 
Except as provided in paragraph (c) of this clause, the Contractor shall 
establish and report to the IUID Registry the information required by 
FAR clause 52.245-1, paragraphs (e) and (f)(1)(iii), in accordance with 
the data submission procedures at http://www.acq.osd.mil/dpap/pdi/uid/
data_submission_information.html.
    (g) Procedures for updating the IUID Registry.
    (1) Except as provided in paragraph (g)(2), the Contractor shall 
update the IUID Registry at https://
iuid.logisticsinformationservice.dla.mil/ for changes in status, mark, 
custody, condition code (for reparables only), or disposition of items 
that are--
    (i) Received by the Contractor;
    (ii) Delivered or shipped from the Contractor's plant, under 
Government instructions, except when shipment is to a subcontractor or 
other location of the Contractor;
    (iii) Consumed or expended, reasonably and properly, or otherwise 
accounted for, in the performance of the contract as determined by the 
Government property administrator, including reasonable inventory 
adjustments;
    (iv) Disposed of; or
    (v) Transferred to a follow-on or other contract.
    (2) The Contractor need not report to the IUID Registry those 
transactions reported or to be reported to the following DCMA etools:
    (i) Plant Clearance Automated Reutilization and Screening System 
(PCARSS); or
    (ii) Lost, Theft, Damaged or Destroyed (LTDD) system.
    (3) The contractor shall update the IUID Registry as transactions 
occur or as otherwise stated in the Contractor's property management 
procedure.

                             (End of clause)

[77 FR 52257, Aug. 29, 2012, as amended at 78 FR 13544, Feb. 28, 2013]



252.211-7008  Use of Government-assigned Serial Numbers

    As prescribed in 211.274-6(c), use the following clause:

          Use of Government-assigned Serial Numbers (SEP 2010)

    (a) Definitions. As used in this clause--
    Government-assigned serial number means a combination of letters or 
numerals in a fixed human-readable information format (text) conveying 
information about a major end item, which is provided to a contractor by 
the requiring activity with accompanying technical data instructions for 
marking the Government-assigned serial number on

[[Page 438]]

major end items to be delivered to the Government.
    Major end item means a final combination of component parts and/or 
materials which is ready for its intended use and of such importance to 
operational readiness that review and control of inventory management 
functions (procurement, distribution, maintenance, disposal, and asset 
reporting) is required at all levels of life cycle management. Major end 
items include aircraft; ships; boats; motorized wheeled, tracked, and 
towed vehicles for use on highway or rough terrain; weapon and missile 
end items; ammunition; and sets, assemblies, or end items having a major 
end item as a component.
    Unique item identifier (UII) means a set of data elements 
permanently marked on an item that is globally unique and unambiguous 
and never changes in order to provide traceability of the item 
throughout its total life cycle. The term includes a concatenated UII or 
a DoD-recognized unique identification equivalent.
    (b) The Contractor shall mark the Government-assigned serial numbers 
on those major end items as specified by line item in the Schedule, in 
accordance with the technical instructions for the placement and method 
of application identified in the terms and conditions of the contract.
    (c) The Contractor shall register the Government-assigned serial 
number along with the major end item's UII at the time of delivery in 
accordance with the provisions of the clause at DFARS 252.211-7003(d).
    (d) The Contractor shall establish the UII for major end items for 
use throughout the life of the major end item. The Contractor may elect, 
but is not required, to use the Government-assigned serial number to 
construct the UII.

                             (End of clause)

[75 FR 59103, Sept. 27, 2010]



252.212-7000--252.212-7001  [Reserved]



252.212-7002  Pilot Program for Acquisition of Military-purpose 
Nondevelopmental Items.

    As prescribed in 212.7103, use the following provision:

Pilot Program for Acquisition of Military-purpose Nondevelopmental Items 
                               (JUN 2016)

    (a) Definitions. As used in this provision--
    Military-purpose nondevelopmental item means a nondevelopmental item 
that meets a validated military requirement, as determined in writing by 
the responsible program manager, and has been developed exclusively at 
private expense. An item shall not be considered to be developed at 
private expense if development of the item was paid for in whole or in 
part through--
    (1) Independent research and development costs or bid and proposal 
costs, per the definition in FAR 31.205-18, that have been reimbursed 
directly or indirectly by a Federal agency or have been submitted to a 
Federal agency for reimbursement; or
    (2) Foreign government funding.
    ``Nondevelopmental item'' is defined in FAR 2.101 and also includes 
previously developed items of supply that require modifications other 
than those customarily available in the commercial marketplace if such 
modifications are consistent with the requirement at DFARS 212.7102-
1(c)(1).
    (b) Notice. This is a procurement action under section 866 of the 
National Defense Authorization Act for Fiscal Year 2011, Pilot Program 
for Acquisition of Military-Purpose Nondevelopmental Items, as modified 
by section 892 of the National Defense Authorization Act for Fiscal Year 
2016 (Pub. L. 114-92), and is subject to the limitations outlined in 
DFARS 212.7102.

                           (End of provision)

[76 FR 38050, June 29, 2011, as amended at 77 FR 35881, June 15, 2012; 
81 FR 42559, June 30, 2016]



252.213-7000  Notice to Prospective Suppliers on Use of Supplier
Performance Risk System in Past Performance Evaluations.

    As prescribed in 213.106-2-70, use the following provision:

  Notice to Prospective Suppliers on Use of Supplier Performance Risk 
            System in Past Performance Evaluations (SEP 2019)

    (a) The Supplier Performance Risk System (SPSR) application (https:/
/www.sprs.csd.disa.mil) will be used in the evaluation of suppliers' 
past performance in accordance with DFARS 213.106-2(b)(i).
    (b) SPRS collects quality and delivery data on previously awarded 
contracts and orders from existing Department of Defense reporting 
systems to classify each supplier's performance history by Federal 
supply class (FSC) and product or service code (PSC). The SPRS 
application provides the contracting officer quantifiable past 
performance information regarding a supplier's quality and delivery 
performance for the FSC and PSC of the supplies being purchased.
    (c) The quality and delivery classifications identified for a 
supplier in SPRS will be used by the contracting officer to evaluate a 
supplier's past performance in conjunction with the supplier's 
references (if requested) and other provisions of this solicitation 
under the past performance evaluation factor. The

[[Page 439]]

Government reserves the right to award to the supplier whose quotation 
or offer represents the best value to the Government.
    (d) SPRS classifications are generated monthly for each contractor 
and can be reviewed by following the access instructions in the SPRS 
User's Manual found at https://www.sprs.csd.disa.mil/reference.htm. 
Contractors are granted access to SPRS for their own classifications 
only. Suppliers are encouraged to review their own classifications, the 
SPRS reporting procedures and classification methodology detailed in the 
SPRS User's Manual, and SPRSEvaluation Criteria available from the 
references at https://www.sprs.csd.disa.mil/pdf/
SPRS_DataEvaluationCriteria.pdf. The method to challenge a rating 
generated by SPRS is provided in the User's Manual.

                           (End of provision)

[80 FR 30118, May 26, 2015, as amended at 80 FR 36718, June 26, 2015; 83 
FR 12681, Mar. 23, 2018; 84 FR 48508, Sept. 13, 2019]



252.215-7000--252.215-7001  [Reserved]



252.215-7002  Cost estimating system requirements.

    As prescribed in 215.408(1), use the following clause:

             Cost Estimating System Requirements (DEC 2012)

    (a) Definitions.
    Acceptable estimating system means an estimating system that 
complies with the system criteria in paragraph (d) of this clause, and 
provides for a system that--
    (1) Is maintained, reliable, and consistently applied;
    (2) Produces verifiable, supportable, documented, and timely cost 
estimates that are an acceptable basis for negotiation of fair and 
reasonable prices;
    (3) Is consistent with and integrated with the Contractor's related 
management systems; and
    (4) Is subject to applicable financial control systems.
    Estimating system means the Contractor's policies, procedures, and 
practices for budgeting and planning controls, and generating estimates 
of costs and other data included in proposals submitted to customers in 
the expectation of receiving contract awards. Estimating system includes 
the Contractor's--
    (1) Organizational structure;
    (2) Established lines of authority, duties, and responsibilities;
    (3) Internal controls and managerial reviews;
    (4) Flow of work, coordination, and communication; and
    (5) Budgeting, planning, estimating methods, techniques, 
accumulation of historical costs, and other analyses used to generate 
cost estimates.
    Significant deficiency means a shortcoming in the system that 
materially affects the ability of officials of the Department of Defense 
to rely upon data and information produced by the system that is needed 
for management purposes.
    (b) General. The Contractor shall establish, maintain, and comply 
with an acceptable estimating system.
    (c) Applicability. Paragraphs (d) and (e) of this clause apply if 
the Contractor is a large business and either--
    (1) In its fiscal year preceding award of this contract, received 
Department of Defense (DoD) prime contracts or subcontracts, totaling 
$50 million or more for which certified cost or pricing data were 
required; or
    (2) In its fiscal year preceding award of this contract--
    (i) Received DoD prime contracts or subcontracts totaling $10 
million or more (but less than $50 million) for which certified cost or 
pricing data were required; and
    (ii) Was notified, in writing, by the Contracting Officer that 
paragraphs (d) and (e) of this clause apply.
    (d) System requirements. (1) The Contractor shall disclose its 
estimating system to the Administrative Contracting Officer (ACO), in 
writing. If the Contractor wishes the Government to protect the data and 
information as privileged or confidential, the Contractor must mark the 
documents with the appropriate legends before submission.
    (2) An estimating system disclosure is acceptable when the 
Contractor has provided the ACO with documentation that--
    (i) Accurately describes those policies, procedures, and practices 
that the Contractor currently uses in preparing cost proposals; and
    (ii) Provides sufficient detail for the Government to reasonably 
make an informed judgment regarding the acceptability of the 
Contractor's estimating practices.
    (3) The Contractor shall--
    (i) Comply with its disclosed estimating system; and
    (ii) Disclose significant changes to the cost estimating system to 
the ACO on a timely basis.
    (4) The Contractor's estimating system shall provide for the use of 
appropriate source data, utilize sound estimating techniques and good 
judgment, maintain a consistent approach, and adhere to established 
policies and procedures. An acceptable estimating system shall 
accomplish the following functions:
    (i) Establish clear responsibility for preparation, review, and 
approval of cost estimates and budgets.

[[Page 440]]

    (ii) Provide a written description of the organization and duties of 
the personnel responsible for preparing, reviewing, and approving cost 
estimates and budgets.
    (iii) Ensure that relevant personnel have sufficient training, 
experience, and guidance to perform estimating and budgeting tasks in 
accordance with the Contractor's established procedures.
    (iv) Identify and document the sources of data and the estimating 
methods and rationale used in developing cost estimates and budgets.
    (v) Provide for adequate supervision throughout the estimating and 
budgeting process.
    (vi) Provide for consistent application of estimating and budgeting 
techniques.
    (vii) Provide for detection and timely correction of errors.
    (viii) Protect against cost duplication and omissions.
    (ix) Provide for the use of historical experience, including 
historical vendor pricing data, where appropriate.
    (x) Require use of appropriate analytical methods.
    (xi) Integrate data and information available from other management 
systems.
    (xii) Require management review, including verification of 
compliance with the company's estimating and budgeting policies, 
procedures, and practices.
    (xiii) Provide for internal review of, and accountability for, the 
acceptability of the estimating system, including the budgetary data 
supporting indirect cost estimates and comparisons of projected results 
to actual results, and an analysis of any differences.
    (xiv) Provide procedures to update cost estimates and notify the 
Contracting Officer in a timely manner throughout the negotiation 
process.
    (xv) Provide procedures that ensure subcontract prices are 
reasonable based on a documented review and analysis provided with the 
prime proposal, when practicable.
    (xvi) Provide estimating and budgeting practices that consistently 
generate sound proposals that are compliant with the provisions of the 
solicitation and are adequate to serve as a basis to reach a fair and 
reasonable price.
    (xvii) Have an adequate system description, including policies, 
procedures, and estimating and budgeting practices, that comply with the 
Federal Acquisition Regulation and Defense Federal Acquisition 
Regulation Supplement.
    (e) Significant deficiencies. (1) The Contracting Officer will 
provide an initial determination to the Contractor, in writing, of any 
significant deficiencies. The initial determination will describe the 
deficiency in sufficient detail to allow the Contractor to understand 
the deficiency.
    (2) The Contractor shall respond within 30 days to a written initial 
determination from the Contracting Officer that identifies significant 
deficiencies in the Contractor's estimating system. If the Contractor 
disagrees with the initial determination, the Contractor shall state, in 
writing, its rationale for disagreeing.
    (3) The Contracting Officer will evaluate the Contractor's response 
and notify the Contractor, in writing, of the Contracting Officer's 
final determination concerning--
    (i) Remaining significant deficiencies;
    (ii) The adequacy of any proposed or completed corrective action; 
and
    (iii) System disapproval, if the Contracting Officer determines that 
one or more significant deficiencies remain.
    (f) If the Contractor receives the Contracting Officer's final 
determination of significant deficiencies, the Contractor shall, within 
45 days of receipt of the final determination, either correct the 
significant deficiencies or submit an acceptable corrective action plan 
showing milestones and actions to eliminate the significant 
deficiencies.
    (g) Withholding payments. If the Contracting Officer makes a final 
determination to disapprove the Contractor's estimating system, and the 
contract includes the clause at 252.242-7005, Contractor Business 
Systems, the Contracting Officer will withhold payments in accordance 
with that clause.

                             (End of clause)

[76 FR 28873, May 18, 2011, as amended at 77 FR 11366, Feb. 24, 2012; 77 
FR 11775, Feb. 28, 2012; 77 FR 76941, Dec. 31, 2012; 83 FR 30825, June 
29, 2018]



252.215-7003  Requirement for Submission of Data Other Than Certified
Cost or Pricing Data--Canadian Commercial Corporation.

    As prescribed at 215.408(2)(i), use the following provision:

Requirement for Submission of Data Other Than Certified Cost or Pricing 
            Data--Canadian Commercial Corporation (JUL 2012)

    (a) Submission of certified cost or pricing data is not required.
    (b) Canadian Commercial Corporation shall obtain and provide the 
following:
    (i) Profit rate or fee (as applicable).
    (ii) Analysis provided by Public Works and Government Services 
Canada to the Canadian Commercial Corporation to determine a fair and 
reasonable price (comparable to the analysis required at FAR 15.404-1).
    (iii) Data other than certified cost or pricing data necessary to 
permit a determination by the U.S. Contracting Officer that the proposed 
price is fair and reasonable [U.S.

[[Page 441]]

Contracting Officer to insert description of the data required in 
accordance with FAR 15.403-3(a)(1)].
    (c) As specified in FAR 15.403-3(a)(4), an offeror who does not 
comply with a requirement to submit data that the U.S. Contracting 
Officer has deemed necessary to determine price reasonableness or cost 
realism is ineligible for award unless the head of the contracting 
activity determines that it is in the best interest of the Government to 
make the award to that offeror.

                           (End of provision)

[77 FR 43473, July 24, 2012, as amended at 78 FR 65217, Oct. 31, 2013; 
83 FR 30825, June 29, 2018]



252.215-7004  Requirement for Submission of Data Other Than Certified
Cost or Pricing Data--Modifications-Canadian Commercial Corporation.

    As prescribed at 215.408(2)(ii), use the following clause:

Requirement for Submission of Data Other Than Certified Cost or Pricing 
     Data--Modifications--Canadian Commercial Corporation (OCT 2013)

    This clause, in lieu of FAR 52.215-21, applies only if award is to 
the Canadian Commercial Corporation.
    (a) Submission of certified cost or pricing data is not required.
    (b) Canadian Commercial Corporation shall obtain and provide the 
following for modifications that exceed $150,000 [or higher dollar value 
specified by the U.S. Contracting Officer in the solicitation].
    (i) Profit rate or fee (as applicable).
    (ii) Analysis provided by Public Works and Government Services 
Canada to the Canadian Commercial Corporation to determine a fair and 
reasonable price (comparable to the analysis required at FAR 15.404-1).
    (iii) Data other than certified cost or pricing data necessary to 
permit a determination by the U.S. Contracting Officer that the proposed 
price is fair and reasonable [U.S. Contracting Officer to insert 
description of the data required in accordance with FAR 15.403-3(a)(1)].

                             (End of clause)

[77 FR 43473, July 24, 2012, as amended at 78 FR 65217, Oct. 31, 2013; 
83 FR 30825, June 29, 2018]



252.215-7005  Evaluation Factor for Employing or Subcontracting With
Members of the Selected Reserve.

    As prescribed in 215.370-3(a), use the following provision:

 Evaluation Factor for Employing or Subcontracting With Members of the 
                       Selected Reserve (OCT 2008)

    (a) Definition. Selected Reserve, as used in this provision, has the 
meaning given that term in 10 U.S.C. 10143. Selected Reserve members 
normally attend regular drills throughout the year and are the group of 
Reserves most readily available to the President.
    (b) This solicitation includes an evaluation factor that considers 
the offeror's intended use of employees, or individual subcontractors, 
who are members of the Selected Reserve.
    (c) If the offeror, in the performance of any contract resulting 
from this solicitation, intends to use employees or individual 
subcontractors who are members of the Selected Reserve, the offeror's 
proposal shall include documentation to support this intent. Such 
documentation may include, but is not limited to--
    (1) Existing company documentation, such as payroll or personnel 
records, indicating the names of the Selected Reserve members who are 
currently employed by the company; or
    (2) A statement that one or more positions will be set aside to be 
filled by new hires of Selected Reserve members, along with verifying 
documentation.

                           (End of provision)

[73 FR 62212, Oct. 20, 2008]



252.215-7006  Use of Employees or Individual Subcontractors Who Are 
Members of the Selected Reserve.

    As prescribed in 215.370-3(b), use the following clause:

  Use of Employees or Individual Subcontractors Who Are Members of the 
                       Selected Reserve (OCT 2008)

    (a) Definition. Selected Reserve, as used in this clause, has the 
meaning given that term in 10 U.S.C. 10143. Selected Reserve members 
normally attend regular drills throughout the year and are the group of 
Reserves most readily available to the President.
    (b) If the Contractor stated in its offer that it intends to use 
members of the Selected Reserve in the performance of this contract--
    (1) The Contractor shall use employees, or individual 
subcontractors, who are members of the Selected Reserve in the 
performance

[[Page 442]]

of the contract to the fullest extent consistent with efficient contract 
performance; and
    (2) The Government has the right to terminate the contract for 
default if the Contractor willfully or intentionally fails to use 
members of the Selected Reserve, as employees or individual 
subcontractors, in the performance of the contract.

                             (End of clause)

[73 FR 62212, Oct. 20, 2008]



252.215-7007  Notice of Intent to Resolicit.

    As prescribed at 215.371-6, use the following provision:

                Notice of Intent To Resolicit (JUN 2012)

    This solicitation provides offerors fewer than 30 days to submit 
proposals. In the event that only one offer is received in response to 
this solicitation, the Contracting Officer may cancel the solicitation 
and resolicit for an additional period of at least 30 days in accordance 
with 215.371-2.

                           (End of provision)

[77 FR 39139, June 29, 2012, as amended at 78 FR 65217, Oct. 31, 2013]



252.215-7008  Only One Offer.

    As prescribed at 215.408(3), use the following provision:

                        Only One Offer (JUL 2019)

    (a) Cost or pricing data requirements. After initial submission of 
offers, if the Contracting Officer notifies the Offeror that only one 
offer was received, the Offeror agrees to--
    (1) Submit any additional cost or pricing data that is required in 
order to determine whether the price is fair and reasonable or to comply 
with the statutory requirement for certified cost or pricing data (10 
U.S.C. 2306a and FAR 15.403-3); and
    (2) Except as provided in paragraph (b) of this provision, if the 
acquisition exceeds the certified cost or pricing data threshold and an 
exception to the requirement for certified cost or pricing data at FAR 
15.403-1(b)(2) through (5) does not apply, certify all cost or pricing 
data in accordance with paragraph (c) of DFARS provision 252.215-7010, 
Requirements for Certified Cost or Pricing Data and Data Other Than 
Certified Cost or Pricing Data, of this solicitation.
    (b) Canadian Commercial Corporation. If the Offeror is the Canadian 
Commercial Corporation, certified cost or pricing data are not required. 
If the Contracting Officer notifies the Canadian Commercial Corporation 
that additional data other than certified cost or pricing data are 
required in accordance with DFARS 225.870-4(c), the Canadian Commercial 
Corporation shall obtain and provide the following:
    (1) Profit rate or fee (as applicable).
    (2) Analysis provided by Public Works and Government Services Canada 
to the Canadian Commercial Corporation to determine a fair and 
reasonable price (comparable to the analysis required at FAR 15.404-1).
    (3) Data other than certified cost or pricing data necessary to 
permit a determination by the U.S. Contracting Officer that the proposed 
price is fair and reasonable [U.S. Contracting Officer to provide 
description of the data required in accordance with FAR 15.403-3(a)(1) 
with the notification].
    (4) As specified in FAR 15.403-3(a)(4), an offeror who does not 
comply with a requirement to submit data that the U.S. Contracting 
Officer has deemed necessary to determine price reasonableness or cost 
realism is ineligible for award unless the head of the contracting 
activity determines that it is in the best interest of the Government to 
make the award to that offeror.
    (c) Subcontracts. Unless the Offeror is the Canadian Commercial 
Corporation, the Offeror shall insert the substance of this provision, 
including this paragraph (c), in all subcontracts exceeding the 
simplified acquisition threshold defined in FAR part 2.

                           (End of provision)

[78 FR 65217, Oct. 31, 2013, as amended at 83 FR 30825, June 29, 2018; 
84 FR 30950, June 28, 2019; 84 FR 33858, July 16, 2019]



252.215-7009  Proposal adequacy checklist.

    As prescribed in 215.408(4), use the following provision:

                 Proposal Adequacy Checklist (JAN 2014)

    The offeror shall complete the following checklist, providing 
location of requested information, or an explanation of why the 
requested information is not provided. In preparation of the offeror's 
checklist, offerors may elect to have their prospective subcontractors 
use the same or similar checklist as appropriate.

[[Page 443]]



                                           Proposal Adequacy Checklist
----------------------------------------------------------------------------------------------------------------
                                                                                         If not provided EXPLAIN
            References                         Submission item               Proposal     (may use continuation
                                                                             page No.            pages)
----------------------------------------------------------------------------------------------------------------
                                              GENERAL INSTRUCTIONS
----------------------------------------------------------------------------------------------------------------
1. FAR 15.408, Table 15-2,         Is there a properly completed first
 Section I Paragraph A.             page of the proposal per FAR 15.408
                                    Table 15-2 I.A or as specified in the
                                    solicitation?
2. FAR 15.408, Table 15-2,         Does the proposal identify the need
 Section I Paragraph A(7).          for Government-furnished material/
                                    tooling/test equipment? Include the
                                    accountable contract number and
                                    contracting officer contact
                                    information if known.
3. FAR 15.408, Table 15-2,         Does the proposal identify and explain
 Section I Paragraph A(8).          notifications of noncompliance with
                                    Cost Accounting Standards Board or
                                    Cost Accounting Standards (CAS); any
                                    proposal inconsistencies with your
                                    disclosed practices or applicable
                                    CAS; and inconsistencies with your
                                    established estimating and accounting
                                    principles and procedures?
4. FAR 15.408, Table 15-2,         Does the proposal disclose any other
 Section I, Paragraph C(1).         known activity that could materially
                                    impact the costs?
FAR 2.101, ``Cost or pricing       This may include, but is not limited
 data''.                            to, such factors as--
                                   (1) Vendor quotations;
                                   (2) Nonrecurring costs;
                                   (3) Information on changes in
                                    production methods and in production
                                    or purchasing volume;
                                   (4) Data supporting projections of
                                    business prospects and objectives and
                                    related operations costs;
                                   (5) Unit-cost trends such as those
                                    associated with labor efficiency;
                                   (6) Make-or-buy decisions;
                                   (7) Estimated resources to attain
                                    business goals; and
                                   (8) Information on management
                                    decisions that could have a
                                    significant bearing on costs.
5. FAR 15.408, Table 15-2,         Is an Index of all certified cost or
 Section I Paragraph B.             pricing data and information
                                    accompanying or identified in the
                                    proposal provided and appropriately
                                    referenced?
6. FAR 15.403-1(b)...............  Are there any exceptions to submission
                                    of certified cost or pricing data
                                    pursuant to FAR 15.403-1(b)? If so,
                                    is supporting documentation included
                                    in the proposal? (Note questions 18-
                                    20.)
7. FAR 15.408, Table 15-2,         Does the proposal disclose the
 Section I Paragraph C(2)(i).       judgmental factors applied and the
                                    mathematical or other methods used in
                                    the estimate, including those used in
                                    projecting from known data?
8. FAR 15.408, Table 15-2,         Does the proposal disclose the nature
 Section I Paragraph C(2)(ii).      and amount of any contingencies
                                    included in the proposed price?
9. FAR 15.408 Table 15-2, Section  Does the proposal explain the basis of
 II, Paragraph A or B.              all cost estimating relationships
                                    (labor hours or material) proposed on
                                    other than a discrete basis?
10. FAR 15.408, Table 15-2,        Is there a summary of total cost by
 Section I Paragraphs D and E.      element of cost and are the elements
                                    of cost cross-referenced to the
                                    supporting cost or pricing data?
                                    (Breakdowns for each cost element
                                    must be consistent with your cost
                                    accounting system, including
                                    breakdown by year.)

[[Page 444]]

 
11. FAR 15.408, Table 15-2,        If more than one Contract Line Item
 Section I Paragraphs D and E.      Number (CLIN) or sub Contract Line
                                    Item Number (sub-CLIN) is proposed as
                                    required by the RFP, are there
                                    summary total amounts covering all
                                    line items for each element of cost
                                    and is it cross-referenced to the
                                    supporting cost or pricing data?
12. FAR 15.408, Table 15-2,        Does the proposal identify any
 Section I Paragraph F.             incurred costs for work performed
                                    before the submission of the
                                    proposal?
13. FAR 15.408, Table 15-2,        Is there a Government forward pricing
 Section I Paragraph G.             rate agreement (FPRA)? If so, the
                                    offeror shall identify the official
                                    submittal of such rate and factor
                                    data. If not, does the proposal
                                    include all rates and factors by year
                                    that are utilized in the development
                                    of the proposal and the basis for
                                    those rates and factors?
----------------------------------------------------------------------------------------------------------------
                                                  COST ELEMENTS
----------------------------------------------------------------------------------------------------------------
                                             MATERIALS AND SERVICES
----------------------------------------------------------------------------------------------------------------
14. FAR 15.408, Table 15-2,        Does the proposal include a
 Section II Paragraph A.            consolidated summary of individual
                                    material and services, frequently
                                    referred to as a Consolidated Bill of
                                    Material (CBOM), to include the basis
                                    for pricing? The offeror's
                                    consolidated summary shall include
                                    raw materials, parts, components,
                                    assemblies, subcontracts and services
                                    to be produced or performed by
                                    others, identifying as a minimum the
                                    item, source, quantity, and price.
----------------------------------------------------------------------------------------------------------------
                                 SUBCONTRACTS (Purchased materials or services)
----------------------------------------------------------------------------------------------------------------
15. DFARS 215.404-3..............  Has the offeror identified in the
                                    proposal those subcontractor
                                    proposals, for which the contracting
                                    officer has initiated or may need to
                                    request field pricing analysis?
16. FAR 15.404-3(c)..............  Per the thresholds of FAR 15.404-3(c),
FAR 52.244-2.....................   Subcontract Pricing Considerations,
                                    does the proposal include a copy of
                                    the applicable subcontractor's
                                    certified cost or pricing data?
17. FAR 15.408, Table 15-2, Note   Is there a price/cost analysis
 1; Section II Paragraph A.         establishing the reasonableness of
                                    each of the proposed subcontracts
                                    included with the proposal? If the
                                    offeror's price/cost analyses are not
                                    provided with the proposal, does the
                                    proposal include a matrix identifying
                                    dates for receipt of subcontractor
                                    proposal, completion of fact finding
                                    for purposes of price/cost analysis,
                                    and submission of the price/cost
                                    analysis?
----------------------------------------------------------------------------------------------------------------
                                  EXCEPTIONS TO CERTIFIED COST OR PRICING DATA
----------------------------------------------------------------------------------------------------------------
18. FAR 52.215-20................  Has the offeror submitted an exception
FAR 2.101, ``commercial item''...   to the submission of certified cost
                                    or pricing data for commercial items
                                    proposed either at the prime or
                                    subcontractor level, in accordance
                                    with provision 52.215-20?

[[Page 445]]

 
                                   a. Has the offeror specifically
                                    identified the type of commercial
                                    item claim (FAR 2.101 commercial item
                                    definition, paragraphs (1) through
                                    (8)), and the basis on which the item
                                    meets the definition?
                                   b. For modified commercial items (FAR
                                    2.101 commercial item definition
                                    paragraph (3)); did the offeror
                                    classify the modification(s) as
                                    either--
                                     i. A modification of a type
                                   customarily available in the
                                   commercial marketplace (paragraph
                                   (3)(i)); or
                                     ii. A minor modification (paragraph
                                   (3)(ii)) of a type not customarily
                                   available in the commercial
                                   marketplace made to meet Federal
                                   Government requirements not exceeding
                                   the thresholds in FAR 15.403-
                                   1(c)(3)(iii)(B)?
                                   c. For proposed commercial items ``of
                                    a type'', or ``evolved'' or modified
                                    (FAR 2.101 commercial item definition
                                    paragraphs (1) through (3)), did the
                                    contractor provide a technical
                                    description of the differences
                                    between the proposed item and the
                                    comparison item(s)?
19...............................  [Reserved]
20. FAR 15.408, Table 15-2,        Does the proposal support the degree
 Section II Paragraph A(1).         of competition and the basis for
                                    establishing the source and
                                    reasonableness of price for each
                                    subcontract or purchase order priced
                                    on a competitive basis exceeding the
                                    threshold for certified cost or
                                    pricing data?
----------------------------------------------------------------------------------------------------------------
                                          INTERORGANIZATIONAL TRANSFERS
----------------------------------------------------------------------------------------------------------------
21. FAR 15.408, Table 15-2,        For inter-organizational transfers
 Section II Paragraph A.(2).        proposed at cost, does the proposal
                                    include a complete cost proposal in
                                    compliance with Table 15-2?
22. FAR 15.408, Table 15-2,        For inter-organizational transfers
 Section II Paragraph A(1).         proposed at price in accordance with
                                    FAR 31.205-26(e), does the proposal
                                    provide an analysis by the prime that
                                    supports the exception from certified
                                    cost or pricing data in accordance
                                    with FAR 15.403-1?
----------------------------------------------------------------------------------------------------------------
                                                  DIRECT LABOR
----------------------------------------------------------------------------------------------------------------
23. FAR 15.408, Table 15-2,        Does the proposal include a time
 Section II Paragraph B.            phased (i.e.; monthly, quarterly)
                                    breakdown of labor hours, rates and
                                    costs by category or skill level? If
                                    labor is the allocation base for
                                    indirect costs, the labor cost must
                                    be summarized in order that the
                                    applicable overhead rate can be
                                    applied.
24. FAR 15.408, Table 15-2,        For labor Basis of Estimates (BOEs),
 Section II Paragraph B.            does the proposal include labor
                                    categories, labor hours, and task
                                    descriptions--(e.g.; Statement of
                                    Work reference, applicable CLIN, Work
                                    Breakdown Structure, rationale for
                                    estimate, applicable history, and
                                    time-phasing)?

[[Page 446]]

 
25. FAR subpart 22.10............  If covered by the Service Contract
                                    Labor Standards statute (41 U.S.C.
                                    chapter 67), are the rates in the
                                    proposal in compliance with the
                                    minimum rates specified in the
                                    statute?
----------------------------------------------------------------------------------------------------------------
                                                 INDIRECT COSTS
----------------------------------------------------------------------------------------------------------------
26. FAR 15.408, Table 15-2,        Does the proposal indicate the basis
 Section II Paragraph C.            of estimate for proposed indirect
                                    costs and how they are applied?
                                    (Support for the indirect rates could
                                    consist of cost breakdowns, trends,
                                    and budgetary data.)
----------------------------------------------------------------------------------------------------------------
                                                   OTHER COSTS
----------------------------------------------------------------------------------------------------------------
27. FAR 15.408, Table 15-2,        Does the proposal include other direct
 Section II Paragraph D.            costs and the basis for pricing? If
                                    travel is included does the proposal
                                    include number of trips, number of
                                    people, number of days per trip,
                                    locations, and rates (e.g. airfare,
                                    per diem, hotel, car rental, etc)?
28. FAR 15.408, Table 15-2,        If royalties exceed $1,500 does the
 Section II Paragraph E.            proposal provide the information/data
                                    identified by Table 15-2?
29. FAR 15.408, Table 15-2,        When facilities capital cost of money
 Section II Paragraph F.            is proposed, does the proposal
                                    include submission of Form CASB-CMF
                                    or reference to an FPRA/FPRP and show
                                    the calculation of the proposed
                                    amount?
----------------------------------------------------------------------------------------------------------------
                                  FORMATS FOR SUBMISSION OF LINE ITEM SUMMARIES
----------------------------------------------------------------------------------------------------------------
30. FAR 15.408, Table 15-2,        Are all cost element breakdowns
 Section III.                       provided using the applicable format
                                    prescribed in FAR 15.408, Table 15-2
                                    III? (or alternative format if
                                    specified in the request for
                                    proposal)
31. FAR 15.408, Table 15-2,        If the proposal is for a modification
 Section III Paragraph B.           or change order, have cost of work
                                    deleted (credits) and cost of work
                                    added (debits) been provided in the
                                    format described in FAR 15.408, Table
                                    15-2.III.B?
32. FAR 15.408, Table 15-2,        For price revisions/redeterminations,
 Section III Paragraph C.           does the proposal follow the format
                                    in FAR 15.408, Table 15-2.III.C?
----------------------------------------------------------------------------------------------------------------
                                                      OTHER
----------------------------------------------------------------------------------------------------------------
33. FAR 16.4.....................  If an incentive contract type, does
                                    the proposal include offeror proposed
                                    target cost, target profit or fee,
                                    share ratio, and, when applicable,
                                    minimum/maximum fee, ceiling price?
34. FAR 16.203-4 and FAR 15.408    If Economic Price Adjustments are
 Table 15-2, Section II,            being proposed, does the proposal
 Paragraphs A, B, C, and D.         show the rationale and application
                                    for the economic price adjustment?
35. FAR 52.232-28................  If the offeror is proposing
                                    Performance-Based Payments--did the
                                    offeror comply with FAR 52.232-28?

[[Page 447]]

 
36. FAR 15.408(n)................  Excessive Pass-through Charges--
FAR 52.215-22....................   Identification of Subcontract Effort:
FAR 52.215-23....................   If the offeror intends to subcontract
                                    more than 70% of the total cost of
                                    work to be performed, does the
                                    proposal identify:
                                   (i) the amount of the offeror's
                                    indirect costs and profit applicable
                                    to the work to be performed by the
                                    proposed subcontractor(s); and (ii) a
                                    description of the added value
                                    provided by the offeror as related to
                                    the work to be performed by the
                                    proposed subcontractor(s)?
----------------------------------------------------------------------------------------------------------------

                           (End of provision)

[78 FR 18872, Mar. 28, 2013, as amended at 78 FR 65218, Oct. 31, 2013; 
79 FR 4633, Jan. 29, 2014; 83 FR 30825, June 29, 2018]



252.215-7010  Requirements for Certified Cost or Pricing Data and
Data Other Than Certified Cost or Pricing Data.

    Basic. As prescribed in 215.408(5)(i) and (5)(i)(A), use the 
following provision:

  Requirements for Certified Cost or Pricing Data and Data Other Than 
            Certified Cost or Pricing Data--Basic (JUL 2019)

    (a) Definitions. As used in this provision--
    Market prices means current prices that are established in the 
course of ordinary trade between buyers and sellers free to bargain and 
that can be substantiated through competition or from sources 
independent of the offerors.
    Non-Government sales means sales of the supplies or services to non-
Governmental entities for purposes other than governmental purposes.
    Relevant sales data means information provided by an offeror on 
sales of the same or similar items that can be used to establish price 
reasonableness taking into consideration the age, volume, and nature of 
the transactions (including any related discounts, refunds, rebates, 
offsets, or other adjustments).
    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).
    Uncertified cost data means the subset of ``data other than 
certified cost or pricing data'' (see FAR 2.101) that relates to cost.
    (b) Exceptions from certified cost or pricing data. (1) In lieu of 
submitting certified cost or pricing data, the Offeror may submit a 
written request for exception by submitting the information described in 
paragraphs (b)(1)(i) and (ii) of this provision. The Contracting Officer 
may require additional supporting information, but only to the extent 
necessary to determine whether an exception should be granted and 
whether the price is fair and reasonable.
    (i) Exception for prices set by law or regulation--Identification of 
the law or regulation establishing the prices offered. If the prices are 
controlled under law by periodic rulings, reviews, or similar actions of 
a governmental body, attach a copy of the controlling document, unless 
it was previously submitted to the contracting office.
    (ii) Commercial item exception. For a commercial item exception, the 
Offeror shall submit, at a minimum, information that is adequate for 
evaluating the reasonableness of the price for this acquisition, 
including prices at which the same item or similar items have been sold 
in the commercial market. Such information shall include--
    (A) For items previously determined to be commercial, the contract 
number and military department, defense agency, or other DoD component 
that rendered such determination, and if available, a Government point 
of contact;
    (B) For items priced based on a catalog--
    (1) A copy of or identification of the Offeror's current catalog 
showing the price for that item; and
    (2) If the catalog pricing provided with this proposal is not 
consistent with all relevant sales data, a detailed description of 
differences or inconsistencies between or among the relevant sales data, 
the proposed price, and the catalog price (including any related 
discounts, refunds, rebates, offsets, or other adjustments);

[[Page 448]]

    (C) For items priced based on market pricing, a description of the 
nature of the commercial market, the methodology used to establish a 
market price, and all relevant sales data. The description shall be 
adequate to permit the DoD to verify the accuracy of the description;
    (D) For items included on an active Federal Supply Service Multiple 
Award Schedule contract, proof that an exception has been granted for 
the schedule item; or
    (E) For items provided by nontraditional defense contractors, a 
statement that the entity is not currently performing and has not 
performed, for at least the 1-year period preceding the solicitation of 
sources by DoD for the procurement or transaction, any contract or 
subcontract for DoD that is subject to full coverage under the cost 
accounting standards prescribed pursuant to 41 U.S.C. 1502 and the 
regulations implementing such section.
    (2) The Offeror grants the Contracting Officer or an authorized 
representative the right to examine, at any time before award, books, 
records, documents, or other directly pertinent records to verify any 
request for an exception under this provision, and to determine the 
reasonableness of price.
    (c) Requirements for certified cost or pricing data. If the Offeror 
is not granted an exception from the requirement to submit certified 
cost or pricing data, the following applies:
    (1) The Offeror shall prepare and submit certified cost or pricing 
data and supporting attachments in accordance with the instructions 
contained in Table 15-2 of FAR 15.408, which is incorporated by 
reference with the same force and effect as though it were inserted here 
in full text. The instructions in Table 15-2 are incorporated as a 
mandatory format to be used in any resultant contract, unless the 
Contracting Officer and the Offeror agree to a different format and 
change this provision to use Alternate I.
    (2) As soon as practicable after agreement on price, but before 
contract award (except for unpriced actions such as letter contracts), 
the Offeror shall submit a Certificate of Current Cost or Pricing Data, 
as prescribed by FAR 15.406-2.
    (3) The Offeror is responsible for determining whether a 
subcontractor qualifies for an exception from the requirement for 
submission of certified cost or pricing data on the basis of adequate 
price competition, i.e., two or more responsible offerors, competing 
independently, submit priced offers that satisfy the Government's 
expressed requirement in accordance with FAR 15.403-1(c)(1)(i).
    (d) Requirements for data other than certified cost or pricing data. 
(1) Data other than certified cost or pricing data submitted in 
accordance with this provision shall include the minimum information 
necessary to permit a determination that the proposed price is fair and 
reasonable, to include the requirements in DFARS 215.402(a)(i) and 
215.404-1(b).
    (2) In cases in which uncertified cost data is required, the 
information shall be provided in the form in which it is regularly 
maintained by the Offeror or prospective subcontractor in its business 
operations.
    (3) Within 10 days of a written request from the Contracting Officer 
for additional information to permit an adequate evaluation of the 
proposed price in accordance with FAR 15.403-3, the Offeror shall 
provide either the requested information, or a written explanation for 
the inability to fully comply.
    (4) Subcontract price evaluation. (i) Offerors shall obtain from 
subcontractors the minimum information necessary to support a 
determination of price reasonableness, as described in FAR part 15 and 
DFARS part 215.
    (ii) No cost data may be required from a prospective subcontractor 
in any case in which there are sufficient non-Government sales of the 
same item to establish reasonableness of price.
    (iii) If the Offeror relies on relevant sales data for similar items 
to determine the price is reasonable, the Offeror shall obtain only that 
technical information necessary--
    (A) To support the conclusion that items are technically similar; 
and
    (B) To explain any technical differences that account for variances 
between the proposed prices and the sales data presented.
    (e) Subcontracts. The Offeror shall insert the substance of this 
provision, including this paragraph (e), in subcontracts exceeding the 
simplified acquisition threshold defined in FAR part 2. The Offeror 
shall require prospective subcontractors to adhere to the requirements 
of--
    (1) Paragraphs (c) and (d) of this provision for subcontracts above 
the threshold for submission of certified cost or pricing data in FAR 
15.403-4; and
    (2) Paragraph (d) of this provision for subcontracts exceeding the 
simplified acquisition threshold defined in FAR part 2.

                           (End of provision)

    Alternate I. As prescribed in 215.408(5)(i) and (5)(i)(B), use the 
following provision, which includes a different paragraph (c)(1).

  Requirements for Certified Cost or Pricing Data and Data Other Than 
         Certified Cost or Pricing Data--Alternate I (JUN 2019)

    (a) Definitions. As used in this provision--
    Market prices means current prices that are established in the 
course of ordinary trade between buyers and sellers free to bargain and 
that can be substantiated through competition or from sources 
independent of the offerors.

[[Page 449]]

    Non-Government sales means sales of the supplies or services to non-
Governmental entities for purposes other than governmental purposes.
    Relevant sales data means information provided by an offeror on 
sales of the same or similar items that can be used to establish price 
reasonableness taking into consideration the age, volume, and nature of 
the transactions (including any related discounts, refunds, rebates, 
offsets, or other adjustments).
    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).
    Uncertified cost data means the subset of ``data other than 
certified cost or pricing data'' (see FAR 2.101) that relates to cost.
    (b) Exceptions from certified cost or pricing data. (1) In lieu of 
submitting certified cost or pricing data, the Offeror may submit a 
written request for exception by submitting the information described in 
paragraphs (b)(1)(i) and (ii) of this provision. The Contracting Officer 
may require additional supporting information, but only to the extent 
necessary to determine whether an exception should be granted and 
whether the price is fair and reasonable.
    (i) Exception for price set by law or regulation--Identification of 
the law or regulation establishing the price offered. If the price is 
controlled under law by periodic rulings, reviews, or similar actions of 
a governmental body, attach a copy of the controlling document, unless 
it was previously submitted to the contracting office.
    (ii) Commercial item exception. For a commercial item exception, the 
Offeror shall submit, at a minimum, information that is adequate for 
evaluating the reasonableness of the price for this acquisition, 
including prices at which the same item or similar items have been sold 
in the commercial market. Such information shall include--
    (A) For items previously determined to be commercial, the contract 
number and military department, defense agency, or other DoD component 
that rendered such determination, and if available, a Government point 
of contact;
    (B) For items priced based on a catalog--
    (1) A copy of or identification of the Offeror's current catalog 
showing the price for that item; and
    (2) If the catalog pricing provided with this proposal is not 
consistent with all relevant sales data, a detailed description of 
differences or inconsistencies between or among the relevant sales data, 
the proposed price, and the catalog price (including any related 
discounts, refunds, rebates, offsets, or other adjustments);
    (C) For items priced based on market pricing, a description of the 
nature of the commercial market, the methodology used to establish a 
market price, and all relevant sales data. The description shall be 
adequate to permit the DoD to verify the accuracy of the description;
    (D) For items included on an active Federal Supply Service Multiple 
Award Schedule contract, proof that an exception has been granted for 
the schedule item; or
    (E) For items provided by nontraditional defense contractors, a 
statement that the entity is not currently performing and has not 
performed, for at least the 1-year period preceding the solicitation of 
sources by the DoD for the procurement or transaction, any contract or 
subcontract for the DoD that is subject to full coverage under the cost 
accounting standards prescribed pursuant to 41 U.S.C. 1502 and the 
regulations implementing such section.
    (2) The Offeror grants the Contracting Officer or an authorized 
representative the right to examine, at any time before award, books, 
records, documents, or other directly pertinent records to verify any 
request for an exception under this provision, and to determine the 
reasonableness of price.
    (c) Requirements for certified cost or pricing data. If the Offeror 
is not granted an exception from the requirement to submit certified 
cost or pricing data, the following applies:
    (1) The Offeror shall submit certified cost or pricing data and 
supporting attachments in the following format: [Insert description of 
the data and format that are required, and include access to records 
necessary to permit an adequate evaluation of the proposed price in 
accordance with FAR 15.408, Table 15-2, Note 2. The Contracting Officer 
shall insert the description at the time of issuing the solicitation or 
specify that the format regularly maintained by the offeror or 
prospective subcontractor in its business operations will be acceptable. 
The Contracting Officer may amend the description as the result of 
negotiations.]
    (2) As soon as practicable after agreement on price, but before 
contract award (except for unpriced actions such as letter contracts), 
the Offeror shall submit a Certificate of Current Cost or Pricing Data, 
as prescribed by FAR 15.406-2.
    (3) The Offeror is responsible for determining whether a 
subcontractor qualifies for an exception from the requirement for 
submission of certified cost or pricing data on the basis of adequate 
price competition, i.e., two or more responsible offerors, competing 
independently, submit priced offers that satisfy the Government's 
expressed requirement in accordance with FAR 15.403-1(c)(1)(i).
    (d) Requirements for data other than certified cost or pricing data. 
(1) Data other than certified cost or pricing data submitted in 
accordance with this provision shall include all data necessary to 
permit a determination

[[Page 450]]

that the proposed price is fair and reasonable, to include the 
requirements in DFARS 215.402(a)(i) and 215.404-1(b).
    (2) In cases in which uncertified cost data is required, the 
information shall be provided in the form in which it is regularly 
maintained by the Offeror or prospective subcontractor in its business 
operations.
    (3) The Offeror shall provide information described as follows: 
[Insert description of the data and the format that are required, 
including access to records necessary to permit an adequate evaluation 
of the proposed price in accordance with FAR 15.403-3.]
    (4) Within 10 days of a written request from the Contracting Officer 
for additional information to support proposal analysis, the Offeror 
shall provide either the requested information, or a written explanation 
for the inability to fully comply.
    (5) Subcontract price evaluation. (i) Offerors shall obtain from 
subcontractors the information necessary to support a determination of 
price reasonableness, as described in FAR part 15 and DFARS part 215.
    (ii) No cost information may be required from a prospective 
subcontractor in any case in which there are sufficient non-Government 
sales of the same item to establish reasonableness of price.
    (iii) If the Offeror relies on relevant sales data for similar items 
to determine the price is reasonable, the Offeror shall obtain only that 
technical information necessary--
    (A) To support the conclusion that items are technically similar; 
and
    (B) To explain any technical differences that account for variances 
between the proposed prices and the sales data presented.
    (e) Subcontracts. The Offeror shall insert the substance of this 
provision, including this paragraph (e), in all subcontracts exceeding 
the simplified acquisition threshold defined in FAR part 2. The Offeror 
shall require prospective subcontractors to adhere to the requirements 
of--
    (1) Paragraph (c) and (d) of this provision for subcontracts above 
the threshold for submission of certified cost or pricing data in FAR 
15.403-4; and
    (2) Paragraph (d) of this provision for subcontracts exceeding the 
simplified acquisition threshold defined in FAR part 2.

                           (End of provision)

[83 FR 4445, Jan. 31, 2018, as amended at 83 FR 30825, June 29, 2018; 84 
FR 30950, June 28, 2019; 84 FR 33858, July 16, 2019]



252.215-7011  Requirements for Submission of Proposals to the
Administrative Contracting Officer and Contract Auditor.

    As prescribed in 215.408(5)(ii), use the following provision:

     Requirements for Submission of Proposals to the Administrative 
           Contracting Officer and Contract Auditor (JAN 2018)

    When the proposal is submitted, the Offeror shall also submit one 
copy each to--
    (a) The Administrative Contracting Officer; and
    (b) The Contract Auditor.

                           (End of provision)

[83 FR 4447, Jan. 31, 2018, as amended at 83 FR 30825, June 29, 2018]



252.215-7012  Requirements for Submission of Proposals via Electronic Media.

    As prescribed in 215.408(5)(iii), use the following provision:

Requirements for Submission of Proposals Via Electronic Media (JAN 2018)

    The Offeror shall submit the cost portion of the proposal via the 
following electronic media: [Insert media format, e.g., electronic 
spreadsheet format, electronic mail, etc.]

                           (End of provision)

[83 FR 4447, Jan. 31, 2018, as amended at 83 FR 30825, June 29, 2018]



252.215-7013  Supplies and Services Provided by Nontraditional Defense
Contractors.

    As prescribed in 215.408(6), use the following provision:

Supples and Services Provided by Nontraditional Defense Contractors (JAN 
                                  2018)

    Offerors are advised that in accordance with 10 U.S.C. 2380a, 
supplies and services provided by a nontraditional defense contractor, 
as defined in DFARS 212.001, may be treated as commercial items. The 
decision to apply commercial item procedures to the procurement of 
supplies and services from a nontraditional defense contractor does not 
require a commercial item determination and does not mean the supplies 
or services are commercial.

                           (End of provision)

[83 FR 4447, Jan. 31, 2018, as amended at 83 FR 30825, June 29, 2018]

[[Page 451]]



252.215-7014  Exception from Certified Cost or Pricing Data 
Requirements for Foreign Military Sales Indirect Offsets.

    As prescribed in 215.408(8), use the following clause:

 Exception From Certified Cost or Pricing Data Requirements for Foreign 
               Military Sales Indirect Offsets (JUN 2018)

    (a) Definition. As used in this clause--
    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.
    (i) A direct offset involves benefits or obligations, including 
supplies or services that are directly related to the item 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.
    (ii) 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.
    (b) Exceptions from certified cost or pricing data requirements. 
Notwithstanding the requirements of Federal Acquisition Regulation (FAR) 
52.215-20, Requirements for Certified Cost or Pricing Data and Data 
Other Than Certified Cost or Pricing Data, in the case of this contract 
or a subcontract, and FAR 52.215-21, Requirements for Certified Cost or 
Pricing Data and Data Other Than Certified Cost or Pricing Data--
Modifications, in the case of modification of this contract or a 
subcontract, submission of certified cost or pricing data shall not be 
required to the extent such data relates to an indirect offset (10 
U.S.C. 2306a(b)(1)).

                             (End of clause)

[83 FR 30829, June 29, 2018]



252.215-7015  Program Should-Cost Review.

    As prescribed in 215.408(8), use the following clause:

                  Program Should-Cost Review (NOV 2019)

    (a) The Government has the right to perform a program should-cost 
review, as described in Federal Acquisition Regulation (FAR) 15.407-
4(b). The review may be conducted in support of a particular contract 
proposal or during contract performance to find opportunities to reduce 
program costs. The Government will communicate the elements of the 
proposed should-cost review to the prime contractor (Pub. L. 115-91).
    (b) If the Government performs a program should-cost review, upon 
the Government's request, the Contractor shall provide access to 
accurate and complete cost data and Contractor facilities and personnel 
necessary to permit the Government to perform the program should-cost 
review.
    (c) The Government has the right to use third-party experts to 
supplement the program should-cost review team. The Contractor shall 
provide access to the Contractor's facilities and information necessary 
to support the program should-cost review to any third-party experts who 
have signed non-disclosure agreements in accordance with the FAR 52.203-
16.

                             (End of clause)

[84 FR 65309, Nov. 27, 2019]



252.216-7000  Economic price adjustment--basic steel, aluminum, 
brass, bronze, or copper mill products.

    As prescribed in 216.203-4-70(a)(1), use the following clause:

  Economic Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, or 
                     Copper Mill Products (MAR 2012)

    (a) Definitions. As used in this clause--
    Established price means a price which is an established catalog or 
market price for a commercial item sold in substantial quantities to the 
general public.
    Unit price excludes any part of the price which reflects 
requirements for preservation, packaging, and packing beyond standard 
commercial practice.
    (b) As represented by the Contractor in its offer, the unit price 
stated for ________ (Identify the item) is not in excess of the 
Contractor's established price in effect on the date set for opening of 
bids (or

[[Page 452]]

the contract date if this is a negotiated contract) for like quantities 
of the same item. This price is the net price after applying any 
applicable standard trade discounts offered by the Contractor from its 
catalog, list, or schedule price.
    (c) The Contractor shall promptly notify the Contracting Officer of 
the amount and effective date of each decrease in any established price.
    (1) Each corresponding contract unit price shall be decreased by the 
same percentage that the established price is decreased.
    (2) This decrease shall apply to items delivered on or after the 
effective date of the decrease in the Contractor's established price.
    (3) This contract shall be modified accordingly.
    (d) If the Contractor's established price is increased after the 
date set for opening of bids (or the contract date if this is a 
negotiated contract), upon the Contractor's written request to the 
Contracting Officer, the corresponding contract unit price shall be 
increased by the same percentage that the established price is 
increased, and this contract shall be modified accordingly, provided--
    (1) The aggregate of the increases in any contract unit price under 
this contract shall not exceed 10 percent of the original contract unit 
price;
    (2) The increased contract unit price shall be effective on the 
effective date of the increase in the applicable established price if 
the Contractor's written request is received by the Contracting Officer 
within ten days of the change. If it is not, the effective date of the 
increased unit price shall be the date of receipt of the request by the 
Contracting Officer; and
    (3) The increased contract unit price shall not apply to quantities 
scheduled for delivery before the effective date of the increased 
contract unit price unless the Contractor's failure to deliver before 
that date results from causes beyond the control and without the fault 
or negligence of the Contractor, within the meaning of the Default 
clause of this contract.
    (4) The Contracting Officer shall not execute a modification 
incorporating an increase in a contract unit price under this clause 
until the increase is verified.
    (e) Within 30 days after receipt of the Contractor's written 
request, the Contracting Officer may cancel, without liability to either 
party, any portion of the contract affected by the requested increase 
and not delivered at the time of such cancellation, except as follows--
    (1) The Contractor may, after that time, deliver any items that were 
completed or in the process of manufacture at the time of receipt of the 
cancellation notice, provided the Contractor notifies the Contracting 
Officer of such items within 10 days after the Contractor receives the 
cancellation notice.
    (2) The Government shall pay for those items at the contract unit 
price increased to the extent provided by paragraph (d) of this clause.
    (3) Any standard steel supply item shall be deemed to be in the 
process of manufacture when the steel for that item is in the state of 
processing after the beginning of the furnace melt.
    (f) Pending any cancellation of this contract under paragraph (e) of 
this clause, or if there is no cancellation, the Contractor shall 
continue deliveries according to the delivery schedule of the contract. 
The Contractor shall be paid for those deliveries at the contract unit 
price increased to the extent provided by paragraph (d) of this clause.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 62 FR 2614, Jan. 17, 1997; 62 
FR 40473, July 29, 1997; 77 FR 19130, Mar. 30, 2012]



252.216-7001  Economic price adjustment--nonstandard steel items.

    As prescribed in 216.203-4-70(b), use the following clause:

      Economic Price Adjustment--Nonstandard Steel Items (JUL 1997)

    (a) Definitions. As used in this clause--
    Base labor index means the average of the labor indices for the 
three months which consist of the month of bid opening (or offer 
submission) and the months immediately preceding and following that 
month.
    Base steel index means the Contractor's established price (see note 
6) including all applicable extras of $____ per _____ (see note 1) for 
_____ (see note 2) on the date set for bid opening (or the date of 
submission of the offer).
    Current labor index means the average of the labor indices for the 
month in which delivery of supplies is required to be made and the month 
preceding.
    Current steel index means the Contractor's established price (see 
note 6) for that item, including all applicable extras in effect ____ 
days (see note 3) prior to the first day of the month in which delivery 
is required.
    Established price is--
    (1) A price which is an established catalog or market price of a 
commercial item sold in substantial quantities to the general public; 
and
    (2) The net price after applying any applicable standard trade 
discounts offered by the Contractor from its catalog, list, or schedule 
price. (But see Note 6.)

[[Page 453]]

    Labor index means the average straight time hourly earnings of the 
Contractor's employees in the ____ shop of the Contractor's _____ plant 
(see note 4) for any particular month.
    Month means calendar month. However, if the Contractor's accounting 
period does not coincide with the calendar month, then that accounting 
period shall be used in lieu of month.
    (b) Each contract unit price shall be subject to revision, under the 
terms of this clause, to reflect changes in the cost of labor and steel. 
For purpose of this price revision, the proportion of the contract unit 
price attributable to costs of labor not otherwise included in the price 
of the steel item identified under the base steel index definition in 
paragraph (a) shall be ___ percent, and the proportion of the contract 
unit price attributable to the cost of steel shall be ___ percent. (See 
note 5.)
    (c)(1) Unless otherwise specified in this contract, the labor index 
shall be computed by dividing the total straight time earnings of the 
Contractor's employees in the shop identified in paragraph (a) for any 
given month by the total number of straight time hours worked by those 
employees in that month.
    (2) Any revision in a contract unit price to reflect changes in the 
cost of labor shall be computed solely by reference to the ``base labor 
index'' and the ``current labor index.''
    (d) Any revision in a contract unit price to reflect changes in the 
cost of steel shall be computed solely by reference to the ``base steel 
index'' and the ``current steel index.''
    (e)(1) Each contract unit price shall be revised for each month in 
which delivery of supplies is required to be made.
    (2) The revised contract unit price shall apply to the deliveries of 
those quantities required to be made in that month regardless of when 
actual delivery is made.
    (3) Each revised contract unit price shall be computed by adding--
    (i) The adjusted cost of labor (obtained by multiplying ___ percent 
of the contract unit price by a fraction, of which the numerator shall 
be the current labor index and the denominator shall be the base labor 
index);
    (ii) The adjusted cost of steel (obtained by multiplying ___ percent 
of the contract unit price by a fraction, of which the numerator shall 
be the current steel index and the denominator shall be the base steel 
index); and
    (iii) The amount equal to ___ percent of the original contract unit 
price (representing that portion of the unit price which relates neither 
to the cost of labor nor the cost of steel, and which is therefore not 
subject to revision (see note 5)).
    (4) The aggregate of the increases in any contract unit price under 
this contract shall not exceed ten percent of the original contract unit 
price.
    (5) Computations shall be made to the nearest one-hundredth of one 
cent.
    (f)(1) Pending any revisions of the contract unit prices, the 
Contractor shall be paid the contract unit price for deliveries made.
    (2) Within 30 days after final delivery (or such other period as may 
be authorized by the Contracting Officer), the Contractor shall furnish 
a statement identifying the correctness of--
    (i) The average straight time hourly earnings of the Contractor's 
employees in the shop identified in paragraph (a) that are relevant to 
the computations of the base labor index and the current labor index; 
and
    (ii) The Contractor's established prices (see note 6), including all 
applicable extras for like quantities of the item that are relevant to 
the computation of the base steel index and the current steel index.
    (3) Upon request of the Contracting Officer, the Contractor shall 
make available all records used in the computation of the labor indices.
    (4) Upon receipt of the statement, the Contracting Officer will 
compute the revised contract unit prices and modify the contract 
accordingly. No modification to this contract will be made pursuant to 
this clause until the Contracting Officer has verified the revised 
established price (see note 6).
    (g)(1) In the event any item of this contract is subject to a total 
or partial termination for convenience, the month in which the 
Contractor receives notice of the termination, if prior to the month in 
which delivery is required, shall be considered the month in which 
delivery of the terminated item is required for the purposes of 
determining the current labor and steel indices under paragraphs (c) and 
(d).
    (2) For any item which is not terminated for convenience, the month 
in which delivery is required under the contract shall continue to apply 
for determining those indices with respect to the quantity of the non-
terminated item.
    (3) If this contract is terminated for default, any price revision 
shall be limited to the quantity of the item which has been delivered by 
the Contractor and accepted by the Government prior to receipt by the 
Contractor of the notice of termination.
    (h) If the Contractor's failure to make delivery of any required 
quantity arises out of causes beyond the control and without the fault 
or negligence of the Contractor, within the meaning of the clause of 
this contract entitled ``Default,'' the quantity not delivered shall be 
delivered as promptly as possible after the cessation of the cause of 
the failure, and the delivery schedule set forth in this contract shall 
be amended accordingly.
    Notes:

[[Page 454]]

    1 Offeror insert the unit price and unit measure of the standard 
steel mill item to be used in the manufacture of the contract item.
    2 Offeror identify the standard steel mill item to be used in the 
manufacture of the contract item.
    3 Offeror insert best estimate of the number of days required for 
processing the standard steel mill item in the shop identified under the 
labor index definition.
    4 Offeror identify the shop and plant in which the standard steel 
mill item identified under the base steel index definition will be 
finally fabricated or processed into the contract item.
    5 Offeror insert the same percentage figures for the corresponding 
blanks in paragraphs (b), (e)(3)(i), and (e)(3)(ii). In paragraph 
(e)(3)(iii), insert the percentage representing the difference between 
the sum of the percentages inserted in paragraph (b) and 100 percent.
    6 In negotiated acquisitions of nonstandard steel items, when there 
is no established price or when it is not desirable to use this price, 
this paragraph may refer to another appropriate price basis, e.g., an 
established interplant price.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 62 FR 2614, Jan. 17, 1997; 62 
FR 40473, July 29, 1997]



252.216-7002  Alternate A, Time-and-Materials/Labor-Hour Proposal 
Requirements--Non-Commercial Item Acquisition With Adequate Price
Competition.

    As prescribed in 216.601(e), substitute the following paragraph (c) 
for paragraph (c) of the provision at FAR 52.216-29:

 Alternate A, Time-and-Materials/Labor-Hour Proposal Requirements--Non-
 Commercial Item Acquisition With Adequate Price Competition (FEB 2007)

    (c) The offeror must establish fixed hourly rates using separate 
rates for each category of labor to be performed by each subcontractor 
and for each category of labor to be performed by the offeror, and for 
each category of labor to be transferred between divisions, 
subsidiaries, or affiliates of the offeror under a common control.

[71 FR 74471, Dec. 12, 2006]



252.216-7003  Economic price adjustment--wage rates or material prices controlled by a foreign government.

    As prescribed in 216.203-4-70(c)(1), use the following clause:

Economic Price Adjustment--Wage Rates or Material Prices Controlled by a 
                      Foreign Government (MAR 2012)

    (a) As represented by the Contractor in its offer, the prices set 
forth in this contract--
    (1) Are based on the wage rates or material prices established and 
controlled by the government of the country specified by the Contractor 
in its offer; and
    (2) Do not include contingency allowances to pay for possible 
increases in wage rates or material prices.
    (b) If wage rates or material prices are revised by the government 
named in paragraph (a) of this clause, the Contracting Officer shall 
make an equitable adjustment in the contract price and shall modify the 
contract to the extent that the Contractor's actual costs of performing 
this contract are increased or decreased, as a direct result of the 
revision, subject to the following:
    (1) For increases in established wage rates or material prices, the 
increase in contract unit price(s) shall be effective on the same date 
that the government named in paragraph (a) of this clause increased the 
applicable wage rate(s) or material price(s), but only if the 
Contracting Officer receives the Contractor's written request for 
contract adjustment within 10 days of the change. If the Contractor's 
request is received later, the effective date shall be the date that the 
Contracting Officer received the Contractor's request.
    (2) For decreases in established wage rates or material prices, the 
decrease in contract unit price(s) shall be effective on the same date 
that the government named in paragraph (a) of this clause decreased the 
applicable wage rate(s) or material price(s). The decrease in contract 
unit price(s) shall apply to all items delivered on and after the 
effective date of the government's rate or price decrease.
    (c) No modification changing the contract unit price(s) shall be 
executed until the Contracting Officer has verified the applicable 
change in the rates or prices set by the government named in paragraph 
(a) of this clause. The Contractor shall make available its books and 
records that support a requested change in contract price.
    (d) Failure to agree to any adjustment shall be a dispute under the 
Disputes clause of this contract.

[[Page 455]]

                             (End of clause)

[62 FR 34128, June 24, 1997]



252.216-7004  Award Fee Reduction or Denial for Jeopardizing the
Health or Safety of Government Personnel.

    As prescribed in 216.406(e) use the following clause:

 Award Fee Reduction or Denial for Jeopardizing the Health or Safety of 
                     Government Personnel (SEP 2011)

    (a) Definitions. As used in this clause--
    Covered incident--
    (i) Means any incident in which the Contractor, through a criminal, 
civil, or administrative proceeding that results in a disposition listed 
in paragraph (a)(ii) of this definition--
    (A) Has been determined in the performance of this contract to have 
caused serious bodily injury or death of any civilian or military 
personnel of the Government through gross negligence or with reckless 
disregard for the safety of such personnel; or
    (B) Has been determined to be liable for actions of a subcontractor 
of the Contractor that caused serious bodily injury or death of any 
civilian or military personnel of the Government through gross 
negligence or with reckless disregard for the safety of such personnel.
    (ii) Includes those incidents that have resulted in any of the 
following dispositions:
    (A) In a criminal proceeding, a conviction.
    (B) In a civil proceeding, a finding of fault or liability that 
results in the payment of a monetary fine, penalty, reimbursement, 
restitution, or damage of $5,000 or more.
    (C) In an administrative proceeding, a finding of fault and 
liability that results in--
    (1) The payment of a monetary fine or penalty of $5,000 or more; or
    (2) The payment of a reimbursement, restitution, or damages in 
excess of $100,000.
    (D) In a criminal, civil, or administrative proceeding, a 
disposition of the matter by consent or compromise with an 
acknowledgment of fault by the Contractor if the proceeding could have 
led to any of the outcomes specified in subparagraphs (a)(ii)(A), 
(a)(ii)
    (B), or (a)(ii)(C).
    (E) In a DoD investigation of the Contractor or its subcontractors 
at any tier not subject to the jurisdiction of the U.S. courts, a final 
determination by the Secretary of Defense of Contractor or subcontractor 
fault (see DFARS 216.405-2-70.
    Serious bodily injury means a grievous physical harm that results in 
a permanent disability.
    (b) If, in the performance of this contract, the Contractor's or its 
subcontractor's actions cause serious bodily injury or death of civilian 
or military Government personnel, the Government may reduce or deny the 
award fee for the period in which the covered incident occurred, 
including the recovery of all or part of any award fees paid for any 
previous period during which the covered incident occurred.

                             (End of clause)

[76 FR 57677, Sept. 16, 2011, as amended at 83 FR 49181, Sept. 28, 2018]



252.216-7006  [Reserved]



252.216-7007  Economic price adjustment--basic steel, aluminum, brass,
bronze, or copper mill products-representation.

    As prescribed in 216.203-4-70(a)(2), use the following provision:

  Economic Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, or 
             Copper Mill Products--Representation (MAR 2012)

    (a) Definitions. The terms ``established price'' and ``unit price,'' 
as used in this provision, have the meaning given in the clause 252.216-
7000, Economic Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, 
or Copper Mill Products.
    (b) By submission of its offer, the offeror represents that the unit 
price stated in this offer for ________ (Identify the item) is not in 
excess of the offeror's established price in effect on the date set for 
opening of bids (or the contract date if this is to be a negotiated 
contract) for like quantities of the same item. This price is the net 
price after applying any applicable standard trade discounts offered by 
the offeror from its catalog, list, or schedule price.

                           (End of provision)

[77 FR 19131, Mar. 30, 2012]



252.216-7008  Economic price adjustment--wage rates or material prices
controlled by a foreign government--representation.

    As prescribed in 216.203-4-70(c)(2), use the following provision:

Economic Price Adjustment--Wage Rates or Material Prices Controlled by a 
              Foreign Government--Representation (MAR 2012)

    (a) By submission of its offer, the offeror represents that the 
prices set forth in this offer--
    (1) Are based on the wage rate(s) or material price(s) established 
and controlled by

[[Page 456]]

the government of ________ (Offeror insert name of host country), and
    (2) Do not include contingency allowances to pay for possible 
increases in wage rates or material prices.

                           (End of provision)

[77 FR 19131, Mar. 30, 2012]



252.216-7009  Allowability of legal costs incurred in connection with
a whistleblower proceeding.

    As prescribed in 216.307(a), use the following clause:

Allowability of Legal Costs Incurred in Connection With a Whistleblower 
                          Proceeding (SEP 2013)

    Pursuant to section 827 of the National Defense Authorization Act 
for Fiscal year 2013 (Pub. L. 112-239), notwithstanding FAR clause 
52.216-7, Allowable Cost and Payment--
    (1) The restrictions of FAR 31.205-47(b) on allowability of costs 
related to legal and other proceedings also apply to any proceeding 
brought by a contractor employee submitting a complaint under 10 U.S.C. 
2409, entitled ``Contractor employees: protection from reprisal for 
disclosure of certain information;'' and
    (2) Costs incurred in connection with a proceeding that is brought 
by a contractor employee submitting a complaint under 10 U.S.C. 2409 are 
also unallowable if the result is an order to take corrective action 
under 10 U.S.C. 2409.

                             (End of clause)

[78 FR 59861, Sept. 30, 2013]



252.217-7000  Exercise of option to fulfill foreign military sales 
commitments.

    Basic. As prescribed in 217.208-70(a) and (a)(1), use the following 
clause:

Exercise of Option To Fulfill Foreign Military Sales Commitments--Basic 
                               (NOV 2014)

    (a) The Government may exercise the option(s) of this contract to 
fulfill foreign military sales commitments.
    (b) The foreign military sales commitments are for:
________________________________________________________________________
(Insert name of country)
________________________________________________________________________
(Insert applicable CLIN)

                             (End of clause)

    Alternate I. As prescribed in 217.208(a) and (a)(2), use the 
following clause, which uses a different paragraph (b) than paragraph 
(b) of the basic clause:

   Exercise of Option to Fulfill Foreign Military Sales Commitments--
                         Alternate I (NOV 2014)

    (a) The Government may exercise the option(s) of this contract to 
fulfill foreign military sales commitments.
    (b) On the date the option is exercised, the Government shall 
identify the foreign country for the purpose of negotiating any 
equitable adjustment attributable to foreign military sales. Failure to 
agree on an equitable adjustment shall be treated as a dispute under the 
Disputes clause of this contract.

                              End of clause

[56 FR 36479, July 31, 1991, as amended at 79 FR 65594, Nov. 5, 2014; 80 
FR 36898, June 26, 2015]



252.217-7001  Surge option.

    As prescribed in 217.208-70(b), use the following clause:

                         Surge Option (DEC 2018)

    (a) General. The Government has the option to--
    (1) Increase the quantity of supplies or services called for under 
this contract by no more than __percent or __[insert quantity and 
description of services or supplies to be increased]; and/or
    (2) Accelerate the rate of delivery called for under this contract, 
at a price or cost established before contract award or to be 
established by negotiation as provided in this clause.
    (b) Schedule. (1) When the Capabilities Analysis Plan (CAP) is 
included in the contract, the option delivery schedule shall be the 
production rate provided with the Plan. If the Plan was negotiated 
before contract award, then the negotiated schedule shall be used.
    (2) If there is no CAP in the contract, the Contractor shall, within 
30 days from the date of award, furnish the Contracting Officer a 
delivery schedule showing the maximum sustainable rate of delivery for 
items in this contract. This delivery schedule shall provide 
acceleration by month up to the maximum sustainable rate of delivery 
achievable within the Contractor's existing facilities, equipment, and 
subcontracting structure.

[[Page 457]]

    (3) The Contractor shall not revise the option delivery schedule 
without approval from the Contracting Officer.
    (c) Exercise of option. (1) The Contracting Officer may exercise 
this option at any time before acceptance by the Government of the final 
scheduled delivery.
    (2) The Contracting Officer will provide a preliminary oral or 
written notice to the Contractor stating the quantities to be added or 
accelerated under the terms of this clause, followed by a contract 
modification incorporating the transmitted information and instructions. 
The notice and modification will establish a not-to-exceed price equal 
to the highest contract unit price or cost of the added or accelerated 
items as of the date of the notice.
    (3) The Contractor will not be required to deliver at a rate greater 
than the maximum sustainable delivery rate under paragraph (b)(2) of 
this clause, nor will the exercise of this option extend delivery more 
than 24 months beyond the scheduled final delivery.
    (d) Price negotiation. (1) Unless the option cost or price was 
previously agreed upon, the Contractor shall, within 30 days from the 
date of option exercise, submit to the Contracting Officer a cost or 
price proposal (including a cost breakdown) for the added or accelerated 
items.
    (2) Failure to agree on a cost or price in negotiations resulting 
from the exercise of this option shall constitute a dispute concerning a 
question of fact within the meaning of the Disputes clause of this 
contract. However, nothing in this clause shall excuse the Contractor 
from proceeding with the performance of the contract, as modified, while 
any resulting claim is being settled.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 57 FR 42633, Sept. 15, 1992; 
83 FR 62503, Dec. 4, 2018]



252.217-7002  Offering property for exchange.

    As prescribed in 217.7005, use the following provision:

                Offering Property for Exchange (JUN 2012)

    (a) The property described in item number ____, is being offered in 
accordance with the exchange provisions of 40 U.S.C. 503.
    (b) The property is located at (insert address). Offerors may 
inspect the property during the period (insert beginning and ending 
dates and insert hours during day).

                           (End of provision)

[56 FR 36479, July 31, 1991, as amended at 77 FR 35882, June 15, 2012]



252.217-7003  Changes.

    As prescribed in 217.7104(a), use the following clause:

                           Changes (DEC 1991)

    (a) The Contracting Officer may, at any time and without notice to 
the sureties, by written change order, make changes within the general 
scope of any job order issued under the Master Agreement in--
    (1) Drawings, designs, plans, and specifications;
    (2) Work itemized;
    (3) Place of performance of the work;
    (4) Time of commencement or completion of the work; and
    (5) Any other requirement of the job order.
    (b) If a change causes an increase or decrease in the cost of, or 
time required for, performance of the job order, whether or not changed 
by the order, the Contracting Officer shall make an equitable adjustment 
in the price or date of completion, or both, and shall modify the job 
order in writing.
    (1) Within ten days after the Contractor receives notification of 
the change, the Contractor shall submit to the Contracting Officer a 
request for price adjustment, together with a written estimate of the 
increased cost.
    (2) The Contracting Officer may grant an extension of this period if 
the Contractor requests it within the ten day period.
    (3) If the circumstances justify it, the Contracting Officer may 
accept and grant a request for equitable adjustment at any later time 
prior to final payment under the job order, except that the Contractor 
may not receive profit on a payment under a late request.
    (c) If the Contractor includes in its claim the cost of property 
made obsolete or excess as a result of a change, the Contracting Officer 
shall have the right to prescribe the manner of disposition of that 
property.
    (d) Failure to agree to any adjustment shall be a dispute within the 
meaning of the Disputes clause.
    (e) Nothing in this clause shall excuse the Contractor from 
proceeding with the job order as changed.

                             (End of clause)

[75 FR 49849, Aug. 16, 2010]



252.217-7004  Job orders and compensation.

    As prescribed in 217.7104(a), use the following clause:

[[Page 458]]

                 Job Orders and Compensation (MAY 2006)

    (a) The Contracting Officer shall solicit bids or proposals and make 
award of job orders. The issuance of a job order signed by the 
Contracting Officer constitutes award. The job order shall incorporate 
the terms and conditions of the Master Agreement.
    (b) Whenever the Contracting Officer determines that a vessel, its 
cargo or stores, would be endangered by delay, or whenever the 
Contracting Officer determines that military necessity requires that 
immediate work on a vessel is necessary, the Contracting Officer may 
issue a written order to perform that work and the Contractor hereby 
agrees to comply with that order and to perform work on such vessel 
within its capabilities.
    (1) As soon as practicable after the issuance of the order, the 
Contracting Officer and the Contractor shall negotiate a price for the 
work and the Contracting Officer shall issue a job order covering the 
work.
    (2) The Contractor shall, upon request, furnish the Contracting 
Officer with a breakdown of costs incurred by the Contractor and an 
estimate of costs expected to be incurred in the performance of the 
work. The Contractor shall maintain, and make available for inspection 
by the Contracting Officer or the Contracting Officer's representative, 
records supporting the cost of performing the work.
    (3) Failure of the parties to agree upon the price of the work shall 
constitute a dispute within the meaning of the Disputes clause of the 
Master Agreement. In the meantime, the Contractor shall diligently 
proceed to perform the work ordered.
    (c)(1) If the nature of any repairs is such that their extent and 
probable cost cannot be ascertained readily, the Contracting Officer may 
issue a job order (on a sealed bid or negotiated basis) to determine the 
nature and extent of required repairs.
    (2) Upon determination by the Contracting Officer of what work is 
necessary, the Contractor, if requested by the Contracting Officer, 
shall negotiate prices for performance of that work. The prices agreed 
upon shall be set forth in a modification of the job order.
    (3) Failure of the parties to agree upon the price shall constitute 
a dispute under the Disputes clause. In the meantime, the Contractor 
shall diligently proceed to perform the work ordered.

                             (End of clause)

[75 FR 49849, Aug. 16, 2010]



252.217-7005  Inspection and manner of doing work.

    As prescribed in 217.7104(a), use the following clause:

             Inspection and Manner of Doing Work (JUL 2009)

    (a) The Contractor shall perform work in accordance with the job 
order, any drawings and specifications made a part of the job order, and 
any change or modification issued under the Changes clause of the Master 
Agreement.
    (b)(1) Except as provided in paragraph (b) (2) of this clause, and 
unless otherwise specifically provided in the job order, all operational 
practices of the Contractor and all workmanship, material, equipment, 
and articles used in the performance of work under the Master Agreement 
shall be in accordance with the best commercial marine practices and the 
rules and requirements of the American Bureau of Shipping, the U.S. 
Coast Guard, and the Institute of Electrical and Electronic Engineers, 
in effect at the time of Contractor's submission of bid (or acceptance 
of the job order, if negotiated).
    (2) When Navy specifications are specified in the job order, the 
Contractor shall follow Navy standards of material and workmanship. The 
solicitation shall prescribe the Navy standard whenever applicable.
    (c) The Government may inspect and test all material and workmanship 
at any time during the Contractor's performance of the work.
    (1) If, prior to delivery, the Government finds any material or 
workmanship is defective or not in accordance with the job order, in 
addition to its rights under the Guarantees clause of the Master 
Agreement, the Government may reject the defective or nonconforming 
material or workmanship and require the Contractor to correct or replace 
it at the Contractor's expense.
    (2) If the Contractor fails to proceed promptly with the replacement 
or correction of the material or workmanship, the Government may replace 
or correct the defective or nonconforming material or workmanship and 
charge the Contractor the excess costs incurred.
    (3) As specified in the job order, the Contractor shall provide and 
maintain an inspection system acceptable to the Government.
    (4) The Contractor shall maintain complete records of all inspection 
work and shall make them available to the Government during performance 
of the job order and for 90 days after the completion of all work 
required.
    (d) The Contractor shall not permit any welder to work on a vessel 
unless the welder is, at the time of the work, qualified to the 
standards established by the U.S. Coast Guard, American Bureau of 
Shipping, or Department of the Navy for the type of welding being 
performed. Qualifications of a welder shall be as specified in the job 
order.
    (e) The Contractor shall--

[[Page 459]]

    (1) Exercise reasonable care to protect the vessel from fire;
    (2) Maintain a reasonable system of inspection over activities 
taking place in the vicinity of the vessel's magazines, fuel oil tanks, 
or storerooms containing flammable materials;
    (3) Maintain a reasonable number of hose lines ready for immediate 
use on the vessel at all times while the vessel is berthed alongside the 
Contractor's pier or in dry dock or on a marine railway;
    (4) Unless otherwise provided in a job order, provide sufficient 
security patrols to reasonably maintain a fire watch for protection of 
the vessel when it is in the Contractor's custody;
    (5) To the extent necessary, clean, wash, and steam out or otherwise 
make safe, all tanks under alteration or repair;
    (6) Furnish the Contracting Officer or designated representative 
with a copy of the ``gas-free'' or ``safe-for-hotwork'' certificate, 
provided by a Marine Chemist or Coast Guard authorized person in 
accordance with Occupational Safety and Health Administration 
regulations (29 CFR 1915.14) before any hot work is done on a tank;
    (7) Treat the contents of any tank as Government property in 
accordance with the Government Property clause; and
    (8) Dispose of the contents of any tank only at the direction, or 
with the concurrence, of the Contracting Officer.
    (f) Except as otherwise provided in the job order, when the vessel 
is in the custody of the Contractor or in dry dock or on a marine 
railway and the temperature is expected to go as low as 35 [deg]F, the 
Contractor shall take all necessary steps to--
    (1) Keep all hose pipe lines, fixtures, traps, tanks, and other 
receptacles on the vessel from freezing; and
    (2) Protect the stern tube and propeller hubs from frost damage.
    (g) The Contractor shall, whenever practicable--
    (1) Perform the required work in a manner that will not interfere 
with the berthing and messing of Government personnel attached to the 
vessel; and
    (2) Provide Government personnel attached to the vessel access to 
the vessel at all times.
    (h) Government personnel attached to the vessel shall not interfere 
with the Contractor's work or workers.
    (i)(1) The Government does not guarantee the correctness of the 
dimensions, sizes, and shapes set forth in any job order, sketches, 
drawings, plans, or specifications prepared or furnished by the 
Government, unless the job order requires that the Contractor perform 
the work prior to any opportunity to inspect.
    (2) Except as stated in paragraph (i)(1) of this clause, and other 
than those parts furnished by the Government, the Contractor shall be 
responsible for the correctness of the dimensions, sizes, and shapes of 
parts furnished under this agreement.
    (j) The Contractor shall at all times keep the site of the work on 
the vessel free from accumulation of waste material or rubbish caused by 
its employees or the work. At the completion of the work, unless the job 
order specifies otherwise, the Contractor shall remove all rubbish from 
the site of the work and leave the immediate vicinity of the work area 
``broom clean.''

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 62 FR 2614, Jan. 17, 1997; 74 
FR 37647, July 29, 2009]



252.217-7006  Title.

    As prescribed in 217.7104(a), use the following clause:

                            Title (DEC 1991)

    (a) Unless otherwise provided, title to all materials and equipment 
to be incorporated in a vessel in the performance of a job order shall 
vest in the Government upon delivery at the location specified for the 
performance of the work.
    (b) Upon completion of the job order, or with the approval of the 
Contracting Officer during performance of the job order, all Contractor-
furnished materials and equipment not incorporated in, or placed on, any 
vessel, shall become the property of the Contractor, unless the 
Government has reimbursed the Contractor for the cost of the materials 
and equipment.
    (c) The vessel, its equipment, movable stores, cargo, or other 
ship's materials shall not be considered Government-furnished property.

                             (End of clause)



252.217-7007  Payments.

    As prescribed in 217.7104(a), use the following clause:

                           Payments (DEC 1991)

    (a) Progress payments, as used in this clause, means payments made 
before completion of work in progress under a job order.
    (b) Upon submission by the Contractor of invoices in the form and 
number of copies directed by the Contracting Officer, and as approved by 
the Contracting Officer, the Government will make progress payments as 
work progresses under the job order.
    (1) Generally, the Contractor may submit invoices on a semi-monthly 
basis, unless expenditures justify a more frequent submission.

[[Page 460]]

    (2) The Government need not make progress payments for invoices 
aggregating less than $5,000.
    (3) The Contracting Officer shall approve progress payments based on 
the value, computed on the price of the job order, of labor and 
materials incorporated in the work, materials suitably stored at the 
site of the work, and preparatory work completed, less the aggregate of 
any previous payments.
    (4) Upon request, the Contractor will furnish the Contracting 
Officer any reports concerning expenditures on the work to date that the 
Contracting Officer may require.
    (c) The Government will retain until final completion and acceptance 
of all work covered by the job order, an amount estimated or approved by 
the Contracting Officer under paragraph (b) of this clause. The amount 
retained will be in accordance with the rate authorized by Congress for 
Naval vessel repair contracts at the time of job order award.
    (d) The Contracting Officer may direct that progress payments be 
based on the price of the job order as adjusted as a result of change 
orders under the Changes clause of the Master Agreement. If the 
Contracting Officer does not so direct--
    (1) Payments of any increases shall be made from time to time after 
the amount of the increase is determined under the Changes clause of the 
Master Agreement; and
    (2) Reductions resulting from decreases shall be made for the 
purposes of subsequent progress payments as soon as the amounts are 
determined under the Changes clause of the Master Agreement.
    (e) Upon completion of the work under a job order and final 
inspection and acceptance, and upon submission of invoices in such form 
and with such copies as the Contracting Officer may prescribe, the 
Contractor shall be paid for the price of the job order, as adjusted 
pursuant to the Changes clause of the Master Agreement, less any 
performance reserves deemed necessary by the Contracting Officer, and 
less the amount of any previous payments.
    (f) All materials, equipment, or any other property or work in 
process covered by the progress payments made by the Government, upon 
the making of those progress payments, shall become the sole property of 
the Government, and are subject to the provisions of the Title clause of 
the Master Agreement.

                             (End of clause)



252.217-7008  Bonds.

    As prescribed in 217.7104(a), use the following clause:

                            Bonds (DEC 1991)

    (a) If the solicitation requires an offeror to submit a bid bond, 
the Offeror may furnish, instead, an annual bid bond (or evidence 
thereof) or an annual performance and payment bond (or evidence 
thereof).
    (b) If the solicitation does not require a bid bond, the Offeror 
shall not include in the price any contingency to cover the premium of 
such a bond.
    (c) Even if the solicitation does not require bonds, the Contracting 
Officer may nevertheless require a performance and payment bond, in 
form, amount, and with a surety acceptable to the Contracting Officer. 
Where performance and payment bond is required, the offer price shall be 
increased upon the award of the job order in an amount not to exceed the 
premium of a corporate surety bond.
    (d) If any surety upon any bond furnished in connection with a job 
order under this agreement fails to submit requested reports as to its 
financial condition or otherwise becomes unacceptable to the Government, 
the Contracting Officer may require the Contractor to furnish whatever 
additional security the Contracting Officer determines necessary to 
protect the interests of the Government and of persons supplying labor 
or materials in the performance of the work contemplated under the 
Master Agreement.

                             (End of clause)



252.217-7009  Default.

    As prescribed in 217.7104(a), use the following clause:

                           Default (DEC 1991)

    (a) The Government may, subject to the provisions of paragraph (b) 
of this clause, by written notice of default to the Contractor, 
terminate the whole or any part of a job order if the Contractor fails 
to--
    (1) Make delivery of the supplies or to perform the services within 
the time specified in a job order or any extension;
    (2) Make progress, so as to endanger performance of the job order; 
or
    (3) Perform any of the other provisions of this agreement or a job 
order.
    (b) Except for defaults of subcontractors, the Contractor shall not 
be liable for any excess costs if failure to perform the job order 
arises from causes beyond the control and without the fault or 
negligence of the Contractor. Examples of such causes include acts of 
God or of the public enemy, acts of the Government in either its 
sovereign or contractual capacity, fires, floods, epidemics, quarantine 
restrictions, strikes, freight embargoes, and unusually severe weather.

[[Page 461]]

    (c) If the Contractor's failure to perform is caused by the default 
of a subcontractor, and if such default arises out of causes beyond the 
control of both the Contractor and subcontractor, and without the fault 
or negligence of either, the Contractor shall not be liable for any 
excess costs for failure to perform, unless the supplies or services to 
be furnished by the subcontractor were obtainable from other sources in 
sufficient time to permit the Contractor to perform the job order within 
the time specified.
    (d) If the Government terminates the job order in whole or in part 
as provided in paragraph (a) of this clause--
    (1) The Government may, upon such terms and in such manner as the 
Contracting Officer may deem appropriate, arrange for the completion of 
the work so terminated, at such plant or plants, including that of the 
Contractor, as may be designated by the Contracting Officer.
    (i) The Contractor shall continue the performance of the job order 
to the extent not terminated under the provisions of this clause.
    (ii) If the work is to be completed at the plant, the Government may 
use all tools, machinery, facilities, and equipment of the Contractor 
determined by the Contracting Office to be necessary for that purpose.
    (iii) If the cost to the Government of the work procured or 
completed (after adjusting such cost to exclude the effect of changes in 
the plans and specifications made subsequent to the date of termination) 
exceeds the price fixed for work under the job order (after adjusting 
such price on account of changes in the plans and specifications made 
before the date of termination), the Contractor, or the Contractor's 
surety, if any, shall be liable for such excess.
    (2) The Government, in addition to any other rights provided in this 
clause, may require the Contractor to transfer title and delivery to the 
Government, in the manner and to the extent directed by the Contracting 
Officer, any completed supplies and such partially completed supplies 
and materials, parts, tools, dies, jigs, fixtures, plans, drawings, 
information and contract rights (hereinafter called ``manufacturing 
materials'') as the Contractor has specifically produced or specifically 
acquired for the performance of the terminated part of the job order.
    (i) The Contractor shall, upon direction of the Contracting Officer, 
protect and preserve property in possession of the Contractor in which 
the Government has an interest.
    (ii) The Government shall pay to the Contractor the job order price 
for completed items of work delivered to and accepted by the Government, 
and the amount agreed upon by the Contractor and the Contracting Officer 
for manufacturing materials delivered to and accepted by the Government, 
and for the protection and preservation of property. Failure to agree 
shall be a dispute concerning a question of fact within the meaning of 
the Disputes clause.
    (e) If, after notice of termination of the job order, it is 
determined that the Contractor was not in default, or that the default 
was excusable, the rights and obligations of the parties shall be the 
same as if the notice of termination had been issued for the convenience 
of the Government.
    (f) If the Contractor fails to complete the performance of a job 
order within the time specified, or any extension, the actual damage to 
the Government for the delay will be difficult or impossible to 
determine.
    (1) In lieu of actual damage, the Contractor shall pay to the 
Government as fixed, agreed, and liquidated damages for each calendar 
day of delay the amount, if any, set forth in the job order (prorated to 
the nearest hour for fractional days).
    (2) If the Government terminates the job order, the Contractor shall 
be liable, in addition to the excess costs provided in paragraph (d) of 
this clause, for liquidated damages accruing until such time as the 
Government may reasonably obtain completion of the work.
    (3) The Contractor shall not be charged with liquidated damages when 
the delay arises out of causes beyond the control and without the fault 
or negligence of the Contractor. Subject to the provisions of the 
Disputes clause of the Master Agreement, the Contracting Officer shall 
ascertain the facts and the extent of the delay and shall extend the 
time for performance when in the judgment of the Contracting Officer, 
the findings of fact justify an extension.
    (g) The rights and remedies of the Government provided in this 
clause shall not be exclusive and are in addition to any other rights 
and remedies provided by law under this agreement.

                             (End of clause)



252.217-7010  Performance.

    As prescribed in 217.7104(a), use the following clause:

                         Performance (JUL 2009)

    (a) Upon the award of a job order, the Contractor shall promptly 
start the work specified and shall diligently prosecute the work to 
completion. The Contractor shall not start work until the job order has 
been awarded except in the case of emergency work ordered by the 
Contracting Officer under the Job Orders and Compensation clause of the 
Master Agreement.
    (b) The Government shall deliver the vessel described in the job 
order at the time and location specified in the job order. Upon 
completion of the work, the Government shall

[[Page 462]]

accept delivery of the vessel at the time and location specified in the 
job order.
    (c) The Contractor shall, without charge and without specific 
requirement in a job order,--
    (1) Make available at the plant to personnel of the vessel while in 
dry dock or on a marine railway, sanitary lavatory and similar 
facilities acceptable to the Contracting Officer;
    (2) Supply and maintain suitable brows and gangways from the pier, 
dry dock, or marine railway to the vessel;
    (3) Treat salvage, scrap or other ship's material of the Government 
resulting from performance of the work as items of Government-furnished 
property, in accordance with the Government Property clause;
    (4) Perform, or pay the cost of, any repair, reconditioning or 
replacement made necessary as the result of the use by the Contractor of 
any of the vessel's machinery, equipment or fittings, including, but not 
limited to, winches, pumps, rigging, or pipe lines; and
    (5) Furnish suitable offices, office equipment and telephones at or 
near the site of the work for the Government's use.
    (d) The job order will state whether dock and sea trials are 
required to determine whether or not the Contractor has satisfactorily 
performed the work.
    (1) If dock and sea trials are required, the vessel shall be under 
the control of the vessel's commander and crew.
    (2) The Contractor shall not conduct dock and sea trials not 
specified in the job order without advance approval of the Contracting 
Officer. Dock and sea trials not specified in the job order shall be at 
the Contractor's expense and risk.
    (3) The Contractor shall provide and install all fittings and 
appliances necessary for dock and sea trials. The Contractor shall be 
responsible for care, installation, and removal of instruments and 
apparatus furnished by the Government for use in the trials.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 74 FR 37648, July 29, 2009]



252.217-7011  Access to vessel.

    As prescribed at 217.7104(a), use the following clause:

                       Access to Vessel (DEC 1991)

    (a) Upon the request of the Contracting Officer, the Contractor 
shall grant admission to the Contractor's facilities and access to 
vessel, on a non-interference basis, as necessary to perform their 
respective responsibilities, to a reasonable number of:
    (1) Government and other Government contractor employees (in 
addition to those Government employees attached to the vessel); and
    (2) Representatives of offerors on other contemplated Government 
work.
    (b) All personnel granted access shall comply with Contractor rules 
governing personnel at its shipyard.

                             (End of clause)



252.217-7012  Liability and insurance.

    As prescribed in 217.7104(a), use the following clause:

                   Liability and Insurance (AUG 2003)

    (a) The Contractor shall exercise its best efforts to prevent 
accidents, injury, or damage to all employees, persons, and property, in 
and about the work, and to the vessel or part of the vessel upon which 
work is done.
    (b) Loss or damage to the vessel, materials, or equipment. (1) 
Unless otherwise directed or approved in writing by the Contracting 
Officer, the Contractor shall not carry insurance against any form of 
loss or damage to the vessel(s) or to the materials or equipment to 
which the Government has title or which have been furnished by the 
Government for installation by the Contractor. The Government assumes 
the risks of loss of and damage to that property.
    (2) The Government does not assume any risk with respect to loss or 
damage compensated for by insurance or otherwise or resulting from risks 
with respect to which the Contractor has failed to maintain insurance, 
if available, as required or approved by the Contracting Officer.
    (3) The Government does not assume risk of and will not pay for any 
costs of the following:
    (i) Inspection, repair, replacement, or renewal of any defects in 
the vessel(s) or material and equipment due to--
    (A) Defective workmanship performed by the Contractor or its 
subcontractors;
    (B) Defective materials or equipment furnished by the Contractor or 
its subcontracts; or
    (C) Workmanship, materials, or equipment which do not conform to the 
requirements of the contract, whether or not the defect is latent or 
whether or not the nonconformance is the result of negligence.
    (ii) Loss, damage, liability, or expense caused by, resulting from, 
or incurred as a consequence of any delay or disruption, willful 
misconduct or lack of good faith by the Contractor or any of its 
representatives that have supervision or direction of--
    (A) All or substantially all of the Contractor's business; or
    (B) All or substantially all of the Contractor's operation at any 
one plant.

[[Page 463]]

    (4) As to any risk that is assumed by the Government, the Government 
shall be subrogated to any claim, demand or cause of action against 
third parties that exists in favor of the Contractor. If required by the 
Contracting Officer, the Contractor shall execute a formal assignment or 
transfer of the claim, demand, or cause of action.
    (5) No party other than the Contractor shall have any right to 
proceed directly against the Government or join the Government as a co-
defendant in any action.
    (6) Notwithstanding the foregoing, the Contractor shall bear the 
first $50,000 of loss or damage from each occurrence or incident, the 
risk of which the Government would have assumed under the provisions of 
this paragraph (b).
    (c) Indemnification. The Contractor indemnifies the Government and 
the vessel and its owners against all claims, demands, or causes of 
action to which the Government, the vessel or its owner(s) might be 
subject as a result of damage or injury (including death) to the 
property or person of anyone other than the Government or its employees, 
or the vessel or its owner, arising in whole or in part from the 
negligence or other wrongful act of the Contractor or its agents or 
employees, or any subcontractor, or its agents or employees.
    (1) The Contractor's obligation to indemnify under this paragraph 
shall not exceed the sum of $300,000 as a consequence of any single 
occurrence with respect to any one vessel.
    (2) The indemnity includes, without limitation, suits, actions, 
claims, costs, or demands of any kind, resulting from death, personal 
injury, or property damage occurring during the period of performance of 
work on the vessel or within 90 days after redelivery of the vessel. For 
any claim, etc., made after 90 days, the rights of the parties shall be 
as determined by other provisions of this agreement and by law. The 
indemnity does apply to death occurring after 90 days where the injury 
was received during the period covered by the indemnity.
    (d) Insurance. (1) The Contractor shall, at its own expense, obtain 
and maintain the following insurance--
    (i) Casualty, accident, and liability insurance, as approved by the 
Contracting Officer, insuring the performance of its obligations under 
paragraph (c) of this clause.
    (ii) Workers Compensation Insurance (or its equivalent) covering the 
employees engaged on the work.
    (2) The Contractor shall ensure that all subcontractors engaged on 
the work obtain and maintain the insurance required in paragraph (d)(1) 
of this clause.
    (3) Upon request of the Contracting Officer, the Contractor shall 
provide evidence of the insurance required by paragraph (d) of this 
clause.
    (e) The Contractor shall not make any allowance in the job order 
price for the inclusion of any premium expense or charge for any reserve 
made on account of self-insurance for coverage against any risk assumed 
by the Government under this clause.
    (f) The Contractor shall give the Contracting Officer written notice 
as soon as practicable after the occurrence of a loss or damage for 
which the Government has assumed the risk.
    (1) The notice shall contain full details of the loss or damage.
    (2) If a claim or suit is later filed against the Contractor as a 
result of the event, the Contractor shall immediately deliver to the 
Government every demand, notice, summons, or other process received by 
the Contractor or its employees or representatives.
    (3) The Contractor shall cooperate with the Government and, upon 
request, shall assist in effecting settlements, securing and giving 
evidence, obtaining the attendance of witnesses, and in the conduct of 
suits. The Government shall reimburse the Contractor for expenses 
incurred in this effort, other than the cost of maintaining the 
Contractor's usual organization.
    (4) The Contractor shall not, except at its own expense, voluntarily 
make any payment, assume any obligation, or incur any expense other than 
what would be imperative for the protection of the vessel(s) at the time 
of the event.
    (g) In the event or loss of or damage to any vessel(s), material, or 
equipment which may result in a claim against the Government under the 
insurance provisions of this contract, the Contractor shall promptly 
notify the Contracting Officer of the loss or damage. The Contracting 
Officer may, without prejudice to any other right of the Government, 
either--
    (1) Order the Contractor to proceed with replacement or repair, in 
which event the Contractor shall effect the replacement or repair;
    (i) The Contractor shall submit to the Contracting Officer a request 
for reimbursement of the cost of the replacement or repair together with 
whatever supporting documentation the Contracting Officer may reasonably 
require, and shall identify the request as being submitted under the 
Insurance clause of the agreement.
    (ii) If the Government determines that the risk of the loss or 
damage is within the scope of the risks assumed by the Government under 
this clause, the Government will reimburse the Contractor for the 
reasonable, allowable cost of the replacement or repair, plus a 
reasonable profit (if the work or replacement or repair was performed by 
the Contractor) less the deductible amount specified in paragraph (b) of 
this clause.
    (iii) Payments by the Government to the Contractor under this clause 
are outside the

[[Page 464]]

scope of and shall not affect the pricing structure of the contract, and 
are additional to the compensation otherwise payable to the Contractor 
under this contract; or
    (2) In the event the Contracting Officer decides that the loss or 
damage shall not be replaced or repaired, the Contracting Officer 
shall--
    (i) Modify the contract appropriately, consistent with the reduced 
requirements reflected by the unreplaced or unrepaired loss or damage; 
or
    (ii) Terminate the repair of any part or all of the vessel(s) under 
the Termination for Convenience of the Government clause of this 
agreement.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 68 FR 50478, Aug. 21, 2003]



252.217-7013  Guarantees.

    As prescribed in 217.7104(a), use the following clause:

                          Guarantees (DEC 1991)

    (a) In the event any work performed or materials furnished by the 
contractor under the Master Agreement prove defective or deficient 
within 90 days from the date of redelivery of the vessel(s), the 
Contractor, as directed by the Contracting Officer and at its own 
expense, shall correct and repair the deficiency to the satisfaction of 
the Contracting Officer.
    (b) If the Contractor or any subcontractor has a guarantee for work 
performed or materials furnished that exceeds the 90 day period, the 
Government shall be entitled to rely upon the longer guarantee until its 
expiration.
    (c) With respect to any individual work item identified as 
incomplete at the time of redelivery of the vessel(s), the guarantee 
period shall run from the date the item is completed.
    (d) If practicable, the Government shall give the Contractor an 
opportunity to correct the deficiency.
    (1) If the Contracting Officer determines it is not practicable or 
is otherwise not advisable to return the vessel(s) to the Contractor, or 
the Contractor fails to proceed with the repairs promptly, the 
Contracting Officer may direct that the repairs be performed elsewhere, 
at the Contractor's expense.
    (2) If correction and repairs are performed by other than the 
Contractor, the Contracting Officer may discharge the Contractor's 
liability by making an equitable deduction in the price of the job 
order.
    (e) The Contractor's liability shall extend for an additional 90 day 
guarantee period on those defects or deficiencies that the Contractor 
corrected.
    (f) At the option of the Contracting Officer, defects and 
deficiencies may be left uncorrected. In that event, the Contractor and 
Contracting Officer shall negotiate an equitable reduction in the job 
price. Failure to agree upon an equitable reduction shall constitute a 
dispute under the Disputes clause of this agreement.

                             (End of clause)



252.217-7014  Discharge of liens.

    As prescribed in 217.7104(a), use the following clause:

                      Discharge of Liens (DEC 1991)

    (a) The Contractor shall immediately discharge, or cause to be 
discharged, any lien or right in rem of any kind, other than in favor of 
the Government, that exists or arises in connection with work done or 
material furnished under any job order under this agreement.
    (b) If any lien or right in rem is not immediately discharged, the 
Government, at the expense of the Contractor, may discharge, or cause to 
be discharged, the lien or right.

                             (End of clause)



252.217-7015  Safety and health.

    As prescribed in 217.7104(a), use the following clause:

                      Safety and Health (DEC 1991)

    Nothing contained in the Master Agreement or any job order shall 
relieve the Contractor of any obligations it may have to comply with--
    (a) The Occupational Safety and Health Act of 1970 (29 U.S.C. 651, 
et seq.);
    (b) The Safety and Health Regulations for Ship Repairing (29 CFR 
part 1915); or
    (c) Any other applicable Federal, State, and local laws, codes, 
ordinances, and regulations.

                             (End of clause)



252.217-7016  Plant protection.

    As prescribed in 217.7104(a), use the following clause:

                       Plant Protection (DEC 1991)

    (a) The Contractor shall provide, for the plant and work in process, 
reasonable safeguards against all hazards, including unauthorized entry, 
malicious mischief, theft, vandalism, and fire.
    (b) The Contractor shall also provide whatever additional safeguards 
are necessary to

[[Page 465]]

protect the plant and work in process from espionage, sabotage, and 
enemy action.
    (1) The Government shall reimburse the Contractor for that portion 
of the costs of the additional safeguards that is allocable to the 
contract in the same manner as if the Contracting Officer had issued a 
change order for the additional safeguards.
    (2) The costs reimbursed shall not include any overhead allowance, 
unless the overhead is incident to the construction or installation of 
necessary security devices or equipment.
    (c) Upon payment by the Government of the cost of any device or 
equipment required or approved under paragraph (b) of this clause, title 
shall vest in the Government.
    (1) The Contractor shall comply with the instructions of the 
Contracting Officer concerning its identification and disposition.
    (2) No such device or equipment shall become a fixture as a result 
of its being affixed to realty not owned by the Government.

                             (End of clause)



252.217-7017--252.217-7025  [Reserved]



252.217-7026  Identification of sources of supply.

    As prescribed in 217.7303, use the following provision:

             Identification of Sources of Supply (NOV 1995)

    (a) The Government is required under 10 U.S.C. 2384 to obtain 
certain information on the actual manufacturer or sources of supplies it 
acquires.
    (b) The apparently successful Offeror agrees to complete and submit 
the following table before award:

                                                                          Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Source of supply
           Line items             National stock No.  Commercial item (Y ------------------------------------------------------------     Actual mfg?
                                                             or N)              Company             Address            Part No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1)                               (2)...............  (3)...............  (4)...............  (4)...............  (5)...............  (6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
___.............................  ___...............  ___...............  ___...............  ___...............  ___...............  ___
(1) List each deliverable item of supply and item of technical data.
(2) If there is no national stock number, list ``none.''
(3) Use ``Y'' if the item is a commercial item; otherwise use ``N.'' If ``Y'' is listed, the Offeror need not complete the remaining columns in the
  table.
(4) For items of supply, list all sources. For technical data, list the source.
(5) For items of supply, list each source's part number for the item.
(6) Use ``Y'' if the source of supply is the actual manufacturer; ``N'' if it is not; and ``U'' if unknown.

                           (End of provision)

[56 FR 36479, July 31, 1991, as amended at 59 FR 27675, May 27, 1994; 60 
FR 61601, Nov. 30, 1995]



252.217-7027  Contract definitization.

    As prescribed in 217.7406 (b), use the following clause:

                   Contract Definitization (DEC 2012)

    (a) A ___(insert specific type of contract action) is contemplated. 
The Contractor agrees to begin promptly negotiating with the Contracting 
Officer the terms of a definitive contract that will include (1) all 
clauses required by the Federal Acquisition Regulation (FAR) on the date 
of execution of the underfinitized contract action, (2) all clauses 
required by law on the date of execution of the definitive contract 
action, and (3) any other mutually agreeable clauses, terms, and 
conditions. The Contractor agrees to submit a ___(insert type of 
proposal; e.g., fixed-price or cost-and-fee) proposal and certified cost 
or pricing data supporting its proposal.
    (b) The schedule for definitizing this contract is as follows 
(insert target date for definitization of the contract action and dates 
for submission of proposal, beginning of negotiations, and, if 
appropriate, submission of the make-or-buy and subcontracting plans and 
certified cost or pricing data).

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (c) If agreement on a definitive contract action to supersede this 
undefinitized contract action is not reached by the target date in 
paragraph (b) of this clause, or within any extension of it granted by 
the Contracting Officer, the Contracting Officer may, with the approval 
of the head of the contracting activity, determine a reasonable price or 
fee in accordance with subpart 15.4 and part 31 of the FAR, subject to 
Contractor appeal as provided in the Disputes clause. In any event, the 
Contractor shall proceed with completion of the contract, subject only 
to the Limitation of Government Liability clause.

[[Page 466]]

    (1) After the Contracting Officer's determination of price or fee, 
the contract shall be governed by--
    (i) All clauses required by the FAR on the date of execution of this 
underfinitized contract action for either fixed-price or cost-
reimbursement contracts, as determined by the Contracting Officer under 
this paragraph (c);
    (ii) All clauses required by law as of the date of the Contracting 
Officer's determination; and
    (iii) Any other clauses, terms, and conditions mutually agreed upon.
    (2) To the extent consistent with paragraph (c)(1) of this clause, 
all clauses, terms, and conditions included in this undefinitized 
contract action shall continue in effect, except those that by their 
nature apply only to an undefinitized contract action.
    (d) The definitive contract resulting from this undefinitized 
contract action will include a negotiated __________ (insert ``cost/
price ceiling'' or ``firm-fixed price'') in no event to exceed 
__________ (insert the not-to-exceed amount).

                             (End of clause)

[61 FR 7750, Feb. 29, 1996; 61 FR 18195, Apr. 24, 1996, as amended at 63 
FR 55052, Oct. 14, 1998; 71 FR 27643, May 12, 2006; 74 FR 37650, July 
29, 2009; 77 FR 76941, Dec. 31, 2012]



252.217-7028  Over and above work.

    As prescribed in 217.7702, use a clause substantially as follows:

                     Over and Above Work (DEC 1991)

    (a) Definitions. As used in this clause--
    (1) Over and above work means work discovered during the course of 
performing overhaul, maintenance, and repair efforts that is--
    (i) Within the general scope of the contract;
    (ii) Not covered by the line item(s) for the basic work under the 
contract; and
    (iii) Necessary in order to satisfactorily complete the contract.
    (2) Work request means a document prepared by the Contractor which 
describes over and above work being proposed.
    (b) The Contractor and Administrative Contracting Officer shall 
mutually agree to procedures for Government administration and 
Contractor performance of over and above work requests. If the parties 
cannot agree upon the procedures, the Administrative Contracting Officer 
has the unilateral right to direct the over and above work procedures to 
be followed. These procedures shall, as a minimum, cover--
    (1) The format, content, and submission of work requests by the 
Contractor. Work requests shall contain data on the type of discrepancy 
disclosed, the specific location of the discrepancy, and the estimated 
labor hours and material required to correct the discrepancy. Data shall 
be sufficient to satisfy contract requirements and obtain the 
authorization of the Contracting Officer to perform the proposed work;
    (2) Government review, verification, and authorization of the work; 
and
    (3) Proposal pricing, submission, negotiation, and definitization.
    (c) Upon discovery of the need for over and above work, the 
Contractor shall prepare and furnish to the Government a work request in 
accordance with the agreed-to procedures.
    (d) The Government shall--
    (1) Promptly review the work request;
    (2) Verify that the proposed work is required and not covered under 
the basic contract line item(s);
    (3) Verify that the proposed corrective action is appropriate; and
    (4) Authorize over and above work as necessary.
    (e) The Contractor shall promptly submit to the Contracting Officer, 
a proposal for the over and above work. The Government and Contractor 
will then negotiate a settlement for the over and above work. Contract 
modifications will be executed to definitize all over and above work.
    (f) Failure to agree on the price of over and above work shall be a 
dispute within the meaning of the Disputes clause of this contract.

                             (End of clause)



252.219-7000  Advancing Small Business Growth.

    As prescribed in 219.309(1), use the following provision:

               Advancing Small Business Growth (SEP 2016)

    (a) This provision implements 10 U.S.C. 2419.
    (b) The Offeror acknowledges by submission of its offer that by 
acceptance of the contract resulting from this solicitation, the Offeror 
may exceed the applicable small business size standard of the North 
American Industry Classification System (NAICS) code assigned to the 
contract and would no longer qualify as a small business concern for 
that NAICS code. (Small business size standards matched to industry 
NAICS codes are published by the Small Business Administration and are 
available at http://www.sba.gov/content/table-small-business-size-
standards.) The Offeror is therefore encouraged to develop the 
capabilities and characteristics typically desired in contractors that 
are competitive as other-than-small contractors in this industry.

[[Page 467]]

    (c) For procurement technical assistance, the Offeror may contact 
the nearest Procurement Technical Assistance Center (PTAC). PTAC 
locations are available at http://www.dla.mil/HQ/SmallBusiness/PTAC.aspx

                           (End of provision)

[80 FR 30116, May 26, 2015, as amended at 81 FR 65563, Sept. 23, 2016]



252.219-7001--252.219-7002  [Reserved]



252.219-7003  Small Business Subcontracting Plan (DoD Contracts).

    Basic. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(1), use the 
following clause:

  Small Business Subcontracting Plan (DoD Contracts)--BASIC (DEC 2019)

    This clause supplements the Federal Acquisition Regulation 52.219-9, 
Small Business Subcontracting Plan, clause of this contract.
    (a) Definition. As used in this clause--
    Summary Subcontract Report (SSR) Coordinator means the individual 
who is registered in the Electronic Subcontracting Reporting System 
(eSRS) at the Department of Defense level and is responsible for 
acknowledging receipt or rejecting SSRs submitted under an individual 
subcontracting plan in eSRS for the Department of Defense.
    (b) Subcontracts awarded to qualified nonprofit agencies designated 
by the Committee for Purchase From People Who Are Blind or Severely 
Disabled (41 U.S.C. 8502-8504), may be counted toward the Contractor's 
small business subcontracting goal (section 8025 of Pub. L. 108-87).
    (c) A mentor firm, under the Pilot Mentor-Prot[eacute]g[eacute] 
Program established under section 831 of Public Law 101-510, as amended, 
may count toward its small disadvantaged business goal, subcontracts 
awarded to--
    (1) Prot[eacute]g[eacute] firms which are qualified organizations 
employing the severely disabled; and
    (2) Former prot[eacute]g[eacute] firms that meet the criteria in 
section 831(g)(4) of Public Law 101-510.
    (d) The master plan is approved by the cognizant contract 
administration activity for the Contractor.
    (e) In those subcontracting plans which specifically identify small 
businesses, the Contractor shall notify the Administrative Contracting 
Officer of any substitutions of firms that are not small business firms, 
for the small business firms specifically identified in the 
subcontracting plan. Notifications shall be in writing and shall occur 
within a reasonable period of time after award of the subcontract. 
Contractor-specified formats shall be acceptable.
    (f)(1) For DoD, the Contractor shall submit reports in eSRS as 
follows:
    (i) The Individual Subcontract Report (ISR) shall be submitted to 
the contracting officer at the procuring contracting office, even when 
contract administration has been delegated to the Defense Contract 
Management Agency.
    (ii) Submit the consolidated SSR for an individual subcontracting 
plan to the ``Department of Defense.''
    (2) For DoD, the authority to acknowledge receipt or reject reports 
in eSRS is as follows:
    (i) The authority to acknowledge receipt or reject the ISR resides 
with the contracting officer who receives it, as described in paragraph 
(f)(1)(i) of this clause.
    (ii) The authority to acknowledge receipt of or reject SSRs 
submitted under an individual subcontracting plan resides with the SSR 
Coordinator.
    (g) Include the clause at Defense Federal Acquisition Regulation 
Supplement (DFARS) 252.219-7004, Small Business Subcontracting Plan 
(Test Program), in subcontracts with subcontractors that participate in 
the Test Program described in DFARS 219.702-70, if the subcontract is 
expected to exceed the applicable threshold specified in Federal 
Acquisition Regulation 19.702(a), and to have further subcontracting 
opportunities.

                             (End of clause)

                              Alternate I.

    Alternate I. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(2), use 
the following clause, which uses a different paragraph (f) than the 
basic clause.

  Small Business Subcontracting Plan (DoD Contracts)--Alternate I (DEC 
                                  2019)

    This clause supplements the Federal Acquisition Regulation 52.219-9, 
Small Business Subcontracting Plan, clause of this contract.
    (a) Definition. As used in this clause--
    Summary Subcontract Report (SSR) Coordinator means the individual 
who is registered in the Electronic Subcontracting Reporting System 
(eSRS) at the Department of Defense level and is responsible for 
acknowledging receipt or rejecting SSRs submitted under an individual 
subcontracting plan in eSRS for the Department of Defense.
    (b) Subcontracts awarded to qualified nonprofit agencies designated 
by the Committee for Purchase From People Who Are Blind or Severely 
Disabled (41 U.S.C. 8502-8504), may be counted toward the Contractor's 
small business subcontracting goal (section 8025 of Pub. L. 108-87).
    (c) A mentor firm, under the Pilot Mentor-Protege Program 
established under section

[[Page 468]]

831 of Public Law 101-510, as amended, may count toward its small 
disadvantaged business goal, subcontracts awarded to--
    (1) Protege firms which are qualified organizations employing the 
severely disabled; and
    (2) Former protege firms that meet the criteria in section 831(g)(4) 
of Public Law 101-510.
    (d) The master plan is approved by the cognizant contract 
administration activity for the Contractor.
    (e) In those subcontracting plans which specifically identify small 
businesses, the Contractor shall notify the Administrative Contracting 
Officer of any substitutions of firms that are not small business firms, 
for the small business firms specifically identified in the 
subcontracting plan. Notifications shall be in writing and shall occur 
within a reasonable period of time after award of the subcontract. 
Contractor-specified formats shall be acceptable.
    (f)(1) For DoD, the Contractor shall submit reports in eSRS as 
follows:
    (i) The Standard Form 294, Subcontracting Report for Individual 
Contracts, shall be submitted in accordance with the instructions on 
that form.
    (ii) Submit the consolidated SSR to the ``Department of Defense.''
    (2) For DoD, the authority to acknowledge receipt of or reject SSRs 
submitted under an individual subcontracting plan in eSRS resides with 
the SSR Coordinator.
    (g) Include the clause at Defense Federal Acquisition Regulation 
Supplement (DFARS) 252.219-7004, Small Business Subcontracting Plan 
(Test Program), in subcontracts with subcontractors that participate in 
the Test Program described in DFARS 219.702-70, if the subcontract is 
expected to exceed the applicable threshold specified in Federal 
Acquisition Regulation 19.702(a), and to have further subcontracting 
opportunities.

                             (End of clause)

    Alternate II. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(3), 
use the following clause, which uses different paragraphs (a) and (b) 
than the basic clause.

 Small Business Subcontracting Plan (DoD Contracts)--Alternate II (DEC 
                                  2019)

    (a) Definitions. As used in this clause--
    Eligible contractor means a business entity operated on a for-profit 
or nonprofit basis that--
    (1) Employs severely disabled individuals at a rate that averages 
not less than 33 percent of its total workforce over the 12-month period 
prior to issuance of the solicitation;
    (2) Pays not less than the minimum wage prescribed pursuant to 29 
U.S.C. 206 to the employees who are severely disabled individuals; and
    (3) Provides, for its employees, health insurance and a retirement 
plan comparable to those provided for employees by business entities of 
similar size in its industrial sector or geographic region.
    Summary Subcontract Report (SSR) Coordinator means the individual 
who is registered in the Electronic Subcontracting Reporting System 
(eSRS) at the Department of Defense level and is responsible for 
acknowledging receipt or rejecting SSRs submitted under an individual 
subcontracting plan in eSRS for the Department of Defense.
    (b)(1) Subcontracts awarded to qualified nonprofit agencies 
designated by the Committee for Purchase From People Who are Blind or 
Severely Disabled (41 U.S.C. 8502-8504), may be counted toward the 
Contractor's small business subcontracting goal (section 8025 of Pub. L. 
108-87).
    (2) Subcontracts awarded to eligible contractors under the 
Demonstration Project for Contractors Employing Persons with 
Disabilities (see Defense Federal Acquisition Regulation Supplement 
(DFARS) 226.72) may be counted toward the Contractor's small 
disadvantaged business subcontracting goal (section 853 of Pub. L. 108-
136, as amended by division H, section 110 of Pub. L. 108-199).
    (c) A mentor firm, under the Pilot Mentor-Protege Program 
established under section 831 of Public Law 101-510, may count toward 
its small disadvantaged business goal, subcontracts awarded to--
    (1) Protege firms which are qualified organizations employing the 
severely disabled; and
    (2) Former protege firms that meet the criteria in section 831(g)(4) 
of Public Law 101-510.
    (d) The master plan is approved by the cognizant contract 
administration activity for the Contractor.
    (e) In those subcontracting plans which specifically identify small 
businesses, the Contractor shall notify the Administrative Contracting 
Officer of any substitutions of firms that are not small business firms, 
for the small business firms specifically identified in the 
subcontracting plan. Notifications shall be in writing and shall occur 
within a reasonable period of time after award of the subcontract. 
Contractor-specified formats shall be acceptable.
    (f)(1) For DoD, the Contractor shall submit reports in eSRS as 
follows:
    (i) The Individual Subcontract Report (ISR) shall be submitted to 
the contracting officer at the procuring contracting office, even when 
contract administration has been delegated to the Defense Contract 
Management Agency.

[[Page 469]]

    (ii) Submit the consolidated SSR for an individual subcontracting 
plan to the ``Department of Defense.''
    (2) For DoD, the authority to acknowledge receipt or reject reports 
in eSRS is as follows:
    (i) The authority to acknowledge receipt or reject the ISR resides 
with the contracting officer who receives it, as described in paragraph 
(f)(1)(i) of this clause.
    (ii) The authority to acknowledge receipt of or reject SSRs 
submitted under an individual subcontracting plan resides with the SSR 
Coordinator.
    (g) Include the clause at DFARS 252.219-7004, Small Business 
Subcontracting Plan (Test Program), in subcontracts with subcontractors 
that participate in the Test Program described in DFARS 219.702-70, if 
the subcontract is expected to exceed the applicable threshold specified 
in Federal Acquisition Regulation 19.702(a) and to have further 
subcontracting opportunities.

                             (End of clause)

    (f)(1)(i) The Standard Form 294 Subcontracting Report for Individual 
Contracts shall be submitted in accordance with the instructions on that 
form; paragraph (f)(2)(i) is inapplicable.

[75 FR 65440, Oct. 25, 2010, as amended at 76 FR 58138, Sept. 20, 2011; 
77 FR 35882, June 15, 2012; 77 FR 52254, Aug. 29, 2012; 79 FR 61582, 
Oct. 14, 2014; 81 FR 17046, Mar. 25, 2016; 83 FR 15999, Apr. 13, 2018; 
83 FR 65564, Dec. 21, 2018; 84 FR 25187, May 31, 2019; 84 FR 72560, Dec. 
31, 2019]



252.219-7004  Small Business Subcontracting Plan (Test Program).

    As prescribed in 219.708(b)(1)(B), use the following clause:

      Small Business Subcontracting Plan (Test Program) (MAY 2019)

    (a) Definitions. As used in this clause--
    Covered small business concern means a small business concern, 
veteran-owned small business concern, service-disabled veteran-owned 
small business concern, HUBZone small business concern, women-owned 
small business concern, or small disadvantaged business concern, as 
these terms are defined in FAR 2.101.
    Electronic Subcontracting Reporting System (eSRS) means the 
Governmentwide, electronic, web-based system for small business 
subcontracting program reporting. The eSRS is located at http://
www.esrs.gov.
    Failure to make a good faith effort to comply with a comprehensive 
subcontracting plan means a willful or intentional failure to perform in 
accordance with the requirements of the Contractor's approved 
comprehensive subcontracting plan or willful or intentional action to 
frustrate the plan.
    Subcontract means any agreement (other than one involving an 
employer-employee relationship) entered into by a Federal Government 
prime Contractor or subcontractor calling for supplies or services 
required for performance of the contract or subcontract.
    (b) Test Program. The Contractor's comprehensive small business 
subcontracting plan and its successors, which are authorized by and 
approved under the Test Program of 15 U.S.C. 637 note, as amended, shall 
be included in and made a part of this contract. Upon expulsion from the 
Test Program or expiration of the Test Program, the Contractor shall 
negotiate an individual subcontracting plan for all future contracts 
that meet the requirements of 15 U.S.C. 637(d).
    (c) Eligibility requirements. To become and remain eligible to 
participate in the Test Program, a business concern is required to have 
furnished supplies or services (including construction) under at least 
three DoD contracts during the preceding fiscal year, having an 
aggregate value of at least $100 million.
    (d) Reports. (1) The Contractor shall report semiannually for the 6-
month periods ending March 31 and September 30, the information in 
paragraphs (d)(1)(i) through (v) of this section within 30 days after 
the end of the reporting period. Submit the report at https://
www.esrs.gov.
    (i) A list of contracts covered under its comprehensive small 
business subcontracting plan, to include the Commercial and Government 
Entity (CAGE) code and unique entity identifier.
    (ii) The amount of first-tier subcontract dollars awarded during the 
6-month period covered by the report to covered small business concerns, 
with the information set forth separately by--
    (A) North American Industrial Classification System (NAICS) code;
    (B) Major defense acquisition program, as defined in 10 U.S.C. 
2430(a);
    (C) Contract number, if the contract is for maintenance, overhaul, 
repair, servicing, rehabilitation, salvage, modernization, or 
modification of supplies, systems, or equipment, and the total value of 
the contract, including options, exceeds $100 million; and
    (D) Military department.
    (iii) Total number of subcontracts active under the Test Program 
that would have otherwise required a subcontracting plan.
    (iv) Costs incurred in negotiating, complying with, and reporting on 
its comprehensive subcontracting plan.
    (v) Costs avoided through the use of a comprehensive subcontracting 
plan.
    (2) The Contractor shall--

[[Page 470]]

    (i) Ensure that subcontractors with subcontracting plans agree to 
submit an Individual Subcontract Report (ISR) and/or Summary Subcontract 
Report (SSR) using the Electronic Subcontracting Reporting System 
(eSRS).
    (ii) Provide its contract number, its unique entity identifier, and 
the email address of the Contractor's official responsible for 
acknowledging or rejecting the ISR to all first-tier subcontractors, who 
will be required to submit ISRs, so they can enter this information into 
the eSRS when submitting their reports.
    (iii) Require that each subcontractor with a subcontracting plan 
provide the prime contract number, its own unique entity identifier, and 
the email address of the subcontractor's official responsible for 
acknowledging or rejecting the ISRs to its subcontractors with 
subcontracting plans who will be required to submit ISRs.
    (iv) Acknowledge receipt or reject all ISRs submitted by its 
subcontractors using eSRS.
    (3) The Contractor shall submit SSRs using eSRS at http://
www.esrs.gov. The reports shall provide information on subcontract 
awards to small business concerns, veteran-owned small business 
concerns, service-disabled veteran-owned small business concerns, 
HUBZone small business concerns, small disadvantaged business concerns, 
and women-owned small business concerns. Purchases from a corporation, 
company, or subdivision that is an affiliate of the prime Contractor or 
subcontractor are not included in these reports. Subcontract award data 
reported by prime contractors and subcontractors shall be limited to 
awards made to their immediate next-tier subcontractors. Credit cannot 
be taken for awards made to lower-tier subcontractors unless the 
Contractor or subcontractor has been designated to receive a small 
business or small disadvantaged business credit from a member firm of 
the Alaska Native--Corporations or an Indian tribe. Only subcontracts 
involving performance in the U.S. or its outlying areas should be 
included in these reports.
    (i) This report may be submitted on a corporate, company, or 
subdivision (e.g., plant or division operating as a separate profit 
center) basis, as negotiated in the comprehensive subcontracting plan 
with the Defense Contract Management Agency.
    (ii) This report encompasses all subcontracting under prime 
contracts and subcontracts with the Department of Defense, regardless of 
the dollar value of the subcontracts, and is based on the negotiated 
comprehensive subcontracting plan.
    (iii) The report shall be submitted semiannually for the six months 
ending March 31 and the twelve months ending September 30. Reports are 
due 30 days after the close of each reporting period.
    (iv) The authority to acknowledge receipt of or reject the SSR 
resides with the Defense Contract Management Agency.
    (e) Failure to comply. The failure of the Contractor or 
subcontractor to comply in good faith with the clause of this contract 
entitled ``Utilization of Small Business Concerns,'' or an approved plan 
required by this clause, shall be a material breach of the contract.
    (f) Liquidated damages. The Contracting Officer designated to manage 
the comprehensive subcontracting plan will exercise the functions of the 
Contracting Officer, as identified in paragraphs (f)(1) through (4) of 
this clause, on behalf of all DoD departments and agencies that awarded 
contracts covered by the Contractor's comprehensive subcontracting plan.
    (1) To determine the need for liquidated damages, the Contracting 
Officer will conduct a compliance review during the fiscal year after 
the close of the fiscal year for which the plan is applicable. The 
Contracting Officer will compare the approved percentage or dollar goals 
to the total, actual subcontracting dollars covered by the plan.
    (2) If the Contractor has failed to meet its approved subcontracting 
goal(s), the Contracting Officer will provide the Contractor written 
notice specifying the failure, advising of the potential for assessment 
of liquidated damages, and permitting the Contractor to demonstrate what 
good faith efforts have been made. The Contracting Officer may take the 
Contractor's failure to respond to the notice within 15 working days (or 
longer period at the Contracting Officer's discretion) as an admission 
that no valid explanation exists.
    (3) If, after consideration of all relevant information, the 
Contracting Officer determines that the Contractor failed to make a good 
faith effort to comply with the comprehensive subcontracting plan, the 
Contracting Officer will issue a final decision to the Contractor to 
that effect and require the Contractor to pay liquidated damages to the 
Government in the amount identified in the comprehensive subcontracting 
plan.
    (4) The Contractor shall have the right of appeal under the clause 
in this contract entitled ``Disputes'' from any final decision of the 
Contracting Officer.
    (g) Subcontracts. The Contractor shall include in subcontracts that 
offer subcontracting opportunities, are expected to exceed the 
applicable threshold specified in FAR 19.702(a) on the date of 
subcontract award, and are required to include the clause at FAR 52.219-
8, Utilization of Small Business Concerns, the clauses at--
    (1) FAR 52.219-9, Small Business Subcontracting Plan, and Defense 
Federal Acquisition Regulation Supplement (DFARS)

[[Page 471]]

252.219-7003, Small Business Subcontracting Plan (DoD Contracts)--Basic;
    (2) FAR 52.219-9, Small Business Subcontracting Plan, with its 
Alternate III, and DFARS 252.219-7003, Small Business Subcontracting 
Plan (DoD Contracts)--Alternate I, to allow for submission of SF 294s in 
lieu of ISRs; or
    (3) DFARS 252.219-7004, Small Business Subcontracting Plan (Test 
Program), in subcontracts with subcontractors that participate in the 
Test Program described in DFARS 219.702-70.

                             (End of clause)

[83 FR 15999, Apr. 13, 2018, as amended at 84 FR 25188, May 31, 2019]



252.219-7005--252.219-7008  [Reserved]



252.219-7009  Section 8(a) direct award.

    As prescribed in 219.811-3(1), use the following clause:

                  Section 8(a) Direct Award (OCT 2018)

    (a) This contract is issued as a direct award between the 
contracting office and the 8(a) Contractor pursuant to the Partnership 
Agreement between the Small Business Administration (SBA) and the 
Department of Defense. Accordingly, the SBA, even if not identified in 
Section A of this contract, is the prime contractor and retains 
responsibility for 8(a) certification, for 8(a) eligibility 
determinations and related issues, and for providing counseling and 
assistance to the 8(a) Contractor under the 8(a) Program. The cognizant 
SBA district office is:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[To be completed by the Contracting Officer at the time of award]

    (b) The contracting office is responsible for administering the 
contract and for taking any action on behalf of the Government under the 
terms and conditions of the contract; provided that the contracting 
office shall give advance notice to the SBA before it issues a final 
notice terminating performance, either in whole or in part, under the 
contract. The contracting office also shall coordinate with the SBA 
prior to processing any novation agreement. The contracting office may 
assign contract administration functions to a contract administration 
office.
    (c) The 8(a) Contractor agrees that it will notify the Contracting 
Officer, simultaneous with its notification to the SBA (as required by 
SBA's 8(a) regulations at 13 CFR 124.515), when the owner or owners upon 
whom 8(a) eligibility is based plan to relinquish ownership or control 
of the concern. Consistent with section 407 of Public Law 100-656, 
transfer of ownership or control shall result in termination of the 
contract for convenience, unless the SBA waives the requirement for 
termination prior to the actual relinquishing of ownership and control.

                             (End of clause)

[63 FR 33588, June 19, 1998, as amended at 67 FR 11437, Mar. 14, 2002; 
72 FR 51188, Sept. 6, 2007; 83 FR 54682, Oct. 31, 2018]



252.219-7010  Notification of Competition Limited to Eligible 8(a) 
Participants--Partnership Agreement

    As prescribed in 219.811-3(2), use the following clause:

   Notification of Competition Limited to Eligible 8(A) Participants--
                    Partnership Agreement (OCT 2019)

    (a) Offers are solicited only from small business concerns expressly 
certified by the Small Business Administration (SBA) for participation 
in SBA's 8(a) Program and which meet the following criteria at the time 
of submission of offer:
    (1) The Offeror is in conformance with the 8(a) support limitation 
set forth in its approved business plan.
    (2) The Offeror is in conformance with the Business Activity Targets 
set forth in its approved business plan or any remedial action directed 
by SBA.
    (3) If the competition is to be limited to 8(a) concerns within one 
or more specific SBA regions or districts, then the offeror's approved 
business plan is on the file and serviced by ____. [Contracting Officer 
completes by inserting the appropriate SBA District and/or Regional 
Office(s) as identified by SBA.]
    (b) By submission of its offer, the Offeror represents that it meets 
all of the criteria set forth in paragraph (a) of this clause.
    (c) Any award resulting from this solicitation will be made directly 
by the Contracting Officer to the successful 8(a) offeror selected 
through the evaluation criteria set forth in this solicitation.
    (d)(1) Unless SBA has waived the requirements of paragraphs 
(d)(1)(i) through (iii) and (d)(2) of this clause in accordance with 13 
CFR 121.1204, a small business concern that provides an end item it did 
not manufacture, process, or produce, shall--
    (i) Provide an end item that a small business has manufactured, 
processed, or produced in the United States or its outlying areas; for 
kit assemblers, see paragraph (d)(2) of this clause instead;

[[Page 472]]

    (ii) Be primarily engaged in the retail or wholesale trade and 
normally sell the type of item being supplied; and
    (iii) Take ownership or possession of the item(s) with its 
personnel, equipment, or facilities in a manner consistent with industry 
practice; for example, providing storage, transportation, or delivery.
    (2) When the end item being acquired is a kit of supplies, at least 
50 percent of the total cost of the components of the kit shall be 
manufactured, processed, or produced by small businesses in the United 
States or its outlying areas.
    (3) The requirements of paragraphs (d)(1)(i) through (iii) and 
(d)(2) of this clause do not apply to construction or service contracts.
    (e) The ____ [insert name of SBA's contractor] will notify the ____ 
[insert name of contracting agency] Contracting Officer in writing 
immediately upon entering an agreement (either oral or written) to 
transfer all or part of its stock or other ownership interest to any 
other party.

                             (End of clause)

[81 FR 17047, Mar. 25, 2016, as amended at 84 FR 58336, Oct. 31, 2019]



252.219-7011  Notification to delay performance.

    As prescribed in 219.811-3 (3), use the following clause:

              Notification To Delay Performance (JUN 1998)

    The Contractor shall not begin performance under this purchase order 
until 2 working days have passed from the date of its receipt. Unless 
the Contractor receives notification from the Small Business 
Administration that it is ineligible for this 8(a) award, or otherwise 
receives instructions from the Contracting Officer, performance under 
this purchase order may begin on the third working day following receipt 
of the purchase order. If a determination of ineligibility is issued 
within the 2-day period, the purchase order shall be considered 
canceled.

                             (End of clause)

[63 FR 33588, June 19, 1998]



252.219-7012  Competition for Religious-Related Services.

    As prescribed in 219.270-3, use the following provision:

          Competition for Religious-Related Services (APR 2018)

    (a) Definition. As used in this provision--
    Nonprofit organization means any organization that is--
    (1) Described in section 501(c) of the Internal Revenue Code of 
1986; and
    (2) Exempt from tax under section 501(a) of that Code.
    (b) A nonprofit organization is not precluded from competing for a 
contract for religious-related services to be performed on a U.S. 
military installation notwithstanding that a nonprofit organization is 
not a small business concern as identified in FAR 19.000(a)(3).
    (c) If the apparently successful offeror has not represented in its 
offer or quotation that it is a small business concern identified in FAR 
19.000(a)(3), as appropriate to the solicitation, the Contracting 
Officer will verify that the offeror is registered in the System for 
Award Management (SAM) database as a nonprofit organization.

                           (End of provision)

[83 FR 16003, Apr. 13, 2018]



252.222-7000  Restrictions on employment of personnel.

    As prescribed in 222.7004, use the following clause:

           Restrictions on Employment of Personnel (MAR 2000)

    (a) The Contractor shall employ, for the purpose of performing that 
portion of the contract work in ____, individuals who are residents 
thereof and who, in the case of any craft or trade, possess or would be 
able to acquire promptly the necessary skills to perform the contract.
    (b) The Contractor shall insert the substance of this clause, 
including this paragraph (b), in each subcontract awarded under this 
contract.

                             (End of clause)

[65 FR 14403, Mar. 16, 2000]



252.222-7001  [Reserved]



252.222-7002  Compliance with local labor laws (overseas).

    As prescribed in 222.7201(a), use the following clause:

         Compliance With Local Labor Laws (Overseas) (JUN 1997)

    (a) The Contractor shall comply with all--
    (1) Local laws, regulations, and labor union agreements governing 
work hours; and
    (2) Labor regulations including collective bargaining agreements, 
workers' compensation, working conditions, fringe benefits, and labor 
standards or labor contract matters.
    (b) The Contractor indemnifies and holds harmless the United States 
Government

[[Page 473]]

from all claims arising out of the requirements of this clause. This 
indemnity includes the Contractor's obligation to handle and settle, 
without cost to the United States Government, any claims or litigation 
concerning allegations that the Contractor or the United States 
Government, or both, have not fully complied with local labor laws or 
regulations relating to the performance of work required by this 
contract.
    (c) Notwithstanding paragraph (b) of this clause, consistent with 
paragraphs 31.205-15(a) and 31.205-47(d) of the Federal Acquisition 
Regulation, the Contractor will be reimbursed for the costs of all 
fines, penalties, and reasonable litigation expenses incurred as a 
result of compliance with specific contract terms and conditions or 
written instructions from the Contracting officer.

                             (End of clause)

[62 FR 34129, June 24, 1997]



252.222-7003  Permit from Italian Inspectorate of Labor.

    As prescribed in 222.7201(b), use the following clause:

          Permit From Italian Inspectorate of Labor (JUN 1997)

    Prior to the date set for commencement of work and services under 
this contract, the Contractor shall obtain the prescribed permit from 
the Inspectorate of Labor having jurisdiction over the work site, in 
accordance with Article 5g of Italian Law Number 1369, dated October 23, 
1960. The Contractor shall ensure that a copy of the permit is available 
at all reasonable times for inspection by the Contracting Officer or an 
authorized representative. Failure to obtain such permit may result in 
termination of the contract for the convenience of the United States 
Government, at no cost to the United States Government.

                             (End of clause)

[62 FR 34129, June 24, 1997]



252.222-7004  Compliance with Spanish social security laws and regulations.

    As prescribed in 222.7201(c), use the following clause:

 Compliance with Spanish Social Security Laws and Regulations (JUN 1997)

    (a) The Contractor shall comply with all Spanish Government social 
security laws and regulations. Within 30 calendar days after the start 
of contract performance, the Contractor shall ensure that copies of the 
documents identified in paragraph (a)(1) through (a)(5) of this clause 
are available at all reasonable times for inspection by the Contracting 
Officer or an authorized representative. The Contractor shall retain the 
records in accordance with the Audit and Records clause of this 
contract.
    (1) TC1--Certificate of Social Security Payments;
    (2) TC2--List of Employees;
    (3) TC2/1--Certificate of Social Security Payments for Trainees;
    (4) Nominal (pay statements) signed by both the employee and the 
Contractor; and
    (5) Informa de Situacion de Empressa (Report of the Condition of the 
Enterprise) from the Ministerio de Trabajo y S.S., Tesoreria General de 
la Seguridad Social (annotated with the pertinent contract number(s) 
next to the employee's name).
    (b) All TC1's, TC2's, and TC2/1's shall contain a representation 
that they have been paid by either the Social Security Administration 
office or the Contractor's bank or savings institution. Failure by the 
Contractor to comply with the requirements of this clause may result in 
termination of the contract under the clause of the contract entitled 
``Default.''

                             (End of clause)

[62 FR 34129, June 24, 1997]



252.222-7005  Prohibition on use of nonimmigrant aliens--Guam.

    As prescribed in 222.7302, use the following clause:

       Prohibition on Use of Nonimmigrant Aliens--Guam (SEP 1999)

    The work required by this contract shall not be performed by any 
alien who is issued a visa or otherwise provided nonimmigrant status 
under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act 
(8 U.S.C. 1101(a)(15)(H)(ii)). This prohibition does not apply to the 
performance of work by lawfully admitted citizens of the freely 
associated states of the Republic of the Marshall Islands, the Federated 
States of Micronesia, or the Republic of Palau.

                             (End of clause)

[64 FR 52673, Sept. 30, 1999, as amended at 72 FR 20764, Apr. 26, 2007]



252.222-7006  Restrictions on the Use of Mandatory Arbitration Agreements.

    As prescribed in 222.7405, use the following clause:

[[Page 474]]

 Restrictions on the Use of Mandatory Arbitration Agreements (DEC 2010)

    (a) Definitions. As used in this clause--
    Covered subcontractor means any entity that has a subcontract valued 
in excess of $1 million, except a subcontract for the acquisition of 
commercial items, including commercially available off-the-shelf items.
    Subcontract means any contract, as defined in Federal Acquisition 
Regulation subpart 2.1, to furnish supplies or services for performance 
of this contract or a higher-tier subcontract thereunder.
    (b) The Contractor--
    (1) Agrees not to--
    (i) Enter into any agreement with any of its employees or 
independent contractors that requires, as a condition of employment, 
that the employee or independent contractor agree to resolve through 
arbitration--
    (A) Any claim under title VII of the Civil Rights Act of 1964; or
    (B) Any tort related to or arising out of sexual assault or 
harassment, including assault and battery, intentional infliction of 
emotional distress, false imprisonment, or negligent hiring, 
supervision, or retention; or
    (ii) Take any action to enforce any provision of an existing 
agreement with an employee or independent contractor that mandates that 
the employee or independent contractor resolve through arbitration--
    (A) Any claim under title VII of the Civil Rights Act of 1964; or
    (B) Any tort related to or arising out of sexual assault or 
harassment, including assault and battery, intentional infliction of 
emotional distress, false imprisonment, or negligent hiring, 
supervision, or retention; and
    (2) Certifies, by signature of the contract, that it requires each 
covered subcontractor to agree not to enter into, and not to take any 
action to enforce, any provision of any existing agreements, as 
described in paragraph (b)(1) of this clause, with respect to any 
employee or independent contractor performing work related to such 
subcontract.
    (c) The prohibitions of this clause do not apply with respect to a 
contractor's or subcontractor's agreements with employees or independent 
contractors that may not be enforced in a court of the United States.
    (d) The Secretary of Defense may waive the applicability of the 
restrictions of paragraph (b) of this clause in accordance with Defense 
Federal Acquisition Regulation Supplement 222.7404.

                             (End of clause)

[75 FR 27948, May 19, 2010, as amended at 75 FR 40717, July 13, 2010; 75 
FR 76297, Dec. 8, 2010]



252.223-7000  [Reserved]



252.223-7001  Hazard warning labels.

    As prescribed in 223.303, use the following clause:

                    Hazard Warning Labels (DEC 1991)

    (a) ``Hazardous material,'' as used in this clause, is defined in 
the Hazardous Material Identification and Material Safety Data clause of 
this contract.
    (b) The Contractor shall label the item package (unit container) of 
any hazardous material to be delivered under this contract in accordance 
with the Hazard Communication Standard (29 CFR 1910.1200 et seq). The 
Standard requires that the hazard warning label conform to the 
requirements of the standard unless the material is otherwise subject to 
the labelling requirements of one of the following statutes:
    (1) Federal Insecticide, Fungicide and Rodenticide Act;
    (2) Federal Food, Drug and Cosmetics Act;
    (3) Consumer Product Safety Act;
    (4) Federal Hazardous Substances Act; or
    (5) Federal Alcohol Administration Act.
    (c) The Offeror shall list which hazardous material listed in the 
Hazardous Material Identification and Material Safety Data clause of 
this contract will be labelled in accordance with one of the Acts in 
paragraphs (b) (1) through (5) of this clause instead of the Hazard 
Communication Standard. Any hazardous material not listed will be 
interpreted to mean that a label is required in accordance with the 
Hazard Communication Standard.

------------------------------------------------------------------------
   Material (if none, insert ``none.'')                  Act
------------------------------------------------------------------------
____                                        ____
____                                        ____
------------------------------------------------------------------------

    (d) The apparently successful Offeror agrees to submit, before 
award, a copy of the hazard warning label for all hazardous materials 
not listed in paragraph (c) of this clause. The Offeror shall submit the 
label with the Material Safety Data Sheet being furnished under the 
Hazardous Material Identification and Material Safety Data clause of 
this contract.
    (e) The Contractor shall also comply with MIL-STD-129, Marking for 
Shipment and Storage (including revisions adopted during the term of 
this contract).

                             (End of clause)



252.223-7002  Safety precautions for ammunition and explosives.

    As prescribed in 223.370-5, use the following clause:

[[Page 475]]

       Safety Precautions for Ammunition and Explosives (MAY 1994)

    (a) Definition. Ammunition and explosives, as used in this clause--
    (1) Means liquid and solid propellants and explosives, pyrotechnics, 
incendiaries and smokes in the following forms:
    (i) Bulk,
    (ii) Ammunition;
    (iii) Rockets;
    (iv) Missiles;
    (v) Warheads;
    (vi) Devices; and
    (vii) Components of (i) through (vi), except for wholly inert items.
    (2) This definition does not include the following, unless the 
Contractor is using or incorporating these materials for initiation, 
propulsion, or detonation as an integral or component part of an 
explosive, an ammunition or explosive end item, or of a weapon system--
    (i) Inert components containing no explosives, propellants, or 
pyrotechnics;
    (ii) Flammable liquids;
    (iii) Acids;
    (iv) Oxidizers;
    (v) Powdered metals; or
    (vi) Other materials having fire or explosive characteristics.
    (b) Safety requirements. (1) The Contractor shall comply with the 
requirements of the DoD Contractors' Safety Manual for Ammunition and 
Explosives, DoD 4145.26-M, hereafter referred to as ``the manual,'' in 
effect on the date of the solicitation for this contract. The Contractor 
shall also comply with any other additional requirements included in the 
schedule of this contract.
    (2) The Contractor shall allow the Government access to the 
Contractor's facilities, personnel, and safety program documentation. 
The Contractor shall allow authorized Government representatives to 
evaluate safety programs, implementation, and facilities.
    (c) Noncompliance with the manual. (1) If the Contracting Officer 
notifies the Contractor of any noncompliance with the manual or schedule 
provisions, the Contractor shall take immediate steps to correct the 
noncompliance. The Contractor is not entitled to reimbursement of costs 
incurred to correct noncompliances unless such reimbursement is 
specified elsewhere in the contract.
    (2) The Contractor has 30 days from the date of notification by the 
Contracting Officer to correct the noncompliance and inform the 
Contracting Officer of the actions taken. The Contracting Officer may 
direct a different time period for the correction of noncompliances.
    (3) If the Contractor refuses or fails to correct noncompliances 
within the time period specified by the Contracting Officer, the 
Government has the right to direct the Contractor to cease performance 
on all or part of this contract. The Contractor shall not resume 
performance until the Contracting Officer is satisfied that the 
corrective action was effective and the Contracting Officer so informs 
the Contractor.
    (4) The Contracting Officer may remove Government personnel at any 
time the Contractor is in noncompliance with any safety requirement of 
this clause.
    (5) If the direction to cease work or the removal of Government 
personnel results in increased costs to the Contractor, the Contractor 
shall not be entitled to an adjustment in the contract price or a change 
in the delivery or performance schedule unless the Contracting Officer 
later determines that the Contractor had in fact complied with the 
manual or schedule provisions. If the Contractor is entitled to an 
equitable adjustment, it shall be made in accordance with the Changes 
clause of this contract.
    (d) Mishaps. If a mishap involving ammunition or explosives occurs, 
the Contractor shall--
    (1) Notify the Contracting Officer immediately;
    (2) Conduct an investigation in accordance with other provisions of 
this contract or as required by the Contracting Officer; and
    (3) Submit a written report to the Contracting Officer.
    (e) Contractor responsibility for safety. (1) Nothing in this 
clause, nor any Government action or failure to act in surveillance of 
this contract, shall relieve the Contractor of its responsibility for 
the safety of--
    (i) The Contractor's personnel and property;
    (ii) The Government's personnel and property; or
    (iii) The general public.
    (2) Nothing in this clause shall relieve the Contractor of its 
responsibility for complying with applicable Federal, State, and local 
laws, ordinances, codes, and regulations (including those requiring the 
obtaining of licenses and permits) in connection with the performance of 
this contract.
    (f) Contractor responsibility for contract performance. (1) Neither 
the number or frequency of inspections performed by the Government, nor 
the degree of surveillance exercised by the Government, relieve the 
Contractor of its responsibility for contract performance.
    (2) If the Government acts or fails to act in surveillance or 
enforcement of the safety requirements of this contract, this does not 
impose or add to any liability of the Government.
    (g) Subcontractors. (1) The Contractor shall insert this clause, 
including this paragraph (g), in every subcontract that involves 
ammunition or explosives.

[[Page 476]]

    (i) The clause shall include a provision allowing authorized 
Government safety representatives to evaluate subcontractor safety 
programs, implementation, and facilities as the Government determines 
necessary.
    (ii) Note: The Government Contracting Officer or authorized 
representative shall notify the prime Contractor of all findings 
concerning subcontractor safety and compliance with the manual. The 
Contracting Officer or authorized representative may furnish copies to 
the subcontractor. The Contractor in turn shall communicate directly 
with the subcontractor, substituting its name for references to ``the 
Government''. The Contractor and higher tier subcontractors shall also 
include provisions to allow direction to cease performance of the 
subcontract if a serious uncorrected or recurring safety deficiency 
potentially causes an imminent hazard to DoD personnel, property, or 
contract performance.
    (2) The Contractor agrees to ensure that the subcontractor complies 
with all contract safety requirements. The Contractor will determine the 
best method for verifying the adequacy of the subcontractor's 
compliance.
    (3) The Contractor shall ensure that the subcontractor understands 
and agrees to the Government's right to access to the subcontractor's 
facilities, personnel, and safety program documentation to perform 
safety surveys. The Government performs these safety surveys of 
subcontractor facilities solely to prevent the occurrence of any mishap 
which would endanger the safety of DoD personnel or otherwise adversely 
impact upon the Government's contractual interests.
    (4) The Contractor shall notify the Contracting Officer or 
authorized representative before issuing any subcontract when it 
involves ammunition or explosives. If the proposed subcontract 
represents a change in the place of performance, the Contractor shall 
request approval for such change in accordance with the clause of this 
contract entitled ``Change in Place of Performance--Ammunition and 
Explosives''.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 59 FR 27675, May 27, 1994]



252.223-7003  Change in place of performance--ammunition and explosives.

    As prescribed in 223.370-5, use the following clause:

  Change in Place of Performance--Ammunition and Explosives (DEC 1991)

    (a) The Offeror shall identify, in the ``Place of Performance'' 
provision of this solicitation, the place of performance of all 
ammunition and explosives work covered by the Safety Precautions for 
Ammunition and Explosives clause of this solicitation. Failure to 
furnish this information with the offer may result in rejection of the 
offer.
    (b) The Offeror agrees not to change the place of performance of any 
portion of the offer covered by the Safety Precautions for Ammunition 
and Explosives clause contained in this solicitation after the date set 
for receipt of offers without the written approval of the Contracting 
Officer. The Contracting Officer shall grant approval only if there is 
enough time for the Government to perform the necessary safety reviews 
on the new proposed place of performance.
    (c) If a contract results from this offer, the Contractor agrees not 
to change any place of performance previously cited without the advance 
written approval of the Contracting Officer.

                             (End of clause)



252.223-7004  Drug-free work force.

    As prescribed in 223.570-2, use the following clause:

                     Drug-Free Work Force (SEP 1988)

    (a) Definitions. (1) Employee in a sensitive position, as used in 
this clause, means an employee who has been granted access to classified 
information; or employees in other positions that the Contractor 
determines involve national security, health or safety, or functions 
other than the foregoing requiring a high degree of trust and 
confidence.
    (2) Illegal drugs, as used in this clause, means controlled 
substances included in Schedules I and II, as defined by section 802(6) 
of title 21 of the United States Code, the possession of which is 
unlawful under chapter 13 of that title. The term ``illegal drugs'' does 
not mean the use of a controlled substance pursuant to a valid 
prescription or other uses authorized by law.
    (b) The Contractor agrees to institute and maintain a program for 
achieving the objective of a drug-free work force. While this clause 
defines criteria for such a program, contractors are encouraged to 
implement alternative approaches comparable to the criteria in paragraph 
(c) that are designed to achieve the objectives of this clause.
    (c) Contractor programs shall include the following, or appropriate 
alternatives:
    (1) Employee assistance programs emphasizing high level direction, 
education, counseling, rehabilitation, and coordination with available 
community resources;
    (2) Supervisory training to assist in identifying and addressing 
illegal drug use by Contractor employees;

[[Page 477]]

    (3) Provision for self-referrals as well as supervisory referrals to 
treatment with maximum respect for individual confidentiality consistent 
with safety and security issues;
    (4) Provision for identifying illegal drug users, including testing 
on a controlled and carefully monitored basis. Employee drug testing 
programs shall be established taking account of the following:
    (i) The Contractor shall establish a program that provides for 
testing for the use of illegal drugs by employees in sensitive 
positions. The extent of and criteria for such testing shall be 
determined by the Contractor based on considerations that include the 
nature of the work being performed under the contract, the employee's 
duties, the efficient use of Contractor resources, and the risks to 
health, safety, or national security that could result from the failure 
of an employee adequately to discharge his or her position.
    (ii) In addition, the Contractor may establish a program for 
employee drug testing--
    (A) When there is a reasonable suspicion that an employee uses 
illegal drugs; or
    (B) When an employee has been involved in an accident or unsafe 
practice;
    (C) As part of or as a follow-up to counseling or rehabilitation for 
illegal drug use;
    (D) As part of a voluntary employee drug testing program.
    (iii) The Contractor may establish a program to test applicants for 
employment for illegal drug use.
    (iv) For the purpose of administering this clause, testing for 
illegal drugs may be limited to those substances for which testing is 
prescribed by section 2.1 of subpart B of the ``Mandatory Guidelines for 
Federal Workplace Drug Testing Programs'' (53 FR 11980 (April 11 1988)), 
issued by the Department of Health and Human Services.
    (d) Contractors shall adopt appropriate personnel procedures to deal 
with employees who are found to be using drugs illegally. Contractors 
shall not allow any employee to remain on duty or perform in a sensitive 
position who is found to use illegal drugs until such times as the 
Contractor, in accordance with procedures established by the Contractor, 
determines that the employee may perform in such a position.
    (e) The provisions of this clause pertaining to drug testing program 
shall not apply to the extent they are inconsistent with state or local 
law, or with an existing collective bargaining agreement; provided that 
with respect to the latter, the Contractor agrees that those issues that 
are in conflict will be a subject of negotiation at the next collective 
bargaining session.

                             (End of clause)

[57 FR 32737, July 23, 1992, as amended at 70 FR 73151, Dec. 9, 2005]



252.223-7005  [Reserved]



252.223-7006  Prohibition on Storage, Treatment, and Disposal of Toxic
or Hazardous Materials.

    Basic. As prescribed in 223.7106 and 223.7106(a), use the following 
clause:

 Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous 
                       Materials--Basic (SEP 2014)

    (a) Definitions. As used in this clause--
    Storage means a non-transitory, semi-permanent or permanent holding, 
placement, or leaving of material. It does not include a temporary 
accumulation of a limited quantity of a material used in or a waste 
generated or resulting from authorized activities, such as servicing, 
maintenance, or repair of Department of Defense (DoD) items, equipment, 
or facilities.
    Toxic or hazardous materials means--
    (i) Materials referred to in section 101(14) of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 
(42 U.S.C. 9601(14)) and materials designated under section 102 of 
CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
    (ii) Materials that are of an explosive, flammable, or pyrotechnic 
nature; or
    (iii) Materials otherwise identified by the Secretary of Defense as 
specified in DoD regulations.
    (b) In accordance with 10 U.S.C. 2692, the Contractor is prohibited 
from storing, treating, or disposing of toxic or hazardous materials not 
owned by DoD on a DoD installation, except to the extent authorized by a 
statutory exception to 10 U.S.C. 2692 or as authorized by the Secretary 
of Defense. A charge may be assessed for any storage or disposal 
authorized under any of the exceptions to 10 U.S.C. 2692. If a charge is 
to be assessed, then such assessment shall be identified elsewhere in 
the contract with payment to the Government on a reimbursable cost 
basis.
    (c) The Contractor shall include the substance of this clause, 
including this paragraph (c), in all subcontracts that require, may 
require, or permit a subcontractor access to a DoD installation, at any 
subcontract tier.

                             (End of clause)

    Alternate I. As prescribed in 223.7106 and 223.7106(b), use the 
following clause, which adds a new paragraph (c) and revises and 
redesignates paragraph (c) of the basic clause as paragraph (d):

[[Page 478]]

 Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous 
                    Materials--Alternate I (SEP 2014)

    (a) Definitions. As used in this clause--
    Storage means a non-transitory, semi-permanent or permanent holding, 
placement, or leaving of material. It does not include a temporary 
accumulation of a limited quantity of a material used in or a waste 
generated or resulting from authorized activities, such as servicing, 
maintenance, or repair of Department of Defense (DoD) items, equipment, 
or facilities.
    Toxic or hazardous materials means--
    (i) Materials referred to in section 101(14) of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 
(42 U.S.C. 9601(14)) and materials designated under section 102 of 
CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
    (ii) Materials that are of an explosive, flammable, or pyrotechnic 
nature; or
    (iii) Materials otherwise identified by the Secretary of Defense as 
specified in DoD regulations.
    (b) In accordance with 10 U.S.C. 2692, the Contractor is prohibited 
from storing, treating, or disposing of toxic or hazardous materials not 
owned by DoD on a DoD installation, except to the extent authorized by a 
statutory exception to 10 U.S.C. 2692 or as authorized by the Secretary 
of Defense. A charge may be assessed for any storage or disposal 
authorized under any of the exceptions to 10 U.S.C. 2692. If a charge is 
to be assessed, then such assessment shall be identified elsewhere in 
the contract with payment to the Government on a reimbursable cost 
basis.
    (c) With respect to treatment or disposal authorized pursuant to 
DFARS 223.7104(10) (10 U.S.C. 2692(b)(10), and notwithstanding any other 
provision of the contract, the Contractor assumes all financial and 
environmental responsibility and liability resulting from any treatment 
or disposal of toxic or hazardous materials not owned by DoD on a 
military installation. The Contractor shall indemnify, defend, and hold 
the Government harmless for all costs, liability, or penalties resulting 
from the Contractor's treatment or disposal of toxic or hazardous 
materials not owned by DoD on a military installation.
    (d) The Contractor shall include the substance of this clause, 
including this paragraph (d), in all subcontracts that require, may 
require, or permit a subcontractor access to a DoD installation, at any 
tier. Inclusion of the substance of this clause in subcontracts does not 
relieve the prime Contractor of liability to the Government under 
paragraph (c) of this clause.

[79 FR 58698, Sept. 30, 2014, as amended at 80 FR 36898, June 26, 2015]



252.223-7007  Safeguarding sensitive conventional arms, ammunition,
and explosives.

    As prescribed in 223.7203, use the following clause:

  Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives 
                               (SEP 1999)

    (a) Definition. ``Arms, ammunition, and explosives (AA&E),'' as used 
in this clause, means those items within the scope (chapter 1, paragraph 
B) of DoD 5100.76-M, Physical Security of Sensitive Conventional Arms, 
Ammunition, and Explosives.
    (b) The requirements of DoD 5100.76-M apply to the following items 
of AA&E being developed, produced, manufactured, or purchased for the 
Government, or provided to the Contractor as Government-furnished 
property under this contract:

------------------------------------------------------------------------
                                                  National
                 Nomenclature                      stock     Sensitivity
                                                   number      category
------------------------------------------------------------------------
 
 
------------------------------------------------------------------------

    (c) The Contractor shall comply with the requirements of DoD 
5100.76-M, as specified in the statement of work. The edition of DoD 
5100.76-M in effect on the date of issuance of the solicitation for this 
contract shall apply.
    (d) The Contractor shall allow representatives of the Defense 
Security Service (DSS), and representatives of other appropriate offices 
of the Government, access at all reasonable times into its facilities 
and those of its subcontractors, for the purpose of performing surveys, 
inspections, and investigations necessary to review compliance with the 
physical security standards applicable to this contract.
    (e) The Contractor shall notify the cognizant DSS field office of 
any subcontract involving AA&E within 10 days after award of the 
subcontract.
    (f) The Contractor shall ensure that the requirements of this clause 
are included in all subcontracts, at every tier--
    (1) For the development, production, manufacture, or purchase of 
AA&E or
    (2) When AA&E will be provided to the subcontractor as Government-
furnished property.
    (g) Nothing in this clause shall relieve the Contractor of its 
responsibility for complying with applicable Federal, state, and local 
laws, ordinances, codes, and regulations (including requirements for 
obtaining licenses and permits) in connection with the performance of 
this contract.

[[Page 479]]

                             (End of clause)

[61 FR 7750, Feb. 29, 1996, as amended at 64 FR 51077, Sept. 21, 1999]



252.223-7008  Prohibition of Hexavalent Chromium.

    As prescribed in 223.7306, use the following clause:

              Prohibition of Hexavalent Chromium (JUN 2013)

    (a) Definitions. As used in this clause--
    Homogeneous material means a material that cannot be mechanically 
disjointed into different materials and is of uniform composition 
throughout.
    (1) Examples of homogeneous materials include individual types of 
plastics, ceramics, glass, metals, alloys, paper, board, resins, and 
surface coatings.
    (2) Homogeneous material does not include conversion coatings that 
chemically modify the substrate. Mechanically disjointed means that the 
materials can, in principle, be separated by mechanical actions such as 
unscrewing, cutting, crushing, grinding, and abrasive processes.
    (b) Prohibition. (1) Unless otherwise specified by the Contracting 
Officer, the Contractor shall not provide any deliverable or 
construction material under this contract that--
    (i) Contains hexavalent chromium in a concentration greater than 0.1 
percent by weight in any homogenous material; or
    (ii) Requires the removal or reapplication of hexavalent chromium 
materials during subsequent sustainment phases of the deliverable or 
construction material.
    (2) This prohibition does not apply to hexavalent chromium produced 
as a by-product of manufacturing processes.
    (c) If authorization for incorporation of hexavalent chromium in a 
deliverable or construction material is required, the Contractor shall 
submit a request to the Contracting Officer.
    (d) Subcontracts. The Contractor shall include the substance of this 
clause, including this paragraph (d), in all subcontracts, including 
subcontracts for commercial items, that are for supplies,, maintenance 
and repair services, or construction materials.

                             (End of clause)

[76 FR 25576, May 5, 2011, as amended at 78 FR 37990, June 25, 2013]



252.225-7000  Buy American--Balance of Payments Program Certificate.

    Basic. As prescribed in 225.1101(1) and (1)(i), use the following 
provision:

 Buy American--Balance of Payments Program Certificate--Basic (NOV 2014)

    (a) Definitions. Commercially available off-the-shelf (COTS) item, 
component, domestic end product, foreign end product, qualifying 
country, qualifying country end product, South Caucasus/Central and 
South Asian (SC/CASA) state, South Caucasus/Central and South Asian (SC/
CASA) state end product, and United States, as used in this provision, 
have the meanings given in the Buy American and Balance of Payments 
Program--Basic clause of this solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of Part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) Will evaluate offers of qualifying country end products without 
regard to the restrictions of the Buy American statute or the Balance of 
Payments Program.
    (c) Certifications and identification of country of origin. (1) For 
all line items subject to the Buy American and Balance of Payments 
Program--Basic clause of this solicitation, the offeror certifies that--
    (i) Each end product, except those listed in paragraph (c)(2) or (3) 
of this provision, is a domestic end product; and
    (ii) For end products other than COTS items, components of unknown 
origin are considered to have been mined, produced, or manufactured 
outside the United States or a qualifying country.
    (2) The offeror certifies that the following end products are 
qualifying country end products:

________________________________________________________________________
(Line Item Number)

________________________________________________________________________
(Country of Origin)

    (3) The following end products are other foreign end products, 
including end products manufactured in the United States that do not 
qualify as domestic end products, i.e., an end product that is not a 
COTS item and does not meet the component test in paragraph (ii) of the 
definition of ``domestic end product'':
________________________________________________________________________
(Line Item Number)
________________________________________________________________________
(Country of Origin (If known))

                           (End of provision)

    Alternate I. As prescribed in 225.1101(1) and (1)(ii), use the 
following provision, which adds South Caucasus/Central and South Asian 
(SC/CASA) state and South Caucasus/Central and South Asian (SC/CASA) 
state end product in paragraph (a), and replaces ``qualifying country 
end products'' in paragraphs

[[Page 480]]

(b)(2) and (c)(2) with ``qualifying country end products or SC/CASA 
state end products'':

Buy American--Balance of Payments Program Certificate--Alternate I (NOV 
                                  2014)

    (a) Definitions. Commercially available off-the-shelf (COTS) item, 
component, domestic end product, foreign end product, qualifying 
country, qualifying country end product, South Caucasus/Central and 
South Asian (SC/CASA) state, South Caucasus/Central and South Asian (SC/
CASA) state end product, and United States, as used in this provision, 
have the meanings given in the Buy American and Balance of Payments 
Program--Alternate I clause of this solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) Will evaluate offers of qualifying country end products or SC/
CASA state end products without regard to the restrictions of the Buy 
American statute or the Balance of Payments Program.
    (c) Certifications and identification of country of origin.
    (1) For all line items subject to the Buy American and Balance of 
Payments Program--Alternate I clause of this solicitation, the offeror 
certifies that--
    (i) Each end product, except those listed in paragraphs (c)(2) or 
(3) of this provision, is a domestic end product; and
    (ii) For end products other than COTS items, components of unknown 
origin are considered to have been mined, produced, or manufactured 
outside the United States or a qualifying country.
    (2) The offeror certifies that the following end products are 
qualifying country end products or SC/CASA state end products:

                            Line Item Number

________________________________________________________________________

                            Country of Origin

________________________________________________________________________
    (3) The following end products are other foreign end products, 
including end products manufactured in the United States that do not 
qualify as domestic end products, i.e., an end product that is not a 
COTS item and does not meet the component test in paragraph (ii) of the 
definition of domestic end product:

                            Line Item Number

________________________________________________________________________

                      Country of Origin (If known)

________________________________________________________________________

                           (End of provision)

[68 FR 15634, Mar. 31, 2003; 68 FR 25088, May 9, 2003, as amended at 70 
FR 35546, June 21, 2005; 74 FR 2423, Jan. 15, 2009; 74 FR 68384, Dec. 
24, 2009; 75 FR 81918, Dec. 29, 2010; 77 FR 35882, June 15, 2012; 79 FR 
3520, Jan. 22, 2014; 79 FR 65818, Nov. 5, 2014; 80 FR 36899, June 26, 
2015]



252.225-7001  Buy American and Balance of Payments Program.

    Basic. As prescribed in 225.1101(2)(i) and (2)(ii), use the 
following clause:

     Buy American and Balance of Payments Program--Basic (DEC 2017)

    (a) Definitions. As used in this clause--
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of ``commercial item'' in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Domestic end product means--
    (i) An unmanufactured end product that has been mined or produced in 
the United States; or
    (ii) An end product manufactured in the United States if--
    (A) The cost of its qualifying country components and its components 
that are mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. The cost of components 
includes transportation costs to the place of incorporation into the end 
product and U.S. duty (whether or not a duty-free entry certificate is 
issued). Scrap generated, collected, and prepared for processing in the 
United States is considered domestic. A component is considered to have 
been mined, produced, or manufactured in the United States (regardless 
of its source in fact) if the end product in which it is incorporated is 
manufactured in the United States and the component is of a class or 
kind for which the Government has determined that--
    (1) Sufficient and reasonably available commercial quantities of a 
satisfactory quality are not mined, produced, or manufactured in the 
United States; or

[[Page 481]]

    (2) It is inconsistent with the public interest to apply the 
restrictions of the Buy American statute; or
    (B) The end product is a COTS item.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Foreign end product means an end product other than a domestic end 
product.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country component means a component mined, produced, or 
manufactured in a qualifying country.
    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) This clause implements, Buy American. In accordance with 41 
U.S.C. 1907, the component test of the Buy American statute is waived 
for an end product that is a COTS item (see section 12.505(a)(1) of the 
Federal Acquisition Regulation). Unless otherwise specified, this clause 
applies to all line items in the contract.
    (c) The Contractor shall deliver only domestic end products unless, 
in its offer, it specified delivery of other end products in the Buy 
American --Balance of Payments Program Certificate provision of the 
solicitation. If the Contractor certified in its offer that it will 
deliver a qualifying country end product, the Contractor shall deliver a 
qualifying country end product or, at the Contractor's option, a 
domestic end product.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.

                             (End of clause)

    Alternate I. As prescribed in 225.1101(2)(i) and (2)(iii), use the 
following clause, which adds South Caucasus/Central and South Asian (SC/
CASA) state and South Caucasus/Central and South Asian (SC/CASA) state 
end product to paragraph (a), and uses different paragraphs (b) and (c) 
than the basic clause:

  Buy American and Balance of Payments Program--Alternate I (DEC 2017)

    (a) Definitions. As used in this clause--
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of ``commercial item'' in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Domestic end product means--
    (i) An unmanufactured end product that has been mined or produced in 
the United States; or
    (ii) An end product manufactured in the United States if--
    (A) The cost of its qualifying country components and its components 
that are mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. The cost of components 
includes transportation costs to the place of incorporation into the end 
product and U.S.

[[Page 482]]

duty (whether or not a duty-free entry certificate is issued). Scrap 
generated, collected, and prepared for processing in the United States 
is considered domestic. A component is considered to have been mined, 
produced, or manufactured in the United States (regardless of its source 
in fact) if the end product in which it is incorporated is manufactured 
in the United States and the component is of a class or kind for which 
the Government has determined that--
    (1) Sufficient and reasonably available commercial quantities of a 
satisfactory quality are not mined, produced, or manufactured in the 
United States; or
    (2) It is inconsistent with the public interest to apply the 
restrictions of the Buy American statute; or
    (B) The end product is a COTS item.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Foreign end product means an end product other than a domestic end 
product.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country component means a component mined, produced, or 
manufactured in a qualifying country.
    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    South Caucasus/Central and South Asian (SC/CASA) state end product 
means an article that--
    (i) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in an 
SC/CASA state into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) This clause implements the Balance of Payments Program. Unless 
otherwise specified, this clause applies to all line items in the 
contract.
    (c) The Contractor shall deliver only domestic end products unless, 
in its offer, it specified delivery of other end products in the Buy 
American Balance of Payments Program Certificate provision of the 
solicitation. If the Contractor certified in its offer that it will 
deliver a qualifying country end product or an SC/CASA state end 
product, the Contractor shall deliver a qualifying country end product, 
an SC/CASA state end product, or, at the Contractor's option, a domestic 
end product.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.

                             (End of clause)

[68 FR 15634, Mar. 31, 2003, as amended at 70 FR 35546, June 21, 2005; 
74 FR 2423, Jan. 15, 2009; 75 FR 81918, Dec. 29, 2010; 76 FR 58138, 
Sept. 20, 2011; 77 FR 35882, June 15, 2012; 77 FR 76942, Dec. 31, 2012; 
79 FR 3520, Jan. 22, 2014; 79 FR 65819, Nov. 5, 2014; 80 FR 36899, June 
26, 2015; 81 FR 50651, Aug. 2, 2016; 81 FR 93840, Dec. 22, 2016; 82 FR 
61484, Dec. 28, 2017]

[[Page 483]]



252.225-7002  Qualifying country sources as subcontractors.

    As prescribed in 225.1101(3), use the following clause:

         Qualifying Country Sources as Subcontractors (DEC 2017)

    (a) Definition. Qualifying country, as used in this clause, means a 
country with a reciprocal defense procurement memorandum of 
understanding or international agreement with the United States in which 
both countries agree to remove barriers to purchases of supplies 
produced in the other country or services performed by sources of the 
other country, and the memorandum or agreement complies, where 
applicable, with the requirements of section 36 of the Arms Export 
Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the 
following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland

    (b) Subject to the restrictions in section 225.872 of the Defense 
FAR Supplement, the Contractor shall not preclude qualifying country 
sources or U.S. sources from competing for subcontracts under this 
contract.

                             (End of clause)

[68 FR 15634, Mar. 31, 2003, as amended at 77 FR 38737, June 29, 2012; 
77 FR 76942, Dec. 31, 2012; 81 FR 50651, Aug. 2, 2016: 81 FR 93841, Dec. 
22, 2016; 82 FR 61484, Dec. 28, 2017]



252.225-7003  Report of intended performance outside the United States
and Canada--Submission with offer.

    As prescribed in 225.7204(a), use the following provision:

  Report of Intended Performance Outside the United States and Canada--
                    Submission With Offer (OCT 2020)

    (a) Definition. United States, as used in this provision, means the 
50 States, the District of Columbia, and outlying areas.
    (b) The offeror shall submit, with its offer, a report of intended 
performance outside the United States and Canada if--
    (1) The offer exceeds $15 million in value; and
    (2) The offeror is aware that the offeror or a first-tier 
subcontractor intends to perform any part of the contract outside the 
United States and Canada that--
    (i) Exceeds $750,000 in value; and
    (ii) Could be performed inside the United States or Canada.
    (c) Information to be reported includes that for--
    (1) Subcontracts;
    (2) Purchases; and
    (3) Intracompany transfers when transfers originate in a foreign 
location.
    (d) The offeror shall submit the report using--
    (1) DD Form 2139, Report of Contract Performance Outside the United 
States; or
    (2) A computer-generated report that contains all information 
required by DD Form 2139.
    (e) The offeror may obtain a copy of DD Form 2139 from the 
Contracting Officer or via the Internet at http://www.dtic.mil/whs/
directives/infomgt/forms/formsprogram.htm.

                           (End of provision)

[70 FR 20839, Apr. 22, 2005, as amended at 70 FR 35546, June 21, 2005; 
71 FR 75893, Dec. 19, 2006; 75 FR 45074, Aug. 2, 2010; 80 FR 36905, June 
26, 2015; 85 FR 61504, Sept. 29, 2020]



252.225-7004  Report of Intended Performance Outside the United States
and Canada--Submission after Award.

    As prescribed in 225.7204(b), use the following clause:

  Report of Intended Performance Outside the United States and Canada--
                    Submission After Award (OCT 2020)

    (a) Definition. As used in this clause--
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Reporting requirement. The Contractor shall submit a report in 
accordance with this clause, if the Contractor or a first-tier 
subcontractor will perform any part of this contract outside the United 
States and Canada that--
    (1) Exceeds the threshold specified in Defense Federal Acquisition 
Regulation Supplement 225.7201(a) on the date of award of this contract; 
and
    (2) Could be performed inside the United States or Canada.
    (c) Submission of reports. The Contractor--
    (1) Shall submit a report as soon as practical after the information 
is known;

[[Page 484]]

    (2) To the maximum extent practicable, shall submit a report 
regarding a first-tier subcontractor at least 30 days before award of 
the subcontract;
    (3) Need not resubmit information submitted with its offer, unless 
the information changes;
    (4) Shall submit all reports to the Contracting Officer; and
    (5) Shall submit a copy of each report to: Principal Director, 
Defense Pricing and Contracting (Contract Policy), Washington, DC 20301-
3060.
    (d) Report format. The Contractor--
    (1) Shall submit reports using--
    (i) DD Form 2139, Report of Contract Performance Outside the United 
States; or
    (ii) A computer-generated report that contains all information 
required by DD Form 2139; and
    (2) May obtain copies of DD Form 2139 from the Contracting Officer 
or via the Internet at https://www.esd.whs.mil/Directives/forms/. 

                             (End of clause)

[70 FR 20839, Apr. 22, 2005, as amended at 70 FR 35546, June 21, 2005; 
71 FR 75893, Dec. 19, 2006; 72 FR 30278, May 31, 2007; 75 FR 45074, Aug. 
2, 2010; 78 FR 73450, Dec. 6, 2013; 80 FR 36905, June 26, 2015; 84 FR 
25188, May 31, 2019; 85 FR 61504, Sept. 29, 2020]

    Editorial Note: At 79 FR 11342, Feb. 28, 2014, Sec. 252.225-7004 
was amended by revising the clause date and amending paragraph (a); 
however, the amendments could not be incorporated as indicated.



252.225-7005  Identification of Expenditures in the United States.

    As prescribed in 225.1103(1), use the following clause:

     Identification of Expenditures In The United States (JUN 2005)

    (a) Definition. United States, as used in this clause, means the 50 
States, the District of Columbia, and outlying areas.
    (b) This clause applies only if the Contractor is--
    (1) A concern incorporated in the United States (including a 
subsidiary that is incorporated in the United States, even if the parent 
corporation is not incorporated in the United States); or
    (2) An unincorporated concern having its principal place of business 
in the United States.
    (c) On each invoice, voucher, or other request for payment under 
this contract, the Contractor shall identify that part of the requested 
payment that represents estimated expenditures in the United States. The 
identification--
    (1) May be expressed either as dollar amounts or as percentages of 
the total amount of the request for payment;
    (2) Should be based on reasonable estimates; and
    (3) Shall state the full amount of the payment requested, subdivided 
into the following categories:
    (i) U.S. products--expenditures for material and equipment 
manufactured or produced in the United States, including end products, 
components, or construction material, but excluding transportation;
    (ii) U.S. services--expenditures for services performed in the 
United States, including all charges for overhead, other indirect costs, 
and profit under construction or service contracts;
    (iii) Transportation on U.S. carriers--expenditures for 
transportation furnished by U.S. flag, ocean, surface, and air carriers; 
and
    (iv) Expenditures not identified under paragraphs (c)(3)(i) through 
(iii) of this clause.
    (d) Nothing in this clause requires the establishment or maintenance 
of detailed accounting records or gives the U.S. Government any right to 
audit the Contractor's books or records.

                             (End of clause)

[79 FR 75757, Dec. 19, 2014]



252.225-7006  Acquisition of the American flag.

    As prescribed in 225.7002-3(c), insert the following clause:

               Acquisition of the American Flag (AUG 2015)

    (a) Definition. United States, as used in this clause, means the 50 
States, the District of Columbia, and outlying areas.
    (b) If the Contractor is required to deliver under this contract one 
or more American flags (Product or Service Code 8345), such flag(s), 
including the materials and components thereof, shall be manufactured in 
the United States, consistent with the requirements at 10 U.S.C. 2533a 
(commonly known as the ``Berry Amendment'').
    (c) This clause does not apply to the acquisition of any end items 
or components related to flying or displaying the flag (e.g., flagpoles 
and accessories).

                             (End of clause)

[80 FR 51749, Aug. 26, 2015]

[[Page 485]]



252.225-7007  Prohibition on Acquisition of Certain Items from
Communist Chinese Military Companies.

    As prescribed in 225.1103(4), use the following clause:

   Prohibition on Acquisition of Certain Items From Communist Chinese 
                      Military Companies (DEC 2018)

    (a) Definitions. As used in this clause--
    600 series of the Commerce Control List means the series of 5-
character export control classification numbers (ECCNs) of the Commerce 
Control List of the Export Administration Regulations in 15 CFR part 
774, supplement no. 1, that have a ``6'' as the third character. The 600 
series constitutes the munitions and munitions-related ECCNs within the 
larger Commerce Control List. (See definition of ``600 series'' in 15 
CFR 772.)
    Communist Chinese military company means any entity, regardless of 
geographic location, that is--
    (1) A part of the commercial or defense industrial base of the 
People's Republic of China (including a subsidiary or affiliate of such 
entity); or
    (2) Owned or controlled by, or affiliated with, an element of the 
Government or armed forces of the People's Republic of China.
    Item means--
    (1) A USML defense article, as defined at 22 CFR 120.6;
    (2) A USML defense service, as defined at 22 CFR 120.9; or
    (3) A 600 series item, as defined at 15 CFR 772.1.
    United States Munitions List means the munitions list of the 
International Traffic in Arms Regulation in 22 CFR part 121.
    (b) Any items covered by the United States Munitions List or the 600 
series of the Commerce Control List that are delivered under this 
contract may not be acquired, directly or indirectly, from a Communist 
Chinese military company.
    (c) The Contractor shall insert the substance of this clause, 
including this paragraph (c), in all subcontracts for items covered by 
the United States Munitions List or the 600 series of the Commerce 
Control List.

                             (End of clause)

[83 FR 66073, Dec. 21, 2018]



252.225-7008  Restriction on Acquisition of Specialty Metals.

    As prescribed in 225.7003-5(a)(1), use the following clause:

        Restriction on Acquisition of Specialty Metals (MAR 2013)

    (a) Definitions. As used in this clause--
    Alloy means a metal consisting of a mixture of a basic metallic 
element and one or more metallic, or non-metallic, alloying elements.
    (i) For alloys named by a single metallic element (e.g., titanium 
alloy), it means that the alloy contains 50 percent or more of the named 
metal (by mass).
    (ii) If two metals are specified in the name (e.g., nickel-iron 
alloy), those metals are the two predominant elements in the alloy, and 
together they constitute 50 percent or more of the alloy (by mass).
    Produce means--
    (i) Atomization;
    (ii) Sputtering; or
    (iii) Final consolidation of non-melt derived metal powders.
    Specialty metal means--
    (i) Steel--
    (A) With a maximum alloy content exceeding one or more of the 
following limits: Manganese, 1.65 percent; silicon, 0.60 percent; or 
copper, 0.60 percent; or
    (B) Containing more than 0.25 percent of any of the following 
elements: Aluminum, chromium, cobalt, molybdenum, nickel, niobium 
(columbium), titanium, tungsten, or vanadium;
    (ii) Metal alloys consisting of--
    (A) Nickel or iron-nickel alloys that contain a total of alloying 
metals other than nickel and iron in excess of 10 percent; or
    (B) Cobalt alloys that contain a total of alloying metals other than 
cobalt and iron in excess of 10 percent;
    (iii) Titanium and titanium alloys; or
    (iv) Zirconium and zirconium alloys.
    Steel means an iron alloy that includes between .02 and 2 percent 
carbon and may include other elements.
    (b) Any specialty metal delivered under this contract shall be 
melted or produced in the United States or its outlying areas.

                             (End of clause)

[74 FR 37639, July 29, 2009, as amended at 78 FR 18879, Mar. 28, 2013]



252.225-7009  Restriction on Acquisition of Certain Articles 
Containing Specialty Metals.

    As prescribed in 225.7003-5(a)(2), use the following clause:

  Restriction on Acquisition of Certain Articles Containing Specialty 
                            Metals (DEC 2019)

    (a) Definitions. As used in this clause--
    Alloy means a metal consisting of a mixture of a basic metallic 
element and one or

[[Page 486]]

more metallic, or non-metallic, alloying elements.
    (i) For alloys named by a single metallic element (e.g., titanium 
alloy), it means that the alloy contains 50 percent or more of the named 
metal (by mass).
    (ii) If two metals are specified in the name (e.g., nickel-iron 
alloy), those metals are the two predominant elements in the alloy, and 
together they constitute 50 percent or more of the alloy (by mass).
    Assembly means an item forming a portion of a system or subsystem 
that--
    (i) Can be provisioned and replaced as an entity; and
    (ii) Incorporates multiple, replaceable parts.
    Commercial derivative military article means an item acquired by the 
Department of Defense that is or will be produced using the same 
production facilities, a common supply chain, and the same or similar 
production processes that are used for the production of articles 
predominantly used by the general public or by nongovernmental entities 
for purposes other than governmental purposes.
    Commercially available off-the-shelf item--
    (i) Means any item of supply that is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of ``commercial item'' in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under this contract or a subcontract 
at any tier, without modification, in the same form in which it is sold 
in the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means any item supplied to the Government as part of an 
end item or of another component.
    Electronic component means an item that operates by controlling the 
flow of electrons or other electrically charged particles in circuits, 
using interconnections of electrical devices such as resistors, 
inductors, capacitors, diodes, switches, transistors, or integrated 
circuits. The term does not include structural or mechanical parts of an 
assembly containing an electronic component, and does not include any 
high performance magnets that may be used in the electronic component.
    End item means the final production product when assembled or 
completed and ready for delivery under a line item of this contract.
    High performance magnet means a permanent magnet that obtains a 
majority of its magnetic properties from rare earth metals (such as 
samarium).
    Produce means--
    (i) Atomization;
    (ii) Sputtering; or
    (iii) Final consolidation of non-melt derived metal powders.
    Qualifying country means any country listed in the definition of 
``Qualifying country'' at 225.003 of the Defense Federal Acquisition 
Regulation Supplement (DFARS).
    Specialty metal means--
    (i) Steel--
    (A) With a maximum alloy content exceeding one or more of the 
following limits: Manganese, 1.65 percent; silicon, 0.60 percent; or 
copper, 0.60 percent; or
    (B) Containing more than 0.25 percent of any of the following 
elements: Aluminum, chromium, cobalt, molybdenum, nickel, niobium 
(columbium), titanium, tungsten, or vanadium;
    (ii) Metal alloys consisting of--
    (A) Nickel or iron-nickel alloys that contain a total of alloying 
metals other than nickel and iron in excess of 10 percent; or
    (B) Cobalt alloys that contain a total of alloying metals other than 
cobalt and iron in excess of 10 percent;
    (iii) Titanium and titanium alloys; or
    (iv) Zirconium and zirconium alloys.
    Steel means an iron alloy that includes between .02 and 2 percent 
carbon and may include other elements.
    Subsystem means a functional grouping of items that combine to 
perform a major function within an end item, such as electrical power, 
attitude control, and propulsion.
    (b) Restriction. Except as provided in paragraph (c) of this clause, 
any specialty metals incorporated in items delivered under this contract 
shall be melted or produced in the United States, its outlying areas, or 
a qualifying country.
    (c) Exceptions. The restriction in paragraph (b) of this clause does 
not apply to--
    (1) Electronic components.
    (2)(i) Commercially available off-the-shelf (COTS) items, other 
than--
    (A) Specialty metal mill products, such as bar, billet, slab, wire, 
plate, or sheet, that have not been incorporated into COTS end items, 
subsystems, assemblies, or components;
    (B) Forgings or castings of specialty metals, unless the forgings or 
castings are incorporated into COTS end items, subsystems, or 
assemblies;
    (C) Commercially available high performance magnets that contain 
specialty metal, unless such high performance magnets are incorporated 
into COTS end items or subsystems; and
    (D) COTS fasteners, unless--
    (1) The fasteners are incorporated into COTS end items, subsystems, 
assemblies, or components; or
    (2) The fasteners qualify for the commercial item exception in 
paragraph (c)(3) of this clause.

[[Page 487]]

    (ii) A COTS item is considered to be ``without modification'' if it 
is not modified prior to contractual acceptance by the next higher tier 
in the supply chain.
    (A) Specialty metals in a COTS item that was accepted without 
modification by the next higher tier are excepted from the restriction 
in paragraph (b) of this clause, and remain excepted, even if a piece of 
the COTS item subsequently is removed (e.g., the end is removed from a 
COTS screw or an extra hole is drilled in a COTS bracket).
    (B) Specialty metals that were not contained in a COTS item upon 
acceptance, but are added to the COTS item after acceptance, are subject 
to the restriction in paragraph (b) of this clause (e.g., a special 
reinforced handle made of specialty metal is added to a COTS item).
    (C) If two or more COTS items are combined in such a way that the 
resultant item is not a COTS item, only the specialty metals involved in 
joining the COTS items together are subject to the restriction in 
paragraph (b) of this clause (e.g., a COTS aircraft is outfitted with a 
COTS engine that is not the COTS engine normally provided with the 
aircraft).
    (D) For COTS items that are normally sold in the commercial 
marketplace with various options, items that include such options are 
also COTS items. However, if a COTS item is offered to the Government 
with an option that is not normally offered in the commercial 
marketplace, that option is subject to the restriction in paragraph (b) 
of this clause (e.g.  An aircraft is normally sold to the public with an 
option for installation kits. The Department of Defense requests a 
military-unique kit. The aircraft is still a COTS item, but the 
military-unique kit is not a COTS item and must comply with the 
restriction in paragraph (b) of this clause unless another exception 
applies).
    (3) Fasteners that are commercial items, if the manufacturer of the 
fasteners certifies it will purchase, during the relevant calendar year, 
an amount of domestically melted or produced specialty metal, in the 
required form, for use in the production of fasteners for sale to the 
Department of Defense and other customers, that is not less than 50 
percent of the total amount of the specialty metal that it will purchase 
to carry out the production of such fasteners for all customers.
    (4) Items manufactured in a qualifying country.
    (5) Specialty metals for which the Government has determined in 
accordance with DFARS 225.7003-3 that specialty metal melted or produced 
in the United States, its outlying areas, or a qualifying country cannot 
be acquired as and when needed in--
    (i) A satisfactory quality;
    (ii) A sufficient quantity; and
    (iii) The required form. In accordance with 10 U.S.C. 2533b(m)(4), 
the term ``required form'' in this clause refers to the form of the mill 
product, such as bar, billet, wire, slab, plate, or sheet, in the grade 
appropriate for the production of a finished end item to be delivered to 
the Government under this contract; or a finished component assembled 
into an end item to be delivered to the Government under this contract.
    (6) End items containing a minimal amount of otherwise noncompliant 
specialty metals (i.e., specialty metals not melted or produced in the 
United States, an outlying area, or a qualifying country, that are not 
covered by one of the other exceptions in this paragraph (c)), if the 
total weight of such noncompliant metals does not exceed 2 percent of 
the total weight of all specialty metals in the end item, as estimated 
in good faith by the Contractor. This exception does not apply to high 
performance magnets containing specialty metals.
    (d) Compliance for commercial derivative military articles. (1) As 
an alternative to the compliance required in paragraph (b) of this 
clause, the Contractor may purchase an amount of domestically melted or 
produced specialty metals in the required form, for use during the 
period of contract performance in the production of the commercial 
derivative military article and the related commercial article, if--
    (i) The Contracting Officer has notified the Contractor of the items 
to be delivered under this contract that have been determined by the 
Government to meet the definition of ``commercial derivative military 
article''; and
    (ii) For each item that has been determined by the Government to 
meet the definition of ``commercial derivative military article,'' the 
Contractor has certified, as specified in the provision of the 
solicitation entitled ``Commercial Derivative Military Article--
Specialty Metals Compliance Certificate'' (DFARS 252.225-7010), that the 
Contractor and its subcontractor(s) will enter into a contractual 
agreement or agreements to purchase an amount of domestically melted or 
produced specialty metal in the required form, for use during the period 
of contract performance in the production of each commercial derivative 
military article and the related commercial article, that is not less 
than the Contractor's good faith estimate of the greater of--
    (A) An amount equivalent to 120 percent of the amount of specialty 
metal that is required to carry out the production of the commercial 
derivative military article (including the work performed under each 
subcontract); or
    (B) An amount equivalent to 50 percent of the amount of specialty 
metal that will be purchased by the Contractor and its subcontractors 
for use during such period in the

[[Page 488]]

production of the commercial derivative military article and the related 
commercial article.
    (2) For the purposes of this alternative, the amount of specialty 
metal that is required to carry out production of the commercial 
derivative military article includes specialty metal contained in any 
item, including COTS items.
    (e) Subcontracts. (1) The Contractor shall exclude and reserve 
paragraph (d) and this paragraph (e)(1) when flowing down this clause to 
subcontracts.
    (2) The Contractor shall insert paragraphs (a) through (c) and this 
paragraph (e)(2) of this clause in subcontracts, including subcontracts 
for commercial items, that are for items containing specialty metals to 
ensure compliance of the end products that the Contractor will deliver 
to the Government. When inserting this clause in subcontracts, the 
Contractor shall--
    (i) Modify paragraph (c)(6) of this clause only as necessary to 
facilitate management of the minimal content exception at the prime 
contract level. The minimal content exception does not apply to 
specialty metals contained in high-performance magnets; and
    (ii) Not further alter the clause other than to identify the 
appropriate parties.

                             (End of clause)

[74 FR 37639, July 29, 2009, as amended at 76 FR 3538, Jan. 20, 2011; 77 
FR 35882, June 15, 2012; 78 FR 18879, Mar. 28, 2013; 78 FR 37990, June 
25, 2013; 79 FR 61585, Oct. 14, 2014; 84 FR 72244, Dec. 31, 2019]



252.225-7010  Commercial Derivative Military Article--Specialty Metals
Compliance Certificate.

    As prescribed in 225.7003-5(b), use the following provision:

  Commercial Derivative Military Article--Specialty Metals Compliance 
                         Certificate (JUL 2009)

    (a) Definitions. Commercial derivative military article, 
commercially available off-the-shelf item, produce, required form, and 
specialty metal, as used in this provision, have the meanings given in 
the clause of this solicitation entitled ``Restriction on Acquisition of 
Certain Articles Containing Specialty Metals'' (DFARS 252.225-7009).
    (b) The offeror shall list in this paragraph any commercial 
derivative military articles it intends to deliver under any contract 
resulting from this solicitation using the alternative compliance for 
commercial derivative military articles, as specified in paragraph (d) 
of the clause of this solicitation entitled ``Restriction on Acquisition 
of Certain Articles Containing Specialty Metals'' (DFARS 252.225-7009). 
The offeror's designation of an item as a ``commercial derivative 
military article'' will be subject to Government review and approval.
________________________________________________________________________
________________________________________________________________________
    (c) If the offeror has listed any commercial derivative military 
articles in paragraph (b) of this provision, the offeror certifies that, 
if awarded a contract as a result of this solicitation, and if the 
Government approves the designation of the listed item(s) as commercial 
derivative military articles, the offeror and its subcontractor(s) will 
demonstrate that individually or collectively they have entered into a 
contractual agreement or agreements to purchase an amount of 
domestically melted or produced specialty metal in the required form, 
for use during the period of contract performance in the production of 
each commercial derivative military article and the related commercial 
article, that is not less than the Contractor's good faith estimate of 
the greater of--
    (1) An amount equivalent to 120 percent of the amount of specialty 
metal that is required to carry out the production of the commercial 
derivative military article (including the work performed under each 
subcontract); or
    (2) An amount equivalent to 50 percent of the amount of specialty 
metal that will be purchased by the Contractor and its subcontractors 
for use during such period in the production of the commercial 
derivative military article and the related commercial article.
    (d) For the purposes of this provision, the amount of specialty 
metal that is required to carry out the production of the commercial 
derivative military article includes specialty metal contained in any 
item, including commercially available off-the-shelf items, incorporated 
into such commercial derivative military articles.

                           (End of provision)

[74 FR 37639, July 29, 2009]



252.225-7011  Restriction on acquisition of supercomputers.

    As prescribed in 225.7012-3, use the following clause:

         Restriction on Acquisition of Supercomputers (JUN 2005)

    Supercomputers delivered under this contract shall be manufactured 
in the United States or its outlying areas.

                             (End of clause)

[70 FR 35547, June 21, 2005]

[[Page 489]]



252.225-7012  Preference for certain domestic commodities.

    As prescribed in 225.7002-3(a), use the following clause:

         Preference for Certain Domestic Commodities (DEC 2017)

    (a) Definitions. As used in this clause--
    Component means any item supplied to the Government as part of an 
end product or of another component.
    End product means supplies delivered under a line item of this 
contract.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
 Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Structural component of a tent--
    (i) Means a component that contributes to the form and stability of 
the tent (e.g., poles, frames, flooring, guy ropes, pegs);
    (ii) Does not include equipment such as heating, cooling, or 
lighting.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    U.S.-flag vessel means a vessel of the United States or belonging to 
the United States, including any vessel registered or having national 
status under the laws of the United States.
    (b) The Contractor shall deliver under this contract only such of 
the following items, either as end products or components, that have 
been grown, reprocessed, reused, or produced in the United States:
    (1) Food.
    (2) Clothing and the materials and components thereof, other than 
sensors, electronics, or other items added to, and not normally 
associated with, clothing and the materials and components thereof. 
Clothing includes items such as outerwear, headwear, underwear, 
nightwear, footwear, hosiery, handwear, belts, badges, and insignia.
    (3)(i) Tents and structural components of tents;
    (ii) Tarpaulins; or
    (iii) Covers.
    (4) Cotton and other natural fiber products.
    (5) Woven silk or woven silk blends.
    (6) Spun silk yarn for cartridge cloth.
    (7) Synthetic fabric, and coated synthetic fabric, including all 
textile fibers and yarns that are for use in such fabrics.
    (8) Canvas products.
    (9) Wool (whether in the form of fiber or yarn or contained in 
fabrics, materials, or manufactured articles).
    (10) Any item of individual equipment (Federal Supply Class 8465) 
manufactured from or containing fibers, yarns, fabrics, or materials 
listed in this paragraph (b).
    (c) This clause does not apply--
    (1) To items listed in section 25.104(a) of the Federal Acquisition 
Regulation (FAR), or other items for which the Government has determined 
that a satisfactory quality and sufficient quantity cannot be acquired 
as and when needed at U.S. market prices;
    (2) To incidental amounts of cotton, other natural fibers, or wool 
incorporated in an end product, for which the estimated value of the 
cotton, other natural fibers, or wool--
    (i) Is not more than 10 percent of the total price of the end 
product; and
    (ii) Does not exceed the simplified acquisition threshold in FAR 
part 2;
    (3) To waste and byproducts of cotton or wool fiber for use in the 
production of propellants and explosives;
    (4) To foods, other than fish, shellfish, or seafood, that have been 
manufactured or processed in the United States, regardless of where the 
foods (and any component if applicable) were grown or produced. Fish, 
shellfish, or seafood manufactured or processed in the United States and 
fish, shellfish, or seafood contained in foods manufactured or processed 
in the United States shall be provided in accordance with paragraph (d) 
of this clause;
    (5) To chemical warfare protective clothing produced in a qualifying 
country; or
    (6) To fibers and yarns that are for use in synthetic fabric or 
coated synthetic fabric (but does apply to the synthetic or coated 
synthetic fabric itself), if--
    (i) The fabric is to be used as a component of an end product that 
is not a textile product. Examples of textile products, made in whole or 
in part of fabric, include--
    (A) Draperies, floor coverings, furnishings, and bedding (Federal 
Supply Group 72, Household and Commercial Furnishings and Appliances);
    (B) Items made in whole or in part of fabric in Federal Supply Group 
83, Textile/leather/furs/apparel/findings/ tents/flags, or Federal

[[Page 490]]

Supply Group 84, Clothing, Individual Equipment and Insignia;
    (C) Upholstered seats (whether for household, office, or other use); 
and
    (D) Parachutes (Federal Supply Class 1670); or
    (ii) The fibers and yarns are para-aramid fibers and continuous 
filament para-aramid yarns manufactured in a qualifying country.
    (d)(1) Fish, shellfish, and seafood delivered under this contract, 
or contained in foods delivered under this contract--
    (i) Shall be taken from the sea by U.S.-flag vessels; or
    (ii) If not taken from the sea, shall be obtained from fishing 
within the United States; and
    (2) Any processing or manufacturing of the fish, shellfish, or 
seafood shall be performed on a U.S.-flag vessel or in the United 
States.

                             (End of clause)

[67 FR 20698, Apr. 26, 2002, as amended at 68 FR 7442, Feb. 14, 2003; 69 
FR 26509, May 13, 2004; 69 FR 31910, June 8, 2004; 72 FR 2638, Jan. 22, 
2007; 73 FR 11356, Mar. 3, 2008; 73 FR 76971, Dec. 18, 2008; 75 FR 
34945, June 21, 2010; 77 FR 38736, 38737, June 29, 2012; 77 FR 76942, 
Dec. 31, 2012; 78 FR 13546, Feb. 28, 2013; 81 FR 50651, Aug. 2, 2016; 81 
FR 93841, Dec. 22, 2016; 82 FR 61484, Dec. 28, 2017]



252.225-7013  Duty-free entry.

    As prescribed in 225.1101(4), use the following clause:

                       Duty-Free Entry (APR 2020)

    (a) Definitions. As used in this clause--
    ``Component'' means any item supplied to the Government as part of 
an end product or of another component.
    Customs territory of the United States means the 50 States, the 
District of Columbia, and Puerto Rico.
    Eligible product means--
    (i) Designated country end product, as defined in the Trade 
Agreements (either basic or alternate) clause of this contract;
    (ii) Free Trade Agreement country end product, other than a 
Bahrainian end product, a Moroccan end product, a Panamanian end 
product, or a Peruvian end product, as defined in the Buy American--Free 
Trade Agreements--Balance of Payments Program (either basic or alternate 
II) clause of this contract;
    (iii) Canadian end product, as defined in the Buy American--Free 
Trade Agreements--Balance of Payments Program (either alternate I or 
alternate III) clause of this contract; or
    (iv) Free Trade Agreement country end product other than a 
Bahrainian end product, Korean end product, Moroccan end product, 
Panamanian end product, or Peruvian end product, as defined in the Buy 
American--Free Trade Agreements--Balance of Payments Program (either 
alternate IV or alternate V) clause of this contract. Qualifying country 
and qualifying country end product have the meanings given in the Trade 
Agreements clause, the Buy American and Balance of Payments Program 
clause, or the Buy American --Free Trade Agreements--Balance of Payments 
Program clause of this contract, basic or alternate.
    (b) Except as provided in paragraph (i) of this clause, or unless 
supplies were imported into the customs territory of the United States 
before the date of this contract or the applicable subcontract, the 
price of this contract shall not include any amount for duty on--
    (1) End items that are eligible products or qualifying country end 
products;
    (2) Components (including, without limitation, raw materials and 
intermediate assemblies) produced or made in qualifying countries, that 
are to be incorporated in U.S.-made end products to be delivered under 
this contract; or
    (3) Other supplies for which the Contractor estimates that duty will 
exceed $300 per shipment into the customs territory of the United 
States.
    (c) The Contractor shall--
    (1) Claim duty-free entry only for supplies that the Contractor 
intends to deliver to the Government under this contract, either as end 
items or components of end items; and
    (2) Pay duty on supplies, or any portion thereof, that are diverted 
to nongovernmental use, other than--
    (i) Scrap or salvage; or
    (ii) Competitive sale made, directed, or authorized by the 
Contracting Officer.
    (d) Except as the Contractor may otherwise agree, the Government 
will execute duty-free entry certificates and will afford such 
assistance as appropriate to obtain the duty-free entry of supplies--
    (1) For which no duty is included in the contract price in 
accordance with paragraph (b) of this clause; and
    (2) For which shipping documents bear the notation specified in 
paragraph (e) of this clause.
    (e) For foreign supplies for which the Government will issue duty-
free entry certificates in accordance with this clause, shipping 
documents submitted to Customs shall--
    (1) Consign the shipments to the appropriate--
    (i) Military department in care of the Contractor, including the 
Contractor's delivery address; or
    (ii) Military installation; and
    (2) Include the following information:
    (i) Prime contract number and, if applicable, delivery order number.

[[Page 491]]

    (ii) Number of the subcontract for foreign supplies, if applicable.
    (iii) Identification of the carrier.
    (iv) (A) For direct shipments to a U.S. military installation, the 
notation: ``UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE Duty-Free 
Entry to be claimed pursuant to Section XXII, Chapter 98, Subchapter 
VIII, Item 9808.00.30 of the Harmonized Tariff Schedule of the United 
States. Upon arrival of shipment at the appropriate port of entry, 
District Director of Customs, please release shipment under 19 CFR part 
142 and notify Commander, Defense Contract Management Agency (DCMA) New 
York, ATTN: Customs Team, DCMAE-GNTF, 201 Varick Street, Room 905C, New 
York, New York 10014, for execution of Customs Form 7501, 7501A, or 7506 
and any required duty-free entry certificates.''
    (B) If the shipment will be consigned to other than a military 
installation, e.g., a domestic contractor's plant, the shipping document 
notation shall be altered to include the name and address of the 
contractor, agent, or broker who will notify Commander, DCMA New York, 
for execution of the duty-free entry certificate. (If the shipment will 
be consigned to a contractor's plant and no duty-free entry certificate 
is required due to a trade agreement, the Contractor shall claim duty-
free entry under the applicable trade agreement and shall comply with 
the U.S. Customs Service requirements. No notification to Commander, 
DCMA New York, is required.)
    (v) Gross weight in pounds (if freight is based on space tonnage, 
state cubic feet in addition to gross shipping weight).
    (vi) Estimated value in U.S. dollars.
    (vii) Activity address number of the contract administration office 
administering the prime contract, e.g., for DCMA Dayton, S3605A.
    (f) Preparation of customs forms. (1)(i) Except for shipments 
consigned to a military installation, the Contractor shall--
    (A) Prepare any customs forms required for the entry of foreign 
supplies into the customs territory of the United States in connection 
with this contract; and
    (B) Submit the completed customs forms to the District Director of 
Customs, with a copy to DCMA NY for execution of any required duty-free 
entry certificates.
    (ii) Shipments consigned directly to a military installation will be 
released in accordance with sections 10.101 and 10.102 of the U.S. 
Customs regulations.
    (2) For shipments containing both supplies that are to be accorded 
duty-free entry and supplies that are not, the Contractor shall identify 
on the customs forms those items that are eligible for duty-free entry.
    (g) The Contractor shall--
    (1) Prepare (if the Contractor is a foreign supplier), or shall 
instruct the foreign supplier to prepare, a sufficient number of copies 
of the bill of lading (or other shipping document) so that at least two 
of the copies accompanying the shipment will be available for use by the 
District Director of Customs at the port of entry;
    (2) Consign the shipment as specified in paragraph (e) of this 
clause; and
    (3) Mark on the exterior of all packages--
    (i) ``UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE''; and
    (ii) The activity address number of the contract administration 
office administering the prime contract.
    (h) The Contractor shall notify the Administrative Contracting 
Officer (ACO) in writing of any purchase of eligible products or 
qualifying country supplies to be accorded duty-free entry, that are to 
be imported into the customs territory of the United States for delivery 
to the Government or for incorporation in end items to be delivered to 
the Government. The Contractor shall furnish the notice to the ACO 
immediately upon award to the supplier and shall include in the notice--
    (1) The Contractor's name, address, and Commercial and Government 
Entity (CAGE) code;
    (2) Prime contract number and, if applicable, delivery order number;
    (3) Total dollar value of the prime contract or delivery order;
    (4) Date of the last scheduled delivery under the prime contract or 
delivery order;
    (5) Foreign supplier's name and address;
    (6) Number of the subcontract for foreign supplies;
    (7) Total dollar value of the subcontract for foreign supplies;
    (8) Date of the last scheduled delivery under the subcontract for 
foreign supplies;
    (9) List of items purchased;
    (10) An agreement that the Contractor will pay duty on supplies, or 
any portion thereof, that are diverted to nongovernmental use other 
than--
    (i) Scrap or salvage; or
    (ii) Competitive sale made, directed, or authorized by the 
Contracting Officer;
    (11) Country of origin; and
    (12) Scheduled delivery date(s).
    (i) This clause does not apply to purchases of eligible products or 
qualifying country supplies in connection with this contract if--
    (1) The supplies are identical in nature to supplies purchased by 
the Contractor or any subcontractor in connection with its commercial 
business; and
    (2) It is not economical or feasible to account for such supplies so 
as to ensure that the amount of the supplies for which duty-free entry 
is claimed does not exceed the amount purchased in connection with this 
contract.

[[Page 492]]

    (j) The Contractor shall--
    (1) Insert the substance of this clause, including this paragraph 
(j), in all subcontracts for--
    (i) Qualifying country components; or
    (ii) Nonqualifying country components for which the Contractor 
estimates that duty will exceed $200 per unit;
    (2) Require subcontractors to include the number of this contract on 
all shipping documents submitted to Customs for supplies for which duty-
free entry is claimed pursuant to this clause; and
    (3) Include in applicable subcontracts--
    (i) The name and address of the ACO for this contract;
    (ii) The name, address, and activity address number of the contract 
administration office specified in this contract; and
    (iii) The information required by paragraphs (h)(1), (2), and (3) of 
this clause.

                             (End of clause)

[68 FR 15635, Mar. 31, 2003, as amended at 69 FR 1928, Jan. 13, 2004; 70 
FR 2363, Jan. 13, 2005; 70 FR 35547, June 21, 2005; 71 FR 34835, June 
16, 2006; 71 FR 58542, Oct. 4, 2006; 74 FR 68384, Dec. 24, 2009; 77 FR 
35882, June 15, 2012; 78 FR 65222, Oct. 31, 2013; 79 FR 65820, Nov. 5, 
2014; 81 FR 28732, May 10, 2016; 85 FR 19681, Apr. 8, 2020; 85 FR 34536, 
June 5, 2020]



252.225-7014  [Reserved]



252.225-7015  Restriction on acquisition of hand or measuring tools.

    As prescribed in 225.7002-3(b), use the following clause:

    Restriction on Acquisition of Hand or Measuring Tools (JUN 2005)

    Hand or measuring tools delivered under this contract shall be 
produced in the United States or its outlying areas.

                             (End of clause)

[70 FR 35547, June 21, 2005, as amended at 74 FR 37641, July 29, 2009]



252.225-7016  Restriction on acquisition of ball and roller bearings.

    As prescribed in 225.7009-5, use the following clause:

    Restriction on Acquisition of Ball and Roller Bearings (JUN 2011)

    (a) Definitions. As used in this clause--
    (1) Bearing component means the bearing element, retainer, inner 
race, or outer race.
    (2) Component, other than a bearing component, means any item 
supplied to the Government as part of an end product or of another 
component.
    (3) End product means supplies delivered under a line item of this 
contract.
    (b) Except as provided in paragraph (c) of this clause--
    (1) Each ball and roller bearing delivered under this contract shall 
be manufactured in the United States, its outlying areas, or Canada; and
    (2) For each ball or roller bearing, the cost of the bearing 
components manufactured in the United States, its outlying areas, or 
Canada shall exceed 50 percent of the total cost of the bearing 
components of that ball or roller bearing.
    (c) The restriction in paragraph (b) of this clause does not apply 
to ball or roller bearings that are acquired as--
    (1) Commercial components of a noncommercial end product; or
    (2) Commercial or noncommercial components of a commercial component 
of a noncommercial end product.
    (d) The restriction in paragraph (b) of this clause may be waived 
upon request from the Contractor in accordance with subsection 225.7009-
4 of the Defense Federal Acquisition Regulation Supplement.
    (e) If this contract includes DFARS clause 252.225-7009, Restriction 
on Acquisition of Certain Articles Containing Specialty Metals, all 
bearings that contain specialty metals, as defined in that clause, must 
meet the requirements of that clause.
    (f) The Contractor shall insert the substance of this clause, 
including this paragraph (f), in all subcontracts, except those for--
    (1) Commercial items; or
    (2) Items that do not contain ball or roller bearings.

                             (End of clause)

[75 FR 76300, Dec. 8, 2010, as amended at 76 FR 32843, June 6, 2011]



252.225-7017  Photovoltaic Devices.

    As prescribed in 225.7017-4(a), use the following clause:

                     Photovoltaic Devices (JAN 2020)

    (a) Definitions. As used in this clause--
    Bahrainian photovoltaic device means a photovoltaic device that--
    (1) Is wholly manufactured in Bahrain; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in Bahrain into a new and different article of commerce with 
a name, character, or use distinct from that of the article or articles 
from which it was transformed, provided that the photovoltaic device is 
not subsequently substantially transformed outside of Bahrain.

[[Page 493]]

    Canadian photovoltaic device means a photovoltaic device that has 
been substantially transformed in Canada into a new and different 
article of commerce with a name, character, or use distinct from that of 
the article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of Canada.
    Caribbean Basin country photovoltaic device means a photovoltaic 
device that--
    (1) Is wholly manufactured in a Caribbean Basin country; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in a Caribbean Basin country into a new and different 
article of commerce with a name, character, or use distinct from that of 
the article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of a Caribbean Basin country.
    Designated country means--
    (1) A World Trade Organization Government Procurement Agreement (WTO 
GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, 
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, 
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, 
Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, 
Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, 
Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, 
Spain, Sweden, Switzerland, Taiwan (known in the World Trade 
Organization as ``the Separate Customs Territory of Taiwan, Penghu, 
Kinmen, and Matsu'' (Chinese Taipei)), Ukraine, or the United Kingdom);
    (2) A Free Trade Agreement country (Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore);
    (3) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African 
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, 
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, 
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, 
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and 
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, 
Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); 
or
    (4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, 
Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, 
Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, 
St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, 
or Trinidad and Tobago).
    Designated country photovoltaic device means a WTO GPA country 
photovoltaic device, a Free Trade Agreement country photovoltaic device, 
a least developed country photovoltaic device, or a Caribbean Basin 
country photovoltaic device.
    Domestic photovoltaic device means a photovoltaic device that is 
manufactured in the United States.
    Foreign photovoltaic device means a photovoltaic device other than a 
domestic photovoltaic device.
    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore.
    Free Trade Agreement country photovoltaic device means a 
photovoltaic device that--
    (1) Is wholly manufactured in a Free Trade Agreement country; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in a Free Trade Agreement country into a new and different 
article of commerce with a name, character, or use distinct from that of 
the article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of a Free Trade Agreement country.
    Korean photovoltaic device means a photovoltaic device that--
    (1) Is wholly manufactured in Korea; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in Korea (Republic of) into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of Korea (Republic of).
    Least developed country photovoltaic device means a photovoltaic 
device that--
    (1) Is wholly manufactured in a least developed country; or
    (2) In the case of a photovoltaic device thatconsists in whole or in 
part of materials from another country, has been substantially 
transformed in a least developed country into a new and different 
article of commerce with a name, character, or use distinct from that of 
the article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of a least developed country.
    Moroccan photovoltaic device means a photovoltaic device that--

[[Page 494]]

    (1) Is wholly manufactured in Morocco; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in Morocco into a new and different article of commerce with 
a name, character, or use distinct from that of the article or articles 
from which it was transformed, provided that the photovoltaic device is 
not subsequently substantially transformed outside of Morocco.
    Panamanian photovoltaic device means a photovoltaic device that--
    (1) Is wholly manufactured in Panama; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in Panama into a new and different article of commerce with 
a name, character, or use distinct from that of the article or articles 
from which it was transformed, provided that the photovoltaic device is 
not subsequently substantially transformed outside of Panama.
    Peruvian photovoltaic device means a photovoltaic device that--
    (1) Is wholly manufactured in Peru; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in Peru into a new and different article of commerce with a 
name, character, or use distinct from that of the article or articles 
from which it was transformed, provided that the photovoltaic device is 
not subsequently substantially transformed outside of Peru.
    Photovoltaic device means a device that converts light directly into 
electricity through a solid-state, semiconductor process.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Estonia
Egypt
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland

    Qualifying country photovoltaic device means a photovoltaic device 
manufactured in a qualifying country.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    U.S.-made photovoltaic device means a photovoltaic device that--
    (1) Is manufactured in the United States; or
    (2) Is substantially transformed in the United States into a new and 
different article of commerce with a name, character, or use distinct 
from that of the article or articles from which it was transformed, 
provided that the photovoltaic device is not subsequently substantially 
transformed outside of the United States.
    WTO GPA country photovoltaic device means a photovoltaic device 
that--
    (1) Is wholly manufactured in a WTO GPA country; or
    (2) In the case of a photovoltaic device that consists in whole or 
in part of materials from another country, has been substantially 
transformed in a WTO GPA country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed, provided that the 
photovoltaic device is not subsequently substantially transformed 
outside of a WTO GPA country.
    (b) This clause implements section 846 of the National Defense 
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383)).
    (c) Restriction. If the Contractor specified in its offer in the 
Photovoltaic Devices--Certificate provision of the solicitation that the 
estimated value of the photovoltaic devices to be utilized in 
performance of this contract would be--
    (1) More than the micro-purchase threshold but less than $25,000, 
then the Contractor shall utilize only domestic photovoltaic devices 
unless, in its offer, it specified utilization of qualifying country or 
other foreign photovoltaic devices in paragraph (d)(2) of the 
Photovoltaic Devices--Certificate provision of the solicitation.
    (2) $25,000 or more but less than $83,099, then the Contractor shall 
utilize in the performance of this contract only domestic photovoltaic 
devices unless, in its offer, it specified utilization of Canadian, 
qualifying country, or other foreign photovoltaic devices in paragraph 
(d)(3) of the Photovoltaic Devices--Certificate provision of the 
solicitation. If the Contractor certified in its offer that it will 
utilize a qualifying country photovoltaic device or a Canadian 
photovoltaic device, then the Contractor shall utilize a qualifying 
country photovoltaic device or a

[[Page 495]]

Canadian photovoltaic device, or, at the Contractor's option, a domestic 
photovoltaic device;
    (3) $83,099 or more but less than $100,000, then the Contractor 
shall utilize under this contract only domestic photovoltaic devices, 
unless, in its offer, it specified utilization of Free Trade Agreement 
country photovoltaic devices (other than Bahrainian, Korean, Moroccan, 
Panamanian, or Peruvian photovoltaic devices), qualifying country 
photovoltaic devices, or other foreign photovoltaic devices in paragraph 
(d)(4) of the Photovoltaic Devices--Certificate provision of the 
solicitation. If the Contractor certified in its offer that it will 
utilize a Free Trade Agreement country photovoltaic device (other than a 
Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic 
device) or a qualifying country photovoltaic device, then the Contractor 
shall utilize a Free Trade Agreement country photovoltaic device (other 
than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian 
photovoltaic device) or a qualifying country photovoltaic device; or, at 
the Contractor's option, a domestic photovoltaic device;
    (4) $100,000 or more but less than $182,000, then the Contractor 
shall utilize under this contract only domestic photovoltaic devices, 
unless, in its offer it specified utilization of Free Trade Agreement 
country photovoltaic devices (other than Bahrainian, Moroccan, 
Panamanian, or Peruvian photovoltaic devices), qualifying country 
photovoltaic devices, or other foreign photovoltaic devices in paragraph 
(d)(5) of the Photovoltaic Devices--Certificate provision of the 
solicitation. If the Contractor certified in its offer that it will 
utilize a Free Trade Agreement country photovoltaic device (other than a 
Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) or a 
qualifying country photovoltaic device, then the Contractor shall 
utilize a Free Trade Agreement country photovoltaic device (other than a 
Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) or a 
qualifying country photovoltaic device; or, at the Contractor's option, 
a domestic photovoltaic device; or
    (5) $182,000 or more, then the Contractor shall utilize under this 
contract only U.S.-made, designated country, or qualifying country 
photovoltaic devices.

                             (End of clause)

[76 FR 78861, Dec. 20, 2011, as amended at 77 FR 13013, Mar. 5, 2012; 77 
FR 30357, 30361, May 22, 2012; 77 FR 31537, May 29, 2012; 77 FR 38737, 
June 29, 2012; 77 FR 52254, Aug. 29, 2012; 77 FR 68700, Nov. 16, 2012; 
77 FR 76942, Dec. 31, 2012; 78 FR 48334, Aug. 8, 2013; 78 FR 65221, Oct. 
31, 2013; 78 FR 76995, Dec. 20, 2013; 78 FR 79621, Dec. 31, 2013; 80 FR 
36905, June 26, 2015; 80 FR 67254, Oct. 30, 2015; 80 FR 72604, Nov. 20, 
2015; 80 FR 81471, Dec. 30, 2015; 81 FR 42563, June 30, 2016; 81 FR 
50651, Aug. 2, 2016; 81 FR 65568, Sept. 23, 2016; 81 FR 93841, Dec. 22, 
2016; 82 FR 61483; 82 FR 61484, Dec. 28, 2017; 83 FR 62500, Dec. 4, 
2018; 84 FR 39208, Aug. 9, 2019; 84 FR 72247, Dec. 31, 2019]



252.225-7018  Photovoltaic Devices--Certificate.

    As prescribed in 225.7017-4(b), use the following provision:

              Photovoltaic Devices--Certificate (JAN 2020)

    (a) Definitions. ``Bahrainian photovoltaic device,'' ``Canadian 
photovoltaic device,'' ``Caribbean Basin photovoltaic device,'' 
``designated country,'' ``designated country photovoltaic device,'' 
``domestic photovoltaic device,'' ``foreign photovoltaic device,'' 
``Free Trade Agreement country,'' ``Free Trade Agreement photovoltaic 
device,'' ``Korean photovoltaic device,'' ``least developed country 
photovoltaic device,'' ``Moroccan photovoltaic device,'' ``Panamanian 
photovoltaic device,'' ``Peruvian photovoltaic device,'' ``photovoltaic 
device,'' ``qualifying country,'' ``qualifying country photovoltaic 
device,'' ``United States,'' ``U.S.-made photovoltaic device,'' and 
``WTO GPA country photovoltaic device'' have the meanings given in the 
Photovoltaic Devices clause of this solicitation.
    (b) Restrictions. The following restrictions apply, depending on the 
estimated aggregate value of photovoltaic devices to be utilized under a 
resultant contract:
    (1) If more than the micro-purchase threshold but less than 
$182,000, then the Government will not accept an offer specifying the 
use of other foreign photovoltaic devices in paragraph (d)(2)(ii), 
(d)(3)(ii), (d)(4)(ii), or (d)(5)(ii) of this provision, unless the 
offeror documents to the satisfaction of the Contracting Officer that 
the price of the foreign photovoltaic device plus 50 percent is less 
than the price of a comparable domestic photovoltaic device.
    (2) If $182,000 or more, then the Government will consider only 
offers that utilize photovoltaic devices that are U.S.-made, qualifying 
country, or designated country photovoltaic devices.
    (c) Country in which a designated country photovoltaic device was 
wholly manufactured or

[[Page 496]]

was substantially transformed. If the estimated value of the 
photovoltaic devices to be utilized under a resultant contract exceeds 
$25,000, the Offeror's certification that such photovoltaic device 
(e.g., solar panel) is a designated country photovoltaic device shall be 
consistent with country of origin determinations by the U.S. Customs and 
Border Protection with regard to importation of the same or similar 
photovoltaic devices into the United States. If the Offeror is uncertain 
as to what the country of origin would be determined to be by the U.S. 
Customs and Border Protection, the Offeror shall request a determination 
from U.S. Customs and Border Protection. (See http://www.cbp.gov/trade/
rulings.)
    (d) Certification and identification of country of origin. [The 
offeror shall check the block and fill in the blank for one of the 
following paragraphs, based on the estimated value and the country of 
origin of photovoltaic devices to be utilized in performance of the 
contract:]
    (1) No photovoltaic devices will be utilized in performance of the 
contract, or such photovoltaic devices have an estimated value that does 
not exceed the micro-purchase threshold.
    (2) If more than the micro-purchase threshold but less than 
$25,000--
    __(i) The offeror certifies that each photovoltaic device to be 
utilized in performance of the contract is a domestic photovoltaic 
device;
    __(ii) The offeror certifies that each photovoltaic device to be 
utilized in performance of the contract is a qualifying country 
photovoltaic device [Offeror to specify country of origin__]; or
    __(iii) The foreign (other than qualifying country) photovoltaic 
devices to be utilized in performance of the contract are the product of 
___. [Offeror to specify country of origin, if known, and provide 
documentation that the cost of a domestic photovoltaic device would be 
unreasonable in comparison to the cost of the proposed foreign 
photovoltaic device, i.e., that the price of the foreign photovoltaic 
device plus 50 percent is less than the price of a comparable domestic 
photovoltaic device.]
    (3) If $25,000 or more but less than $83,099--
    __ (i) The offeror certifies that each photovoltaic device to be 
utilized in performance of the contract is a domestic photovoltaic 
device;
    __ (ii) The offeror certifies that each photovoltaic device to be 
utilized in performance of the contract is a Canadian photovoltaic 
device or a qualifying country photovoltaic device [Offeror to specify 
country of origin___]; or
    __ (iii) The foreign (other than Canadian or qualifying country) 
photovoltaic devices to be utilized in performance of the contract are 
the product of ___. [Offeror to specify country of origin, if known, and 
provide documentation that the cost of a domestic photovoltaic device 
would be unreasonable in comparison to the cost of the proposed foreign 
photovoltaic device, i.e. that the price of the foreign photovoltaic 
device plus 50 percent is less than the price of a comparable domestic 
photovoltaic device.]
    (4) If $83,099 or more but less than $100,000--
    __ (i) The offeror certifies that each photovoltaic device to be 
utilized in performance of the contract is a domestic photovoltaic 
device;
    __ (ii) The offeror certifies that each photovoltaic device to be 
utilized in performance of the contract is a Free Trade Agreement 
country photovoltaic device (other than a Bahrainian, Korean, Moroccan, 
Panamanian, or Peruvian photovoltaic device) or a qualifying country 
photovoltaic device [Offeror to specify country of origin___]; or
    __ (iii) The offered foreign photovoltaic devices (other than those 
from countries listed in paragraph (d)(4)(ii) of this provision) are the 
product of ___. [Offeror to specify country of origin, if known, and 
provide documentation that the cost of a domestic photovoltaic device 
would be unreasonable in comparison to the cost of the proposed foreign 
photovoltaic device, i.e. that the price of the foreign photovoltaic 
device plus 50 percent is less than the price of a comparable domestic 
photovoltaic device.]
    (5) If $100,000 or more but less than $182,000--
    __ (i) The offeror certifies that each photovoltaic device to be 
utilized in performance of the contract is a domestic photovoltaic 
device;
    __ (ii) The offeror certifies that each photovoltaic device to be 
utilized in performance of the contract is a Free Trade Agreement 
country photovoltaic device (other than a Bahrainian, Moroccan, 
Panamanian, or Peruvian photovoltaic device) or a qualifying country 
photovoltaic device [Offeror to specify country of origin___]; or
    __ (iii) The offered foreign photovoltaic devices (other than those 
from countries listed in paragraph (d)(5)(ii) of this provision) are the 
product of ___. [Offeror to specify country of origin, if known, and 
provide documentation that the cost of a domestic photovoltaic device 
would be unreasonable in comparison to the cost of the proposed foreign 
photovoltaic device, i.e. that the price of the foreign photovoltaic 
device plus 50 percent is less than the price of a comparable domestic 
photovoltaic device.]
    (6) If $182,000 or more, the Offeror certifies that each 
photovoltaic device to be used in performance of the contract is--
    __ (i) A U.S.-made photovoltaic device; or
    __ (ii) A designated country photovoltaic device or a qualifying 
country photovoltaic device. [Offeror to specify country of origin___.]

[[Page 497]]

                           (End of provision)

[76 FR 78861, Dec. 20, 2011, as amended at 77 FR 13013, Mar. 5, 2012; 77 
FR 30358, May 22, 2012; 77 FR 68701, Nov. 16, 2012; 78 FR 65222, Oct. 
31, 2013; 78 FR 76995, Dec. 20, 2013; 78 FR 79621, Dec. 31, 2013; 79 FR 
3520, Jan. 22, 2014; 80 FR 36905, June 26, 2015; 80 FR 72605, Nov. 20, 
2015; 80 FR 81471, Dec. 30, 2015; 82 FR 61483, Dec. 28, 2017; 83 FR 
62501, Dec. 4, 2018; 84 FR 72247, Dec. 31, 2019]



252.225-7019  Restriction on acquisition of anchor and mooring chain.

    As prescribed in 225.7007-3, use the following clause:

   Restriction on Acquisition of Anchor and Mooring Chain (DEC 2009))

    (a) Definition. ``Component,'' as used in this clause, means an 
article, material, or supply incorporated directly into an end product.
    (b) Welded shipboard anchor and mooring chain, four inches or less 
in diameter, delivered under this contract--
    (1) Shall be manufactured in the United States or its outlying 
areas, including cutting, heat treating, quality control, testing, and 
welding (both forging and shot blasting process); and
    (2) The cost of the components manufactured in the United States or 
its outlying areas shall exceed 50 percent of the total cost of 
components.
    (c) The Contractor may request a waiver of this restriction if 
adequate domestic supplies meeting the requirements in paragraph (b) of 
this clause are not available to meet the contract delivery schedule.
    (d) The Contractor shall insert the substance of this clause, 
including this paragraph (d), in all subcontracts for items containing 
welded shipboard anchor and mooring chain, four inches or less in 
diameter.

                             (End of clause)

[68 FR 15637, Mar. 31, 2003, as amended at 70 FR 35547, June 21, 2005; 
74 FR 68384, Dec. 24, 2009]



252.225-7020  Trade Agreements Certificate.

    Basic. As prescribed in 225.1101(5) and (5)(i), use the following 
provision:

             Trade Agreements Certificate--Basic (NOV 2014)

    (a) Definitions. Designated country end product, nondesignated 
country end product, qualifying country end product, and U.S.-made end 
product, as used in this provision have the meanings given in the Trade 
Agreements--Basic clause of this solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) Will consider only offers of end products that are U.S.-made, 
qualifying country, or designated country end products unless--
    (i) There are no offers of such end products;
    (ii) The offers of such end products are insufficient to fulfill the 
Government's requirements; or
    (iii) A national interest waiver has been granted.
    (c) Certification and identification of country of origin. (1) For 
all line items subject to the Trade Agreements--Basic of this 
solicitation, the offeror certifies that each end product to be 
delivered under this contract, except those listed in paragraph (c)(2) 
of this provision, is a U.S.-made, qualifying country, or designated 
country end product.
    (2) The following supplies are other nondesignated country end 
products:

(Line Item Number) (Country of Origin)

                           (End of provision)

    Alternate I. As prescribed in 225.1101(5) and (5)(ii), use the 
following provision, which uses different paragraphs (a), (b)(2), and 
(c) than the basic provision:

          Trade Agreements Certificate--Alternate I (NOV 2014)

    (a) Definitions. Designated country end product, nondesignated 
country end product, qualifying country end product, South Caucasus/
Central and South Asian (SC/CASA) state, South Caucasus/Central and 
South Asian (SC/CASA) state end product, and U.S.-made end product, as 
used in this provision, have the meanings given in the Trade 
Agreements--Alternate I clause of this solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) Will consider only offers of end products that are U.S.-made, 
qualifying country, SC/CASA state, or designated country end products 
unless--
    (i) There are no offers of such end products;
    (ii) The offers of such end products are insufficient to fulfill the 
Government's requirements; or
    (iii) A national interest waiver has been granted.
    (c) Certification and identification of country of origin.
    (1) For all line items subject to the Trade Agreement--Alternate I 
clause of this solicitation, the offeror certifies that each end product 
to be delivered under this contract,

[[Page 498]]

except those listed in paragraph (c)(2)(ii) of this provision, is a 
U.S.-made, qualifying country, SC/CASA state, or designated country end 
product.
    (2)(i) The following supplies are SC/CASA state end products:

            (Line Item Number)                   (Country of Origin)
 

    (ii) The following are other nondesignated country end products:

            (Line Item Number)                   (Country of Origin)
 

                           (End of provision)

[70 FR 2363, Jan. 13, 2005, as amended at 75 FR 81919, Dec. 29, 2010; 79 
FR 65820, Nov. 5, 2014; 80 FR 36899, June 26, 2015]



252.225-7021  Trade agreements.

    Basic. As prescribed in 225.1101(6) and (6)(i), use the following 
clause:

                   Trade Agreements--Basic (SEP 2019)

    (a) Definitions. As used in this clause--
    Caribbean Basin country end product--
    (i) Means an article that--
    (A) Is wholly the growth, product, or manufacture of a Caribbean 
Basin country; or
    (B) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Caribbean Basin country into a new and different article of commerce 
with a name, character, or use distinct from that of the article or 
articles from which it was transformed. The term refers to a product 
offered for purchase under a supply contract, but for purposes of 
calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself; and
    (ii) Excludes products, other than petroleum and any product derived 
from petroleum, that are not granted duty-free treatment under the 
Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These 
exclusions presently consist of--
    (A) Textiles, apparel articles, footwear, handbags, luggage, flat 
goods, work gloves, leather wearing apparel, and handloomed, handmade, 
or folklore articles that are not granted duty-free status in the 
Harmonized Tariff Schedule of the United States (HTSUS);
    (B) Tuna, prepared or preserved in any manner in airtight 
containers; and
    (C) Watches and watch parts (including cases, bracelets, and straps) 
of whatever type, including, but not limited to, mechanical, quartz 
digital, or quartz analog, if such watches or watch parts contain any 
material that is the product of any country to which the HTSUS column 2 
rates of duty (HTSUS General Note 3(b)) apply.
    Commercially available off-the-shelf (COTS) item. (i) Means any item 
of supply (including construction material) that is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of ``commercial item'' in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Designated country means--
    (i) A World Trade Organization Government Procurement Agreement (WTO 
GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, 
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, 
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, 
Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, 
Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, 
Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, 
Spain, Sweden, Switzerland, Taiwan (known in the World Trade 
Organization as ``the Separate Customs Territory of Taiwan, Penghu, 
Kinmen, and Matsu'' (Chinese Taipei)), Ukraine, or the United Kingdom);
    (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore);
    (iii) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African 
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, 
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, 
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, 
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and 
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, 
Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); 
or
    (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, 
Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, 
Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and

[[Page 499]]

Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint 
Maarten, or Trinidad and Tobago).
    Designated country end product means a WTO GPA country end product, 
a Free Trade Agreement country end product, a least developed country 
end product, or a Caribbean Basin country end product.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Free Trade Agreement country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Free Trade Agreement country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed. The term refers to a 
product offered for purchase under a supply contract, but for purposes 
of calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Least developed country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
least developed country into a new and different article of commerce 
with a name, character, or use distinct from that of the article or 
articles from which it was transformed. The term refers to a product 
offered for purchase under a supply contract, but for purposes of 
calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Nondesignated country end product means any end product that is not 
a U.S.-made end product or a designated country end product.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland

    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    U.S.-made end product means an article that--
    (i) Is mined, produced, or manufactured in the United States; or
    (ii) Is substantially transformed in the United States into a new 
and different article of commerce with a name, character, or use 
distinct from that of the article or articles from which it was 
transformed.
    WTO GPA country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
WTO GPA country into a new and different article of commerce with a 
name, character, or use distinct from that of the article or articles 
from which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    (b) Unless otherwise specified, this clause applies to all items in 
the Schedule.

[[Page 500]]

    (c) The Contractor shall deliver under this contract only U.S.-made, 
qualifying country, or designated country end products unless--
    (1) In its offer, the Contractor specified delivery of other 
nondesignated country end products in the Trade Agreements Certificate 
provision of the solicitation; and
    (2)(i) Offers of U.S.-made, qualifying country, or designated 
country end products from responsive, responsible offerors are either 
not received or are insufficient to fill the Government's requirements; 
or
    (ii) A national interest waiver has been granted.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.
    (e) The HTSUS is available on the Internet at http://www.usitc.gov/
tata/hts/bychapter/index.htm. The following sections of the HTSUS 
provide information regarding duty-free status of articles specified in 
the definition of ``Caribbean Basin country end product'' within 
paragraph (a) of this clause:
    (1) General Note 3(c), Products Eligible for Special Tariff 
Treatment.
    (2) General Note 17, Products of Countries Designated as Beneficiary 
Countries Under the United States-Caribbean Basin Trade Partnership Act 
of 2000.
    (3) Section XXII, Chapter 98, Subchapter II, Articles Exported and 
Returned, Advanced or Improved Abroad, U.S. Note 7(b).
    (4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for 
Special Tariff Benefits Under the United States-Caribbean Basin Trade 
Partnership Act.

                             (End of clause)

    Alternate I [Reserved]

    Alternate II. As prescribed in 225.1101(6) and (6)(ii), use the 
following clause, which (i) adds South Caucasus/Central and South Asian 
(SC/CASA) state and South Caucasus/Central and South Asian (SC/CASA) 
state end product to paragraph (a); (ii) uses a different paragraph (c) 
than the basic clause; (iii) adds a new paragraph (d); and (iv) includes 
paragraphs (e) and (f) which are the same paragraphs (d) and (e) of the 
basic clause:

                Trade Agreements--Alternate II (SEP 2019)

    (a) Definitions. As used in this clause--Caribbean Basin country end 
product--
    (i) Means an article that--
    (A) Is wholly the growth, product, or manufacture of a Caribbean 
Basin country; or
    (B) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Caribbean Basin country into a new and different article of commerce 
with a name, character, or use distinct from that of the article or 
articles from which it was transformed. The term refers to a product 
offered for purchase under a supply contract, but for purposes of 
calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself; and
    (ii) Excludes products, other than petroleum and any product derived 
from petroleum, that are not granted duty-free treatment under the 
Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These 
exclusions presently consist of--
    (A) Textiles, apparel articles, footwear, handbags, luggage, flat 
goods, work gloves, leather wearing apparel, and handloomed, handmade, 
or folklore articles that are not granted duty-free status in the 
Harmonized Tariff Schedule of the United States (HTSUS);
    (B) Tuna, prepared or preserved in any manner in airtight 
containers; and
    (C) Watches and watch parts (including cases, bracelets, and straps) 
of whatever type, including, but not limited to, mechanical, quartz 
digital, or quartz analog, if such watches or watch parts contain any 
material that is the product of any country to which the HTSUS column 2 
rates of duty (HTSUS General Note 3(b)) apply.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Designated country means--
    (i) A World Trade Organization Government Procurement Agreement (WTO 
GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, 
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, 
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, 
Italy, Japan, Korea (Republic of), Latvia,

[[Page 501]]

Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, 
Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, 
Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in 
the World Trade Organization as ``the Separate Customs Territory of 
Taiwan, Penghu, Kinmen, and Matsu'' (Chinese Taipei)), Ukraine, or the 
United Kingdom);
    (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or 
Singapore);
    (iii) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African 
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East 
Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-
Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, 
Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao 
Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, 
Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or
    (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, 
Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, 
Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, 
St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, 
or Trinidad and Tobago).
    Designated country end product means a WTO GPA country end product, 
a Free Trade Agreement country end product, a least developed country 
end product, or a Caribbean Basin country end product.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Free Trade Agreement country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Free Trade Agreement country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed. The term refers to a 
product offered for purchase under a supply contract, but for purposes 
of calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Least developed country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
least developed country into a new and different article of commerce 
with a name, character, or use distinct from that of the article or 
articles from which it was transformed. The term refers to a product 
offered for purchase under a supply contract, but for purposes of 
calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Nondesignated country end product means any end product that is not 
a U.S.-made end product or a designated country end product.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or

[[Page 502]]

    (B) The end product is a COTS item.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    South Caucasus/Central and South Asian (SC/CASA) state end product 
means an article that--
    (i) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in an 
SC/CASA state into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    U.S.-made end product means an article that--
    (i) Is mined, produced, or manufactured in the United States; or
    (ii) Is substantially transformed in the United States into a new 
and different article of commerce with a name, character, or use 
distinct from that of the article or articles from which it was 
transformed.
    WTO GPA country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
WTO GPA country into a new and different article of commerce with a 
name, character, or use distinct from that of the article or articles 
from which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    (b) Unless otherwise specified, this clause applies to all items in 
the Schedule.
    (c) The Contractor shall deliver under this contract only U.S.-made, 
qualifying country, SC/CASA state, or designated country end products 
unless--
    (1) In its offer, the Contractor specified delivery of other 
nondesignated country end products in the Trade Agreements Certificate 
provision of the solicitation; and
    (2)(i) Offers of U.S.-made, qualifying country, SC/CASA state, or 
designated country end products from responsive, responsible offerors 
are either not received or are insufficient to fill the Government's 
requirements; or
    (ii) A national interest waiver has been granted.
    (d) If the Contractor is from an SC/CASA state, the Contractor shall 
inform its government of its participation in this acquisition and that 
it generally will not have such opportunity in the future unless its 
government provides reciprocal procurement opportunities to U.S. 
products and services and suppliers of such products and services.
    (e) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.
    (f) The HTSUS is available on the Internet at http://www.usitc.gov/
tata/hts/bychapter/index.htm. The following sections of the HTSUS 
provide information regarding duty-free status of articles specified in 
the definition of ``Caribbean Basin country end product'' within 
paragraph (a) of this clause:
    (1) General Note 3(c), Products Eligible for Special Tariff 
Treatment.
    (2) General Note 17, Products of Countries Designated as Beneficiary 
Countries Under the United States--Caribbean Basin Trade Partnership Act 
of 2000.
    (3) Section XXII, Chapter 98, Subchapter II, Articles Exported and 
Returned, Advanced or Improved Abroad, U.S. Note 7(b).
    (4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for 
Special Tariff Benefits Under the United States--Caribbean Basin Trade 
Partnership Act.

                             (End of clause)

[68 FR 15637, Mar. 31, 2003]

    Editorial Note: For Federal Register citations affecting section 
252.225-7021, see the List of CFR Sections Affected, which appears in 
the Finding Aids section of the printed volume and at www.govinfo.gov.



252.225-7022  [Reserved]



252.225-7023  Preference for Products or Services from Afghanistan.

    As prescribed in 225.7703-4(a), use the following provision:

     Preference for Products or Services From Afghanistan (SEP 2013)

    (a) Definitions. ``Product from Afghanistan'' and ``service from 
Afghanistan,'' as used in this provision, are defined in the clause of 
this solicitation entitled ``Requirement for Products or Services from 
Afghanistan'' (DFARS 252.225-7024).
    (b) Representation. The offeror represents that all products or 
services to be delivered

[[Page 503]]

under a contract resulting from this solicitation are products from 
Afghanistan or services from Afghanistan, except those listed in--
    (1) Paragraph (c) of this provision; or
    (2) Paragraph (c)(2) of the provision entitled ``Trade Agreements 
Certificate,'' if included in this solicitation.
    (c) Other products or services. The following offered products or 
services are not products from Afghanistan or services from Afghanistan:

(Line Item Number) (Country of Origin)

    (d) Evaluation. For the purpose of evaluating competitive offers, 
the Contracting Officer will increase by 50 percent the prices of offers 
of products or services that are not products or services from 
Afghanistan.

                           (End of provision)

[78 FR 59859, Sept. 30, 2013]



252.225-7024  Requirement for Products or Services from Afghanistan.

    As prescribed in 225.7703-4(b), use the following clause:

    Requirement for Products or Services From Afghanistan (SEP 2013)

    (a) Definitions. As used in this clause--
    (1) ``Product from Afghanistan'' means a product that is mined, 
produced, or manufactured in Afghanistan.
    (2) ``Service from Afghanistan'' means a service including 
construction that is performed in Afghanistan predominantly by citizens 
or permanent resident aliens of Afghanistan.
    (b) The Contractor shall provide only products from Afghanistan or 
services from Afghanistan under this contract, unless, in its offer, it 
specified that it would provide products or services other than products 
from Afghanistan or services from Afghanistan.

                             (End of clause)

[78 FR 59859, Sept. 30, 2013]



252.225-7025  Restriction on acquisition of forgings.

    As prescribed in 225.7102-4, use the following clause:

            Restriction on Acquisition of Forgings (DEC 2009)

    (a) Definitions. As used in this clause--
    (1) Component means any item supplied to the Government as part of 
an end product or of another component.
    (2) Domestic manufacture means manufactured in the United States, 
its outlying areas, or Canada.
    (3) Forging items means--

------------------------------------------------------------------------
                   Items                             Categories
------------------------------------------------------------------------
Ship propulsion shafts....................  Excludes service and landing
                                             craft shafts.
Periscope tubes...........................  All.
Ring forgings for bull gears..............  All greater than 120 inches
                                             in diameter.
------------------------------------------------------------------------

    (b) End products and their components delivered under this contract 
shall contain forging items that are of domestic manufacture only.
    (c) The restriction in paragraph (b) of this clause may be waived 
upon request from the Contractor in accordance with subsection 225.7102-
3 of the Defense Federal Acquisition Regulation Supplement.
    (d) The Contractor shall retain records showing compliance with the 
restriction in paragraph (b) of this clause until 3 years after final 
payment and shall make the records available upon request of the 
Contracting Officer.
    (e) The Contractor shall insert the substance of this clause, 
including this paragraph (e), in subcontracts for forging items or for 
other items that contain forging items.

                             (End of clause)

[68 FR 15639, Mar. 31, 2003, as amended at 70 FR 35548, June 21, 2005; 
71 FR 39005, July 11, 2006; 74 FR 68384, Dec. 24, 2009]



252.225-7026  Acquisition Restricted to Products or Services from
Afghanistan.

    As prescribed in 225.7703-4(c), use the following clause:

  Acquisition Restricted to Products or Services From Afghanistan (SEP 
                                  2013)

    (a) Definitions. As used in this clause--
    (1) ``Product from Afghanistan'' means a product that is mined, 
produced, or manufactured in Afghanistan.
    (2) ``Service from Afghanistan'' means a service including 
construction that is performed in Afghanistan predominantly by citizens 
or permanent resident aliens of Afghanistan.
    (b) The Contractor shall provide only products from Afghanistan or 
services from Afghanistan under this contract.

                             (End of clause)

[78 FR 59859, Sept. 30, 2013]



252.225-7027  Restriction on contingent fees for foreign military
sales.

    As prescribed in 225.7307(a), use the following clause.

[[Page 504]]

  Restriction on Contingent Fees for Foreign Military Sales (APR 2003)

    (a) Except as provided in paragraph (b) of this clause, contingent 
fees, as defined in the Covenant Against Contingent Fees clause of this 
contract, are generally an allowable cost, provided the fees are paid 
to--
    (1) A bona fide employee of the Contractor; or
    (2) A bona fide established commercial or selling agency maintained 
by the Contractor for the purpose of securing business.
    (b) For foreign military sales, unless the contingent fees have been 
identified and payment approved in writing by the foreign customer 
before contract award, the following contingent fees are unallowable 
under this contract:
    (1) For sales to the Government(s) of ______________, contingent 
fees in any amount.
    (2) For sales to Governments not listed in paragraph (b)(1) of this 
clause, contingent fees exceeding $50,000 per foreign military sale 
case.

                             (End of clause)

[68 FR 15639, Mar. 31, 2003, as amended at 70 FR 73156, Dec. 9, 2005]



252.225-7028  Exclusionary policies and practices of foreign
governments.

    As prescribed in 225.7307(b), use the following clause:

  Exclusionary Policies and Practices of Foreign Governments (APR 2003)

    The Contractor and its subcontractors shall not take into account 
the exclusionary policies or practices of any foreign government in 
employing or assigning personnel, if--
    (a) The personnel will perform functions required by this contract, 
either in the United States or abroad; and
    (b) The exclusionary policies or practices of the foreign government 
are based on race, religion, national origin, or sex.

                             (End of clause)

[68 FR 15639, Mar. 31, 2003, as amended at 70 FR 73156, Dec. 9, 2005]



252.225-7029  Acquisition of Uniform Components for Afghan Military or Afghan National Police.

    As prescribed in 225.7703-4(d), use the following clause:

Acquisition of Uniform Components for Afghan Military or Afghan National 
                            Police (SEP 2013)

    (a) Definitions. As used in this clause--
    ``Textile component'' means any item consisting of fibers, yarns, or 
fabric, supplied for incorporation into a uniform or a component of a 
uniform. It does not include items that do not contain fibers, yarns, or 
fabric, such as the metallic or plastic elements of buttons, zippers, or 
other clothing fasteners.
    ``United States'' means the 50 States, the District of Columbia, and 
outlying areas.
    (b) As required by section 826 of the National Defense Authorization 
Act for Fiscal Year 2013 (Pub. L. 112-239), the Contractor shall deliver 
under this contract only textile components that have been produced in 
the United States.
    (c) There are no exceptions or waivers to this requirement.

                             (End of clause)

[78 FR 59859, Sept. 30, 2013, as amended at 79 FR 11342, Feb. 28, 2014]



252.225-7030  Restriction on Acquisition of Carbon, Alloy, and Armor
Steel Plate.

    As prescribed in 225.7011-3, use the following clause:

Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate (DEC 
                                  2006)

    (a) Carbon, alloy, and armor steel plate shall be melted and rolled 
in the United States or Canada if the carbon, alloy, or armor steel 
plate--
    (1) Is in Federal Supply Class 9515 or is described by 
specifications of the American Society for Testing Materials or the 
American Iron and Steel Institute; and
    (2)(i) Will be delivered to the Government for use in a Government-
owned facility or a facility under the control of the Department of 
Defense; or
    (ii) Will be purchased by the Contractor for use in a Government-
owned facility or a facility under the control of the Department of 
Defense.
    (b) This restriction--
    (1) Applies to the acquisition of carbon, alloy, or armor steel 
plate as a finished steel mill product that may be used ``as is'' or may 
be used as an intermediate material for the fabrication of an end 
product; and
    (2) Does not apply to the acquisition of an end product (e.g., a 
machine tool), to be used in the facility, that contains carbon, alloy, 
or armor steel plate as a component.

                             (End of clause)

[71 FR 75894, Dec. 19, 2006]

[[Page 505]]



252.225-7031  Secondary Arab boycott of Israel.

    As prescribed in 225.7605, use the following provision:

               Secondary Arab Boycott of Israel (JUN 2005)

    (a) Definitions. As used in this provision--
    (1) Foreign person means any person (including any individual, 
partnership, corporation, or other form of association) other than a 
United States person.
    (2) United States means the 50 States, the District of Columbia, 
outlying areas, and the outer Continental Shelf as defined in 43 U.S.C. 
1331.
    (3) United States person is defined in 50 U.S.C. App. 2415(2) and 
means--
    (i) Any United States resident or national (other than an individual 
resident outside the United States who is employed by other than a 
United States person);
    (ii) Any domestic concern (including any permanent domestic 
establishment of any foreign concern); and
    (iii) Any foreign subsidiary or affiliate (including any permanent 
foreign establishment) of any domestic concern that is controlled in 
fact by such domestic concern.
    (b) Certification. If the offeror is a foreign person, the offeror 
certifies, by submission of an offer, that it--
    (1) Does not comply with the Secondary Arab Boycott of Israel; and
    (2) Is not taking or knowingly agreeing to take any action, with 
respect to the Secondary Boycott of Israel by Arab countries, which 50 
U.S.C. App. 2407(a) prohibits a United States person from taking.

                           (End of provision)

[68 FR 15639, Mar. 31, 2003, as amended at 70 FR 35548, June 21, 2005; 
71 FR 39006, July 11, 2006]



252.225-7032  Waiver of United Kingdom Levies--Evaluation of offers.

    As prescribed in 225.1101(7), use the following provision:

    Waiver of United Kingdom Levies--Evaluation of Offers (APR 2003)

    (a) Offered prices for contracts or subcontracts with United Kingdom 
(U.K.) firms may contain commercial exploitation levies assessed by the 
Government of the U.K. The offeror shall identify to the Contracting 
Officer all levies included in the offered price by describing--
    (1) The name of the U.K. firm;
    (2) The item to which the levy applies and the item quantity; and
    (3) The amount of levy plus any associated indirect costs and profit 
or fee.
    (b) In the event of difficulty in identifying levies included in a 
price from a prospective subcontractor, the offeror may seek advice 
through the Director of Procurement, United Kingdom Defence Procurement 
Office, British Embassy, 3100 Massachusetts Avenue NW., Washington, DC 
20006.
    (c) The U.S. Government may attempt to obtain a waiver of levies 
pursuant to the U.S./U.K. reciprocal waiver agreement of July 1987.
    (1) If the U.K. waives levies before award of a contract, the 
Contracting Officer will evaluate the offer without the levy.
    (2) If levies are identified but not waived before award of a 
contract, the Contracting Officer will evaluate the offer inclusive of 
the levies.
    (3) If the U.K. grants a waiver of levies after award of a contract, 
the U.S. Government reserves the right to reduce the contract price by 
the amount of the levy waived plus associated indirect costs and profit 
or fee.

                           (End of provision)

[68 FR 15639, Mar. 31, 2003, as amended at 73 FR 53155, Sept. 15, 2008; 
78 FR 59859, Sept. 30, 2013]



252.225-7033  Waiver of United Kingdom levies.

    As prescribed in 225.1101(8), use the following clause:

               Waiver of United Kingdom Levies (APR 2003)

    (a) The U.S. Government may attempt to obtain a waiver of any 
commercial exploitation levies included in the price of this contract, 
pursuant to the U.S./United Kingdom (U.K.) reciprocal waiver agreement 
of July 1987. If the U.K. grants a waiver of levies included in the 
price of this contract, the U.S. Government reserves the right to reduce 
the contract price by the amount of the levy waived plus associated 
indirect costs and profit or fee.
    (b) If the Contractor contemplates award of a subcontract exceeding 
$1 million to a U.K. firm, the Contractor shall provide the following 
information to the Contracting Officer before award of the subcontract:
    (1) Name of the U.K. firm.
    (2) Prime contract number.
    (3) Description of item to which the levy applies.
    (4) Quantity being acquired.
    (5) Amount of levy plus any associated indirect costs and profit or 
fee.
    (c) In the event of difficulty in identifying levies included in a 
price from a prospective subcontractor, the Contractor may seek advice 
through the Director of Procurement,

[[Page 506]]

United Kingdom Defence Procurement Office, British Embassy, 3100 
Massachusetts Avenue NW., Washington, DC 20006.
    (d) The Contractor shall insert the substance of this clause, 
including this paragraph (d), in any subcontract for supplies where a 
lower-tier subcontract exceeding $1 million with a U.K. firm is 
anticipated.

                             (End of clause)

[68 FR 15639, Mar. 31, 2003, as amended at 73 FR 53155, Sept. 15, 2008; 
78 FR 59859, Sept. 30, 2013]



252.225-7034  [Reserved]



252.225-7035  Buy American--Free Trade Agreements--Balance 
of Payments Program Certificate.

    Basic. As prescribed in 225.1101(9) and (9)(i), use the following 
provision:

    Buy American--Free Trade Agreements--Balance of Payments Program 
                      Certificate--Basic (NOV 2014)

    (a) Definitions. ``Bahrainian end product,'' ``commercially 
available off-the-shelf (COTS) item,'' ``component,'' ``domestic end 
product,'' ``Free Trade Agreement country,'' ``Free Trade Agreement 
country end product,'' ``foreign end product,'' ``Moroccan end 
product,'' ``Panamanian end product,'' ``Peruvian end product,'' 
``qualifying country end product,'' and ``United States,'' as used in 
this provision, have the meanings given in the Buy American--Free Trade 
Agreements--Balance of Payments Program--Basic clause of this 
solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of Part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) For line items subject to Buy American--Free Trade Agreements--
Balance of Payments Program--Basic clause of this solicitation, will 
evaluate offers of qualifying country end products or Free Trade 
Agreement country end products other than Bahrainian end products, 
Moroccan end products, Panamanian end products, or Peruvian end products 
without regard to the restrictions of the Buy American or the Balance of 
Payments Program.
    (c) Certifications and identification of country of origin. (1) For 
all line items subject to the Buy American--Free Trade Agreements--
Balance of Payments Program--Basic clause of this solicitation, the 
offeror certifies that--
    (i) Each end product, except the end products listed in paragraph 
(c)(2) of this provision, is a domestic end product; and
    (ii) Components of unknown origin are considered to have been mined, 
produced, or manufactured outside the United States or a qualifying 
country.
    (2) The offeror shall identify all end products that are not 
domestic end products.
    (i) The offeror certifies that the following supplies are qualifying 
country (except Australian or Canadian) end products:
________________________________________________________________________
(Line Item Number)
________________________________________________________________________
(Country of Origin)
    (ii) The offeror certifies that the following supplies are Free 
Trade Agreement country end products other than Bahrainian end products, 
Moroccan end products, Panamanian end products or Peruvian end products:
________________________________________________________________________
(Line Item Number)
________________________________________________________________________
(Country of Origin)
    (iii) The following supplies are other foreign end products, 
including end products manufactured in the United States that do not 
qualify as domestic end products, i.e., an end product that is not a 
COTS item and does not meet the component test in paragraph (ii) of the 
definition of ``domestic end product'':
________________________________________________________________________
(Line Item Number)
________________________________________________________________________
(Country of Origin (If known))

    Alternate I. As prescribed in 225.1101(9) and (9)(ii), use the 
following provision, which uses Canadian end product in paragraph (a), 
rather than the phrases Bahrainian end product, Free Trade Agreement 
country, Free Trade Agreement country end product, Moroccan end product, 
Panamanian end product, and Peruvian end products in paragraph (a) of 
the basic provision; uses ``Canadian end products'' in paragraphs (b)(2) 
and (c)(2)(i), rather than ``Free Trade Agreement country end products 
other than Bahrainian end products, Moroccan end products, Panamanian 
end products, or Peruvian end products'' in paragraphs (b)(2) and 
(c)(2)(ii) of the basic provision; and does not use ``Australian or'' in 
paragraph (c)(2)(i):

    Buy American--Free Trade Agreements--Balance of Payments Program 
                   Certificate--Alternate I (NOV 2014)

    (a) Definitions. Canadian end product, commercially available off-
the-shelf (COTS) item, component, domestic end product, foreign end 
product, qualifying country end product, and United States, as used in 
this provision, have the meanings given in the Buy American--

[[Page 507]]

Free Trade Agreements--Balance of Payments Program--Alternate I clause 
of this solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) For line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate I clause of this 
solicitation, will evaluate offers of qualifying country end products or 
Canadian end products without regard to the restrictions of the Buy 
American or the Balance of Payments Program.
    (c) Certifications and identification of country of origin.
    (1) For all line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate I clause of this 
solicitation, the offeror certifies that--
    (i) Each end product, except the end products listed in paragraph 
(c)(2) of this provision, is a domestic end product; and
    (ii) Components of unknown origin are considered to have been mined, 
produced, or manufactured outside the United States or a qualifying 
country.
    (2) The offeror shall identify all end products that are not 
domestic end products.
    (i) The offeror certifies that the following supplies are qualifying 
country (except Canadian) end products:

         (Line Item Number)                  (Country of Origin)
 

    (ii) The offeror certifies that the following supplies are Canadian 
end products:

         (Line Item Number)                  (Country of Origin)
 

    (iii) The following supplies are other foreign end products, 
including end products manufactured in the United States that do not 
qualify as domestic end products, i.e., an end product that is not a 
COTS item and does not meet the component test in paragraph (ii) of the 
definition of domestic end product:

         (Line Item Number)                   (Country of Origin
                                                    (If known))
 

                           (End of provision)

    Alternate II. As prescribed in 225.1101(9) and (9)(iii), use the 
following provision, which adds South Caucasus/Central and South Asian 
(SC/CASA) state and South Caucasus/Central and South Asian (SC/CASA) 
state end product to paragraph (a), and uses different paragraphs (b)(2) 
and (c)(2)(i) than the basic provision:

    Buy American--Free Trade Agreements--Balance of Payments Program 
                  Certificate--Alternate II (NOV 2014)

    (a) Definitions. Bahrainian end product, commercially available off-
the-shelf (COTS) item, component, domestic end product, Free Trade 
Agreement country, Free Trade Agreement country end product, foreign end 
product, Moroccan end product, Panamanian end product, Peruvian end 
product, qualifying country end product, South Caucasus/Central and 
South Asian (SC/CASA) state, South Caucasus/Central and South Asian (SC/
CASA) state end product, and United States, as used in this provision, 
have the meanings given in the Buy American--Free Trade Agreements--
Balance of Payments Program--Alternate II clause of this solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) For line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate II clause of this 
solicitation, will evaluate offers of qualifying country end products, 
SC/CASA state end products, or Free Trade Agreement country end products 
other than Bahrainian end products, Moroccan end products, Panamanian 
end products, or Peruvian end products without regard to the 
restrictions of the Buy American or the Balance of Payments Program.
    (c) Certifications and identification of country of origin.
    (1) For all line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate II clause of this 
solicitation, the offeror certifies that--
    (i) Each end product, except the end products listed in paragraph 
(c)(2) of this provision, is a domestic end product; and
    (ii) Components of unknown origin are considered to have been mined, 
produced, or manufactured outside the United States or a qualifying 
country.
    (2) The offeror shall identify all end products that are not 
domestic end products.
    (i) The offeror certifies that the following supplies are qualifying 
country (except Australian or Canadian) or SC/CASA state end products:

            (Line Item Number)                   (Country of Origin)
 

    (ii) The offeror certifies that the following supplies are Free 
Trade Agreement country end products other than Bahrainian end products, 
Moroccan end products, Panamanian end products, or Peruvian end 
products:

            (Line Item Number)                   (Country of Origin)
 


[[Page 508]]

    (iii) The following supplies are other foreign end products, 
including end products manufactured in the United States that do not 
qualify as domestic end products, i.e., an end product that is not a 
COTS item and does not meet the component test in paragraph (ii) of the 
definition of domestic end product:

            (Line Item Number)                 (Country of Origin (If
                                                       known))
 

                           (End of provision)

    Alternate III. As prescribed in 225.1101(9) and (9)(iv), use the 
following provision, which uses different paragraphs (a), (b)(2), 
(c)(2)(i), and (c)(2)(ii) than the basic provision:

    Buy American--Free Trade Agreements--Balance of Payments Program 
                  Certificate--Alternate III (NOV 2014)

    (a) Definitions. Canadian end product, commercially available off-
the-shelf (COTS) item, domestic end product, foreign end product, 
qualifying country end product, South Caucasus/Central and South Asian 
(SC/CASA) state end product, and United States, as used in this 
provision have the meanings given in the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate III clause of this 
solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) For line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate III clause of this 
solicitation, will evaluate offers of qualifying country end products, 
SC/CASA state end products, or Canadian end products without regard to 
the restrictions of the Buy American or the Balance of Payments Program.
    (c) Certifications and identification of country of origin.
    (1) For all line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate III clause of this 
solicitation, the offeror certifies that--
    (i) Each end product, except the end products listed in paragraph 
(c)(2) of this provision, is a domestic end product; and
    (ii) Components of unknown origin are considered to have been mined, 
produced, or manufactured outside the United States or a qualifying 
country.
    (2) The offeror shall identify all end products that are not 
domestic end products.
    (i) The offeror certifies that the following supplies are qualifying 
country (except Canadian) or SC/CASA state end products:

            (Line Item Number)                   (Country of Origin)
 

    (ii) The offeror certifies that the following supplies are Free 
Trade Agreement country end products other than Bahrainian end products, 
Moroccan end products, Panamanian end products, or Peruvian end 
products:

            (Line Item Number)                   (Country of Origin)
 

    (iii) The following supplies are other foreign end products, 
including end products manufactured in the United States that do not 
qualify as domestic end products, i.e., an end product that is not a 
COTS item and does not meet the component test in paragraph (ii) of the 
definition of domestic end product:

            (Line Item Number)                 (Country of Origin (If
                                                       known))
 

                           (End of provision)

    Alternate IV. As prescribed in 225.1101(9) and (9)(v), use the 
following provision, which adds Korean end product to paragraph (a); and 
uses ``Free Trade Agreement country end products other than Bahrainian 
end products, Korean end products, Moroccan end products, Panamanian end 
products, or Peruvian end products'' in paragraphs (b)(2) and 
(c)(2)(ii), rather than ``Free Trade Agreement country end products 
other than Bahrainian end products, Moroccan end products, Panamanian 
end products, or Peruvian end products'' in paragraphs (b)(2) and 
(c)(2)(ii) of the basic provision:

    Buy American--Free Trade Agreements--Balance of Payments Program 
                  Certificate--Alternate IV (NOV 2014)

    (a) Definitions. Bahrainian end product, commercially available off-
the-shelf (COTS) item, component, domestic end product, Free Trade 
Agreement country, Free Trade Agreement country end product, foreign end 
product, Korean end product, Moroccan end product, Panamanian end 
product, Peruvian end product, qualifying country end product, and 
United States, as used in this provision, have the meanings given in the 
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate IV clause of this solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) For line items subject to the Buy American--Free Trade 
Agreements--Balance of

[[Page 509]]

Payments Program--Alternate IV clause of this solicitation, will 
evaluate offers of qualifying country end products or Free Trade 
Agreement country end products other than Bahrainian end products, 
Korean end products, Moroccan end products, Panamanian end products, or 
Peruvian end products without regard to the restrictions of the Buy 
American or the Balance of Payments Program.
    (c) Certifications and identification of country of origin.
    (1) For all line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate IV clause of this 
solicitation, the offeror certifies that--
    (i) Each end product, except the end products listed in paragraph 
(c)(2) of this provision, is a domestic end product; and
    (ii) Components of unknown origin are considered to have been mined, 
produced, or manufactured outside the United States or a qualifying 
country.
    (2) The offeror shall identify all end products that are not 
domestic end products.
    (i) The offeror certifies that the following supplies are qualifying 
country (except Australian or Canadian) end products:

            (Line Item Number)                   (Country of Origin)
 

    (ii) The offeror certifies that the following supplies are Free 
Trade Agreement country end products other than Bahrainian end products, 
Korean end products, Moroccan end products, Panamanian end products, or 
Peruvian end products:

            (Line Item Number)                   (Country of Origin)
 

    (iii) The following supplies are other foreign end products, 
including end products manufactured in the United States that do not 
qualify as domestic end products, i.e., an end product that is not a 
COTS item and does not meet the component test in paragraph (ii) of the 
definition of domestic end product:

            (Line Item Number)                 (Country of Origin (If
                                                       known))
 

                           (End of provision)

    Alternate V. As prescribed in 225.1101(9) and (9)(vi), use the 
following provision, which uses different paragraphs (a), (b)(2), 
(c)(2)(i), and (c)(2)(ii) than the basic provision:

    Buy American--Free Trade Agreements--Balance of Payments Program 
                   Certificate--Alternate V (APR 2019)

    (a) Definitions. Bahrainian end product, commercially available off-
the-shelf (COTS) item, component, domestic end product, ``Free Trade 
Agreement country, Free Trade Agreement country end product, foreign end 
product, Korean end product, Moroccan end product, Panamanian end 
product, Peruvian end product, qualifying country end product, South 
Caucasus/Central and South Asian (SC/CASA) state end product, and United 
States, as used in this provision, have the meanings given in the Buy 
American--Free Trade Agreements--Balance of Payments Program--Alternate 
V clause of this solicitation.
    (b) Evaluation. The Government--
    (1) Will evaluate offers in accordance with the policies and 
procedures of part 225 of the Defense Federal Acquisition Regulation 
Supplement; and
    (2) For line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate V clause of this 
solicitation, will evaluate offers of qualifying country end products, 
SC/CASA state end products, or Free Trade Agreement end products other 
than Bahrainian end products, Korean end products, Moroccan end 
products, Panamanian end products, or Peruvian end products without 
regard to the restrictions of the Buy American statute or the Balance of 
Payments Program.
    (c) Certifications and identification of country of origin.
    (1) For all line items subject to the Buy American--Free Trade 
Agreements--Balance of Payments Program--Alternate V clause of this 
solicitation, the offeror certifies that--
    (i) Each end product, except the end products listed in paragraph 
(c)(2) of this provision, is a domestic end product; and
    (ii) Components of unknown origin are considered to have been mined, 
produced, or manufactured outside the United States or a qualifying 
country.
    (2) The offeror shall identify all end products that are not 
domestic end products.
    (i) The offeror certifies that the following supplies are qualifying 
country (except Australian or Canadian) or SC/CASA state end products:

            (Line Item Number)                   (Country of Origin)
 

    (ii) The offeror certifies that the following supplies are Free 
Trade Agreement country end products other than Bahrainian end products, 
Korean end products, Moroccan end products, Panamanian end products, or 
Peruvian end products:

            (Line Item Number)                   (Country of Origin)
 

    (iii) The following supplies are other foreign end products, 
including end products manufactured in the United States that do not 
qualify as domestic end products, i.e., an end product that is not a 
COTS item and does not meet the component test in paragraph (ii) of the 
definition of domestic end product:

[[Page 510]]



            (Line Item Number)                   (Country of Origin
                                            (If known))
 

                           (End of provision)

[70 FR 2364, Jan. 13, 2005, as amended at 71 FR 34835, June 16, 2006; 71 
FR 58543, Oct. 4, 2006; 73 FR 53156, Sept. 15, 2008; 74 FR 2423, Jan. 
15, 2009; 74 FR 68384, Dec. 24, 2009; 75 FR 81919, Dec. 29, 2010; 76 FR 
32843, June 6, 2011; 77 FR 30358, May 22, 2012; 77 FR 35882, June 15, 
2012; 77 FR 68701, Nov. 16, 2012; 78 FR 59859, Sept. 30, 2013; 78 FR 
65222, Oct. 31, 2013; 79 FR 65822, Nov. 5, 2014; 80 FR 36899, June 26, 
2015; 84 FR 12140, Apr. 1, 2019]



252.225-7036  Buy American--Free Trade Agreements--Balance of Payments
Program.

    Basic. As prescribed in 225.1101(10)(i) and (10)(i)(A), use the 
following clause:

Buy American--Free Trade Agreements--Balance of Payments Program--Basic 
                               (DEC 2017)

    (a) Definitions. As used in this clause--
    Bahrainian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Bahrain; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Bahrain into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of ``commercial item'' in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Domestic end product means--
    (i) An unmanufactured end product that has been mined or produced in 
the United States; or
    (ii) An end product manufactured in the United States if--
    (A) The cost of its qualifying country components and its components 
that are mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. The cost of components 
includes transportation costs to the place of incorporation into the end 
product and U.S. duty (whether or not a duty-free entry certificate is 
issued). Scrap generated, collected, and prepared for processing in the 
United States is considered domestic. A component is considered to have 
been mined, produced, or manufactured in the United States (regardless 
of its source in fact) if the end product in which it is incorporated is 
manufactured in the United States and the component is of a class or 
kind for which the Government has determined that--
    (1) Sufficient and reasonably available commercial quantities of a 
satisfactory quality are not mined, produced, or manufactured in the 
United States; or
    (2) It is inconsistent with the public interest to apply the 
restrictions of the Buy American statute; or
    (B) The end product is a COTS item.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Foreign end product means an end product other than a domestic end 
product.
    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore;
    Free Trade Agreement country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Free Trade Agreement country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed. The term refers to a 
product offered for purchase under a supply contract, but for purposes 
of calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Moroccan end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Morocco; or

[[Page 511]]

    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Morocco into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Panamanian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Panama; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Panama into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Peruvian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Peru; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Peru into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland

    Qualifying country component means a component mined, produced, or 
manufactured in a qualifying country.
    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Unless otherwise specified, this clause applies to all items in 
the Schedule.
    (c) The Contractor shall deliver under this contract only domestic 
end products unless, in its offer, it specified delivery of qualifying 
country end products, Free Trade Agreement country end products other 
than Bahrainian end products, Moroccan end products, Panamanian end 
products, or Peruvian end products, or other foreign end products in the 
Buy American--Free Trade Agreements--Balance of Payments Program 
Certificate--Basic provision of the solicitation. If the Contractor 
certified in its offer that it will deliver a qualifying country end 
product or a Free Trade Agreement country end product other than a 
Bahrainian end product, a Moroccan end product, a Panamanian end 
product, or a Peruvian end product, the Contractor shall deliver a 
qualifying country end product, a Free Trade Agreement country end 
product other than a Bahrainian end product, a Moroccan end product, a 
Panamanian end product, or a Peruvian end product, or, at the 
Contractor's option, a domestic end product.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.

[[Page 512]]

                             (End of clause)

    Alternate I. As prescribed in 225.1101(10)(i) and (10)(i)(B), use 
the following clause, which adds Canadian end product to paragraph (a), 
and uses a different paragraph (c) than the basic clause:

   Buy American--Free Trade Agreements--Balance of Payments Program--
                         Alternate I (DEC 2017)

    (a) Definitions. As used in this clause--
    Bahrainian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Bahrain; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Bahrain into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Canadian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Canada; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Canada into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Domestic end product means--
    (i) An unmanufactured end product that has been mined or produced in 
the United States; or
    (ii) An end product manufactured in the United States if--
    (A) The cost of its qualifying country components and its components 
that are mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. The cost of components 
includes transportation costs to the place of incorporation into the end 
product and U.S. duty (whether or not a duty-free entry certificate is 
issued). Scrap generated, collected, and prepared for processing in the 
United States is considered domestic. A component is considered to have 
been mined, produced, or manufactured in the United States (regardless 
of its source in fact) if the end product in which it is incorporated is 
manufactured in the United States and the component is of a class or 
kind for which the Government has determined that--
    (1) Sufficient and reasonably available commercial quantities of a 
satisfactory quality are not mined, produced, or manufactured in the 
United States; or
    (2) It is inconsistent with the public interest to apply the 
restrictions of the Buy American statute; or
    (B) The end product is a COTS item.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Foreign end product means an end product other than a domestic end 
product.
    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore;
    Free Trade Agreement country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Free Trade Agreement country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed. The term refers to a 
product offered for purchase under a supply contract, but for purposes 
of calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.

[[Page 513]]

    Moroccan end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Morocco; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Morocco into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Panamanian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Panama; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Panama into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Peruvian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Peru; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Peru into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country component means a component mined, produced, or 
manufactured in a qualifying country.
    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Unless otherwise specified, this clause applies to all items in 
the Schedule.
    (c) The Contractor shall deliver under this contract only domestic 
end products unless, in its offer, it specified delivery of qualifying 
country, Canadian, or other foreign end products in the Buy American--
Free Trade Agreements--Balance of Payments Program Certificate--
Alternate I provision of the solicitation. If the Contractor certified 
in its offer that it will deliver a qualifying country end product or a 
Canadian end product, the Contractor shall deliver a qualifying country 
end product, a Canadian end product, or, at the Contractor's option, a 
domestic end product.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.

                             (End of clause)

    Alternate II. As prescribed in 225.1101(10)(i) and (10)(i)(C), use 
the following clause, which adds South Caucasus/Central and South Asian 
(SC/

[[Page 514]]

CASA) state and South Caucasus/Central and South Asian (SC/CASA) state 
end product to paragraph (a), and uses a different paragraph (c) than 
the basic clause:

   Buy American--Free Trade Agreements--Balance of Payments Program--
                         Alternate II (DEC 2017)

    (a) Definitions. As used in this clause--
    Bahrainian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Bahrain; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Bahrain into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Domestic end product means--
    (i) An unmanufactured end product that has been mined or produced in 
the United States; or
    (ii) An end product manufactured in the United States if--
    (A) The cost of its qualifying country components and its components 
that are mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. The cost of components 
includes transportation costs to the place of incorporation into the end 
product and U.S. duty (whether or not a duty-free entry certificate is 
issued). Scrap generated, collected, and prepared for processing in the 
United States is considered domestic. A component is considered to have 
been mined, produced, or manufactured in the United States (regardless 
of its source in fact) if the end product in which it is incorporated is 
manufactured in the United States and the component is of a class or 
kind for which the Government has determined that--
    (1) Sufficient and reasonably available commercial quantities of a 
satisfactory quality are not mined, produced, or manufactured in the 
United States; or
    (2) It is inconsistent with the public interest to apply the 
restrictions of the Buy American statute; or
    (B) The end product is a COTS item.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Foreign end product means an end product other than a domestic end 
product.
    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore;
    Free Trade Agreement country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Free Trade Agreement country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed. The term refers to a 
product offered for purchase under a supply contract, but for purposes 
of calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Moroccan end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Morocco; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Morocco into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Panamanian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Panama; or

[[Page 515]]

    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Panama into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Peruvian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Peru; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Peru into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country component means a component mined, produced, or 
manufactured in a qualifying country.
    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    South Caucasus/Central and South Asian (SC/CASA) state end product 
means an article that--
    (i) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in an 
SC/CASA state into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Unless otherwise specified, this clause applies to all items in 
the Schedule.
    (c) The Contractor shall deliver under this contract only domestic 
end products unless, in its offer, it specified delivery of qualifying 
country end products, SC/CASA state end products, Free Trade Agreement 
country end products other than Bahrainian end products, Moroccan end 
products, Panamanian end products, or Peruvian end products, or other 
foreign end products in the Buy American--Free Trade Agreements--Balance 
of Payments Program Certificate--Alternate II provision of the 
solicitation. If the Contractor certified in its offer that it will 
deliver a qualifying country end product, SC/CASA state end products, or 
a Free Trade Agreement country end product other than a Bahrainian end 
product, a Moroccan end product, a Panamanian end product, or a Peruvian 
end product, the Contractor shall deliver a qualifying country end 
product, an SC/CASA state end product, a Free Trade Agreement country 
end product other than a Bahrainian end product, a Moroccan end

[[Page 516]]

product, a Panamanian end product, or a Peruvian end product or, at the 
Contractor's option, a domestic end product.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.

                             (End of clause)

    Alternate III. As prescribed in 225.1101(10)(i) and (10)(i)(D), use 
the following clause, which adds Canadian end product, South Caucasus/
Central and South Asian (SC/CASA) state, and South Caucasus/Central and 
South Asian (SC/CASA) state end product to paragraph (a) and uses a 
different paragraph (c) than the basic clause:

   Buy American--Free Trade Agreements--Balance of Payments Program--
                        Alternate III (DEC 2017)

    (a) Definitions. As used in this clause--
    Bahrainian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Bahrain; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Bahrain into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Canadian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Canada; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Canada into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Domestic end product means--
    (i) An unmanufactured end product that has been mined or produced in 
the United States; or
    (ii) An end product manufactured in the United States if--
    (A) The cost of its qualifying country components and its components 
that are mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. The cost of components 
includes transportation costs to the place of incorporation into the end 
product and U.S. duty (whether or not a duty-free entry certificate is 
issued). Scrap generated, collected, and prepared for processing in the 
United States is considered domestic. A component is considered to have 
been mined, produced, or manufactured in the United States (regardless 
of its source in fact) if the end product in which it is incorporated is 
manufactured in the United States and the component is of a class or 
kind for which the Government has determined that--
    (1) Sufficient and reasonably available commercial quantities of a 
satisfactory quality are not mined, produced, or manufactured in the 
United States; or
    (2) It is inconsistent with the public interest to apply the 
restrictions of the Buy American statute; or
    (B) The end product is a COTS item.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Foreign end product means an end product other than a domestic end 
product.
    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore;
    Free Trade Agreement country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed

[[Page 517]]

in a Free Trade Agreement country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed. The term refers to a 
product offered for purchase under a supply contract, but for purposes 
of calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Moroccan end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Morocco; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Morocco into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Panamanian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Panama; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Panama into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Peruvian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Peru; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Peru into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country component means a component mined, produced, or 
manufactured in a qualifying country.
    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    South Caucasus/Central and South Asian (SC/CASA) state end product 
means an article that--
    (i) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in an 
SC/CASA state into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The

[[Page 518]]

term refers to a product offered for purchase under a supply contract, 
but for purposes of calculating the value of the end product includes 
services (except transportation services) incidental to its supply, 
provided that the value of those incidental services does not exceed the 
value of the product itself.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Unless otherwise specified, this clause applies to all items in 
the Schedule.
    (c) The Contractor shall deliver under this contract only domestic 
end products unless, in its offer, it specified delivery of qualifying 
country end products, SC/CASA state end products, Canadian end products, 
or other foreign end products in the Buy American--Free Trade 
Agreements--Balance of Payments Program Certificate--Alternate III 
provision of the solicitation. If the Contractor certified in its offer 
that it will deliver a qualifying country end product, SC/CASA state end 
products, or a Canadian end product, the Contractor shall deliver a 
qualifying country end product, an SC/CASA state end product, a Canadian 
end product or, at the Contractor's option, a domestic end product.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.

                             (End of clause)

    Alternate IV. As prescribed in 225.1101(10)(i) and (10)(i)(E), use 
the following clause, which adds Korean end product to paragraph (a), 
and uses a different paragraph (c) than the basic clause:

   Buy American--Free Trade Agreements--Balance of Payments Program--
                         Alternate IV (DEC 2017)

    (a) Definitions. As used in this clause--
    Bahrainian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Bahrain; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Bahrain into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Domestic end product means--
    (i) An unmanufactured end product that has been mined or produced in 
the United States; or
    (ii) An end product manufactured in the United States if--
    (A) The cost of its qualifying country components and its components 
that are mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. The cost of components 
includes transportation costs to the place of incorporation into the end 
product and U.S. duty (whether or not a duty-free entry certificate is 
issued). Scrap generated, collected, and prepared for processing in the 
United States is considered domestic. A component is considered to have 
been mined, produced, or manufactured in the United States (regardless 
of its source in fact) if the end product in which it is incorporated is 
manufactured in the United States and the component is of a class or 
kind for which the Government has determined that--
    (1) Sufficient and reasonably available commercial quantities of a 
satisfactory quality are not mined, produced, or manufactured in the 
United States; or
    (2) It is inconsistent with the public interest to apply the 
restrictions of the Buy American statute; or
    (B) The end product is a COTS item.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Foreign end product means an end product other than a domestic end 
product.
    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore;
    Free Trade Agreement country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or

[[Page 519]]

    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Free Trade Agreement country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed. The term refers to a 
product offered for purchase under a supply contract, but for purposes 
of calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Korean end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Korea; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Korea (Republic of) into a new and different article of commerce with a 
name, character, or use distinct from that of the article or articles 
from which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product, includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Moroccan end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Morocco; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Morocco into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Panamanian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Panama; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Panama into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Peruvian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Peru; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Peru into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country component means a component mined, produced, or 
manufactured in a qualifying country.
    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or
    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.

[[Page 520]]

    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Unless otherwise specified, this clause applies to all items in 
the Schedule.
    (c) The Contractor shall deliver under this contract only domestic 
end products unless, in its offer, it specified delivery of qualifying 
country end products, Free Trade Agreement country end products other 
than Bahrainian end products, Korean end products, Moroccan end 
products, Panamanian end products, or Peruvian end products, or other 
foreign end products in the Buy American--Free Trade Agreements--Balance 
of Payments Program Certificate--Alternate IV provision of the 
solicitation. If the Contractor certified in its offer that it will 
deliver a qualifying country end product or a Free Trade Agreement 
country end product other than a Bahrainian end product, a Korean end 
product, a Moroccan end product, a Panamanian end product, or a Peruvian 
end product, the Contractor shall deliver a qualifying country end 
product, a Free Trade Agreement country end product other than a 
Bahrainian end product, a Korean end product, a Moroccan end product, a 
Panamanian end product, or a Peruvian end product, or, at the 
Contractor's option, a domestic end product.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.

                             (End of clause)

    Alternate V. As prescribed in 225.1101(10)(i) and (10)(i)(F), use 
the following clause, which adds Korean end product, South Caucasus/
Central and South Asian (SC/CASA) state, and South Caucasus/Central and 
South Asian (SC/CASA) state end product to paragraph (a), and uses a 
different paragraph (c) than the basic clause:

   Buy American--Free Trade Agreements--Balance of Payments Program--
                         Alternate V (DEC 2017)

    (a) Definitions. As used in this clause--
    Bahrainian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Bahrain; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Bahrain into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means an article, material, or supply incorporated 
directly into an end product.
    Domestic end product means--
    (i) An unmanufactured end product that has been mined or produced in 
the United States; or
    (ii) An end product manufactured in the United States if--
    (A) The cost of its qualifying country components and its components 
that are mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. The cost of components 
includes transportation costs to the place of incorporation into the end 
product and U.S. duty (whether or not a duty-free entry certificate is 
issued). Scrap generated, collected, and prepared for processing in the 
United States is considered domestic. A component is considered to have 
been mined, produced, or manufactured in the United States (regardless 
of its source in fact) if the end product in which it is incorporated is 
manufactured in the United States and the component is of a class or 
kind for which the Government has determined that--
    (1) Sufficient and reasonably available commercial quantities of a 
satisfactory quality are not mined, produced, or manufactured in the 
United States; or
    (2) It is inconsistent with the public interest to apply the 
restrictions of the Buy American statute; or
    (B) The end product is a COTS item.
    End product means those articles, materials, and supplies to be 
acquired under this contract for public use.
    Foreign end product means an end product other than a domestic end 
product.

[[Page 521]]

    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore;
    Free Trade Agreement country end product means an article that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Free Trade Agreement country into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles from which it was transformed. The term refers to a 
product offered for purchase under a supply contract, but for purposes 
of calculating the value of the end product includes services (except 
transportation services) incidental to its supply, provided that the 
value of those incidental services does not exceed the value of the 
product itself.
    Korean end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Korea; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Korea (Republic of) into a new and different article of commerce with a 
name, character, or use distinct from that of the article or articles 
from which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product, includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Moroccan end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Morocco; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Morocco into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Panamanian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Panama; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Panama into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Peruvian end product means an article that--
    (i) Is wholly the growth, product, or manufacture of Peru; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Peru into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    Qualifying country means a country with a reciprocal defense 
procurement memorandum of understanding or international agreement with 
the United States in which both countries agree to remove barriers to 
purchases of supplies produced in the other country or services 
performed by sources of the other country, and the memorandum or 
agreement complies, where applicable, with the requirements of section 
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 
2457. Accordingly, the following are qualifying countries:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.

    Qualifying country component means a component mined, produced, or 
manufactured in a qualifying country.
    Qualifying country end product means--
    (i) An unmanufactured end product mined or produced in a qualifying 
country; or

[[Page 522]]

    (ii) An end product manufactured in a qualifying country if--
    (A) The cost of the following types of components exceeds 50 percent 
of the cost of all its components:
    (1) Components mined, produced, or manufactured in a qualifying 
country.
    (2) Components mined, produced, or manufactured in the United 
States.
    (3) Components of foreign origin of a class or kind for which the 
Government has determined that sufficient and reasonably available 
commercial quantities of a satisfactory quality are not mined, produced, 
or manufactured in the United States; or
    (B) The end product is a COTS item.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    South Caucasus/Central and South Asian (SC/CASA) state end product 
means an article that--
    (i) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (ii) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in an 
SC/CASA state into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product, includes services (except transportation 
services) incidental to its supply, provided that the value of those 
incidental services does not exceed the value of the product itself.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Unless otherwise specified, this clause applies to all items in 
the Schedule.
    (c) The Contractor shall deliver under this contract only domestic 
end products unless, in its offer, it specified delivery of qualifying 
country end products, SC/CASA state end products, Free Trade Agreement 
country end products other than Bahrainian end products, Korean end 
products, Moroccan end products, Panamanian end products, or Peruvian 
end products, or other foreign end products in the Buy American--Free 
Trade Agreements--Balance of Payments Program Certificate--Alternate V 
provision of the solicitation. If the Contractor certified in its offer 
that it will deliver a qualifying country end product, SC/CASA state end 
products, or a Free Trade Agreement country end product other than a 
Bahrainian end product, a Korean end product, a Moroccan end product, a 
Panamanian end product, or a Peruvian end product, the Contractor shall 
deliver a qualifying country end product, an SC/CASA state end product, 
a Free Trade Agreement country end product other than a Bahrainian end 
product, a Korean end product, a Moroccan end product, a Panamanian end 
product, or a Peruvian end product or, at the Contractor's option, a 
domestic end product.
    (d) The contract price does not include duty for end products or 
components for which the Contractor will claim duty-free entry.

                             (End of clause)

[68 FR 15640, Mar. 31, 2003, as amended at 69 FR 1929, Jan. 13, 2004; 69 
FR 74992, Dec. 15, 2004; 70 FR 2365, Jan. 13, 2005; 70 FR 35548, June 
21, 2005; 71 FR 34835, June 16, 2006; 71 FR 58543, Oct. 4, 2006; 72 FR 
14243, Mar. 27, 2007; 73 FR 53156, Sept. 15, 2008; 74 FR 2423, Jan. 15, 
2009; 74 FR 37642, 37651, July 29, 2009; 75 FR 81920, Dec. 29, 2010; 76 
FR 61283, Oct. 4, 2011; 77 FR 30359, May 22, 2012; 77 FR 31537, May 29, 
2012; 77 FR 35882, June 15, 2012; 77 FR 38737, June 29, 2012; 77 FR 
43470, July 24, 2012; 77 FR 68702, Nov. 16, 2012; 77 FR 76942, Dec. 31, 
2012; 78 FR 59859, Sept. 30, 2013; 79 FR 65824, Nov. 5, 2014; 80 FR 
36899, June 26, 2015; 81 FR 50651, Aug. 2, 2016; 81 FR 93841, Dec. 22, 
2016; 82 FR 61484, Dec. 28, 2017]



252.225-7037  Evaluation of Offers for Air Circuit Breakers.

    As prescribed in 225.7006-4(a), use the following provision:

        Evaluation of Offers for Air Circuit Breakers (DEC 2018)

    (a) The offeror shall specify, in its offer, any intent to furnish 
air circuit breakers that are not manufactured in the United States or 
its outlying areas, Australia, Canada, or the United Kingdom.
    (b) The Contracting Officer will evaluate offers by adding a factor 
of 50 percent to the offered price of air circuit breakers that are not 
manufactured in the United States or itsoutlying areas, Australia, 
Canada, or the United Kingdom.

                           (End of provision)

[70 FR 35548, June 21, 2005, as amended at 83 FR 65562, Dec. 21, 2018]

    Editorial Note: At 77 FR 35882, June 15, 2012, 252.225-7037 was 
amended in paragraph (e)(3), by removing ``the Contract Disputes Act of 
1978 (41 U.S.C. 7101)'' and adding ``41 U.S.C. 7101, Contract Disputes'' 
in its place; and in paragraph (g)(2)(iv), removing ``Act'' and adding 
``statute'' in its place; however, the amendment could not be 
incorporated because those paragraphs don't exist.



252.225-7038  Restriction on Acquisition of Air Circuit Breakers.

    As prescribed in 225.7006-4(b), use the following clause:

[[Page 523]]

      Restriction on Acquisition of Air Circuit Breakers (DEC 2018)

    Unless otherwise specified in its offer, the Contractor shall 
deliver under this contract air circuit breakers manufactured in the 
United States or its outlying areas, Australia, Canada, or the United 
Kingdom.

                             (End of clause)

[70 FR 35548, June 21, 2005, as amended at 83 FR 65562, Dec. 21, 2018]

    Editorial Note: At 77 FR 35882, June 15, 2012, 252.225-7038 was 
amended in paragraph (l)(2)(ii), by removing ``Act'' and adding 
``statute'' in its place; however, the amendment could not be 
incorporated because (l)(2)(ii) doesn't exist.



252.225-7039  Defense Contractors Performing Private Security
Functions Outside the United States.

    As prescribed in 225.302-6, insert the following clause:

 Defense Contractors Performing Private Security Functions Outside the 
                        United States (JUN 2016)

    (a) Definitions. As used in this clause--
    Full cooperation--(1) Means disclosure to the Government of the 
information sufficient to identify the nature and extent of the incident 
and the individuals responsible for the conduct. It includes providing 
timely and complete response to Government auditors' and investigators' 
requests for documents and access to employees with information;
    (2) Does not foreclose any contractor rights arising in law, the FAR 
or the terms of the contract. It does not require--
    (i) The contractor to waive its attorney-client privilege or the 
protections afforded by the attorney work product doctrine; or
    (ii) Any officer, director, owner, or employee of the contractor, 
including a sole proprietor, to waive his or her attorney-client 
privilege or Fifth Amendment rights; and
    (3) Does not restrict the contractor from--
    (i) Conducting an internal investigation; or
    (ii) Defending a proceeding or dispute arising under the contract or 
related to a potential or disclosed violation.
    Private security functions means the following activities engaged in 
by a contractor:
    (1) Guarding of personnel, facilities, designated sites or property 
of a Federal agency, the contractor or subcontractor, or a third party.
    (2) Any other activity for which personnel are required to carry 
weapons in the performance of their duties in accordance with the terms 
of this contract.
    (b) Applicability. If this contract is performed both in a 
designated area and in an area that is not designated, the clause only 
applies to performance in the designated area. Designated areas are 
areas outside the United States of--
    (1) Contingency operations;
    (2) Combat operations, as designated by the Secretary of Defense;
    (3) Other significant military operations (as defined in 32 CFR part 
159), designated by the Secretary of Defense upon agreement of the 
Secretary of State;
    (4) Peace operations, consistent with Joint Publication 3-07.3; or
    (5) Other military operations or military exercises, when designated 
by the Combatant Commander.
    (c) Requirements. The Contractor shall--
    (1) Ensure that all Contractor personnel who are responsible for 
performing private security functions under this contract comply with 32 
CFR part 159 and any orders, directives, or instructions to contractors 
performing private security functions that are identified in the 
contract for--
    (i) Registering, processing, accounting for, managing, overseeing 
and keeping appropriate records of personnel performing private security 
functions;
    (ii) Authorizing, accounting for and registering in Synchronized 
Predeployment and Operational Tracker (SPOT), weapons to be carried by 
or available to be used by personnel performing private security 
functions;
    (iii) Identifying and registering in SPOT armored vehicles, 
helicopters and other military vehicles operated by Contractors 
performing private security functions; and
    (iv) In accordance with orders and instructions established by the 
applicable Combatant Commander, reporting incidents in which--
    (A) A weapon is discharged by personnel performing private security 
functions;
    (B) Personnel performing private security functions are attacked, 
killed, or injured;
    (C) Persons are killed or injured or property is destroyed as a 
result of conduct by Contractor personnel;
    (D) A weapon is discharged against personnel performing private 
security functions or personnel performing such functions believe a 
weapon was so discharged; or
    (E) Active, non-lethal countermeasures (other than the discharge of 
a weapon) are employed by personnel performing private security 
functions in response to a perceived immediate threat;
    (2) Ensure that Contractor personnel who are responsible for 
performing private security functions under this contract are briefed on 
and understand their obligation to comply with--
    (i) Qualification, training, screening (including, if applicable, 
thorough background checks) and security requirements established by 32 
CFR part 159;

[[Page 524]]

    (ii) Applicable laws and regulations of the United States and the 
host country and applicable treaties and international agreements 
regarding performance of private security functions;
    (iii) Orders, directives, and instructions issued by the applicable 
Combatant Commander or relevant Chief of Mission relating to weapons, 
equipment, force protection, security, health, safety, or relations and 
interaction with locals; and
    (iv) Rules on the use of force issued by the applicable Combatant 
Commander or relevant Chief of Mission for personnel performing private 
security functions;
    (3) Provide full cooperation with any Government-authorized 
investigation of incidents reported pursuant to paragraph (c)(1)(iv) of 
this clause and incidents of alleged misconduct by personnel performing 
private security functions under this contract by providing--
    (i) Access to employees performing private security functions; and
    (ii) Relevant information in the possession of the Contractor 
regarding the incident concerned; and
    (4) Comply with ANSI/ASIS PSC.1-2012, American National Standard, 
Management System for Quality of Private Security Company Operations--
Requirements with Guidance or the International Standard ISO 18788, 
Management System for Private Security Operations--Requirements with 
Guidance (located at http://www.acq.osd.mil/log/PS/psc.html).
    (d) Remedies. In addition to other remedies available to the 
Government--
    (1) The Contracting Officer may direct the Contractor, at its own 
expense, to remove and replace any Contractor or subcontractor personnel 
performing private security functions who fail to comply with or violate 
applicable requirements of this clause or 32 CFR part 159. Such action 
may be taken at the Government's discretion without prejudice to its 
rights under any other provision of this contract;
    (2) The Contractor's failure to comply with the requirements of this 
clause will be included in appropriate databases of past performance and 
considered in any responsibility determination or evaluation of past 
performance; and
    (3) If this is an award-fee contract, the Contractor's failure to 
comply with the requirements of this clause shall be considered in the 
evaluation of the Contractor's performance during the relevant 
evaluation period, and the Contracting Officer may treat such failure to 
comply as a basis for reducing or denying award fees for such period or 
for recovering all or part of award fees previously paid for such 
period.
    (e) Rule of construction. The duty of the Contractor to comply with 
the requirements of this clause shall not be reduced or diminished by 
the failure of a higher- or lower-tier Contractor or subcontractor to 
comply with the clause requirements or by a failure of the contracting 
activity to provide required oversight.
    (f) Subcontracts. The Contractor shall include the substance of this 
clause, including this paragraph (f), in subcontracts, including 
subcontracts for commercial items, when private security functions will 
be performed outside the United States in areas of--
    (1) Contingency operations;
    (2) Combat operations, as designated by the Secretary of Defense;
    (3) Other significant military operations (as defined in 32 CFR part 
159), designated by the Secretary of Defense upon agreement of the 
Secretary of State;
    (4) Peace operations, consistent with Joint Publication 3-07.3; or
    (5) Other military operations or military exercises, when designated 
by the Combatant Commander.

                             (End of clause)

[80 FR 4999, Jan. 29, 2015, as amended at 81 FR 42560, June 30, 2016]



252.225-7040  Contractor Personnel Supporting U.S. Armed Forces
Deployed Outside the United States.

    As prescribed in 225.371-5(a), use the following clause:

 Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the 
                        United States (OCT 2015)

    (a) Definitions. As used in this clause--
    Combatant Commander means the commander of a unified or specified 
combatant command established in accordance with 10 U.S.C. 161.
    Contractors authorized to accompany the Force, or CAAF, means 
contractor personnel, including all tiers of subcontractor personnel, 
who are authorized to accompany U.S. Armed Forces in applicable 
operations and have been afforded CAAF status through a letter of 
authorization. CAAF generally include all U.S. citizen and third-country 
national employees not normally residing within the operational area 
whose area of performance is in the direct vicinity of U.S. Armed Forces 
and who routinely are collocated with the U.S. Armed Forces (especially 
in non-permissive environments). Personnel collocated with U.S. Armed 
Forces shall be afforded CAAF status through a letter of authorization. 
In some cases, Combatant Commander subordinate commanders may designate 
mission-essential host nation or local national contractor employees 
(e.g., interpreters) as CAAF. CAAF includes contractors previously 
identified as contractors deploying with the U.S. Armed Forces. CAAF

[[Page 525]]

status does not apply to contractor personnel in support of applicable 
operations within the boundaries and territories of the United States.
    Designated operational area means a geographic area designated by 
the combatant commander or subordinate joint force commander for the 
conduct or support of specified military operations.
    Designated reception site means the designated place for the 
reception, staging, integration, and onward movement of contractors 
deploying during a contingency. The designated reception site includes 
assigned joint reception centers and other Service or private reception 
sites.
    Law of war means that part of international law that regulates the 
conduct of armed hostilities. The law of war encompasses all 
international law for the conduct of hostilities binding on the United 
States or its individual citizens, including treaties and international 
agreements to which the United States is a party, and applicable 
customary international law.
    Non-CAAF means personnel who are not designated as CAAF, such as 
local national (LN) employees and non-LN employees who are permanent 
residents in the operational area or third-country nationals not 
routinely residing with U.S. Armed Forces (and third-country national 
expatriates who are permanent residents in the operational area) who 
perform support functions away from the close proximity of, and do not 
reside with, U.S. Armed Forces. Government-furnished support to non-CAAF 
is typically limited to force protection, emergency medical care, and 
basic human needs (e.g., bottled water, latrine facilities, security, 
and food when necessary) when performing their jobs in the direct 
vicinity of U.S. Armed Forces. Non-CAAF status does not apply to 
contractor personnel in support of applicable operations within the 
boundaries and territories of the United States.
    Subordinate joint force commander means a sub-unified commander or 
joint task force commander.
    (b) General. (1) This clause applies to both CAAF and non-CAAF when 
performing in a designated operational area outside the United States to 
support U.S. Armed Forces deployed outside the United States in--
    (i) Contingency operations;
    (ii) Peace operations, consistent with Joint Publication 3-07.3; or
    (iii) Other military operations or military exercises, when 
designated by the Combatant Commander or as directed by the Secretary of 
Defense.
    (2) Contract performance in support of U.S. Armed Forces deployed 
outside the United States may require work in dangerous or austere 
conditions. Except as otherwise provided in the contract, the Contractor 
accepts the risks associated with required contract performance in such 
operations.
    (3) When authorized in accordance with paragraph (j) of this clause 
to carry arms for personal protection, Contractor personnel are only 
authorized to use force for individual self-defense.
    (4) Unless immune from host nation jurisdiction by virtue of an 
international agreement or international law, inappropriate use of force 
by contractor personnel supporting the U.S. Armed Forces can subject 
such personnel to United States or host nation prosecution and civil 
liability (see paragraphs (d) and (j)(3) of this clause).
    (5) Service performed by Contractor personnel subject to this clause 
is not active duty or service under 38 U.S.C. 106 note.
    (c) Support. (1)(i) The Combatant Commander will develop a security 
plan for protection of Contractor personnel in locations where there is 
not sufficient or legitimate civil authority, when the Combatant 
Commander decides it is in the interests of the Government to provide 
security because--
    (A) The Contractor cannot obtain effective security services;
    (B) Effective security services are unavailable at a reasonable 
cost; or
    (C) Threat conditions necessitate security through military means.
    (ii) In appropriate cases, the Combatant Commander may provide 
security through military means, commensurate with the level of security 
provided DoD civilians.
    (2)(i) Generally, CAAF will be afforded emergency medical and dental 
care if injured while supporting applicable operations. Additionally, 
non-CAAF employees who are injured while in the vicinity of U.S. Armed 
Forces will normally receive emergency medical and dental care. 
Emergency medical and dental care includes medical care situations in 
which life, limb, or eyesight is jeopardized. Examples of emergency 
medical and dental care include examination and initial treatment of 
victims of sexual assault; refills of prescriptions for life-dependent 
drugs; repair of broken bones, lacerations, infections; and traumatic 
injuries to the dentition. Hospitalization will be limited to 
stabilization and short-term medical treatment with an emphasis on 
return to duty or placement in the patient movement system.
    (ii) When the Government provides medical treatment or 
transportation of Contractor personnel to a selected civilian facility, 
the Contractor shall ensure that the Government is reimbursed for any 
costs associated with such treatment or transportation.
    (iii) Medical or dental care beyond this standard is not authorized.
    (3) Contractor personnel must have a Synchronized Predeployment and 
Operational Tracker (SPOT)-generated letter of authorization signed by 
the Contracting Officer in

[[Page 526]]

order to process through a deployment center or to travel to, from, or 
within the designated operational area. The letter of authorization also 
will identify any additional authorizations, privileges, or Government 
support that Contractor personnel are entitled to under this contract. 
Contractor personnel who are issued a letter of authorization shall 
carry it with them at all times while deployed.
    (4) Unless specified elsewhere in this contract, the Contractor is 
responsible for all other support required for its personnel engaged in 
the designated operational area under this contract.
    (d) Compliance with laws and regulations. (1) The Contractor shall 
comply with, and shall ensure that its personnel supporting U.S. Armed 
Forces deployed outside the United States as specified in paragraph 
(b)(1) of this clause are familiar with and comply with, all 
applicable--
    (i) United States, host country, and third country national laws;
    (ii) Provisions of the law of war, as well as any other applicable 
treaties and international agreements;
    (iii) United States regulations, directives, instructions, policies, 
and procedures; and
    (iv) Orders, directives, and instructions issued by the Combatant 
Commander, including those relating to force protection, security, 
health, safety, or relations and interaction with local nationals.
    (2) The Contractor shall institute and implement an effective 
program to prevent violations of the law of war by its employees and 
subcontractors, including law of war training in accordance with 
paragraph (e)(1)(vii) of this clause.
    (3) The Contractor shall ensure that CAAF and non-CAAF are aware--
    (i) Of the DoD definition of ``sexual assault'' in DoDD Directive 
6495.01, Sexual Assault Prevention and Response Program;
    (ii) That many of the offenses addressed by the definition are 
covered under the Uniform Code of Military Justice (see paragraph 
(e)(2)(iv) of this clause). Other sexual misconduct may constitute 
offenses under the Uniform Code of Military Justice, Federal law, such 
as the Military Extraterritorial Jurisdiction Act, or host nation laws;
    (iii) That the offenses not covered by the Uniform Code of Military 
Justice may nevertheless have consequences to the contractor employees 
(see paragraph (h)(1) of this clause).
    (4) The Contractor shall report to the appropriate investigative 
authorities, identified in paragraph (d)(6) of this clause, any alleged 
offenses under--
    (i) The Uniform Code of Military Justice (chapter 47 of title 10, 
United States Code) (applicable to contractors serving with or 
accompanying an armed force in the field during a declared war or 
contingency operations); or
    (ii) The Military Extraterritorial Jurisdiction Act (chapter 212 of 
title 18, United States Code).
    (5) The Contractor shall provide to all contractor personnel who 
will perform work on a contract in the deployed area, before beginning 
such work, information on the following:
    (i) How and where to report an alleged crime described in paragraph 
(d)(4) of this clause.
    (ii) Where to seek victim and witness protection and assistance 
available to contractor personnel in connection with an alleged offense 
described in paragraph (d)(4) of this clause.
    (iii) That this section does not create any rights or privileges 
that are not authorized by law or DoD policy.
    (6) The appropriate investigative authorities to which suspected 
crimes shall be reported include the following--
    (i) US Army Criminal Investigation Command at http://
www.cid.army.mil/reportacrime.html;
    (ii) Air Force Office of Special Investigations at http://
www.osi.andrews.af.mil/library/factsheets/factsheet.asp?id=14522;
    (iii) Navy Criminal Investigative Service at http://
www.ncis.navy.mil/Pages/publicdefault.aspx;
    (iv) Defense Criminal Investigative Service at http://www.dodig.mil/
HOTLINE/index.html;
    (v) To any command of any supported military element or the command 
of any base.
    (7) Personnel seeking whistleblower protection from reprisals for 
reporting criminal acts shall seek guidance through the DoD Inspector 
General hotline at 800-424-9098 or www.dodig.mil/HOTLINE/index.html. 
Personnel seeking other forms of victim or witness protections should 
contact the nearest military law enforcement office.
    (8)(i) The Contractor shall ensure that Contractor employees 
supporting the U.S. Armed Forces are aware of their rights to--
    (A) Hold their own identity or immigration documents, such as 
passport or driver's license, regardless of the documents' issuing 
authority;
    (B) Receive agreed upon wages on time;
    (C) Take lunch and work-breaks;
    (D) Elect to terminate employment at any time;
    (E) Identify grievances without fear of reprisal;
    (F) Have a copy of their employment contract in a language they 
understand;
    (G) Receive wages that are not below the legal host-country minimum 
wage;
    (H) Be notified of their rights, wages, and prohibited activities 
prior to signing their employment contract; and

[[Page 527]]

    (I) If housing is provided, live in housing that meets host-country 
housing and safety standards.
    (ii) The Contractor shall post these rights in employee work spaces 
in English and in any foreign language(s) spoken by a significant 
portion of the workforce.
    (iii) The Contractor shall enforce the rights of Contractor 
personnel supporting the U.S. Armed Forces.
    (e) Preliminary personnel requirements. (1) The Contractor shall 
ensure that the following requirements are met prior to deploying CAAF 
(specific requirements for each category will be specified in the 
statement of work or elsewhere in the contract):
    (i) All required security and background checks are complete and 
acceptable.
    (ii) All CAAF deploying in support of an applicable operation--
    (A) Are medically, dentally, and psychologically fit for deployment 
and performance of their contracted duties;
    (B) Meet the minimum medical screening requirements, including 
theater-specific medical qualifications as established by the geographic 
Combatant Commander (as posted to the Geographic Combatant Commander's 
Web site or other venue); and
    (C) Have received all required immunizations as specified in the 
contract.
    (1) During predeployment processing, the Government will provide, at 
no cost to the Contractor, any military-specific immunizations and/or 
medications not available to the general public.
    (2) All other immunizations shall be obtained prior to arrival at 
the deployment center.
    (3) All CAAF and selected non-CAAF, as specified in the statement of 
work, shall bring to the designated operational area a copy of the U.S. 
Centers for Disease Control and Prevention (CDC) Form 731, International 
Certificate of Vaccination or Prophylaxis as Approved by the World 
Health Organization, (also known as ``shot record'' or ``Yellow Card'') 
that shows vaccinations are current.
    (iii) Deploying personnel have all necessary passports, visas, and 
other documents required to enter and exit a designated operational area 
and have a Geneva Conventions identification card, or other appropriate 
DoD identity credential, from the deployment center.
    (iv) Special area, country, and theater clearance is obtained for 
all personnel deploying. Clearance requirements are inDoD Directive 
4500.54E, DoD Foreign Clearance Program. For this purpose, CAAF are 
considered non-DoD contractor personnel traveling under DoD sponsorship.
    (v) All deploying personnel have received personal security 
training. At a minimum, the training shall--
    (A) Cover safety and security issues facing employees overseas;
    (B) Identify safety and security contingency planning activities; 
and
    (C) Identify ways to utilize safety and security personnel and other 
resources appropriately.
    (vi) All personnel have received isolated personnel training, if 
specified in the contract, in accordance with DoD Instruction 1300.23, 
Isolated Personnel Training for DoD Civilian and Contractors.
    (vii) Personnel have received law of war training as follows:
    (A) Basic training is required for all CAAF deployed outside the 
United States. The basic training will be provided through--
    (1) A military-run training center; or
    (2) A web-based source, if specified in the contract or approved by 
the Contracting Officer.
    (B) Advanced training, commensurate with their duties and 
responsibilities, may be required for some Contractor personnel as 
specified in the contract.
    (2) The Contractor shall notify all personnel who are not a host 
country national, or who are not ordinarily resident in the host 
country, that--
    (i) Such employees, and dependents residing with such employees, who 
engage in conduct outside the United States that would constitute an 
offense punishable by imprisonment for more than one year if the conduct 
had been engaged in within the special maritime and territorial 
jurisdiction of the United States, may potentially be subject to the 
criminal jurisdiction of the United States in accordance with the 
Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. 3621, et 
seq.);
    (ii) Pursuant to the War Crimes Act (18 U.S.C. 2441), Federal 
criminal jurisdiction also extends to conduct that is determined to 
constitute a war crime when committed by a civilian national of the 
United States;
    (iii) Other laws may provide for prosecution of U.S. nationals who 
commit offenses on the premises of U.S. diplomatic, consular, military 
or other U.S. Government missions outside the United States (18 U.S.C. 
7(9)); and
    (iv) In time of declared war or a contingency operation, CAAF are 
subject to the jurisdiction of the Uniform Code of Military Justice 
under 10 U.S.C. 802(a)(10).
    (v) Such employees are required to report offenses alleged to have 
been committed by or against Contractor personnel to appropriate 
investigative authorities.
    (vi) Such employees will be provided victim and witness protection 
and assistance.
    (f) Processing and departure points. CAAF shall--
    (1) Process through the deployment center designated in the 
contract, or as otherwise directed by the Contracting Officer, prior to

[[Page 528]]

deploying. The deployment center will conduct deployment processing to 
ensure visibility and accountability of Contractor personnel and to 
ensure that all deployment requirements are met, including the 
requirements specified in paragraph (e)(1) of this clause;
    (2) Use the point of departure and transportation mode directed by 
the Contracting Officer; and
    (3) Process through a designated reception site (DRS) upon arrival 
at the deployed location. The DRS will validate personnel 
accountability, ensure that specific designated operational area 
entrance requirements are met, and brief Contractor personnel on 
theater-specific policies and procedures.
    (g) Personnel data. (1) The Contractor shall use the Synchronized 
Predeployment and Operational Tracker (SPOT) web-based system, to enter 
and maintain the data for all CAAF and, as designated by USD (AT&L) or 
the Combatant Commander, non-CAAF supporting U.S. Armed Forces deployed 
outside the United States as specified in paragraph (b)(1) of this 
clause.
    (2) The Contractor shall enter the required information about their 
contractor personnel prior to deployment and shall continue to use the 
SPOT web-based system at https://spot.dmdc.mil to maintain accurate, up-
to-date information throughout the deployment for all Contractor 
personnel. Changes to status of individual Contractor personnel relating 
to their in-theater arrival date and their duty location, to include 
closing out the deployment with their proper status (e.g., mission 
complete, killed, wounded) shall be annotated within the SPOT database 
in accordance with the timelines established in the SPOT Business Rules 
at http://www.acq.osd.mil/log/PS/ctr_mgt_accountability.html.
    (h) Contractor personnel. (1) The Contracting Officer may direct the 
Contractor, at its own expense, to remove and replace any Contractor 
personnel who jeopardize or interfere with mission accomplishment or who 
fail to comply with or violate applicable requirements of this contract. 
Such action may be taken at the Government's discretion without 
prejudice to its rights under any other provision of this contract, 
including the Termination for Default clause.
    (2) The Contractor shall identify all personnel who occupy a 
position designated as mission essential and ensure the continuity of 
essential Contractor services during designated operations, unless, 
after consultation with the Contracting Officer, Contracting Officer's 
representative, or local commander, the Contracting Officer directs 
withdrawal due to security conditions.
    (3) The Contractor shall ensure that Contractor personnel follow the 
guidance at paragraph (e)(2)(v) of this clause and any specific 
Combatant Commander guidance on reporting offenses alleged to have been 
committed by or against Contractor personnel to appropriate 
investigative authorities.
    (4) Contractor personnel shall return all U.S. Government-issued 
identification, to include the Common Access Card, to appropriate U.S. 
Government authorities at the end of their deployment (or, for non-CAAF, 
at the end of their employment under this contract).
    (i) Military clothing and protective equipment. (1) Contractor 
personnel are prohibited from wearing military clothing unless 
specifically authorized in writing by the Combatant Commander. If 
authorized to wear military clothing, Contractor personnel must--
    (i) Wear distinctive patches, arm bands, nametags, or headgear, in 
order to be distinguishable from military personnel, consistent with 
force protection measures; and
    (ii) Carry the written authorization with them at all times.
    (2) Contractor personnel may wear military-unique organizational 
clothing and individual equipment (OCIE) required for safety and 
security, such as ballistic, nuclear, biological, or chemical protective 
equipment.
    (3) The deployment center, or the Combatant Commander, shall issue 
OCIE and shall provide training, if necessary, to ensure the safety and 
security of Contractor personnel.
    (4) The Contractor shall ensure that all issued OCIE is returned to 
the point of issue, unless otherwise directed by the Contracting 
Officer.
    (j) Weapons. (1) If the Contractor requests that its personnel 
performing in the designated operational area be authorized to carry 
weapons for individual self-defense, the request shall be made through 
the Contracting Officer to the Combatant Commander, in accordance with 
DoD Instruction 3020.41, Operational Contractor Support. The Combatant 
Commander will determine whether to authorize in-theater Contractor 
personnel to carry weapons and what weapons and ammunition will be 
allowed.
    (2) If Contractor personnel are authorized to carry weapons in 
accordance with paragraph (j)(1) of this clause, the Contracting Officer 
will notify the Contractor what weapons and ammunition are authorized.
    (3) The Contractor shall ensure that its personnel who are 
authorized to carry weapons--
    (i) Are adequately trained to carry and use them--
    (A) Safely;
    (B) With full understanding of, and adherence to, the rules of the 
use of force issued by the Combatant Commander; and
    (C) In compliance with applicable agency policies, agreements, 
rules, regulations, and other applicable law;
    (ii) Are not barred from possession of a firearm by 18 U.S.C. 922;

[[Page 529]]

    (iii) Adhere to all guidance and orders issued by the Combatant 
Commander regarding possession, use, safety, and accountability of 
weapons and ammunition;
    (iv) Comply with applicable Combatant Commander and local commander 
force-protection policies; and
    (v) Understand that the inappropriate use of force could subject 
them to U.S. or host-nation prosecution and civil liability.
    (4) Whether or not weapons are Government-furnished, all liability 
for the use of any weapon by Contractor personnel rests solely with the 
Contractor and the Contractor employee using such weapon.
    (5) Upon redeployment or revocation by the Combatant Commander of 
the Contractor's authorization to issue firearms, the Contractor shall 
ensure that all Government-issued weapons and unexpended ammunition are 
returned as directed by the Contracting Officer.
    (k) Vehicle or equipment licenses. Contractor personnel shall 
possess the required licenses to operate all vehicles or equipment 
necessary to perform the contract in the designated operational area.
    (l) Purchase of scarce goods and services. If the Combatant 
Commander has established an organization for the designated operational 
area whose function is to determine that certain items are scarce goods 
or services, the Contractor shall coordinate with that organization 
local purchases of goods and services designated as scarce, in 
accordance with instructions provided by the Contracting Officer.
    (m) Evacuation. (1) If the Combatant Commander orders a mandatory 
evacuation of some or all personnel, the Government will provide 
assistance, to the extent available, to United States and third country 
national Contractor personnel.
    (2) In the event of a non-mandatory evacuation order, unless 
authorized in writing by the Contracting Officer, the Contractor shall 
maintain personnel on location sufficient to meet obligations under this 
contract.
    (n) Next of kin notification and personnel recovery. (1) The 
Contractor shall be responsible for notification of the employee-
designated next of kin in the event an employee dies, requires 
evacuation due to an injury, or is isolated, missing, detained, 
captured, or abducted.
    (2) In the case of isolated, missing, detained, captured, or 
abducted Contractor personnel, the Government will assist in personnel 
recovery actions in accordance with DoD Directive 3002.01E, Personnel 
Recovery in the Department of Defense.
    (o) Mortuary affairs. Contractor personnel who die while in support 
of the U.S. Armed Forces shall be covered by the DoD mortuary affairs 
program as described in DoD Directive 1300.22, Mortuary Affairs Policy, 
and DoD Instruction 3020.41, Operational Contractor Support.
    (p) Changes. In addition to the changes otherwise authorized by the 
Changes clause of this contract, the Contracting Officer may, at any 
time, by written order identified as a change order, make changes in the 
place of performance or Government-furnished facilities, equipment, 
material, services, or site. Any change order issued in accordance with 
this paragraph (p) shall be subject to the provisions of the Changes 
clause of this contract.
    (q) Subcontracts. The Contractor shall incorporate the substance of 
this clause, including this paragraph (q), in all subcontracts when 
subcontractor personnel are supporting U.S. Armed Forces deployed 
outside the United States in--
    (1) Contingency operations;
    (2) Peace operations consistent with Joint Publication 3-07.3; or
    (3) Other military operations or military exercises, when designated 
by the Combatant Commander or as directed by the Secretary of Defense.

                             (End of clause)

[73 FR 16775, Mar. 31, 2008, as amended at 74 FR 34265, July 15, 2009; 
76 FR 36884, June 23, 2011; 76 FR 38052, June 29, 2011; 78 FR 13548, 
Feb. 28, 2013; 79 FR 30472, May 28, 2014; 80 FR 5001, Jan. 29, 2015; 80 
FR 36903, June 26, 2015; 80 FR 51753, Aug. 26, 2015; 80 FR 67255, Oct. 
30, 2015]



252.225-7041  Correspondence in English.

    As prescribed in 225.1103(2), use the following clause:

                  Correspondence in English (JUN 1997)

    The Contractor shall ensure that all contract correspondence that is 
addressed to the United States Government is submitted in English or 
with an English translation.

                             (End of clause)

[62 FR 34132, June 24, 1997, as amended at 65 FR 19858, Apr. 13, 2000; 
68 FR 15641, Mar. 31, 2003; 71 FR 39006, July 11, 2006]



252.225-7042  Authorization to perform.

    As prescribed in 225.1103(3), use the following provision:

                   Authorization to Perform (APR 2003)

    The offeror represents that it has been duly authorized to operate 
and to do business in the country or countries in which the contract is 
to be performed.

[[Page 530]]

                           (End of provision)

[68 FR 15641, Mar. 31, 2003, as amended at 71 FR 39006, July 11, 2006]



252.225-7043  Antiterrorism/force protection policy for defense 
contractors outside the United States.

    As prescribed in 225.372-2, use the following clause:

 Antiterrorism/Force Protection Policy for Defense Contractors Outside 
                      the United States (JUN 2015)

    Definition. United States, as used in this clause, means, the 50 
States, the District of Columbia, and outlying areas.
    (b) Except as provided in paragraph (c) of this clause, the 
Contractor and its subcontractors, if performing or traveling outside 
the United States under this contract, shall--
    (1) Affiliate with the Overseas Security Advisory Council, if the 
Contractor or subcontractor is a U.S. entity;
    (2) Ensure that Contractor and subcontractor personnel who are U.S. 
nationals and are in-country on a non-transitory basis, register with 
the U.S. Embassy, and that Contractor and subcontractor personnel who 
are third country nationals comply with any security related 
requirements of the Embassy of their nationality;
    (3) Provide, to Contractor and subcontractor personnel, 
antiterrorism/force protection awareness information commensurate with 
that which the Department of Defense (DoD) provides to its military and 
civilian personnel and their families, to the extent such information 
can be made available prior to travel outside the United States; and
    (4) Obtain and comply with the most current antiterrorism/force 
protection guidance for Contractor and subcontractor personnel.
    (c) The requirements of this clause do not apply to any 
subcontractor that is--
    (1) A foreign government;
    (2) A representative of a foreign government; or
    (3) A foreign corporation wholly owned by a foreign government.
    (d) Information and guidance pertaining to DoD antiterrorism/force 
protection can be obtained from [Contracting Officer to insert 
applicable information cited in PGI 225.372-1].

                             (End of clause)

[63 FR 31937, June 11, 1998, as amended at 70 FR 23803, May 5, 2005; 70 
FR 35548, June 21, 2005; 71 FR 14100, Mar. 21, 2006; 80 FR 36903, June 
26, 2015]



252.225-7044  Balance of Payments Program--Construction Material.

    Basic. As prescribed in 225.7503(a) and (a)(1), use the following 
clause:

  Balance of Payments Program--Construction Material--Basic (NOV 2014)

    (a) Definitions. As used in this clause--
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of ``commercial item'' in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means any article, material, or supply incorporated 
directly into construction material.
    Construction material means an article, material, or supply brought 
to the construction site by the Contractor or a subcontractor for 
incorporation into the building or work. The term also includes an item 
brought to the site preassembled from articles, materials, or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, that are discrete systems 
incorporated into a public building or work and that are produced as 
complete systems, are evaluated as a single and distinct construction 
material regardless of when or how the individual parts or components of 
those systems are delivered to the construction site. Materials 
purchased directly by the Government are supplies, not construction 
material.
    Cost of components means--
    (i) For components purchased by the Contractor, the acquisition 
cost, including transportation costs to the place of incorporation into 
the end product (whether or not such costs are paid to a domestic firm), 
and any applicable duty (whether or not a duty-free entry certificate is 
issued); or
    (ii) For components manufactured by the Contractor, all costs 
associated with the manufacture of the component, including 
transportation costs as described in paragraph (1) of this definition, 
plus allocable overhead costs, but excluding profit. Cost of components 
does not include any costs associated with the manufacture of the 
construction material.
    Domestic construction material means--

[[Page 531]]

    (i) An unmanufactured construction material mined or produced in the 
United States; or
    (ii) A construction material manufactured in the United States, if--
    (A) The cost of its components mined, produced, or manufactured in 
the United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind for which 
nonavailability determinations have been made are treated as domestic; 
or
    (B) The construction material is a COTS item.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Domestic preference. This clause implements the Balance of 
Payments Program by providing a preference for domestic construction 
material. The Contractor shall use only domestic construction material 
in performing this contract, except for--
    (1) Construction material valued at or below the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation;
    (2) Information technology that is a commercial item; or
    (3) The construction material or components listed by the Government 
as follows:

[Contracting Officer to list applicable excepted materials or indicate 
``none'']

                             (End of clause)

    Alternate I. As prescribed in 225.7503(a) and (a)(2), use the 
following clause, which adds definitions for South Caucasus/Central and 
South Asian (SC/CASA) state and SC/CASA state construction material to 
paragraph (a), and uses ``domestic construction material or SC/CASA 
state construction material'' instead of ``domestic construction 
material'' in the second sentence of paragraph (b):

  Balance of Payments Program--Construction Material--Alternate I (NOV 
                                  2014)

    (a) Definitions. As used in this clause--
    Commercially available off-the-shelf (COTS) item''--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means any article, material, or supply incorporated 
directly into construction material.
    Construction material means an article, material, or supply brought 
to the construction site by the Contractor or a subcontractor for 
incorporation into the building or work. The term also includes an item 
brought to the site preassembled from articles, materials, or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, that are discrete systems 
incorporated into a public building or work and that are produced as 
complete systems, are evaluated as a single and distinct construction 
material regardless of when or how the individual parts or components of 
those systems are delivered to the construction site. Materials 
purchased directly by the Government are supplies, not construction 
material.
    Cost of components means--
    (i) For components purchased by the Contractor, the acquisition 
cost, including transportation costs to the place of incorporation into 
the end product (whether or not such costs are paid to a domestic firm), 
and any applicable duty (whether or not a duty-free entry certificate is 
issued); or
    (ii) For components manufactured by the Contractor, all costs 
associated with the manufacture of the component, including 
transportation costs as described in paragraph (1) of this definition, 
plus allocable overhead costs, but excluding profit. Cost of components 
does not include any costs associated with the manufacture of the 
construction material.
    Domestic construction material means--
    (i) An unmanufactured construction material mined or produced in the 
United States; or
    (ii) A construction material manufactured in the United States, if--
    (A) The cost of its components mined, produced, or manufactured in 
the United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind for which 
nonavailability determinations have been made are treated as domestic; 
or
    (B) The construction material is a COTS item.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    SC/CASA state construction material means construction material 
that--
    (i) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials

[[Page 532]]

from another country, has been substantially transformed in an SC/CASA 
state into a new and different construction material distinct from the 
material from which it was transformed.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Domestic preference. This clause implements the Balance of 
Payments Program by providing a preference for domestic construction 
material. The Contractor shall use only domestic construction material 
or SC/CASA state construction material in performing this contract, 
except for--
    (1) Construction material valued at or below the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation;
    (2) Information technology that is a commercial item; or
    (3) The construction material or components listed by the Government 
as follows:
________________________________________________________________________
[Contracting Officer to list applicable excepted materials or indicate 
``none''].

                             (End of clause)

[67 FR 20695, Apr. 26, 2002, as amended at 70 FR 2365, Jan. 13, 2005; 70 
FR 35548, June 21, 2005; 74 FR 2424, Jan. 15, 2009; 75 FR 66686, Oct. 
29, 2010; 75 FR 81920, Dec. 29, 2010; 77 FR 35882, June 15, 2012; 79 FR 
65830, Nov. 5, 2014; 80 FR 36899, June 26, 2015]



252.225-7045  Balance of Payments Program--Construction Material Under
Trade Agreements.

    Basic. As prescribed in 225.7503(b) and (b)(1), use the following 
clause:

     Balance of Payments Program--Construction Material Under Trade 
                      Agreements--Basic (AUG 2019)

    (a) Definitions. As used in this clause--
    Caribbean Basin country construction material means a construction 
material that---
    (i) Is wholly the growth, product, or manufacture of a Caribbean 
Basin country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a Caribbean Basin country into a new and different 
construction material distinct from the materials from which it was 
transformed.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of ``commercial item'' in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in section 3 of the 
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products 
and petroleum products.
    Component means any article, material, or supply incorporated 
directly into construction material.
    Construction material means an article, material, or supply brought 
to the construction site by the Contractor or a subcontractor for 
incorporation into the building or work. The term also includes an item 
brought to the site preassembled from articles, materials, or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, that are discrete systems 
incorporated into a public building or work and that are produced as 
complete systems, are evaluated as a single and distinct construction 
material regardless of when or how the individual parts or components of 
those systems are delivered to the construction site. Materials 
purchased directly by the Government are supplies, not construction 
material.
    Cost of components means--
    (i) For components purchased by the Contractor, the acquisition 
cost, including transportation costs to the place of incorporation into 
the end product (whether or not such costs are paid to a domestic firm), 
and any applicable duty (whether or not a duty-free entry certificate is 
issued); or
    (ii) For components manufactured by the Contractor, all costs 
associated with the manufacture of the component, including 
transportation costs as described in paragraph (1) of this definition, 
plus allocable overhead costs, but excluding profit. Cost of components 
does not include any costs associated with the manufacture of the 
construction material.
    Designated country means--
    (i) A World Trade Organization Government Procurement Agreement (WTO 
GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, 
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, 
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, 
Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, 
Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, 
Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, 
Spain, Sweden, Switzerland, Taiwan (known in the World Trade 
Organization as ``the Separate Customs Territory of Taiwan, Penghu, 
Kinmen, and Matsu'' (Chinese Taipei)), Ukraine, or the United Kingdom);
    (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, 
Chile, Colombia,

[[Page 533]]

Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea 
(Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore);
    (iii) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African 
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, 
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, 
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, 
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and 
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, 
Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); 
or
    (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, 
Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, 
Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, 
St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, 
or Trinidad and Tobago).
    Designated country construction material means a construction 
material that is a WTO GPA country construction material, a Free Trade 
Agreement country construction material, a least developed country 
construction material, or a Caribbean Basin country construction 
material.
    Domestic construction material means--
    (i) An unmanufactured construction material mined or produced in the 
United States; or
    (ii) A construction material manufactured in the United States, if--
    (A) The cost of its components mined, produced, or manufactured in 
the United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind for which 
nonavailability determinations have been made are treated as domestic; 
or
    (B) The construction material is a COTS item.
    Free Trade Agreement country construction material means a 
construction material that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a Free Trade Agreement country into a new and different 
construction material distinct from the material from which it was 
transformed.
    Least developed country construction material means a construction 
material that--
    (i) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country has been substantially 
transformed in a least developed country into a new and different 
construction material distinct from the materials from which it was 
transformed.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    WTO GPA country construction material means a construction material 
that--
    (i) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a WTO GPA country into a new and different construction 
material distinct from the materials from which it was transformed.
    (b) This clause implements the Balance of Payments Program by 
providing a preference for domestic construction material. In addition, 
the Contracting Officer has determined that the WTO GPA and Free Trade 
Agreements apply to this acquisition. Therefore, the Balance of Payments 
Program restrictions are waived for designated country construction 
materials.
    (c) The Contractor shall use only domestic or designated country 
construction material in performing this contract, except for--
    (1) Construction material valued at or below the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation;
    (2) Information technology that is a commercial item; or
    (3) The construction material or components listed by the Government 
as follows:
    [Contracting Officer to list applicable excepted materials or 
indicate ``none'']

                             (End of clause)

    Alternate I. As prescribed in 225.7503(b) and (b)(2), use the 
following clause, which adds Bahrainian or Mexican construction material 
to paragraph (a), and uses a different paragraph (b) and (c) than the 
basic clause:

     Balance of Payments Program--Construction Material Under Trade 
                   Agreements--Alternate I (AUG 2019)

    (a) Definitions. As used in this clause--
    Bahrainian or Mexican construction material means a construction 
material that--
    (i) Is wholly the growth, product, or manufacture of Bahrain or 
Mexico; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in Bahrain or Mexico into a new and different construction 
material distinct from the materials from which it was transformed.
    Caribbean Basin country construction material means a construction 
material that--

[[Page 534]]

    (i) Is wholly the growth, product, or manufacture of a Caribbean 
Basin country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a Caribbean Basin country into a new and different 
construction material distinct from the materials from which it was 
transformed.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in section 3 of the 
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products 
and petroleum products.
    Component means any article, material, or supply incorporated 
directly into construction material.
    Construction material means an article, material, or supply brought 
to the construction site by the Contractor or a subcontractor for 
incorporation into the building or work. The term also includes an item 
brought to the site preassembled from articles, materials, or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, that are discrete systems 
incorporated into a public building or work and that are produced as 
complete systems, are evaluated as a single and distinct construction 
material regardless of when or how the individual parts or components of 
those systems are delivered to the construction site. Materials 
purchased directly by the Government are supplies, not construction 
material.
    Cost of components means--
    (i) For components purchased by the Contractor, the acquisition 
cost, including transportation costs to the place of incorporation into 
the end product (whether or not such costs are paid to a domestic firm), 
and any applicable duty (whether or not a duty-free entry certificate is 
issued); or
    (ii) For components manufactured by the Contractor, all costs 
associated with the manufacture of the component, including 
transportation costs as described in paragraph (1) of this definition, 
plus allocable overhead costs, but excluding profit. Cost of components 
does not include any costs associated with the manufacture of the 
construction material.
    Designated country means--
    (i) A World Trade Organization Government Procurement Agreement (WTO 
GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, 
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, 
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, 
Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, 
Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, 
Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, 
Spain, Sweden, Switzerland, Taiwan (known in the World Trade 
Organization as ``the Separate Customs Territory of Taiwan, Penghu, 
Kinmen, and Matsu'' (Chinese Taipei)), Ukraine, or the United Kingdom);
    (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore);
    (iii) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African 
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, 
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, 
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, 
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and 
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, 
Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); 
or
    (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, 
Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, 
Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, 
St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, 
or Trinidad and Tobago).
    Designated country construction material means a construction 
material that is a WTO GPA country construction material, a Free Trade 
Agreement country construction material, a least developed country 
construction material, or a Caribbean Basin country construction 
material.
    Domestic construction material means--
    (i) An unmanufactured construction material mined or produced in the 
United States; or
    (ii) A construction material manufactured in the United States, if--
    (A) The cost of its components mined, produced, or manufactured in 
the United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind for which 
nonavailability determinations have been made are treated as domestic; 
or
    (B) The construction material is a COTS item.

[[Page 535]]

    Free Trade Agreement country construction material means a 
construction material that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a Free Trade Agreement country into a new and different 
construction material distinct from the material from which it was 
transformed.
    Least developed country construction material means a construction 
material that--
    (i) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a least developed country into a new and different 
construction material distinct from the materials from which it was 
transformed.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    WTO GPA country construction material means a construction material 
that--
    (i) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a WTO GPA country into a new and different construction 
material distinct from the materials from which it was transformed.
    (b) This clause implements the Balance of Payments Program by 
providing a preference for domestic construction material. In addition, 
the Contracting Officer has determined that the WTO GPA and all Free 
Trade Agreements except NAFTA and the Bahrain Free Trade Agreement apply 
to this acquisition. Therefore, the Balance of Payments Program 
restrictions are waived for designated country construction material 
other than Bahrainian or Mexican construction material.
    (c) The Contractor shall use only domestic or designated country 
construction material other than Bahrainian or Mexican construction 
material in performing this contract, except for--
    (1) Construction material valued at or below the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation; 
or
    (2) Information technology that is a commercial item; or
    (3) The construction material or components listed by the Government 
as follows:
________________________________________________________________________
[Contracting Officer to list applicable excepted materials or indicate 
``none''].

                             (End of clause)

    Alternate II. As prescribed in 225.7503(b) and (b)(3), use the 
following clause, which adds South Caucasus/Central and South Asian (SC/
CASA) state and SC/CASA state construction material to paragraph (a), 
uses a different paragraph (b) and introductory text for paragraph (c) 
than the basic clause, and adds paragraph (d):

     Balance of Payments Program--Construction Material Under Trade 
                   Agreements--Alternate II (AUG 2019)

    (a) Definitions. As used in this clause--
    Caribbean Basin country construction material means a construction 
material that--
    (i) Is wholly the growth, product, or manufacture of a Caribbean 
Basin country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a Caribbean Basin country into a new and different 
construction material distinct from the materials from which it was 
transformed.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in section 3 of the 
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products 
and petroleum products.
    Component means any article, material, or supply incorporated 
directly into construction material.
    Construction material means an article, material, or supply brought 
to the construction site by the Contractor or a subcontractor for 
incorporation into the building or work. The term also includes an item 
brought to the site preassembled from articles, materials, or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, that are discrete systems 
incorporated into a public building or work and that are produced as 
complete systems, are evaluated as a single and distinct construction 
material regardless of when or how the individual parts or components of 
those systems are delivered to the construction site. Materials 
purchased directly by the Government are supplies, not construction 
material.

[[Page 536]]

    Cost of components means--
    (i) For components purchased by the Contractor, the acquisition 
cost, including transportation costs to the place of incorporation into 
the end product (whether or not such costs are paid to a domestic firm), 
and any applicable duty (whether or not a duty-free entry certificate is 
issued); or
    (ii) For components manufactured by the Contractor, all costs 
associated with the manufacture of the component, including 
transportation costs as described in paragraph (1) of this definition, 
plus allocable overhead costs, but excluding profit. Cost of components 
does not include any costs associated with the manufacture of the 
construction material.
    Designated country means--
    (i) A World Trade Organization Government Procurement Agreement (WTO 
GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, 
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, 
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, 
Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, 
Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, 
Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, 
Spain, Sweden, Switzerland, Taiwan (known in the World Trade 
Organization as ``the Separate Customs Territory of Taiwan, Penghu, 
Kinmen, and Matsu'' (Chinese Taipei)), Ukraine, or the United Kingdom);
    (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore);
    (iii) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African 
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, 
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, 
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, 
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and 
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, 
Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); 
or
    (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, 
Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, 
Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, 
St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, 
or Trinidad and Tobago).
    Designated country construction material means a construction 
material that is a WTO GPA country construction material, a Free Trade 
Agreement country construction material, a least developed country 
construction material, or a Caribbean Basin country construction 
material.
    Domestic construction material means--
    (i) An unmanufactured construction material mined or produced in the 
United States; or
    (ii) A construction material manufactured in the United States, if--
    (A) The cost of its components mined, produced, or manufactured in 
the United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind for which 
nonavailability determinations have been made are treated as domestic; 
or
    (B) The construction material is a COTS item.
    Free Trade Agreement country construction material means a 
construction material that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a Free Trade Agreement country into a new and different 
construction material distinct from the material from which it was 
transformed.
    Least developed country construction material means a construction 
material that--
    (i) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a least developed country into a new and different 
construction material distinct from the materials from which it was 
transformed.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    SC/CASA state construction material means construction material 
that--
    (i) Is wholly the growth, product, or manufacture of an SC/CASA 
state; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in an SC/CASA state into a new and different construction 
material distinct from the material from which it was transformed.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    WTO GPA country construction material means a construction material 
that--
    (i) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a WTO GPA country

[[Page 537]]

into a new and different construction material distinct from the 
materials from which it was transformed.
    (b) This clause implements the Balance of Payments Program by 
providing a preference for domestic construction material. In addition, 
the Contracting Officer has determined that the WTO GPA, Free Trade 
Agreements, and other waivers relating to acquisitions in support of 
operations in Afghanistan apply to this acquisition. Therefore, the 
Balance of Payments Program restrictions are waived for SC/CASA state 
and designated country construction materials.
    (c) The Contractor shall use only domestic, SC/CASA state, or 
designated country construction material in performing this contract, 
except for--
    (1) Construction material valued at or below the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation;
    (2) Information technology that is a commercial item; or
    (3) The construction material or components listed by the Government 
as follows:
________________________________________________________________________
[Contracting Officer to list applicable excepted materials or indicate 
``none''].

    (d) If the Contractor is from an SC/CASA state, the Contractor shall 
inform its government of its participation in this acquisition and that 
it generally will not have such opportunity in the future unless its 
government provides reciprocal procurement opportunities to U.S. 
products and services and suppliers of such products and services.

                             (End of clause)

    Alternate III. As prescribed in 225.7503(b) and (b)(4), use the 
following clause, which adds South Caucasus/Central and South Asian (SC/
CASA state and SC/CASA state construction material to paragraph (a), 
uses a different paragraph (b) and introductory text for paragraph (c) 
than the basic clause, and adds paragraph (d):

     Balance of Payments Program--Construction Material Under Trade 
                  Agreements--Alternate III (AUG 2019)

    (a) Definitions. As used in this clause--
    Caribbean Basin country construction material means a construction 
material that--
    (i) Is wholly the growth, product, or manufacture of a Caribbean 
Basin country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a Caribbean Basin country into a new and different 
construction material distinct from the materials from which it was 
transformed.
    Commercially available off-the-shelf (COTS) item--
    (i) Means any item of supply (including construction material) that 
is--
    (A) A commercial item (as defined in paragraph (1) of the definition 
of commercial item in section 2.101 of the Federal Acquisition 
Regulation);
    (B) Sold in substantial quantities in the commercial marketplace; 
and
    (C) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (ii) Does not include bulk cargo, as defined in section 3 of the 
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products 
and petroleum products.
    Component means any article, material, or supply incorporated 
directly into construction material.
    Construction material means an article, material, or supply brought 
to the construction site by the Contractor or a subcontractor for 
incorporation into the building or work. The term also includes an item 
brought to the site preassembled from articles, materials, or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, that are discrete systems 
incorporated into a public building or work and that are produced as 
complete systems, are evaluated as a single and distinct construction 
material regardless of when or how the individual parts or components of 
those systems are delivered to the construction site. Materials 
purchased directly by the Government are supplies, not construction 
material.
    Cost of components means--
    (i) For components purchased by the Contractor, the acquisition 
cost, including transportation costs to the place of incorporation into 
the end product (whether or not such costs are paid to a domestic firm), 
and any applicable duty (whether or not a duty-free entry certificate is 
issued); or
    (ii) For components manufactured by the Contractor, all costs 
associated with the manufacture of the component, including 
transportation costs as described in paragraph (1) of this definition, 
plus allocable overhead costs, but excluding profit. Cost of components 
does not include any costs associated with the manufacture of the 
construction material.
    Designated country means--
    (i) A World Trade Organization Government Procurement Agreement (WTO 
GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, 
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, 
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, 
Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, 
Luxembourg, Malta, Moldova, Montenegro, Netherlands,

[[Page 538]]

New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak 
Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the 
World Trade Organization as ``the Separate Customs Territory of Taiwan, 
Penghu, Kinmen, and Matsu'' (Chinese Taipei)), Ukraine, or the United 
Kingdom);
    (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, 
or Singapore);
    (iii) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African 
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, 
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, 
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, 
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and 
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, 
Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); 
or
    (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, 
Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, 
Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, 
St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, 
or Trinidad and Tobago).
    Designated country construction material means a construction 
material that is a WTO GPA country construction material, a Free Trade 
Agreement country construction material, a least developed country 
construction material, or a Caribbean Basin country construction 
material.
    Domestic construction material means--
    (i) An unmanufactured construction material mined or produced in the 
United States; or
    (ii) A construction material manufactured in the United States, if--
    (A) The cost of its components mined, produced, or manufactured in 
the United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind for which 
nonavailability determinations have been made are treated as domestic; 
or
    (B) The construction material is a COTS item.
    Free Trade Agreement country construction material means a 
construction material that--
    (i) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a Free Trade Agreement country into a new and different 
construction material distinct from the material from which it was 
transformed.
    Least developed country construction material means a construction 
material that--
    (i) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a least developed country into a new and different 
construction material distinct from the materials from which it was 
transformed.
    South Caucasus/Central and South Asian (SC/CASA) state means 
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, 
Tajikistan, Turkmenistan, or Uzbekistan.
    SC/CASA state construction material means construction material 
that--
    (i) Is wholly the growth, product, or manufacture of An SC/CASA 
state; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in an SC/CASA state into a new and different construction 
material distinct from the material from which it was transformed.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    WTO GPA country construction material means a construction material 
that--
    (i) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (ii) In the case of a construction material that consists in whole 
or in part of materials from another country, has been substantially 
transformed in a WTO GPA country into a new and different construction 
material distinct from the materials from which it was transformed.
    (b) This clause implements the Balance of Payments Program by 
providing a preference for domestic construction material. In addition, 
the Contracting Officer has determined that the WTO GPA, all Free Trade 
Agreements except NAFTA and the Bahrain Free Trade Agreement, and other 
waivers relating to acquisitions in support of operations in Afghanistan 
apply to this acquisition. Therefore, the Balance of Payments Program 
restrictions are waived for SC/CASA state and designated country 
construction material other than Bahrainian or Mexican construction 
material.
    (c) The Contractor shall use only domestic, SC/CASA state, or 
designated country construction material other than Bahrainian or 
Mexican construction material in performing this contract, except for--
    (1) Construction material valued at or below the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation;
    (2) Information technology that is a commercial item; or

[[Page 539]]

    (3) The construction material or components listed by the Government 
as follows:
________________________________________________________________________
[Contracting Officer to list applicable excepted materials or indicate 
``none''].

    (d) If the Contractor is from an SC/CASA state, the Contractor shall 
inform its government of its participation in this acquisition and that 
it generally will not have such opportunity in the future unless its 
government provides reciprocal procurement opportunities to U.S. 
products and services and suppliers of such products and services.

                             (End of clause)

[70 FR 2365, Jan. 13, 2005, as amended at 70 FR 35548, June 21, 2005; 70 
FR 73153, Dec. 9, 2005; 71 FR 9271, Feb. 23, 2006; 71 FR 34836, June 16, 
2006; 71 FR 58543, Oct. 4, 2006; 72 FR 14243, Mar. 27, 2007; 73 FR 
70913, Nov. 24, 2008; 74 FR 2424, Jan. 15, 2009; 74 FR 37651, July 29, 
2009; 74 FR 61046, Nov. 23, 2009; 75 FR 66686, Oct. 29, 2010; 75 FR 
81921, Dec. 29, 2010; 76 FR 32843, June 6, 2011; 76 FR 38053, June 29, 
2011; 77 FR 4632, Jan. 30, 2012; 77 FR 30359, 30361, May 22, 2012; 77 FR 
31537, May 29, 2012; 77 FR 68704, Nov. 16, 2012; 78 FR 48334, Aug. 8, 
2013; 78 FR 65221, Oct. 31, 2013; 79 FR 65831, Nov. 5, 2014; 80 FR 
36899, June 26, 2015; 80 FR 67254, Oct. 30, 2015; 81 FR 42564, June 30, 
2016; 81 FR 65568, Sept. 23, 2016; 84 FR 39208, Aug. 9, 2019]



252.225-7046  Exports by Approved Community Members in Response to 
the Solicitation.

    As prescribed in 225.7902-5(a), use the following provision:

 Exports by Approved Community Members in Response to the Solicitation 
                               (JUN 2013)

    (a) Definitions. The definitions of ``Approved Community'', 
``defense articles'', ``Defense Trade Cooperation (DTC) Treaty'', 
``export'', ``Implementing Arrangement'', ``qualifying defense 
articles'', ``transfer'', and ``U.S. DoD Treaty-eligible requirements'' 
in DFARS clause 252.225-7047 apply to this provision.
    (b) All contract line items in the contemplated contract, except any 
identified in this paragraph, are intended to satisfy U.S. DoD Treaty-
eligible requirements. Specific defense articles that are not U.S. DoD 
Treaty-eligible will be identified as such in those contract line items 
that are otherwise U.S. DoD Treaty-eligible.

CONTRACT LINE ITEMS NOT INTENDED TO SATISFY U.S. DoD TREATY-ELIGIBLE 
REQUIREMENTS:
________________________________________________________________________
[Enter Contract Line Item Number(s) or enter ``None'']
    (c) Approved Community members responding to the solicitation may 
only export or transfer defense articles that specifically respond to 
the stated requirements of the solicitation.
    (d) Subject to the other terms and conditions of the solicitation 
and the contemplated contract that affect the acceptability of foreign 
sources or foreign end products, components, parts, or materials, 
Approved Community members are permitted, but not required, to use the 
DTC Treaties for exports or transfers of qualifying defense articles in 
preparing a response to this solicitation.
    (e) Any conduct by an offeror responding to this solicitation that 
falls outside the scope of the DTC Treaties, the Implementing 
Arrangements, and the implementing regulations of the Department of 
State in 22 CFR 126.16 (Australia), 22 CFR 126.17 (United Kingdom), and 
22 CFR 126 Supplement No. 1 (exempted technologies list) is subject to 
all applicable International Traffic in Arms Regulations (ITAR) 
requirements, including any criminal, civil, and administrative 
penalties or sanctions, as well as all other United States statutory and 
regulatory requirements outside of ITAR.
    (f) If the offeror uses the procedures established pursuant to the 
DTC Treaties, the offeror agrees that, with regard to the export or 
transfer of a qualifying defense article associated with responding to 
the solicitation, the offeror shall--
    (1) Comply with the requirements and provisions of the applicable 
DTC Treaties, the Implementing Arrangements, and corresponding 
regulations (including the ITAR) of the U.S. Government and the 
government of Australia or of the United Kingdom, as applicable; and
    (2) Prior to the export or transfer of a qualifying defense 
article--
    (i) Mark, identify, transmit, store, and handle any defense articles 
provided for the purpose of responding to such solicitations, as well as 
any defense articles provided with or developed pursuant to their 
responses to such solicitations, in accordance with the DTC Treaties, 
the Implementing Arrangements, and corresponding regulations of the 
United States Government and the government of Australia or the 
government of the United Kingdom, as applicable, including, but not 
limited to, the marking and classification requirements described in the 
applicable regulations;
    (ii) Comply with the re-transfer or re-export provisions of the DTC 
Treaties, the Implementing Arrangements, and corresponding regulations 
of the United States Government and the government of Australia or the 
government of the United Kingdom, as applicable, including, but not 
limited to, the re-transfer and re-export requirements described in the 
applicable regulations; and

[[Page 540]]

    (iii) Acknowledge that any conduct that falls outside or in 
violation of the DTC Treaties, Implementing Arrangements, and 
implementing regulations of the applicable government including, but not 
limited to, unauthorized re-transfer or re-export in violation of the 
procedures established in the applicable Implementing Arrangement and 
implementing regulations, remains subject to applicable licensing 
requirements of the government of Australia, the government of the 
United Kingdom, and the United States Government, as applicable, 
including any criminal, civil, and administrative penalties or sanctions 
contained therein.
    (g) Representation. The offeror shall check one of the following 
boxes and sign the representation:
    [squ] The offeror represents that export(s) or transfer(s) of 
qualifying defense articles were made in preparing its response to this 
solicitation and that such export(s) or transfer(s) complied with the 
requirements of this provision.
________________________________________________________________________
Name/Title of Duly Authorized Representative Date

    [squ] The offeror represents that no export(s) or transfer(s) of 
qualifying defense articles were made in preparing its response to this 
solicitation.
________________________________________________________________________
Name/Title of Duly Authorized Representative Date

    (h) Subcontracts. The offeror shall flow down the substance of this 
provision, including this paragraph (h), but excluding the 
representation at paragraph (g), to any subcontractor at any tier 
intending to use the DTC Treaties in responding to this solicitation.

                           (End of provision)

[78 FR 36111, June 17, 2013]



252.225-7047  Exports by Approved Community Members in Performance 
of the Contract.

    As prescribed in 225.7902-5(b), use the following clause:

  Exports by Approved Community Members in Performance of the Contract 
                               (JUN 2013)

    (a) Definitions. As used in this clause--
    ``Approved Community'' means the U.S. Government, U.S. entities that 
are registered and eligible exporters, and certain government and 
industry facilities in Australia or the United Kingdom that are approved 
and listed by the U.S. Government.
    ``Australia Community member'' means an Australian government 
authority or nongovernmental entity or facility on the Australia 
Community list accessible at http://pmddtc.state.gov/treaties/
index.html.
    ``Defense articles'' means articles, services, and related technical 
data, including software, in tangible or intangible form, listed on the 
United States Munitions List of the International Traffic in Arms 
Regulations (ITAR), as modified or amended.
    ``Defense Trade Cooperation (DTC) Treaty'' means--
    (1) The Treaty Between the Government of the United States of 
America and the government of the United Kingdom of Great Britain and 
Northern Ireland concerning Defense Trade Cooperation, signed at 
Washington and London on June 21 and 26, 2007; or
    (2) The Treaty Between the Government of the United States of 
America and the Government of Australia Concerning Defense Trade 
Cooperation, signed at Sydney on September 5, 2007].
    ``Export'' means the initial movement of defense articles from the 
United States Community to the United Kingdom Community and the 
Australia Community.
    ``Implementing Arrangement'' means--
    (1) The Implementing Arrangement Pursuant to the Treaty between the 
Government of the United States of America and the Government of the 
United Kingdom of Great Britain and Northern Ireland Concerning Defense 
Trade Cooperation, signed on February 14, 2008; or
    (2) The Implementing Arrangement Pursuant to the Treaty between the 
Government of the United States of America and the Government of 
Australia Concerning Defense Trade Cooperation, signed on March 14, 
2008.
    ``Qualifying defense articles'' means defense articles that are not 
exempt from the scope of the DTC Treaties as defined in 22 CFR 126.16(g) 
and 22 CFR 126.17(g).
    ``Transfer'' means the movement of previously exported defense 
articles within the Approved Community.
    ``United Kingdom Community member'' means a United Kingdom 
government authority or nongovernmental entity or facility on the United 
Kingdom Community list accessible at http://pmddtc.state.gov.
    ``United States Community'' means--
    (1) Departments and agencies of the U.S. Government, including their 
personnel, with, as appropriate, security accreditation and a need-to-
know; and
    (2) Nongovernmental U.S. entities registered with the Department of 
State and eligible to export defense articles under U.S. law and 
regulation, including their employees, with, as appropriate, security 
accreditation and a need-to-know.
    ``U.S. DoD Treaty-eligible requirements'' means any defense article 
acquired by the DoD for use in a combined military or counterterrorism 
operation, cooperative research, development, production or support 
program, or DoD end use, as described in Article 3 of the U.S.-U.K. DTC 
Treaty and sections 2 and 3 of the associated Implementing

[[Page 541]]

Arrangement; and Article 3 of the U.S.-Australia DTC Treaty and sections 
2 and 3 of the associated Implementing Arrangement.
    (b) All contract line items in this contract, except any identified 
in this paragraph, are intended to satisfy U.S. DoD Treaty-eligible 
requirements. Specific defense articles that are not U.S. DoD Treaty-
eligible will be identified as such in those contract line items that 
are otherwise U.S. DoD Treaty-eligible.

CONTRACT LINE ITEMS NOT INTENDED TO SATISFY U.S. DoD TREATY-ELIGIBLE 
REQUIREMENTS:
________________________________________________________________________
[Enter Contract Line Item Number(s) or enter ``None'']
    (c) Subject to the other terms and conditions of this contract that 
affect the acceptability of foreign sources or foreign end products, 
components, parts, or materials, Approved Community members are 
permitted, but not required, to use the DTC Treaties for exports or 
transfers of qualifying defense articles in performance of the contract.
    (d) Any conduct by the Contractor that falls outside the scope of 
the DTC Treaties, the Implementing Arrangements, and 22 CFR 126.16(g) 
and 22 CFR 126.17(g) is subject to all applicable ITAR requirements, 
including any criminal, civil, and administrative penalties or 
sanctions, as well as all other United States statutory and regulatory 
requirements outside of ITAR, including, but not limited to, regulations 
issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives found 
at 27 CFR parts 447, 478, and 479, which are unaffected by the DTC 
Treaties.
    (e) If the Contractor is an Approved Community member, the 
Contractor agrees that--
    (1) The Contractor shall comply with the requirements of the DTC 
Treaties, the Implementing Arrangements, the ITAR, and corresponding 
regulations of the U.S. Government and the government of Australia or 
the government of the United Kingdom, as applicable; and
    (2) Prior to the export or transfer of a qualifying defense article 
the Contractor--
    (i) Shall mark, identify, transmit, store, and handle any defense 
articles provided for the purpose of responding to such solicitations, 
as well as any defense articles provided with or developed pursuant to 
their responses to such solicitations, in accordance with the DTC 
Treaties, the Implementing Arrangements, and corresponding regulations 
of the United States Government and the government of Australia or the 
government of the United Kingdom, as applicable, including, but not 
limited to, the marking and classification requirements described in the 
applicable regulations;
    (ii) Shall comply with the re-transfer or re-export provisions of 
the DTC Treaties, the Implementing Arrangements, and corresponding 
regulations of the United States Government and the government of 
Australia or the government of the United Kingdom, as applicable, 
including, but not limited to, the re-transfer and re-export 
requirements described in the applicable regulations; and
    (iii) Shall acknowledge that any conduct that falls outside or in 
violation of the DTC Treaties, Implementing Arrangements, and 
implementing regulations of the applicable government including, but not 
limited to, unauthorized re-transfer or re-export in violation of the 
procedures established in the applicable Implementing Arrangement and 
implementing regulations, remains subject to applicable licensing 
requirements of the government of Australia, the government of the 
United Kingdom, and the United States Government, including any 
criminal, civil, and administrative penalties or sanctions contained 
therein.
    (f) The contractor shall include the substance of this clause, 
including this paragraph (f), in all subcontracts that may require 
exports or transfers of qualifying defense articles in connection with 
deliveries under the contract.

[78 FR 36112, June 17, 2013, as amended at 78 FR 38235, June 26, 2013]



252.225-7048  Export-Controlled Items.

    As prescribed in 225.7901-4, use the following clause:

                   Export-Controlled Items (JUN 2013)

    (a) Definition. ``Export-controlled items,'' as used in this clause, 
means items subject to the Export Administration Regulations (EAR) (15 
CFR Parts 730-774) or the International Traffic in Arms Regulations 
(ITAR) (22 CFR Parts 120-130). The term includes--
    (1) ``Defense items,'' defined in the Arms Export Control Act, 22 
U.S.C. 2778(j)(4)(A), as defense articles, defense services, and related 
technical data, and further defined in the ITAR, 22 CFR Part 120; and
    (2) ``Items,'' defined in the EAR as ``commodities'', ``software'', 
and ``technology,'' terms that are also defined in the EAR, 15 CFR 
772.1.
    (b) The Contractor shall comply with all applicable laws and 
regulations regarding export-controlled items, including, but not 
limited to, the requirement for contractors to register with the 
Department of State in accordance with the ITAR. The Contractor shall 
consult with the Department of State regarding any questions relating to 
compliance with the ITAR and shall consult with the Department of 
Commerce regarding any questions relating to compliance with the EAR.
    (c) The Contractor's responsibility to comply with all applicable 
laws and regulations

[[Page 542]]

regarding export-controlled items exists independent of, and is not 
established or limited by, the information provided by this clause.
    (d) Nothing in the terms of this contract adds, changes, supersedes, 
or waives any of the requirements of applicable Federal laws, Executive 
orders, and regulations, including but not limited to--
    (1) The Export Administration Act of 1979, as amended (50 U.S.C. 
App. 2401, et seq.);
    (2) The Arms Export Control Act (22 U.S.C. 2751, et seq.);
    (3) The International Emergency Economic Powers Act (50 U.S.C. 1701, 
et seq.);
    (4) The Export Administration Regulations (15 CFR Parts 730-774);
    (5) The International Traffic in Arms Regulations (22 CFR Parts 120-
130); and
    (6) Executive Order 13222, as extended.
    (e) The Contractor shall include the substance of this clause, 
including this paragraph (e), in all subcontracts.

                             (End of clause)

[78 FR 36113, June 17, 2013]



252.225-7049  Prohibition on Acquisition of Certain Foreign Commercial
Satellite Services--Representations.

    As prescribed in 225.772-5(a), use the following provision:

   Prohibition on Acquisition of Certain Foreign Commercial Satellite 
                  Services--Representations (DEC 2018)

    (a) Definitions. As used in this provision--
    Covered foreign country, foreign entity, government of a covered 
foreign country, launch vehicle, satellite services, and state sponsor 
of terrorism are defined in the clause at Defense Federal Acquisition 
Regulation Supplement (DFARS) 252.225-7051, Prohibition on Acquisition 
of Certain Commercial Satellite Services.
    Cybersecurity risk means threats to and vulnerabilities of 
information or information systems and any related consequences caused 
by or resulting from unauthorized access, use, disclosure, degradation, 
disruption, modification, or destruction of such information or 
information systems, including such related consequences caused by an 
act of terrorism. (10 U.S.C. 2279)]
    (b) Prohibition on award. In accordance with 10 U.S.C. 2279, unless 
an exception is determined to apply in accordance with DFARS 225.772-4, 
no contract for commercial satellite services may be awarded to--
    (1)(i) A foreign entity if the Under Secretary of Defense for 
Acquisition and Sustainment or the Under Secretary of Defense for Policy 
reasonably believes that--
    (A) The foreign entity is an entity in which the government of a 
covered foreign country has an ownership interest that enables the 
government to affect satellite operations;
    (B) The foreign entity plans to, or is expected to, provide 
satellite services under the contract from a covered foreign country; or
    (C) Entering into such contract would create an unacceptable 
cybersecurity risk for DoD; or
    (ii) An offeror that is offering to provide the commercial satellite 
services of a foreign entity as described in paragraph (b)(1) of this 
provision; or
    (2)(i) Any entity, except as provided in paragraph (b)(2)(ii) of 
this provision, for a launch that occurs on or after December 31, 2022, 
if the Under Secretary of Defense for Acquisition and Sustainment or the 
Under Secretary of Defense for Policy reasonably believes that such 
satellite service will be provided using satellites that will be--
    (A) Designed or manufactured--
    (1) In a covered foreign country; or
    (2) By an entity controlled in whole or in part by, or acting on 
behalf of, the government of a covered foreign country; or
    (B) Launched outside the United States using a launch vehicle that 
is--
    (1) Designed or manufactured in a covered foreign country; or
    (2) Provided by--
    (i) The government of a covered foreign country; or
    (ii) An entity controlled in whole or in part by, or acting on 
behalf of, the government of a covered foreign country.
    (ii) The prohibition in paragraph (b)(2)(i)(B) of this provision 
does not apply with respect to launch vehicles for which the satellite 
service provider has a contract or other agreement relating to launch 
services that, prior to June 10, 2018, was either fully paid for by the 
satellite service provider or covered by a legally binding commitment of 
the satellite service provider to pay for such services.
    (c) Representations. The Offeror represents that--
    (1) It [ ] is, [ ] is not a foreign entity in which the government 
of a covered foreign country has an ownership interest that enables the 
government to affect satellite operations. If affirmative, identify the 
covered foreign country: ____;
    (2) It [ ] is, [ ] is not a foreign entity that plans to provide 
satellite services under the contract from a covered foreign country. If 
affirmative, identify the covered foreign country: ____;
    (3) It [ ] is, [ ] is not offering commercial satellite services 
provided by a foreign entity in which the government of a covered 
foreign country has an ownership interest that enables the government to 
affect satellite operations. If affirmative, identify the foreign entity 
and the covered foreign country: ____;

[[Page 543]]

    (4) It [ ] is, [ ] is not offering commercial satellite services 
provided by a foreign entity that plans to or is expected to provide 
satellite services under the contract from a covered foreign country. If 
affirmative, identify the foreign entity and the covered foreign 
country: ____;
    (5) It [ ] is, [ ] is not offering commercial satellite services 
that will use satellites, launched on or after December 31, 2022, that 
will be designed or manufactured in a covered foreign country. If 
affirmative, identify the covered foreign country: ____;
    (6) It [ ] is, [ ] is not offering commercial satellite services 
that will use satellites, launched on or after December 31, 2022, that 
will be designed or manufactured by an entity controlled in whole or in 
part by, or acting on behalf of, the government of a covered foreign 
country. If affirmative, identify the entity, the covered foreign 
country, and the relationship of the entity to the government of the 
covered foreign country: ____;
    (7) It [ ] is, [ ] is not offering commercial satellite services 
that will use satellites, launched outside the United States on or after 
December 31, 2022, using a launch vehicle that is designed or 
manufactured in a covered foreign country. If affirmative, identify the 
covered foreign country: ____;
    (8) It [ ] is, [ ] is not offering commercial satellite services 
that will use satellites, launched outside the United States on or after 
December 31, 2022, using a launch vehicle that is provided by the 
government of a covered foreign country. If affirmative, identify the 
covered foreign country: ____; and
    (9) It [ ] is, [ ] is not offering commercial satellite services 
that will use satellites, launched outside the United States on or after 
December 31, 2022, using a launch vehicle that is provided by an entity 
controlled in whole or in part by, or acting on behalf of, the 
government of a covered foreign country. If affirmative, identify the 
entity, the covered foreign country, and the relationship of the entity 
to the government of the covered foreign country: ____;
    (d) If the Offeror has responded affirmatively to any representation 
in paragraphs (c)(7) through (9) of this provision, and if such launches 
are covered in whole or in part by a contract or other agreement 
relating to launch services that, prior to June 10, 2018, was either 
fully paid for by the satellite service provider or covered by a legally 
binding commitment of the satellite service provider to pay for such 
services, provide the following information:
    (1) The entity awarded the contract or other agreement: ____.
    (2) The date the contract or other agreement was awarded: ____.
    (3) The period of performance for the contract or other agreement: 
____.
    (e) The representations in paragraph (c) of this provision are a 
material representation of fact upon which reliance will be placed when 
making award. If it is later determined that the Offeror knowingly 
rendered an erroneous representation, in addition to other remedies 
available to the Government, the Contracting Officer may terminate the 
contract resulting from this solicitation for default.


(End of provision)

[83 FR 66073, Dec. 21, 2018]



252.225-7050  Disclosure of Ownership or Control by the Government
of a Country that is a State Sponsor of Terrorism.

    As prescribed in 225.771-5, use the following provision:

 Disclosure of Ownership or Control by the Government of a Country that 
               is a State Sponsor of Terrorism (SEP 2021)

    (a) Definitions. As used in this provision--
    Government of a country that is a state sponsor of terrorism 
includes the state and the government of a country that is a state 
sponsor of terrorism, as well as any political subdivision, agency, or 
instrumentality thereof.
    Significant interest means--
    (1) Ownership of or beneficial interest in 5 percent or more of the 
firm's or subsidiary's securities. Beneficial interest includes holding 
5 percent or more of any class of the firm's securities in ``nominee 
shares,'' ``street names,'' or some other method of holding securities 
that does not disclose the beneficial owner;
    (2) Holding a management position in the firm, such as a director or 
officer;
    (3) Ability to control or influence the election, appointment, or 
tenure of directors or officers in the firm;
    (4) Ownership of 10 percent or more of the assets of a firm such as 
equipment, buildings, real estate, or other tangible assets of the firm; 
or
    (5) Holding 50 percent or more of the indebtedness of a firm.
    State sponsor of terrorism means a country determined by the 
Secretary of State, under section 1754(c)(1)(A)(i) of the Export Control 
Reform Act of 2018 (Title XVII, Subtitle B, of the National Defense 
Authorization Act for Fiscal Year 2019, Pub. L. 115-232), to be a 
country the government of which has repeatedly provided support for acts 
of international terrorism. As of the date of this provision, state 
sponsors of terrorism include Iran, North Korea, and Syria.
    (b) Prohibition on award. In accordance with 10 U.S.C. 2327, unless 
a waiver is granted by the Secretary of Defense, no contract may be 
awarded to a firm if the government

[[Page 544]]

of a country that is a state sponsor of terrorism owns or controls a 
significant interest in--
    (1) The firm;
    (2) A subsidiary of the firm; or
    (3) Any other firm that owns or controls the firm.
    (c) Representation. Unless the Offeror submits with its offer the 
disclosure required in paragraph (d) of this provision, the Offeror 
represents, by submission of its offer, that the government of a country 
that is a state sponsor of terrorism does not own or control a 
significant interest in--
    (1) The Offeror;
    (2) A subsidiary of the Offeror; or
    (3) Any other firm that owns or controls the Offeror.
    (d) Disclosure. (1) The Offeror shall disclose in an attachment to 
its offer if the government of a country that is a state sponsor of 
terrorism owns or controls a significant interest in the Offeror; a 
subsidiary of the Offeror; or any other firm that owns or controls the 
Offeror.
    (2) The disclosure shall include--
    (i) Identification of each government holding a significant 
interest; and
    (ii) A description of the significant interest held by each 
government.

                           (End of provision)

[79 FR 73490, Dec. 11, 2014, as amended at 80 FR 67253, Oct. 30, 2015; 
83 FR 4448, Jan. 31, 2018; 83 FR 66074, Dec. 21, 2018; 86 FR 53883, 
Sept. 29, 2021]




252.225-7051  Prohibition on Acquisition of Certain Foreign Commercial
Satellite Services.

    As prescribed in 225.772-5, use the following clause:

   Prohibition on Acquisition of Certain Foreign Commerical Satellite 
                           Services (SEP 2021)

    (a) Definitions. As used in this clause--
    Covered foreign country means--
    (1) The People's Republic of China;
    (2) North Korea;
    (3) The Russian Federation; or
    (4) Any country that is a state sponsor of terrorism. (10 U.S.C. 
2279)
    Foreign entity means--
    (1) Any branch, partnership, group or sub-group, association, 
estate, trust, corporation or division of a corporation, or organization 
organized under the laws of a foreign state if either its principal 
place of business is outside the United States or its equity securities 
are primarily traded on one or more foreign exchanges.
    (2) Notwithstanding paragraph (1) of this definition, any branch, 
partnership, group or sub-group, association, estate, trust, corporation 
or division of a corporation, or organization that demonstrates that a 
majority of the equity interest in such entity is ultimately owned by 
U.S. nationals is not a foreign entity. (31 CFR 800.212)
    Government of a covered foreign country includes the state and the 
government of a covered foreign country, as well as any political 
subdivision, agency, or instrumentality thereof.
    Launch vehicle means a fully integrated space launch vehicle. (10 
U.S.C. 2279)
    Satellite services means communications capabilities that utilize an 
on-orbit satellite for transmitting the signal from one location to 
another.
    State sponsor of terrorism means a country determined by the 
Secretary of State, under section 1754(c)(1)(A)(i) of the Export Control 
Reform Act of 2018 (Title XVII, Subtitle B, of the National Defense 
Authorization Act for Fiscal Year 2019, Pub. L. 115-232), to be a 
country the government of which has repeatedly provided support for acts 
of international terrorism. As of the date of this provision, state 
sponsors of terrorism include Iran, North Korea, and Syria. (10 U.S.C. 
2327)
    (b) Limitation. Unless specified in its offer, the Contractor shall 
not provide satellite services under this contract that--
    (1) Are from a covered foreign country; or
    (2) Except as provided in paragraph (c) of this provision, use 
satellites that will be--
    (i) Designed or manufactured--
    (A) In a covered foreign country; or
    (B) By an entity controlled in whole or in part by, or acting on 
behalf of, the government of a covered foreign country; or
    (ii) Launched outside the United States using a launch vehicle that 
is designed or manufactured--
    (A) In a covered foreign country; or
    (B) Provided by--
    (1) The government of a covered foreign country; or
    (2) An entity controlled in whole or in part by, or acting on behalf 
of, the government of a covered foreign country.
    (c) Exception. The limitation in paragraph (b)(2) of this provision 
shall not apply with respect to--
    (1) A launch that occurs prior to December 31, 2022; or
    (2) A satellite service provider that has a contract or other 
agreement relating to launch services that, prior to June 10, 2018, was 
either fully paid for by the satellite service provider or covered by a 
legally binding commitment of the satellite service provider to pay for 
such services.


(End of clause)

[83 FR 66074, Dec. 21, 2018, as amended at 86 FR 53883, Sept. 29, 2021]

[[Page 545]]



252.225-7052  Restriction on the Acquisition of Certain Magnets, 
Tantalum, and Tungsten.

    Restriction on the Acquisition of Certain Magnets, Tantalum, and 
                           Tungsten (Oct 2020)

    (a) Definitions. As used in this clause--
    Assembly means an item forming a portion of a system or subsystem 
that--
    (1) Can be provisioned and replaced as an entity; and
    (2) Incorporates multiple, replaceable parts.
    Commercially available off-the-shelf item--
    (1) Means any item of supply that is--
    (i) A commercial item (as defined in paragraph (1) of the definition 
of ``commercial item'' in section 2.101 of the Federal Acquisition 
Regulation);
    (ii) Sold in substantial quantities in the commercial marketplace; 
and
    (iii) Offered to the Government, under this contract or a 
subcontract at any tier, without modification, in the same form in which 
it is sold in the commercial marketplace; and
    (2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Component means any item supplied to the Government as part of an 
end item or of another component.
    Covered country means--
    (1) The Democratic People's Republic of North Korea;
    (2) The People's Republic of China;
    (3) The Russian Federation; and
    (4) The Islamic Republic of Iran.
    Covered material means--
    (1) Samarium-cobalt magnets;
    (2) Neodymium-iron-boron magnets;
    (3) Tantalum metal and alloys;
    (4) Tungsten metal powder; and
    (5) Tungsten heavy alloy or any finished or semi-finished component 
containing tungsten heavy alloy.
    Electronic device means an item that operates by controlling the 
flow of electrons or other electrically charged particles in circuits, 
using interconnections such as resistors, inductors, capacitors, diodes, 
switches, transistors, or integrated circuits.
    End item means the final production product when assembled or 
completed and ready for delivery under a line item of this contract.
    Subsystem means a functional grouping of items that combine to 
perform a major function within an end item, such as electrical power, 
attitude control, and propulsion.
    Tungsten heavy alloy means a tungsten base pseudo alloy that--
    (1) Meets the specifications of ASTM B777 or SAE-AMS-T-21014 for a 
particular class of tungsten heavy alloy; or
    (2) Contains at least 90 percent tungsten in a matrix of other 
metals (such as nickel-iron or nickel-copper) and has density of at 
least 16.5 g/cm3).
    (b) Restriction. (1) Except as provided in paragraph (c) of this 
clause, the Contractor shall not deliver under this contract any covered 
material melted or produced in any covered country, or any end item, 
manufactured in any covered country, that contains a covered material 
(10 U.S.C. 2533c).
    (2)(i) For samarium-cobalt magnets and neodymium iron-boron magnets, 
this restriction includes--
    (A) Melting samarium with cobalt to produce the samarium-cobalt 
alloy or melting neodymium with iron and boron to produce the neodymium-
iron-boron alloy; and
    (B) All subsequent phases of production of the magnets, such as 
powder formation, pressing, sintering or bonding, and magnetization.
    (ii) The restriction on melting and producing of samarium-cobalt 
magnets is in addition to any applicable restrictions on melting of 
specialty metals if the clause at 252.225-7009, Restriction on 
Acquisition of Certain Articles Containing Specialty Metals, is included 
in the contract.
    (3) For production of tantalum metal and alloys, this restriction 
includes the reduction of tantalum chemicals such as oxides, chlorides, 
or potassium salts, to metal powder and all subsequent phases of 
production of tantalum metal and alloys, such as consolidation of metal 
powders.
    (4) For production of tungsten metal powder and tungsten heavy 
alloy, this restriction includes--
    (i) Atomization;
    (ii) Calcination and reduction into powder;
    (iii) Final consolidation of non-melt derived metal powders; and
    (iv) All subsequent phases of production of tungsten metal powder, 
tungsten heavy alloy, or any finished or semi-finished component 
containing tungsten heavy alloy.
    (c) Exceptions. This clause does not apply--
    (1) To an end item that is--
    (i) A commercially available off-the-shelf item, other than--
    (A) A commercially available off-the-shelf item that is 50 percent 
or more tungsten by weight; or
    (B) A tantalum metal, tantalum alloy, or tungsten heavy alloy mill 
product, such as bar, billet, slab, wire, cube, sphere, block, blank, 
plate, or sheet, that has not been incorporated into an end item, 
subsystem, assembly, or component;
    (ii) An electronic device, unless otherwise specified in the 
contract; or
    (iii) A neodymium-iron-boron magnet manufactured from recycled 
material if the milling of the recycled material and sintering of

[[Page 546]]

the final magnet takes place in the United States.
    (2) If the authorized agency official concerned has made a 
nonavailability determination, in accordance with section 225.7018-4 of 
the Defense Federal Acquisition Regulation Supplement, that compliant 
covered materials of satisfactory quality and quantity, in the required 
form, cannot be procured as and when needed at a reasonable price.
    (i) For tantalum metal, tantalum alloy, or tungsten heavy alloy, the 
term ``required form'' refers to the form of the mill product, such as 
bar, billet, wire, slab, plate, or sheet, in the grade appropriate for 
the production of a finished end item to be delivered to the Government 
under this contract; or a finished component assembled into an end item 
to be delivered to the Government under the contract.
    (ii) For samarium-cobalt magnets or neodymium-iron-boron magnets, 
the term ``required form'' refers to the form and properties of the 
magnets.
    (d) Subcontracts. The Contractor shall insert the substance of this 
clause, including this paragraph (d), in subcontracts and other 
contractual instruments that are for items containing a covered 
material, including subcontracts and other contractual instruments for 
commercial items, unless an exception in paragraph (c) of this clause 
applies. The Contractor shall not alter this clause other than to 
identify the appropriate parties.

                             (End of clause)

[84 FR 18159, Apr. 30, 2019, as amended at 84 FR 72245, Dec. 31, 2019; 
85 FR 61502, Sept. 29, 2020]



252.225-7053  Representation Regarding Prohibition on Use of Certain 
Energy Sourced from Inside the Russian Federation.

    As prescribed in 225.7019-4(a), use the following provision:

 REPRESENTATION REGARDING PROHIBITION ON USE OF CERTAIN ENERGY SOURCED 
              FROM INSIDE THE RUSSIAN FEDERATION (AUG 2021)

    (a) Definitions. As used in this provision--
    Covered military installation means a military installation in 
Europe identified by DoD as a main operating base.
    Furnished energy means energy furnished to a covered military 
installation in any form and for any purpose, including heating, 
cooling, and electricity.
    Main operating base means a facility outside the United States and 
its territories with permanently stationed operating forces and robust 
infrastructure.
    (b) Prohibition. In accordance with section 2821 of the National 
Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), 
contracts for the acquisition of furnished energy for a covered military 
installation shall not use any energy sourced from inside the Russian 
Federation as a means of generating the furnished energy for the covered 
military installation, unless a waiver is approved. The prohibition--
    (1) Applies to all forms of energy that are furnished to a covered 
military installation; and
    (2) Does not apply to energy converted by a third party into another 
form of energy and not directly delivered to a covered military 
installation.
    (c) Representation. By submission of its offer, the Offeror 
represents that the Offeror will not use or provide any energy sourced 
from inside the Russian Federation as a means of generating the 
furnished energy for the covered military installation in the 
performance of any contract, subcontract, or other contractual 
instrument resulting from this solicitation.

                           (End of provision)

[86 FR 48339, Aug. 30, 2021]



252.225-7054  Prohibition on Use of Certain Energy Sourced from 
Inside the Russian Federation.

    As prescribed in 225.7019-4(b), use the following clause:

  PROHIBITION ON USE OF CERTAIN ENERGY SOURCED FROM INSIDE THE RUSSIAN 
                          FEDERATION (AUG 2021)

    (a) Definitions. As used in this clause--
    Covered military installation means a military installation in 
Europe identified by DoD as a main operating base.
    Furnished energy means energy furnished to a covered military 
installation in any form and for any purpose, including heating, 
cooling, and electricity.
    Main operating base means a facility outside the United States and 
its territories with permanently stationed operating forces and robust 
infrastructure.
    (b) Prohibition. In accordance with section 2821 of the National 
Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), the 
Contractor shall not use in the performance of this contract any energy 
sourced from inside the Russian Federation as a means of generating the 
furnished energy for the covered military installation unless a waiver 
is approved. The prohibition--
    (1) Applies to all forms of energy that are furnished to a covered 
military installation; and

[[Page 547]]

    (2) Does not apply to energy converted by a third party into another 
form of energy and not directly delivered to a covered military 
installation.
    (c) Subcontracts. The Contractor shall insert the substance of this 
clause, including this paragraph (c), in subcontracts and other 
commercial instruments that are for furnished energy at a covered 
military installation, including subcontracts and commercial instruments 
for commercial items.

                             (End of clause)

[86 FR 48339, Aug. 30, 2021]



252.226-7001  Utilization of Indian organizations, Indian-owned
economic enterprises, and native Hawaiian small business concerns.

    As prescribed in 226.104, use the following clause:

Utilization of Indian Organizations, Indian-Owned Economic Enterprises, 
         and Native Hawaiian Small Business Concerns (APR 2019)

    (a) Definitions. As used in this clause--
    Indian means--
    (1) Any person who is a member of any Indian tribe, band, group, 
pueblo, or community that is recognized by the Federal Government as 
eligible for services from the Bureau of Indian Affairs (BIA) in 
accordance with 25 U.S.C. 1452(c); and
    (2) Any ``Native'' as defined in the Alaska Native Claims Settlement 
Act (43 U.S.C. 1601 et seq.).
    Indian organization means the governing body of any Indian tribe or 
entity established or recognized by the governing body of an Indian 
tribe for the purposes of 25 U.S.C. chapter 17.
    Indian-owned economic enterprise means any Indian-owned (as 
determined by the Secretary of the Interior) commercial, industrial, or 
business activity established or organized for the purpose of profit, 
provided that Indian ownership constitutes not less than 51 percent of 
the enterprise.
    Indian tribe means any Indian tribe, band, group, pueblo, or 
community, including native villages and native groups (including 
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined 
in the Alaska Native Claims Settlement Act, that is recognized by the 
Federal Government as eligible for services from BIA in accordance with 
25 U.S.C. 1452(c).
    Interested party means a contractor or an actual or prospective 
offeror whose direct economic interest would be affected by the award of 
a subcontract or by the failure to award a subcontract.
    Native Hawaiian small business concern means an entity that is--
    (1) A small business concern as defined in section 3 of the Small 
Business Act (15 U.S.C. 632) and relevant implementing regulations; and
    (2) Owned and controlled by a Native Hawaiian as defined in 25 
U.S.C. 4221(9).
    (b) The Contractor shall use its best efforts to give Indian 
organizations, Indian-owned economic enterprises, and Native Hawaiian 
small business concerns the maximum practicable opportunity to 
participate in the subcontracts it awards, to the fullest extent 
consistent with efficient performance of the contract.
    (c) The Contracting Officer and the Contractor, acting in good 
faith, may rely on the representation of an Indian organization, Indian-
owned economic enterprise, or Native Hawaiian small business concern as 
to its eligibility, unless an interested party challenges its status or 
the Contracting Officer has independent reason to question that status.
    (d) In the event of a challenge to the representation of a 
subcontractor, the Contracting Officer will refer the matter to--
    (1)(i) For matters relating to Indian organizations or Indian-owned 
economic enterprises:
    U.S. Department of the Interior, Bureau of Indian Affairs, Attn: 
Bureau Procurement Chief, 12220 Sunrise Valley Drive, Reston, VA 20191, 
Phone: 703-390-6433, Website: https://www.bia.gov/.
    (ii) The BIA will determine the eligibility and will notify the 
Contracting Officer.
    (2)(i) For matters relating to Native Hawaiian small business 
concerns:
    Department of Hawaiian Home Lands, P.O. Box 1879, Honolulu, HI 
96805, Phone: 808-620-9500, Website: http://dhhl.hawaii.gov/.
    (ii) The Department of Hawaiian Home Lands will determine the 
eligibility and will notify the Contracting Officer.
    (e) No incentive payment will be made--
    (1) While a challenge is pending; or
    (2) If a subcontractor is determined to be an ineligible 
participant.
    (f)(1) The Contractor, on its own behalf or on behalf of a 
subcontractor at any tier, may request an incentive payment in 
accordance with this clause.
    (2) The incentive amount that may be requested is 5 percent of the 
estimated cost, target cost, or fixed price included in the subcontract 
at the time of award to the Indian organization, Indian-owned economic 
enterprise, or Native Hawaiian small business concern.
    (3) In the case of a subcontract for commercial items, the 
Contractor may receive an incentive payment only if the subcontracted 
items are produced or manufactured in whole or in part by an Indian 
organization, Indian-owned economic enterprise, or Native Hawaiian small 
business concern.

[[Page 548]]

    (4) The Contractor has the burden of proving the amount claimed and 
shall assert its request for an incentive payment prior to completion of 
contract performance.
    (5) The Contracting Officer, subject to the terms and conditions of 
the contract and the availability of funds, will authorize an incentive 
payment of 5 percent of the estimated cost, target cost, or fixed price 
included in the subcontract awarded to the Indian organization, Indian-
owned economic enterprise, or Native Hawaiian small business concern.
    (6) If the Contractor requests and receives an incentive payment on 
behalf of a subcontractor, the Contractor is obligated to pay the 
subcontractor the incentive amount.
    (g) The Contractor shall insert the substance of this clause, 
including this paragraph (g), in all subcontracts exceeding $500,000.

[68 FR 56562, Oct. 1, 2003, as amended at 69 FR 55991, Sept. 17, 2004; 
84 FR 12142, Apr. 1, 2019]



252.226-7002  Representation for Demonstration Project for Contractors
Employing Persons with Disabilities.

    As prescribed in 226.7203, use the following provision:

   Representation for Demonstration Project for Contractors Employing 
                  Persons With Disabilities (DEC 2019)

    (a) Definitions. As used in this provision--
    Eligible contractor means a business entity operated on a for-profit 
or nonprofit basis that--
    (1) Employs severely disabled individuals at a rate that averages 
not less than 33 percent of its total workforce over the 12-month period 
prior to issuance of the solicitation;
    (2) Pays not less than the minimum wage prescribed pursuant to 29 
U.S.C. 206 to the employees who are severely disabled individuals; and
    (3) Provides, for its employees, health insurance and a retirement 
plan comparable to those provided for employees by business entities of 
similar size in its industrial sector or geographic region.
    Severely disabled individual means an individual with a disability 
(as defined in 42 U.S.C. 12102) who has a severe physical or mental 
impairment that seriously limits one or more functional capacities.
    (b) Demonstration Project. This solicitation is issued pursuant to 
the Demonstration Project for Contractors Employing Persons with 
Disabilities. The purpose of the Demonstration Project is to provide 
defense contracting opportunities for entities that employ severely 
disabled individuals. To be eligible for award, an offeror must be an 
eligible contractor as defined in paragraph (a) of this provision.
    (c) Representation. The offeror represents that it [] is [] is not 
an eligible contractor as defined in paragraph (a) of this provision.


(End of provision)

[84 FR 72561, Dec. 31, 2019]



252.227-7000  Non-estoppel.

    As prescribed at 227.7009-1, insert the following clause in patent 
releases, license agreements, and assignments:

                         Non-Estoppel (OCT 1966)

    The Government reserves the right at any time to contest the 
enforceability, validity, scope of, or the title to any patent or patent 
application herein licensed without waiving or forfeiting any right 
under this contract.

                             (End of clause)



252.227-7001  Release of past infringement.

    As prescribed at 227.7009-2(a), insert the following clause in 
patent releases, license agreements, and assignments:

                 Release of Past Infringement (SEP 2019)

    The Contractor hereby releases each and every claim and demand which 
the Contractor now has or may hereafter have against the Government for 
the manufacture or use by or for the Government prior to the effective 
date of this contract, of any inventions covered by (i) any of the 
patents and applications for patent identified in this contract, and 
(ii) any other patent or application for patent owned or hereafter 
acquired by the Contractor, insofar as and only to the extent that such 
other patent or patent application covers the manufacture, use, or 
disposition of [description of subject matter].*
---------------------------------------------------------------------------

    *Bracketed portions of the clause may be omitted when not 
appropriate or not encompassed by the release as negotiated.
---------------------------------------------------------------------------

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 84 FR 48500, Sept. 13, 2019]



252.227-7002  Readjustment of payments.

    As prescribed at 227.7009-2(b), insert the following clause in 
patent releases, license agreements, and assignments:

                   Readjustment of Payments (SEP 2019)

    (a) If any license, under substantially the same patents and 
authorizing substantially the same acts which are authorized under this 
contract, has been or shall hereafter be

[[Page 549]]

granted within the United States, on royalty terms which are more 
favorable to the licensee than those contained herein, the Government 
shall be entitled to the benefit of such more favorable terms with 
respect to all royalties accruing under this contract after the date 
such more favorable terms become effective, and the Contractor shall 
promptly notify the Contracting Officer in writing of the granting of 
such more favorable terms.
    (b) In the event any claim of any patent hereby licensed is 
construed or held invalid by decision of a court of competent 
jurisdiction, the requirement to pay royalties under this contract 
insofar as its arises solely by reason of such claim, and any other 
claim not materially different therefrom, shall be interpreted in 
conformity with the court's decision as to the scope of validity of such 
claims; Provided, however, that in the event such decision is modified 
or reversed on appeal, the requirement to pay royalties under this 
contract shall be interpreted in conformity with the final decision 
rendered on such appeal.

                             (End of clause)

[50 FR 12272, Mar. 28, 1985, as amended at 84 FR 48503, Sept. 13, 2019]



252.227-7003  Termination.

    As prescribed at 227.7009-2(c), insert the following clause in 
patent releases, license agreements, and assignments:

                         Termination (AUG 1984)

    Notwithstanding any other provision of this contract, the Government 
shall have the right to terminate the within license, in whole or in 
part, by giving the Contractor not less than thirty (30) days notice in 
writing of the date such termination is to be effective; provided, 
however, that such termination shall not affect the obligation of the 
Government to pay royalties which have accrued prior to the effective 
date of such termination.

                             (End of clause)



252.227-7004  License grant.

    As prescribed at 227.7009-3(a), insert the following clause in 
patent releases, license agreements, and assignments:

                        License Grant (AUG 1984)

    (a) The Contractor hereby grants to the Government an irrevocable, 
nonexclusive, nontransferable, and paid up license under the following 
patents, applications for patent, and any patents granted on such 
applications, and under any patents which may issue as the result of any 
reissue, division or continuation thereof, to practice by or cause to be 
practiced for the Government throughout the world, any and all of the 
inventions thereunder, in the manufacture and use of any article or 
material, in the use of any method or process, and in the disposition of 
any article or material in accordance with law:
U.S. Patent No._________________________________________________________
Date____________________________________________________________________
Application Serial No.__________________________________________________
Filing Date_____________________________________________________________

together with corresponding foreign patents and foreign applications for 
patents, insofar as the Contractor has the right to grant licenses 
thereunder without incurring an obligation to pay royalties or other 
compensation to others solely on account of such grant.
    (b) No rights are granted or implied by the agreement under any 
other patents other than as provided above or by operation of law.
    (c) Nothing contained herein shall limit any rights which the 
Government may have obtained by virtue of prior contracts or by 
operation of law or otherwise.

                             (End of clause)



252.227-7005  License term.

    As prescribed at 227.7009-3(b), insert one of the following clauses 
in patent releases, license agreements, and assignments:

                         License Term (OCT 2001)

    Alternate I (AUG 1984). The license hereby granted shall remain in 
full force and effect for the full term of each of the patents referred 
to in the ``License Grant'' clause of this contract and any and all 
patents hereafter issued on applications for patent referred to in such 
``License Grant'' clause.

    Alternate II (OCT 2001). The license hereby granted shall terminate 
on the ____ day of ____ ,____; Provided, however, that said termination 
shall be without prejudice to the completion of any contract entered 
into by the Government prior to said date of termination or to the use 
or disposition thereafter of any articles or materials manufactured by 
or for the Government under this license.

[56 FR 36479, July 31, 1991, as amended at 66 FR 49861, Oct. 1, 2001]

[[Page 550]]



252.227-7006  License grant--running royalty.

    As prescribed at 227.7009-4(a), insert the following clause in 
patent releases, license agreements, and assignments:

                License Grant--Running Royalty (AUG 1984)

    (a) The Contractor hereby grants to the Government, as represented 
by the Secretary of _____, an irrevocable, nonexclusive, nontransferable 
license under the following patents, applications for patent, and any 
patents granted on such applications, and under any patents which may 
issue as the result of any reissue, division, or continuation thereunder 
to practice by or cause to be practiced for the Department of ____, 
throughout the world, any and all of the inventions thereunder in the 
manufacture and use of any article or material, in the use of any method 
or process, and in the disposition of any article or material in 
accordance with law:
U.S. Patent No._________________________________________________________
Date____________________________________________________________________
Application Serial No.__________________________________________________
Filing Date_____________________________________________________________

together with corresponding foreign patents and foreign applications for 
patent, insofar as the Contractor has the right to grant licenses 
thereunder without incurring an obligation to pay royalties or other 
compensation to others solely on account of such grant.
    (b) No rights are granted or implied by the agreement under any 
other patents other than as provided above or by operation of law.
    (c) Nothing contained herein shall limit any rights which the 
Government may have obtained by virtue of prior contracts or by 
operation of law or otherwise.

                             (End of clause)



252.227-7007  License term--running royalty.

    As prescribed at 227.7009-4(b), insert the following clause in 
patent releases, license agreements, and assignments:

                License Term--Running Royalty (AUG 1984)

    The license hereby granted shall remain in full force and effect for 
the full term of each of the patents referred to in the ``License 
Grant'' clause of this contract and any and all patents hereafter issued 
on applications for patent referred to above unless sooner terminated as 
elsewhere herein provided.

                             (End of clause)



252.227-7008  Computation of royalties.

    As prescribed at 227.7009-4(c), insert the following clause in 
patent releases, license agreements, and assignments:

                   Computation of Royalties (AUG 1984)

    Subject to the conditions hereinafter stated, royalties shall accrue 
to the Contractor under this agreement on all articles or materials 
embodying, or manufactured by the use of, any or all inventions claimed 
under any unexpired United States patent licensed herein, upon 
acceptance thereof by the Department of ______, at the rate of ____ 
percent of the net selling price of such articles or materials (amount) 
per (name of item) * whether manufactured by the Government or procured 
under a fixed price contract, and at the rate of (amount) per (name of 
item) acquired or manufactured by a Contractor performing under a cost-
reimbursement contract. With respect to such articles or materials made 
by the Department of ______, ``net selling price,'' as used in this 
paragraph, means the actual cost of direct labor and materials without 
allowance for overhead and supervision.
---------------------------------------------------------------------------

    * Use bracketed matter as appropriate.
---------------------------------------------------------------------------

                             (End of clause)



252.227-7009  Reporting and payment of royalties.

    As prescribed at 227.7009-4(d), insert the following clause in 
patent releases, license agreements, and assignments:

              Reporting and Payment of Royalties (SEP 2019)

    (a) The [insert the Contracting Officer or the name of the 
designated office, in accordance with agency procedures] shall, on or 
before the sixtieth (60th) day next following the end of each yearly* 
period ending ______ during which royalties have accrued under this 
license, deliver to the Contractor, subject to military security 
regulations, a report in writing furnishing necessary information 
relative to royalties which have accrued under this contract.
---------------------------------------------------------------------------

    * The frequency, date, and length of reporting periods should be 
selected as appropriate to the particular circumstances of the contract.
---------------------------------------------------------------------------

    (b) Royalties which have accrued under this contract during the 
yearly* period ending ______ shall be paid to the Contractor (if 
appropriations therefor are available or become available) within sixty 
(60) days next following the receipt of a voucher from the Contractor 
submitted in accordance

[[Page 551]]

with the report referred to in (a) of this clause; Provided, that the 
Government shall not be obligated to pay, in respect of any such yearly 
period, on account of the combined royalties accruing under this 
contract directly and under any separate licenses granted pursuant to 
the ``License to Other Government Agencies'' clause (if any) of this 
contract, an amount greater than ______ dollars ($______), and if such 
combined royalties exceed the said maximum yearly obligation, each 
department or agency shall pay a pro rata share of the said maximum 
yearly obligation as determined by the proportion its accrued royalties 
bear to the combined total of accrued royalties.

                             (End of clause)

[50 FR 12272, Mar. 28, 1985, as amended at 84 FR 48504, Sept. 13, 2019]



252.227-7010  License to other Government agencies.

    As prescribed at 227.7009-4(e), insert the following clause in 
patent releases, license agreements, and assignments:

             License to Other Government Agencies (AUG 1984)

    The Contractor hereby agrees to grant a separate license under the 
patents, applications for patents, and improvements referred to in the 
``License Grant'' clause of this contract, on the same terms and 
conditions as appear in this license contract, to any other department 
or agency of the Government at any time on receipt of a written request 
for such a license from such department or agency; Provided, however, 
that as to royalties which accrue under such separate licenses, reports 
and payments shall be made directly to the Contractor by each such other 
department or agency pursuant to the terms of such separate licenses. 
The Contractor shall notify the Licensee hereunder promptly upon receipt 
of any request for license hereunder.

                             (End of clause)



252.227-7011  Assignments.

    As prescribed at 227.7010, insert the following clause in 
assignments.

                          Assignment (AUG 1984)

    The Contractor hereby conveys to the Government, as represented by 
the Secretary of ______, the entire right, title, and interest in and to 
the following patents (and applications for patent), in and to the 
inventions thereof, and in and to all claims and demands whatsoever for 
infringement thereof heretofore accrued, the same to be held and enjoyed 
by the Government through its duly appointed representatives to the full 
end of the term of said patents (and to the full end of the terms of all 
patents which may be granted upon said applications for patent, or upon 
any division, continuation-in-part or continuation thereof):

U.S. Patent No._________________________________________________________
Date____________________________________________________________________
Name of Inventor________________________________________________________
U.S. Application Serial No._____________________________________________
Filing Date_____________________________________________________________
Name of Inventor________________________________________________________

together with corresponding foreign patents and applications for patent 
insofar as the Contractor has the right to assign the same.

                             (End of clause)



252.227-7012  Patent license and release contract.

    As prescribed at 227.7012, insert the following clause in patent 
releases, license agreements, and assignments:
________________________________________________________________________
(Contract No.)

             Patent License and Release Contract (SEP 1999)

    This CONTRACT is effective as of the __ day of [month, year], 
between the UNITED STATES OF AMERICA (hereinafter called the 
Government), and _____ (hereinafter called the Contractor), (a 
corporation organized and existing under the laws of the State of 
_____), (a partnership consisting of _____), (an individual trading as 
_____), of the City of _____, in the State of _____.
    Whereas, the Contractor warrants that it has the right to grant the 
within license and release, and the Government desires to procure the 
same, and
    Whereas, this contract is authorized by law, including 10 U.S.C. 
2386.
    Now Therefore, in consideration of the grant, release and agreements 
hereinafter recited, the parties have agreed as follows:
    Article 1. License Grant.*
    (Insert the clause at 252.227-7004 for a paid up license, or the 
clause at 252.227-7006 for a license on a running royalty basis.)
    Article 2. License Term.*
    (Insert the appropriate alternative clause at 252.227-7005 for a 
paid up license, or the clause at 252.227-7007 for a license on a 
running royalty basis.)
    Article 3. Release of Past Infringement.
    (Insert the clause at 252.227-7001.)
    Article 4. Non-Estoppel.
    (Insert the clause at 252.227-7000.)
    Article 5. Payment.
    The Contractor shall be paid the sum of ___ Dollars ($___) in full 
compensation for the rights herein granted and agreed to be granted. 
(For a license on a running royalty basis, insert the clause at 252.227-
7006 in

[[Page 552]]

accordance with the instructions therein, and also the clause as 
specified at 252.227-7002 and 252.227-7009 and 252.227-7010.)
    Article 6. Covenant Against Contingent Fees.
    (Insert the clause at FAR 52.203-5.)
    Article 7. Assignment of Claims.
    (Insert the clause at FAR 52.232-23.)
    Article 8. Gratuities.
    (Insert the clause at FAR 52.203-3.)
    Article 9. Disputes.
    (Insert the clause at FAR 52.233-1.)
    Article 10. Successors and Assignees.
    This Agreement shall be binding upon the Contractor, its 
successors** and assignees, but nothing contained in this Article shall 
authorize an assignment of any claim against the Government otherwise 
than as permitted by law.
    In Witness Whereof, the parties hereto have executed this contract.

THE UNITED STATES OF AMERICA
By______________________________________________________________________
Date____________________________________________________________________
(Signature and Title of
Contractor Representative)______________________________________________
By______________________________________________________________________
Date____________________________________________________________________

    *If only a release is procured, delete this article; if an 
assignment is procured, use the clause at 252.227-7011.
    **When the Contractor is an individual, change ``successors'' to 
``heirs''; if a partnership, modify appropriately.

                             (End of clause)

[64 FR 49685, Sept. 14, 1999]



252.227-7013  Rights in technical data--Noncommercial items.

    As prescribed in 227.7103-6(a), use the following clause:

        Rights in Technical Data--Noncommercial Items (FEB 2014)

    (a) Definitions. As used in this clause--
    (1) Computer data base means a collection of data recorded in a form 
capable of being processed by a computer. The term does not include 
computer software.
    (2) Computer program means a set of instructions, rules, or routines 
recorded in a form that is capable of causing a computer to perform a 
specific operation or series of operations.
    (3) 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.
    (4) Computer software documentation means owner's manuals, user's 
manuals, installation instructions, operating instructions, and other 
similar items, regardless of storage medium, that explain the 
capabilities of the computer software or provide instructions for using 
the software.
    (5) Covered Government support contractor means a contractor (other 
than a litigation support contractor covered by 252.204-7014)under a 
contract, the primary purpose of which is to furnish independent and 
impartial advice or technical assistance directly to the Government in 
support of the Government's management and oversight of a program or 
effort (rather than to directly furnish an end item or service to 
accomplish a program or effort), provided that the contractor--
    (i) Is not affiliated with the prime contractor or a first-tier 
subcontractor on the program or effort, or with any direct competitor of 
such prime contractor or any such first-tier subcontractor in furnishing 
end items or services of the type developed or produced on the program 
or effort; and
    (ii) Receives access to technical data or computer software for 
performance of a Government contract that contains the clause at 
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
    (6) Detailed manufacturing or process data means technical data that 
describe the steps, sequences, and conditions of manufacturing, 
processing or assembly used by the manufacturer to produce an item or 
component or to perform a process.
    (7) Developed means that an item, component, or process exists and 
is workable. Thus, the item or component must have been constructed or 
the process practiced. Workability is generally established when the 
item, component, or process has been analyzed or tested sufficiently to 
demonstrate to reasonable people skilled in the applicable art that 
there is a high probability that it will operate as intended. Whether, 
how much, and what type of analysis or testing is required to establish 
workability depends on the nature of the item, component, or process, 
and the state of the art. To be considered ``developed,'' the item, 
component, or process need not be at the stage where it could be offered 
for sale or sold on the commercial market, nor must the item, component, 
or process be actually reduced to practice within the meaning of Title 
35 of the United States Code.
    (8) Developed exclusively at private expense means development was 
accomplished entirely with costs charged to indirect cost pools, costs 
not allocated to a government contract, or any combination thereof.
    (i) Private expense determinations should be made at the lowest 
practicable level.

[[Page 553]]

    (ii) Under fixed-price contracts, when total costs are greater than 
the firm-fixed-price or ceiling price of the contract, the additional 
development costs necessary to complete development shall not be 
considered when determining whether development was at government, 
private, or mixed expense.
    (9) Developed exclusively with government funds means development 
was not accomplished exclusively or partially at private expense.
    (10) Developed with mixed funding means development was accomplished 
partially with costs charged to indirect cost pools and/or costs not 
allocated to a government contract, and partially with costs charged 
directly to a government contract.
    (11) Form, fit, and function data means technical data that 
describes the required overall physical, functional, and performance 
characteristics (along with the qualification requirements, if 
applicable) of an item, component, or process to the extent necessary to 
permit identification of physically and functionally interchangeable 
items.
    (12) Government purpose means any activity in which the United 
States Government is a party, including cooperative agreements with 
international or multi-national defense organizations, or sales or 
transfers by the United States Government to foreign governments or 
international organizations. Government purposes include competitive 
procurement, but do not include the rights to use, modify, reproduce, 
release, perform, display, or disclose technical data for commercial 
purposes or authorize others to do so.
    (13) Government purpose rights means the rights to--
    (i) Use, modify, reproduce, release, perform, display, or disclose 
technical data within the Government without restriction; and
    (ii) Release or disclose technical data outside the Government and 
authorize persons to whom release or disclosure has been made to use, 
modify, reproduce, release, perform, display, or disclose that data for 
United States government purposes.
    (14) Limited rights means the rights to use, modify, reproduce, 
release, perform, display, or disclose technical data, in whole or in 
part, within the Government. The Government may not, without the written 
permission of the party asserting limited rights, release or disclose 
the technical data outside the Government, use the technical data for 
manufacture, or authorize the technical data to be used by another 
party, except that the Government may reproduce, release, or disclose 
such data or authorize the use or reproduction of the data by persons 
outside the Government if--
    (i) The reproduction, release, disclosure, or use is--
    (A) Necessary for emergency repair and overhaul; or
    (B) A release or disclosure to--
    (1) A covered Government support contractor in performance of its 
covered Government support contract for use, modification, reproduction, 
performance, display, or release or disclosure to a person authorized to 
receive limited rights technical data; or
    (2) A foreign government, of technical data other than detailed 
manufacturing or process data, when use of such data by the foreign 
government is in the interest of the Government and is required for 
evaluational or informational purposes;
    (ii) The recipient of the technical data is subject to a prohibition 
on the further reproduction, release, disclosure, or use of the 
technical data; and
    (iii) The contractor or subcontractor asserting the restriction is 
notified of such reproduction, release, disclosure, or use.
    (15) 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.
    (16) Unlimited rights means rights to use, modify, reproduce, 
perform, display, release, or disclose technical data in whole or in 
part, in any manner, and for any purpose whatsoever, and to have or 
authorize others to do so.
    (b) Rights in technical data. The Contractor grants or shall obtain 
for the Government the following royalty free, world-wide, nonexclusive, 
irrevocable license rights in technical data other than computer 
software documentation (see the Rights in Noncommercial Computer 
Software and Noncommercial Computer Software Documentation clause of 
this contract for rights in computer software documentation):
    (1) Unlimited rights. The Government shall have unlimited rights in 
technical data that are--
    (i) Data pertaining to an item, component, or process which has been 
or will be developed exclusively with Government funds;
    (ii) Studies, analyses, test data, or similar data produced for this 
contract, when the study, analysis, test, or similar work was specified 
as an element of performance;
    (iii) Created exclusively with Government funds in the performance 
of a contract that does not require the development, manufacture, 
construction, or production of items, components, or processes;
    (iv) Form, fit, and function data;
    (v) Necessary for installation, operation, maintenance, or training 
purposes (other than detailed manufacturing or process data);
    (vi) Corrections or changes to technical data furnished to the 
Contractor by the Government;

[[Page 554]]

    (vii) Otherwise publicly available or have been released or 
disclosed by the Contractor or subcontractor without restrictions on 
further use, release or disclosure, other than a release or disclosure 
resulting from the sale, transfer, or other assignment of interest in 
the technical data to another party or the sale or transfer of some or 
all of a business entity or its assets to another party;
    (viii) Data in which the Government has obtained unlimited rights 
under another Government contract or as a result of negotiations; or
    (ix) Data furnished to the Government, under this or any other 
Government contract or subcontract thereunder, with--
    (A) Government purpose license rights or limited rights and the 
restrictive condition(s) has/have expired; or
    (B) Government purpose rights and the Contractor's exclusive right 
to use such data for commercial purposes has expired.
    (2) Government purpose rights. (i) The Government shall have 
government purpose rights for a five-year period, or such other period 
as may be negotiated, in technical data--
    (A) That pertain to items, components, or processes developed with 
mixed funding except when the Government is entitled to unlimited rights 
in such data as provided in paragraphs (b)(1)(ii) and (b)(1)(iv) through 
(b)(1)(ix) of this clause; or
    (B) Created with mixed funding in the performance of a contract that 
does not require the development, manufacture, construction, or 
production of items, components, or processes.
    (ii) The five-year period, or such other period as may have been 
negotiated, shall commence upon execution of the contract, subcontract, 
letter contract (or similar contractual instrument), contract 
modification, or option exercise that required development of the items, 
components, or processes or creation of the data described in paragraph 
(b)(2)(i)(B) of this clause. Upon expiration of the five-year or other 
negotiated period, the Government shall have unlimited rights in the 
technical data.
    (iii) The Government shall not release or disclose technical data in 
which it has government purpose rights unless--
    (A) Prior to release or disclosure, the intended recipient is 
subject to the non-disclosure agreement at 227.7103-7 of the Defense 
Federal Acquisition Regulation Supplement (DFARS); or
    (B) The recipient is a Government contractor receiving access to the 
data for performance of a Government contract that contains the clause 
at DFARS 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends.
    (iv) The Contractor has the exclusive right, including the right to 
license others, to use technical data in which the Government has 
obtained government purpose rights under this contract for any 
commercial purpose during the time period specified in the government 
purpose rights legend prescribed in paragraph (f)(2) of this clause.
    (3) Limited rights. (i) Except as provided in paragraphs (b)(1)(ii) 
and (b)(1)(iv) through (b)(1)(ix) of this clause, the Government shall 
have limited rights in technical data--
    (A) Pertaining to items, components, or processes developed 
exclusively at private expense and marked with the limited rights legend 
prescribed in paragraph (f) of this clause; or
    (B) Created exclusively at private expense in the performance of a 
contract that does not require the development, manufacture, 
construction, or production of items, components, or processes.
    (ii) The Government shall require a recipient of limited rights data 
for emergency repair or overhaul to destroy the data and all copies in 
its possession promptly following completion of the emergency repair/
overhaul and to notify the Contractor that the data have been destroyed.
    (iii) The Contractor, its subcontractors, and suppliers are not 
required to provide the Government additional rights to use, modify, 
reproduce, release, perform, display, or disclose technical data 
furnished to the Government with limited rights. However, if the 
Government desires to obtain additional rights in technical data in 
which it has limited rights, the Contractor agrees to promptly enter 
into negotiations with the Contracting Officer to determine whether 
there are acceptable terms for transferring such rights. All technical 
data in which the Contractor has granted the Government additional 
rights shall be listed or described in a license agreement made part of 
the contract. The license shall enumerate the additional rights granted 
the Government in such data.
    (iv) The Contractor acknowledges that--
    (A) Limited rights data are authorized to be released or disclosed 
to covered Government support contractors;
    (B) The Contractor will be notified of such release or disclosure;
    (C) The Contractor (or the party asserting restrictions as 
identified in the limited rights legend) may require each such covered 
Government support contractor to enter into a non-disclosure agreement 
directly with the Contractor (or the party asserting restrictions) 
regarding the covered Government support contractor's use of such data, 
or alternatively, that the Contractor (or party asserting restrictions) 
may waive in writing the requirement for a non-disclosure agreement; and
    (D) Any such non-disclosure agreement shall address the restrictions 
on the covered Government support contractor's use of the limited rights 
data as set forth in the clause

[[Page 555]]

at 252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends. The non-
disclosure agreement shall not include any additional terms and 
conditions unless mutually agreed to by the parties to the non-
disclosure agreement.
    (4) Specifically negotiated license rights. The standard license 
rights granted to the Government under paragraphs (b)(1) through (b)(3) 
of this clause, including the period during which the Government shall 
have government purpose rights in technical data, may be modified by 
mutual agreement to provide such rights as the parties consider 
appropriate but shall not provide the Government lesser rights than are 
enumerated in paragraph (a)(14) of this clause. Any rights so negotiated 
shall be identified in a license agreement made part of this contract.
    (5) Prior government rights. Technical data that will be delivered, 
furnished, or otherwise provided to the Government under this contract, 
in which the Government has previously obtained rights shall be 
delivered, furnished, or provided with the pre-existing rights, unless--
    (i) The parties have agreed otherwise; or
    (ii) Any restrictions on the Government's rights to use, modify, 
reproduce, release, perform, display, or disclose the data have expired 
or no longer apply.
    (6) Release from liability. The Contractor agrees to release the 
Government from liability for any release or disclosure of technical 
data made in accordance with paragraph (a)(14) or (b)(2)(iii) of this 
clause, in accordance with the terms of a license negotiated under 
paragraph (b)(4) of this clause, or by others to whom the recipient has 
released or disclosed the data and to seek relief solely from the party 
who has improperly used, modified, reproduced, released, performed, 
displayed, or disclosed Contractor data marked with restrictive legends.
    (c) Contractor rights in technical data. All rights not granted to 
the Government are retained by the Contractor.
    (d) Third party copyrighted data. The Contractor shall not, without 
the written approval of the Contracting Officer, incorporate any 
copyrighted data in the technical data to be delivered under this 
contract unless the Contractor is the copyright owner or has obtained 
for the Government the license rights necessary to perfect a license or 
licenses in the deliverable data of the appropriate scope set forth in 
paragraph (b) of this clause, and has affixed a statement of the license 
or licenses obtained on behalf of the Government and other persons to 
the data transmittal document.
    (e) Identification and delivery of data to be furnished with 
restrictions on use, release, or disclosure. (1) This paragraph does not 
apply to restrictions based solely on copyright.
    (2) Except as provided in paragraph (e)(3) of this clause, technical 
data that the Contractor asserts should be furnished to the Government 
with restrictions on use, release, or disclosure are identified in an 
attachment to this contract (the Attachment). The Contractor shall not 
deliver any data with restrictive markings unless the data are listed on 
the Attachment.
    (3) In addition to the assertions made in the Attachment, other 
assertions may be identified after award when based on new information 
or inadvertent omissions unless the inadvertent omissions would have 
materially affected the source selection decision. Such identification 
and assertion shall be submitted to the Contracting Officer as soon as 
practicable prior to the scheduled date for delivery of the data, in the 
following format, and signed by an official authorized to contractually 
obligate the Contractor: Identification and Assertion of Restrictions on 
the Government's Use, Release, or Disclosure of Technical Data.
    The Contractor asserts for itself, or the persons identified below, 
that the Government's rights to use, release, or disclose the following 
technical data should be restricted--

------------------------------------------------------------------------
                                                               Name of
     Technical data to be                       Asserted       person
 furnished with restrictions     Basis for       rights       asserting
             \1\               assertion \2\  category \3\  restrictions
                                                                 \4\
------------------------------------------------------------------------
(LIST).......................  (LIST).......  (LIST)......  (LIST)
------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components or processes
  developed at private expense, identify both the data and each such
  item, component, or process.
\2\ Generally, the development of an item, component, or process at
  private expense, either exclusively or partially, is the only basis
  for asserting restrictions on the Government's rights to use, release,
  or disclose technical data pertaining to such items, components, or
  processes. Indicate whether development was exclusively or partially
  at private expense. If development was not at private expense, enter
  the specific reason for asserting that the Government's rights should
  be restricted.
\3\ Enter asserted rights category (e.g., government purpose license
  rights from a prior contract, rights in SBIR data generated under
  another contract, limited or government purpose rights under this or a
  prior contract, or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.


Date____________________________________________________________________

Printed Name and Title__________________________________________________

________________________________________________________________________

Signature_______________________________________________________________

                  (End of identification and assertion)

    (4) When requested by the Contracting Officer, the Contractor shall 
provide sufficient information to enable the Contracting Officer to 
evaluate the Contractor's assertions. The Contracting Officer reserves 
the right to add the Contractor's assertions to the Attachment and 
validate any listed assertion,

[[Page 556]]

at a later date, in accordance with the procedures of the Validation of 
Restrictive Markings on Technical Data clause of this contract.
    (f) Marking requirements. The Contractor, and its subcontractors or 
suppliers, may only assert restrictions on the Government's rights to 
use, modify, reproduce, release, perform, display, or disclose technical 
data to be delivered under this contract by marking the deliverable data 
subject to restriction. Except as provided in paragraph (f)(5) of this 
clause, only the following legends are authorized under this contract: 
the government purpose rights legend at paragraph (f)(2) of this clause; 
the limited rights legend at paragraph (f)(3) of this clause; or the 
special license rights legend at paragraph (f)(4) of this clause; and/or 
a notice of copyright as prescribed under 17 U.S.C. 401 or 402.
    (1) General marking instructions. The Contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark the 
appropriate legend on all technical data that qualify for such markings. 
The authorized legends shall be placed on the transmittal document or 
storage container and, for printed material, each page of the printed 
material containing technical data for which restrictions are asserted. 
When only portions of a page of printed material are subject to the 
asserted restrictions, such portions shall be identified by circling, 
underscoring, with a note, or other appropriate identifier. Technical 
data transmitted directly from one computer or computer terminal to 
another shall contain a notice of asserted restrictions. Reproductions 
of technical data or any portions thereof subject to asserted 
restrictions shall also reproduce the asserted restrictions.
    (2) Government purpose rights markings. Data delivered or otherwise 
furnished to the Government purpose rights shall be marked as follows:

                        Government Purpose Rights

Contract No.____________________________________________________________

Contractor Name_________________________________________________________

Contractor Address______________________________________________________

________________________________________________________________________

Expiration Date_________________________________________________________
    The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose these technical data are restricted by paragraph 
(b)(2) of the Rights in Technical Data--Noncommercial Items clause 
contained in the above identified contract. No restrictions apply after 
the expiration date shown above. Any reproduction of technical data or 
portions thereof marked with this legend must also reproduce the 
markings.

                             (End of legend)

    (3) Limited rights markings. Data delivered or otherwise furnished 
to the Government with limited rights shall be marked with the following 
legend:

                             Limited Rights

Contract No.____________________________________________________________

Contractor Name_________________________________________________________

Contractor Address______________________________________________________

________________________________________________________________________
    The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose these technical data are restricted by paragraph 
(b)(3) of the Rights in Technical Data--Noncommercial Items clause 
contained in the above identified contract. Any reproduction of 
technical data or portions thereof marked with this legend must also 
reproduce the markings. Any person, other than the Government, who has 
been provided access to such data must promptly notify the above named 
Contractor.

                             (End of legend)

    (4) Special license rights markings. (i) Data in which the 
Government's rights stem from a specifically negotiated license shall be 
marked with the following legend:

                         Special License Rights

    The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose these data are restricted by Contract No. ________ 
(Insert contract number) ________, License No. ________ (Insert license 
identifier) ________. Any reproduction of technical data or portions 
thereof marked with this legend must also reproduce the markings.

                             (End of legend)

    (ii) For purposes of this clause, special licenses do not include 
government purpose license rights acquired under a prior contract (see 
paragraph (b)(5) of this clause).
    (5) Pre-existing data markings. If the terms of a prior contract or 
license permitted the Contractor to restrict the Government's rights to 
use, modify, reproduce, release, perform, display, or disclose technical 
data deliverable under this contract, and those restrictions are still 
applicable, the Contractor may mark such data with the appropriate 
restrictive legend for which the data qualified under the prior contract 
or license. The marking procedures in paragraph (f)(1) of this clause 
shall be followed.
    (g) Contractor procedures and records. Throughout performance of 
this contract, the Contractor and its subcontractors or suppliers that 
will deliver technical data with other than unlimited rights, shall--

[[Page 557]]

    (1) Have, maintain, and follow written procedures sufficient to 
assure that restrictive markings are used only when authorized by the 
terms of this clause; and
    (2) Maintain records sufficient to justify the validity of any 
restrictive markings on technical data delivered under this contract.
    (h) Removal of unjustified and nonconforming markings--(1) 
Unjustified technical data markings. The rights and obligations of the 
parties regarding the validation of restrictive markings on technical 
data furnished or to be furnished under this contract are contained in 
the Validation of Restrictive Markings on Technical Data clause of this 
contract. Notwithstanding any provision of this contract concerning 
inspection and acceptance, the Government may ignore or, at the 
Contractor's expense, correct or strike a marking if, in accordance with 
the procedures in the Validation of Restrictive Markings on Technical 
Data clause of this contract, a restrictive marking is determined to be 
unjustified.
    (2) Nonconforming technical data markings. A nonconforming marking 
is a marking placed on technical data delivered or otherwise furnished 
to the Government under this contract that is not in the format 
authorized by this contract. Correction of nonconforming markings is not 
subject to the Validation of Restrictive Markings on Technical Data 
clause of this contract. If the Contracting Officer notifies the 
Contractor of a nonconforming marking and the Contractor fails to remove 
or correct such marking within sixty (60) days, the Government may 
ignore or, at the Contractor's expense, remove or correct any 
nonconforming marking.
    (i) Relation to patents. Nothing contained in this clause shall 
imply a license to the Government under any patent or be construed as 
affecting the scope of any license or other right otherwise granted to 
the Government under any patent.
    (j) Limitation on charges for rights in technical data. (1) The 
Contractor shall not charge to this contract any cost, including, but 
not limited to, license fees, royalties, or similar charges, for rights 
in technical data to be delivered under this contract when--
    (i) The Government has acquired, by any means, the same or greater 
rights in the data; or
    (ii) The data are available to the public without restrictions.
    (2) The limitation in paragraph (j)(1) of this clause--
    (i) Includes costs charged by a subcontractor or supplier, at any 
tier, or costs incurred by the Contractor to acquire rights in 
subcontractor or supplier technical data, if the subcontractor or 
supplier has been paid for such rights under any other Government 
contract or under a license conveying the rights to the Government; and
    (ii) Does not include the reasonable costs of reproducing, handling, 
or mailing the documents or other media in which the technical data will 
be delivered.
    (k) Applicability to subcontractors or suppliers. (1) The Contractor 
shall ensure that the rights afforded its subcontractors and suppliers 
under 10 U.S.C. 2320, 10 U.S.C. 2321, and the identification, assertion, 
and delivery processes of paragraph (e) of this clause are recognized 
and protected.
    (2) Whenever any technical data for noncommercial items, or for 
commercial items developed in any part at Government expense, is to be 
obtained from a subcontractor or supplier for delivery to the Government 
under this contract, the Contractor shall use this same clause in the 
subcontract or other contractual instrument, including subcontracts or 
other contractual instruments for commercial items, and require its 
subcontractors or suppliers to do so, without alteration, except to 
identify the parties. This clause will govern the technical data 
pertaining to noncommercial items or to any portion of a commercial item 
that was developed in any part at Government expense, and the clause at 
252.227-7015 will govern the technical data pertaining to any portion of 
a commercial item that was developed exclusively at private expense. No 
other clause shall be used to enlarge or diminish the Government's, the 
Contractor's, or a higher-tier subcontractor's or supplier's rights in a 
subcontractor's or supplier's technical data.
    (3) Technical data required to be delivered by a subcontractor or 
supplier shall normally be delivered to the next higher-tier contractor, 
subcontractor, or supplier. However, when there is a requirement in the 
prime contract for data which may be submitted with other than unlimited 
rights by a subcontractor or supplier, then said subcontractor or 
supplier may fulfill its requirement by submitting such data directly to 
the Government, rather than through a higher-tier contractor, 
subcontractor, or supplier.
    (4) The Contractor and higher-tier subcontractors or suppliers shall 
not use their power to award contracts as economic leverage to obtain 
rights in technical data from their subcontractors or suppliers.
    (5) In no event shall the Contractor use its obligation to recognize 
and protect subcontractor or supplier rights in technical data as an 
excuse for failing to satisfy its contractual obligations to the 
Government.

                             (End of clause)

    Alternate I (JUN 1995). As prescribed in 227.7103-6(b)(1)), add the 
following paragraph (l) to the basic clause:

    (l) Publication for sale. (1) This paragraph only applies to 
technical data in which the Government has obtained unlimited rights

[[Page 558]]

or a license to make an unrestricted release of technical data.
    (2) The Government shall not publish a deliverable technical data 
item or items identified in this contract as being subject to paragraph 
(l) of this clause or authorize others to publish such data on its 
behalf if, prior to publication for sale by the Government and within 
twenty-four (24) months following the date specified in this contract 
for delivery of such data or the removal of any national security or 
export control restrictions, whichever is later, the Contractor 
publishes that item or items for sale and promptly notifies the 
Contracting Officer of such publication(s). Any such publication shall 
include a notice identifying the number of this contract and the 
Government's rights in the published data.
    (3) This limitation on the Government's right to publish for sale 
shall continue as long as the data are reasonably available to the 
public for purchase.

    Alternate II (MAR 2011)
    As prescribed in 227.7103-6(b)(2), add the following paragraphs 
(a)(17) and (b)(7) to the basic clause:

    (a)(17) ``Vessel design'' means the design of a vessel, boat, or 
craft, and its components, including the hull, decks, superstructure, 
and the exterior surface shape of all external shipboard equipment and 
systems. The term includes designs covered by 10 U.S.C. 7317, and 
designs protectable under 17 U.S.C. 1301, et seq.
    (b)(7) Vessel designs. For a vessel design (including a vessel 
design embodied in a useful article) that is developed or delivered 
under this contract, the Government shall have the right to make and 
have made any useful article that embodies the vessel design, to import 
the article, to sell the article, and to distribute the article for sale 
or to use the article in trade, to the same extent that the Government 
is granted rights in the technical data pertaining to the vessel design.

[60 FR 33490, June 28, 1995, as amended at 60 FR 61602, Nov. 30, 1995; 
74 FR 61044, Nov. 23, 2009; 76 FR 11367, Mar. 2, 2011; 76 FR 58148, 
Sept. 20, 2011; 77 FR 10976, Feb. 24, 2012; 78 FR 30238, May 22, 2013; 
78 FR 37990, June 25, 2013; 79 FR 11341, Feb. 28, 2014]



252.227-7014  Rights in noncommercial computer software and 
noncommercial computer software documentation.

    As prescribed in 227.7203-6(a)(1), use the following clause.

  Rights in Noncommercial Computer Software and Noncommercial Computer 
                    Software Documentation (FEB 2014)

    (a) Definitions. As used in this clause--
    (1) Commercial computer software means software developed or 
regularly used for nongovernmental purposes which--
    (i) Has been sold, leased, or licensed to the public;
    (ii) Has been offered for sale, lease, or license to the public;
    (iii) Has not been offered, sold, leased, or licensed to the public 
but will be available for commercial sale, lease, or license in time to 
satisfy the delivery requirements of this contract; or
    (iv) Satisfies a criterion expressed in paragraph (a)(1) (i), (ii), 
or (iii) of this clause and would require only minor modification to 
meet the requirements of this contract.
    (2) Computer database means a collection of recorded data in a form 
capable of being processed by a computer. The term does not include 
computer software.
    (3) Computer program means a set of instructions, rules, or 
routines, recorded in a form that is capable of causing a computer to 
perform a specific operation or series of operations.
    (4) 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 databases or computer software 
documentation.
    (5) Computer software documentation means owner's manuals, user's 
manuals, installation instructions, operating instructions, and other 
similar items, regardless of storage medium, that explain the 
capabilities of the computer software or provide instructions for using 
the software.
    (6) Covered Government support contractor means a contractor (other 
than a litigation support contractor covered by 252.204-7014) under a 
contract, the primary purpose of which is to furnish independent and 
impartial advice or technical assistance directly to the Government in 
support of the Government's management and oversight of a program or 
effort (rather than to directly furnish an end item or service to 
accomplish a program or effort), provided that the contractor--
    (i) Is not affiliated with the prime contractor or a first-tier 
subcontractor on the program or effort, or with any direct competitor of 
such prime contractor or any such first-tier subcontractor in furnishing 
end items or services of the type developed or produced on the program 
or effort; and
    (ii) Receives access to technical data or computer software for 
performance of a Government contract that contains the clause at 
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
    (7) Developed means that--

[[Page 559]]

    (i) A computer program has been successfully operated in a computer 
and tested to the extent sufficient to demonstrate to reasonable persons 
skilled in the art that the program can reasonably be expected to 
perform its intended purpose;
    (ii) Computer software, other than computer programs, has been 
tested or analyzed to the extent sufficient to demonstrate to reasonable 
persons skilled in the art that the software can reasonably be expected 
to perform its intended purpose; or
    (iii) Computer software documentation required to be delivered under 
a contract has been written, in any medium, in sufficient detail to 
comply with requirements under that contract.
    (8) Developed exclusively at private expense means development was 
accomplished entirely with costs charged to indirect cost pools, costs 
not allocated to a government contract, or any combination thereof.
    (i) Private expense determinations should be made at the lowest 
practicable level.
    (ii) Under fixed-price contracts, when total costs are greater than 
the firm-fixed-price or ceiling price of the contract, the additional 
development costs necessary to complete development shall not be 
considered when determining whether development was at government, 
private, or mixed expense.
    (9) Developed exclusively with government funds means development 
was not accomplished exclusively or partially at private expense.
    (10) Developed with mixed funding means development was accomplished 
partially with costs charged to indirect cost pools and/or costs not 
allocated to a government contract, and partially with costs charged 
directly to a government contract.
    (11) Government purpose means any activity in which the United 
States Government is a party, including cooperative agreements with 
international or multi-national defense organizations or sales or 
transfers by the United States Government to foreign governments or 
international organizations. Government purposes include competitive 
procurement, but do not include the rights to use, modify, reproduce, 
release, perform, display, or disclose computer software or computer 
software documentation for commercial purposes or authorize others to do 
so.
    (12) Government purpose rights means the rights to--
    (i) Use, modify, reproduce, release, perform, display, or disclose 
computer software or computer software documentation within the 
Government without restriction; and
    (ii) Release or disclose computer software or computer software 
documentation outside the Government and authorize persons to whom 
release or disclosure has been made to use, modify, reproduce, release, 
perform, display, or disclose the software or documentation for United 
States government purposes.
    (13) Minor modification means a modification that does not 
significantly alter the nongovernmental function or purpose of the 
software or is of the type customarily provided in the commercial 
marketplace.
    (14) Noncommercial computer software means software that does not 
qualify as commercial computer software under paragraph (a)(1) of this 
clause.
    (15) ``Restricted rights'' apply only to noncommercial computer 
software and mean the Government's rights to--
    (i) Use a computer program with one computer at one time. The 
program may not be accessed by more than one terminal or central 
processing unit or time shared unless otherwise permitted by this 
contract;
    (ii) Transfer a computer program to another Government agency 
without the further permission of the Contractor if the transferor 
destroys all copies of the program and related computer software 
documentation in its possession and notifies the licensor of the 
transfer. Transferred programs remain subject to the provisions of this 
clause;
    (iii) Make the minimum number of copies of the computer software 
required for safekeeping (archive), backup, or modification purposes;
    (iv) Modify computer software provided that the Government may--
    (A) Use the modified software only as provided in paragraphs 
(a)(15)(i) and (iii) of this clause; and
    (B) Not release or disclose the modified software except as provided 
in paragraphs (a)(15)(ii), (v), (vi) and (vii) of this clause;
    (v) Permit contractors or subcontractors performing service 
contracts (see 37.101 of the Federal Acquisition Regulation) in support 
of this or a related contract to use computer software to diagnose and 
correct deficiencies in a computer program, to modify computer software 
to enable a computer program to be combined with, adapted to, or merged 
with other computer programs or when necessary to respond to urgent 
tactical situations, provided that--
    (A) The Government notifies the party which has granted restricted 
rights that a release or disclosure to particular contractors or 
subcontractors was made;
    (B) Such contractors or subcontractors are subject to the use and 
non-disclosure agreement at 227.7103-7 of the Defense Federal 
Acquisition Regulation Supplement (DFARS) or are Government contractors 
receiving access to the software for performance of a Government 
contract that contains the clause at DFARS 252.227-7025, Limitations on 
the Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends;
    (C) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software

[[Page 560]]

decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; 
and
    (D) Such use is subject to the limitations in paragraphs (a)(15)(i) 
through (iii) of this clause;
    (vi) Permit contractors or subcontractors performing emergency 
repairs or overhaul of items or components of items procured under this 
or a related contract to use the computer software when necessary to 
perform the repairs or overhaul, or to modify the computer software to 
reflect the repairs or overhaul made, provided that--
    (A) The intended recipient is subject to the use and non-disclosure 
agreement at DFARS 227.7103-7 or is a Government contractor receiving 
access to the software for performance of a Government contract that 
contains the clause at DFARS 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends;
    (B) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; 
and
    (C) Such use is subject to the limitations in paragraphs (a)(15)(i) 
through (iii) of this clause; and
    (vii) Permit covered Government support contractors in the 
performance of covered Government support contracts that contain the 
clause at 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends, to 
use, modify, reproduce, perform, display, or release or disclose the 
computer software to a person authorized to receive restricted rights 
computer software, provided that--
    (A) The Government shall not permit the covered Government support 
contractor to decompile, disassemble, or reverse engineer the software, 
or use software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (a)(15)(iv) of this clause, for any 
other purpose; and
    (B) Such use is subject to the limitations in paragraphs (a)(15)(i) 
through (iv) of this clause.
    (16) Unlimited rights means rights to use, modify, reproduce, 
release, perform, display, or disclose computer software or computer 
software documentation in whole or in part, in any manner and for any 
purpose whatsoever, and to have or authorize others to do so.
    (b) Rights in computer software or computer software documentation. 
The Contractor grants or shall obtain for the Government the following 
royalty free, world-wide, nonexclusive, irrevocable license rights in 
noncommercial computer software or computer software documentation. All 
rights not granted to the Government are retained by the Contractor.
    (1) Unlimited rights. The Government shall have unlimited rights 
in--
    (i) Computer software developed exclusively with Government funds;
    (ii) Computer software documentation required to be delivered under 
this contract;
    (iii) Corrections or changes to computer software or computer 
software documentation furnished to the Contractor by the Government;
    (iv) Computer software or computer software documentation that is 
otherwise publicly available or has been released or disclosed by the 
Contractor or subcontractor without restriction on further use, release 
or disclosure, other than a release or disclosure resulting from the 
sale, transfer, or other assignment of interest in the software to 
another party or the sale or transfer of some or all of a business 
entity or its assets to another party;
    (v) Computer software or computer software documentation obtained 
with unlimited rights under another Government contract or as a result 
of negotiations; or
    (vi) Computer software or computer software documentation furnished 
to the Government, under this or any other Government contract or 
subcontract thereunder with--
    (A) Restricted rights in computer software, limited rights in 
technical data, or government purpose license rights and the restrictive 
conditions have expired; or
    (B) Government purpose rights and the Contractor's exclusive right 
to use such software or documentation for commercial purposes has 
expired.
    (2) Government purpose rights. (i) Except as provided in paragraph 
(b)(1) of this clause, the Government shall have government purpose 
rights in computer software development with mixed funding.
    (ii) Government purpose rights shall remain in effect for a period 
of five years unless a different period has been negotiated. Upon 
expiration of the five-year or other negotiated period, the Government 
shall have unlimited rights in the computer software or computer 
software documentation. The government purpose rights period shall 
commence upon execution of the contract, subcontract, letter contract 
(or similar contractual instrument), contract modification, or option 
exercise that required development of the computer software.
    (iii) The Government shall not release or disclose computer software 
in which it has government purpose rights to any other person unless--
    (A) Prior to release or disclosure, the intended recipient is 
subject to the use and

[[Page 561]]

non-disclosure agreement at DFARS 227.7103-7; or
    (B) The recipient is a Government contractor receiving access to the 
software or documentation for performance of a Government contract that 
contains the clause at DFARS 252.227-7025, Limitations on the Use or 
Disclosure of Government Furnished Information Marked with Restrictive 
Legends.
    (3) Restricted rights. (i) The Government shall have restricted 
rights in noncommercial computer software required to be delivered or 
otherwise provided to the Government under this contract that were 
developed exclusively at private expense.
    (ii) The Contractor, its subcontractors, or suppliers are not 
required to provide the Government additional rights in noncommercial 
computer software delivered or otherwise provided to the Government with 
restricted rights. However, if the Government desires to obtain 
additional rights in such software, the Contractor agrees to promptly 
enter into negotiations with the Contracting Officer to determine 
whether there are acceptable terms for transferring such rights. All 
noncommercial computer software in which the Contractor has granted the 
Government additional rights shall be listed or described in a license 
agreement made part of the contract (see paragraph (b)(4) of this 
clause). The license shall enumerate the additional rights granted the 
Government.
    (iii) The Contractor acknowledges that--
    (A) Restricted rights computer software is authorized to be released 
or disclosed to covered Government support contractors;
    (B) The Contractor will be notified of such release or disclosure;
    (C) The Contractor (or the party asserting restrictions, as 
identified in the restricted rights legend) may require each such 
covered Government support contractor to enter into a non-disclosure 
agreement directly with the Contractor (or the party asserting 
restrictions) regarding the covered Government support contractor's use 
of such software, or alternatively, that the Contractor (or party 
asserting restrictions) may waive in writing the requirement for a non-
disclosure agreement; and
    (D) Any such non-disclosure agreement shall address the restrictions 
on the covered Government support contractor's use of the restricted 
rights software as set forth in the clause at 252.227-7025, Limitations 
on the Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends. The non-disclosure agreement shall not include any 
additional terms and conditions unless mutually agreed to by the parties 
to the non-disclosure agreement.
    (4) Specifically negotiated license rights. (i) The standard license 
rights granted to the Government under paragraphs (b)(1) through (b)(3) 
of this clause, including the period during which the Government shall 
have government purpose rights in computer software, may be modified by 
mutual agreement to provide such rights as the parties consider 
appropriate but shall not provide the Government lesser rights in 
computer software than are enumerated in paragraph (a)(15) of this 
clause or lesser rights in computer software documentation than are 
enumerated in paragraph (a)(14)of the Rights in Technical Data--
Noncommercial Items clause of this contract.
    (ii) Any rights so negotiated shall be identified in a license 
agreement made part of this contract.
    (5) Prior government rights. Computer software or computer software 
documentation that will be delivered, furnished, or otherwise provided 
to the Government under this contract, in which the Government has 
previously obtained rights shall be delivered, furnished, or provided 
with the pre-existing rights, unless--
    (i) The parties have agreed otherwise; or
    (ii) Any restrictions on the Government's rights to use, modify, 
reproduce, release, perform, display, or disclose the data have expired 
or no longer apply.
    (6) Release from liability. The Contractor agrees to release the 
Government from liability for any release or disclosure of computer 
software made in accordance with paragraph (a)(15) or (b)(2)(iii) of 
this clause, in accordance with the terms of a license negotiated under 
paragraph (b)(4) of this clause, or by others to whom the recipient has 
released or disclosed the software, and to seek relief solely from the 
party who has improperly used, modified, reproduced, released, 
performed, displayed, or disclosed Contractor software marked with 
restrictive legends.
    (c) Rights in derivative computer software or computer software 
documentation. The Government shall retain its rights in the unchanged 
portions of any computer software or computer software documentation 
delivered under this contract that the Contractor uses to prepare, or 
includes in, derivative computer software or computer software 
documentation.
    (d) Third party copyrighted computer software or computer software 
documentation. The Contractor shall not, without the written approval of 
the Contracting Officer, incorporate any copyrighted computer software 
or computer software documentation in the software or documentation to 
be delivered under this contract unless the Contractor is the copyright 
owner or has obtained for the Government the license rights necessary to 
perfect a license or licenses in the deliverable software or 
documentation of the appropriate scope set forth in paragraph (b) of 
this clause, and prior to delivery of such--
    (1) Computer software, has provided a statement of the license 
rights obtained in a

[[Page 562]]

form acceptable to the Contracting Officer; or
    (2) Computer software documentation, has affixed to the transmittal 
document a statement of the license rights obtained.
    (e) Identification and delivery of computer software and computer 
software documentation to be furnished with restrictions on use, 
release, or disclosure. (1) This paragraph does not apply to 
restrictions based solely on copyright.
    (2) Except as provided in paragraph (e)(3) of this clause, computer 
software that the Contractor asserts should be furnished to the 
Government with restrictions on use, release, or disclosure is 
identified in an attachment to this contract (the Attachment). The 
Contractor shall not deliver any software with restrictive markings 
unless the software is listed on the Attachment.
    (3) In addition to the assertions made in the Attachment, other 
assertions may be identified after award when based on new information 
or inadvertent omissions unless the inadvertent omissions would have 
materially affected the source selection decision. Such identification 
and assertion shall be submitted to the Contracting Officer as soon as 
practicable prior to the scheduled data for delivery of the software, in 
the following format, and signed by an official authorized to 
contractually obligate the Contractor: Identification and Assertion of 
Restrictions on the Government's Use, Release, or Disclosure of Computer 
Software.
    The Contractor asserts for itself, or the persons identified below, 
that the Government's rights to use, release, or disclose the following 
computer software should be restricted:

----------------------------------------------------------------------------------------------------------------
  Computer Software to be Furnished                                Asserted Rights      Name of Person Asserting
         With Restrictions*            Basis for Assertion**         Category***            Restrictions****
----------------------------------------------------------------------------------------------------------------
(LIST)                                (LIST)                   (LIST)                   (LIST)
----------------------------------------------------------------------------------------------------------------
*Generally, development at private expense, either exclusively or partially, is the only basis for asserting
  restrictions on the Government's rights to use, release, or disclose computer software.
**Indicate whether development was exclusively or partially at private expense. If development was not at
  private expense, enter the specific reason for asserting that the Government's rights should be restricted.
***Enter asserted rights category (e.g., restricted or government purpose rights in computer software,
  government purpose license rights from a prior contract, rights in SBIR software generated under another
  contract, or specifically negotiated licenses).
****Corporation, individual, or other person, as appropriate.


Date____________________________________________________________________

Printed Name and Title__________________________________________________

________________________________________________________________________

Signature_______________________________________________________________

                  (End of identification and assertion)

    (4) When requested by the Contracting Officer, the Contractor shall 
provide sufficient information to enable the Contracting Officer to 
evaluate the Contractor's assertions. The Contracting Officer reserves 
the right to add the Contractor's assertions to the Attachment and 
validate any listed assertion, at a later date, in accordance with the 
procedures of the Validation of Asserted Restrictions--Computer Software 
clause of this contract.
    (f) Marking requirements. The Contractor, and its subcontractors or 
suppliers, may only assert restrictions on the Government's rights to 
use, modify, reproduce, release, perform, display, or disclose computer 
software by marking the deliverable software or documentation subject to 
restriction. Except as provided in paragraph (f)(5) of this clause, only 
the following legends are authorized under this contract; the government 
purpose rights legend at paragraph (f)(2) of this clause; the restricted 
rights legend at paragraph (f)(3) of this clause; or the special license 
rights legend at paragraph (f)(4) of this clause; and/or a notice of 
copyright as prescribed under 17 U.S.C. 401 or 402.
    (1) General marking instructions. The Contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark the 
appropriate legend on all computer software that qualify for such 
markings. The authorized legends shall be placed on the transmitted 
document or software storage container and each page, or portions 
thereof, of printed material containing computer software for which 
restrictions are asserted. Computer software transmitted directly from 
one computer or computer terminal to another shall contain a notice of 
asserted restrictions. However, instructions that interfere with or 
delay the operation of computer software in order to display a 
restrictive rights legend or other license statement at any time prior 
to or during use of the computer software, or otherwise cause such 
interference or delay, shall not be inserted in software that will or 
might be used in combat or situations that simulate combat conditions, 
unless the Contracting Officer's written permission to deliver such 
software has been obtained prior to delivery. Reproductions of computer 
software or any portions thereof subject to asserted restrictions, shall 
also reproduce the asserted restrictions.
    (2) Government purpose rights markings. Computer software delivered 
or otherwise furnished to the Government with government purpose rights 
shall be marked as follows:

                        Government Purpose Rights

Contract No.____________________________________________________________


[[Page 563]]

________________________________________________________________________
Contractor Name_________________________________________________________

Contractor Address______________________________________________________

________________________________________________________________________

Expiration Date_________________________________________________________
    The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose this software are restricted by paragraph (b)(2) of 
the Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation clause contained in the above identified 
contract. No restrictions apply after the expiration date shown above. 
Any reproduction of the software or portions thereof marked with this 
legend must also reproduce the markings.

                             (End of legend)

    (3) Restricted rights markings. Software delivered or otherwise 
furnished to the Government with restricted rights shall be marked with 
the following legend:

                            Restricted Rights

Contract No.____________________________________________________________

Contractor Name_________________________________________________________

Contractor Address______________________________________________________
________________________________________________________________________
    The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose this software are restricted by paragraph (b)(3) of 
the Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation clause contained in the above identified 
contract. Any reproduction of computer software or portions thereof 
marked with this legend must also reproduce the markings. Any person, 
other than the Government, who has been provided access to such software 
must promptly notify the above named Contractor.

                             (End of legend)

    (4) Special license rights markings. (i) Computer software or 
computer documentation in which the Government's rights stem from a 
specifically negotiated license shall be marked with the following 
legend:

                         Special License Rights

    The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose this software are restricted by Contract No. 
____(Insert contract number)____, License No.____(Insert license 
identifier)____. Any reproduction of computer software, computer 
software documentation, or portions thereof marked with this legend must 
also reproduce the markings.

                             (End of legend)

    (ii) For purposes of this clause, special licenses do not include 
government purpose license rights acquired under a prior contract (see 
paragraph (b)(5) of this clause).
    (5) Pre-existing markings. If the terms of a prior contract or 
license permitted the Contractor to restrict the Government's rights to 
use, modify, release, perform, display, or disclose computer software or 
computer software documentation and those restrictions are still 
applicable, the Contractor may mark such software or documentation with 
the appropriate restrictive legend for which the software qualified 
under the prior contract or license. The marking procedures in paragraph 
(f)(1) of this clause shall be followed.
    (g) Contractor procedures and records. Throughout performance of 
this contract, the Contractor and its subcontractors or suppliers that 
will deliver computer software or computer software documentation with 
other than unlimited rights, shall--
    (1) Have, maintain, and follow written procedures sufficient to 
assure that restrictive markings are used only when authorized by the 
terms of this clause; and
    (2) Maintain records sufficient to justify the validity of any 
restrictive markings on computer software or computer software 
documentation delivered under this contract.
    (h) Removal of unjustified and nonconforming markings--(1) 
Unjustified computer software or computer software documentation 
markings. The rights and obligations of the parties regarding the 
validation of restrictive markings on computer software or computer 
software documentation furnished or to be furnished under this contract 
are contained in the Validation of Asserted Restrictions--Computer 
Software and the Validation of Restrictive Markings on Technical Data 
clauses of this contract, respectively. Notwithstanding any provision of 
this contract concerning inspection and acceptance, the Government may 
ignore or, at the Contractor's expense, correct or strike a marking if, 
in accordance with the procedures of those clauses, a restrictive 
marking is determined to be unjustified.
    (2) Nonconforming computer software or computer software 
documentation markings. A nonconforming marking is a marking placed on 
computer software or computer software documentation delivered or 
otherwise furnished to the Government under this contract that is not in 
the format authorized by this contract. Correction of nonconforming 
markings is not subject to the Validation of Asserted Restrictions--
Computer Software or the Validation of Restrictive Markings on Technical 
Data clause of this contract. If the Contracting Officer notifies the 
Contractor of a nonconforming marking or markings

[[Page 564]]

and the Contractor fails to remove or correct such markings within sixty 
(60) days, the Government may ignore or, at the Contractor's expense, 
remove or correct any nonconforming markings.
    (i) Relation to patents. Nothing contained in this clause shall 
imply a license to the Government under any patent or be construed as 
affecting the scope of any license or other right otherwise granted to 
the Government under any patent.
    (j) Limitation on charges for rights in computer software or 
computer software documentation. (1) The Contractor shall not charge to 
this contract any cost, including but not limited to license fees, 
royalties, or similar charges, for rights in computer software or 
computer software documentation to be delivered under this contract 
when--
    (i) The Government has acquired, by any means, the same or greater 
rights in the software or documentation; or
    (ii) The software or documentation are available to the public 
without restrictions.
    (2) The limitation in paragraph (j)(1) of this clause--
    (i) Includes costs charged by a subcontractor or supplier, at any 
tier, or costs incurred by the Contractor to acquire rights in 
subcontractor or supplier computer software or computer software 
documentation, if the subcontractor or supplier has been paid for such 
rights under any other Government contract or under a license conveying 
the rights to the Government; and
    (ii) Does not include the reasonable costs of reproducing, handling, 
or mailing the documents or other media in which the software or 
documentation will be delivered.
    (k) Applicability to subcontractors or suppliers. (1) Whenever any 
noncommercial computer software or computer software documentation is to 
be obtained from a subcontractor or supplier for delivery to the 
Government under this contract, the Contractor shall use this same 
clause in its subcontracts or other contractual instruments, and require 
its subcontractors or suppliers to do so, without alteration, except to 
identify the parties. No other clause shall be used to enlarge or 
diminish the Government's, the Contractor's, or a higher tier 
subcontractor's or supplier's rights in a subcontractor's or supplier's 
computer software or computer software documentation.
    (2) The Contractor and higher tier subcontractors or suppliers shall 
not use their power to award contracts as economic leverage to obtain 
rights in computer software or computer software documentation from 
their subcontractors or suppliers.
    (3) The Contractor shall ensure that subcontractor or supplier 
rights are recognized and protected in the identification, assertion, 
and delivery processes required by paragraph (e) of this clause.
    (4) In no event shall the Contractor use its obligation to recognize 
and protect subcontractor or supplier rights in computer software or 
computer software documentation as an excuse for failing to satisfy its 
contractual obligation to the Government.

                             (End of clause)

    Alternate I (JUN 1995). As prescribed in 227.7203-6(a)(2), add the 
following paragraph (l) to the basic clause:

    (l) Publication for sale. (1) This paragraph only applies to 
computer software or computer software documentation in which the 
Government has obtained unlimited rights or a license to make an 
unrestricted release of the software or documentation.
    (2) The Government shall not publish a deliverable item or items of 
computer software or computer software documentation identified in this 
contract as being subject to paragraph (l) of this clause or authorize 
others to publish such software or documentation on its behalf if, prior 
to publication for sale by the Government and within twenty-four (24) 
months following the date specified in this contract for delivery of 
such software or documentation, or the removal of any national security 
or export control restrictions, whichever is later, the Contractor 
publishes that item or items for sale and promptly notifies the 
Contracting Officer of such publication(s). Any such publication shall 
include a notice identifying the number of this contract and the 
Government's rights in the published software or documentation.
    (3) This limitation on the Government's rights to publish for sale 
shall continue as long as the software or documentation are reasonably 
available to the public for purchase.

[60 FR 33493, June 28, 1995, as amended at 76 FR 11368, Mar. 2, 2011; 77 
FR 10976, Feb. 24, 2012; 78 FR 30238, May 22, 2013; 79 FR 11341, Feb. 
28, 2014]



252.227-7015  Technical data--Commercial items.

    As prescribed in 227.7102-4(a)(1), use the following clause:

               Technical Data--Commercial Items (FEB 2014)

    (a) Definitions. As used in this clause--
    (1) Commercial item does not include commercial computer software.
    (2) Covered Government support contractor means a contractor (other 
than a litigation support contractor covered by 252.204-7014) under a 
contract, the primary purpose of which is to furnish independent and 
impartial advice or technical assistance directly

[[Page 565]]

to the Government in support of the Government's management and 
oversight of a program or effort (rather than to directly furnish an end 
item or service to accomplish a program or effort), provided that the 
contractor--
    (i) Is not affiliated with the prime contractor or a first-tier 
subcontractor on the program or effort, or with any direct competitor of 
such prime contractor or any such first-tier subcontractor in furnishing 
end items or services of the type developed or produced on the program 
or effort; and
    (ii) Receives access to technical data or computer software for 
performance of a Government contract that contains the clause at 
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
    (3) Form, fit, and function data means technical data that describes 
the required overall physical, functional, and performance 
characteristics (along with the qualification requirements, if 
applicable) of an item, component, or process to the extent necessary to 
permit identification of physically and functionally interchangeable 
items.
    (4) The term item includes components or processes.
    (5) Technical data means recorded information, regardless of the 
form or method of 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.
    (b) License. (1) The Government shall have the unrestricted right to 
use, modify, reproduce, release, perform, display, or disclose technical 
data, and to permit others to do so, that--
    (i) Have been provided to the Government or others without 
restrictions on use, modification, reproduction, release, or further 
disclosure other than a release or disclosure resulting from the sale, 
transfer, or other assignment of interest in the technical data to 
another party or the sale or transfer of some or all of a business 
entity or its assets to another party;
    (ii) Are form, fit, and function data;
    (iii) Are a correction or change to technical data furnished to the 
Contractor by the Government;
    (iv) Are necessary for operation, maintenance, installation, or 
training (other than detailed manufacturing or process data); or
    (v) Have been provided to the Government under a prior contract or 
licensing agreement through which the Government has acquired the rights 
to use, modify, reproduce, release, perform, display, or disclose the 
data without restrictions.
    (2) Except as provided in paragraph (b)(1) of this clause, the 
Government may use, modify, reproduce, release, perform, display, or 
disclose technical data within the Government only. The Government shall 
not--
    (i) Use the technical data to manufacture additional quantities of 
the commercial items; or
    (ii) Release, perform, display, disclose, or authorize use of the 
technical data outside the Government without the Contractor's written 
permission unless a release, disclosure, or permitted use is necessary 
for emergency repair or overhaul of the commercial items furnished under 
this contract, or for performance of work by covered Government support 
contractors.
    (3) The Contractor acknowledges that--
    (i) Technical data covered by paragraph (b)(2) of this clause are 
authorized to be released or disclosed to covered Government support 
contractors;
    (ii) The Contractor will be notified of such release or disclosure;
    (iii) The Contractor (or the party asserting restrictions as 
identified in a restrictive legend) may require each such covered 
Government support contractor to enter into a non-disclosure agreement 
directly with the Contractor (or the party asserting restrictions) 
regarding the covered Government support contractor's use of such data, 
or alternatively, that the Contractor (or party asserting restrictions) 
may waive in writing the requirement for an non-disclosure agreement; 
and
    (iv) Any such non-disclosure agreement shall address the 
restrictions on the covered Government support contractor's use of the 
data as set forth in the clause at 252.227-7025, Limitations on the Use 
or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends. The non-disclosure agreement shall not include any 
additional terms and conditions unless mutually agreed to by the parties 
to the non-disclosure agreement.
    (c) Additional license rights. The Contractor, its subcontractors, 
and suppliers are not required to provide the Government additional 
rights to use, modify, reproduce, release, perform, display, or disclose 
technical data. However, if the Government desires to obtain additional 
rights in technical data, the Contractor agrees to promptly enter into 
negotiations with the Contracting Officer to determine whether there are 
acceptable terms for transferring such rights. All technical data in 
which the Contractor has granted the Government additional rights shall 
be listed or described in a special license agreement made part of this 
contract. The license shall enumerate the additional rights granted the 
Government in such data.
    (d) Release from liability. The Contractor agrees that the 
Government, and other persons to whom the Government may have released 
or disclosed technical data delivered or otherwise furnished under this 
contract,

[[Page 566]]

shall have no liability for any release or disclosure of technical data 
that are not marked to indicate that such data are licensed data subject 
to use, modification, reproduction, release, performance, display, or 
disclosure restrictions.
    (e) Applicability to subcontractors or suppliers. (1) The Contractor 
shall recognize and protect the rights afforded its subcontractors and 
suppliers under 10 U.S.C. 2320 and 10 U.S.C. 2321.
    (2) Whenever any technical data related to commercial items 
developed in any part at private expense will be obtained from a 
subcontractor or supplier for delivery to the Government under this 
contract, the Contractor shall use this same clause in the subcontract 
or other contractual instrument, including subcontracts and other 
contractual instruments for commercial items, and require its 
subcontractors or suppliers to do so, without alteration, except to 
identify the parties. This clause will govern the technical data 
pertaining to any portion of a commercial item that was developed 
exclusively at private expense, and the clause at 252.227-7013 will 
govern the technical data pertaining to any portion of a commercial item 
that was developed in any part at Government expense.

                             (End of clause)

    Alternate I (DEC 2011) As prescribed in 227.7102-4(a)(2), add the 
following paragraphs (a)(6) and (b)(4) to the basic clause:

    (a)(6) Vessel design means the design of a vessel, boat, or craft, 
and its components, including the hull, decks, superstructure, and the 
exterior surface shape of all external shipboard equipment and systems. 
The term includes designs covered by 10 U.S.C. 7317, and designs 
protectable under 17 U.S.C. 1301, et seq.
    (b)(4) Vessel designs. For a vessel design (including a vessel 
design embodied in a useful article) that is developed or delivered 
under this contract, the Government shall have the right to make and 
have made any useful article that embodies the vessel design, to import 
the article, to sell the article, and to distribute the article for sale 
or to use the article in trade, to the same extent that the Government 
is granted rights in the technical data pertaining to the vessel design.

[60 FR 33497, June 28, 1995, as amended at 60 FR 61602, Nov. 30, 1995; 
74 FR 61045, Nov. 23, 2009; 76 FR 11368, Mar. 2, 2011; 76 FR 58148, 
Sept. 20, 2011; 76 FR 76320, Dec. 7, 2011; 78 FR 30239, May 22, 2013; 78 
FR 37990, June 25, 2013; 79 FR 11341, Feb. 28, 2014]



252.227-7016  Rights in bid or proposal information.

    As prescribed in 227.7103-6(e)(1), 227.7104(e)(1), or 227.7203-6(b), 
use the following clause:

            Rights in Bid or Proposal Information (JAN 2011)

    (a) Definitions. (1) For contracts that require the delivery of 
technical data, the terms ``technical data'' and ``computer software'' 
are defined in the Rights in Technical Data--Noncommercial Item clause 
of this contract or, if this is a contract awarded under the Small 
Business Innovation Research Program, the Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation Research 
(SBIR) Program clause of this contract.
    (2) For contracts that do not require the delivery of technical 
data, the term ``computer software'' is defined in the Rights in 
Noncommercial Computer and Noncommercial Computer Software Documentation 
clause of this contract or, if this is a contract awarded under the 
Small Business Innovation Research Program, the Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation Research 
(SBIR) Program clause of this contract.
    (b) Government rights to contract award. By submission of its offer, 
the Offeror agrees that the Government--
    (1) May reproduce the bid or proposal, or any portions thereof, to 
the extent necessary to evaluate the offer.
    (2) Except as provided in paragraph (d) of this clause, shall use 
information contained in the bid or proposal only for evaluational 
purposes and shall not disclose, directly or indirectly, such 
information to any person including potential evaluators, unless that 
person has been authorized by the head of the agency, his or her 
designee, or the Contracting Officer to receive such information.
    (c) Government rights subsequent to contract award. The Contractor 
agrees--
    (1) Except as provided in paragraphs (c)(2), (d), and (e) of this 
clause, the Government shall have the rights to use, modify, reproduce, 
release, perform, display, or disclose information contained in the 
Contractor's bid or proposal within the Government. The Government shall 
not release, perform, display, or disclose such information outside

[[Page 567]]

the Government without the Contractor's written permission.
    (2) The Government's right to use, modify, reproduce, release, 
perform, display, or disclose information that is technical data or 
computer software required to be delivered under this contract are 
determined by the Rights in Technical Data--Noncommercial Items, Rights 
in Noncommercial Computer Software and Noncommercial Computer Software 
Documentation, or Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovation Research (SBIR) Program clause(s) of 
this contract.
    (d) Government-furnished information. The Government's rights with 
respect to technical data or computer software contained in the 
Contractor's bid or proposal that were provided to the Contractor by the 
Government are subject only to restrictions on use, modification, 
reproduction, release, performance, display, or disclosure, if any, 
imposed by the developer or licensor of such data or software.
    (e) Information available without restrictions. The Government's 
rights to use, modify, reproduce, release, perform, display, or, 
disclose information contained in a bid or proposal, including technical 
data or computer software, and to permit others to do so, shall not be 
restricted in any manner if such information has been released or 
disclosed to the Government or to other persons without restrictions 
other than a release or disclosure resulting from the sale, transfer, or 
other assignment of interest in the information to another party or the 
sale or transfer of some or all of a business entity or its assets to 
another party.
    (f) Flowdown. Contractor shall include this clause in all 
subcontracts or similar contractual instruments and require its 
subcontractors or suppliers to do so without alteration, except to 
identify the parties.

                             (End of clause)

[60 FR 33498, June 28, 1995, as amended at 76 FR 3538, Jan. 20, 2011]



252.227-7017  Identification and assertion of use, release, or disclosure restrictions.

    As prescribed in 227.7103-3(b), 227.7104(e)(2), or 227.7203-3(a), 
use the following provision:

Identification and Assertion of Use, Release, or Disclosure Restrictions 
                               (JAN 2011)

    (a) The terms used in this provision are defined in following clause 
or clauses contained in this solicitation--
    (1) If a successful offeror will be required to deliver technical 
data, the Rights in Technical Data--Noncommercial Items clause, or, if 
this solicitation contemplates a contract under the Small Business 
Innovation Research Program, the Rights in Noncommercial Technical Data 
and Computer Software--Small Business Innovation Research (SBIR) Program 
clause.
    (2) If a successful offeror will not be required to deliver 
technical data, the Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation clause, or, if this 
solicitation contemplates a contract under the Small Business Innovation 
Research Program, the Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovation Research (SBIR) Program 
clause.
    (b) The identification and assertion requirements in this provision 
apply only to technical data, including computer software documents, or 
computer software to be delivered with other than unlimited rights. For 
contracts to be awarded under the Small Business Innovation Research 
Program, the notification requirements do not apply to technical data or 
computer software that will be generated under the resulting contract. 
Notification and identification is not required for restrictions based 
solely on copyright.
    (c) Offers submitted in response to this solicitation shall 
identify, to the extent known at the time an offer is submitted to the 
Government, the technical data or computer software that the Offeror, 
its subcontractors or suppliers, or potential subcontractors or 
suppliers, assert should be furnished to the Government with 
restrictions on use, release, or disclosure.
    (d) The Offeror's assertions, including the assertions of its 
subcontractors or suppliers or potential subcontractors or suppliers 
shall be submitted as an attachment to its offer in the following 
format, dated and signed by an official authorized to contractually 
obligate the Offeror:

 Identification and Assertion of Restrictions on the Government's Use, 
      Release, or Disclosure of Technical Data or Computer Software

    The Offeror asserts for itself, or the persons identified below, 
that the Government's rights to use, release, or disclose the following 
technical data or computer software should be restricted:

[[Page 568]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
   Technical Data or Computer Software to be Furnished With                                                                   Name of Person Asserting
                         Restrictions*                              Basis for Assertion**      Asserted Rights Category***        Restrictions****
--------------------------------------------------------------------------------------------------------------------------------------------------------
                          (LIST)*****                                      (LIST)                        (LIST)                        (LIST)
--------------------------------------------------------------------------------------------------------------------------------------------------------
*For technical data (other than computer software documentation) pertaining to items, components, or processes developed at private expense, identify
  both the deliverable technical data and each such items, component, or process. For computer software or computer software documentation identify the
  software or documentation.
**Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions. For technical data, other
  than computer software documentation, development refers to development of the item, component, or process to which the data pertain. The Government's
  rights in computer software documentation generally may not be restricted. For computer software, development refers to the software. Indicate whether
  development was accomplished exclusively or partially at private expense. If development was not accomplished at private expense, or for computer
  software documentation, enter the specific basis for asserting restrictions.
***Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data generated under another contract,
  limited, restricted, or government purpose rights under this or a prior contract, or specially negotiated licenses).
****Corporation, individual, or other person, as appropriate.
*****Enter ``none'' when all data or software will be submitted without restrictions.

Date____________________________________________________________________

Printed Name and Title__________________________________________________

________________________________________________________________________

Signature_______________________________________________________________

                  (End of identification and assertion)

    (e) An offeror's failure to submit, complete, or sign the 
notification and identification required by paragraph (d) of this 
provision with its offer may render the offer ineligible for award.
    (f) If the Offeror is awarded a contract, the assertions identified 
in paragraph (d) of this provision shall be listed in an attachment to 
that contract. Upon request by the Contracting Officer, the Offeror 
shall provide sufficient information to enable the Contracting Officer 
to evaluate any listed assertion.

                           (End of provision)

[60 FR 33498, June 28, 1994, as amended at 76 FR 3538, Jan. 20, 2011]



252.227-7018  Rights in noncommercial technical data and computer
software--Small Business Innovation Research (SBIR) Program.

    As prescribed in 227.7104(a), use the following clause:

  Rights in Noncommercial Technical Data and Computer Software--Small 
         Business Innovation Research (SBIR) Program (FEB 2014)

    (a) Definitions. As used in this clause--
    (1) Commercial computer software means software developed or 
regularly used for nongovernmental purposes which--
    (i) Has been sold, leased, or licensed to the public;
    (ii) Has been offered for sale, lease, or license to the public;
    (iii) Has not been offered, sold, leased, or licensed to the public 
but will be available for commercial sale, lease, or license in time to 
satisfy the delivery requirements of this contract; or
    (iv) Satisfies a criterion expressed in paragraph (a)(1)(i), (ii), 
or (iii) of this clause and would require only minor modification to 
meet the requirements of this contract.
    (2) Computer database means a collection of recorded data in a form 
capable of being processed by a computer. The term does not include 
computer software.
    (3) Computer program means a set of instructions, rules, or 
routines, recorded in a form that is capable of causing a computer to 
perform a specific operation or series of operations.
    (4) 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, re-created, or recompiled. Computer 
software does not include computer databases or computer software 
documentation.
    (5) Computer software documentation means owner's manuals, user's 
manuals, installation instructions, operating instructions, and other 
similar items, regardless of storage medium, that explain the 
capabilities of the computer software or provide instructions for using 
the software.
    (6) Covered Government support contractor means a contractor (other 
than a litigation support contractor covered by 252.204-7014) under a 
contract, the primary purpose of which is to furnish independent and 
impartial advice or technical assistance directly to the Government in 
support of the Government's management and oversight of a program or 
effort (rather than to directly furnish an end item or service to 
accomplish a program or effort), provided that the contractor--
    (i) Is not affiliated with the prime contractor or a first-tier 
subcontractor on the program or effort, or with any direct competitor of 
such prime contractor or any such first-tier subcontractor in furnishing 
end

[[Page 569]]

items or services of the type developed or produced on the program or 
effort; and
    (ii) Receives access to the technical data or computer software for 
performance of a Government contract that contains the clause at 
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
    (7) Detailed manufacturing or process data means technical data that 
describe the steps, sequences, and conditions of manufacturing, 
processing or assembly used by the manufacturer to produce an item or 
component or to perform a process.
    (8) Developed means--
    (i) (Applicable to technical data other than computer software 
documentation.) An item, component, or process, exists and is workable. 
Thus, the item or component must have been constructed or the process 
practiced. Workability is generally established when the item, 
component, or process has been analyzed or tested sufficiently to 
demonstrate to reasonable people skilled in the applicable art that 
there is a high probability that it will operate as intended. Whether, 
how much, and what type of analysis or testing is required to establish 
workability depends on the nature of the item, component, or process, 
and the state of the art. To be considered ``developed,'' the item, 
component, or process need not be at the stage where it could be offered 
for sale or sold on the commercial market, nor must the item, component 
or process be actually reduced to practice within the meaning of Title 
35 of the United States Code;
    (ii) A computer program has been successfully operated in a computer 
and tested to the extent sufficient to demonstrate to reasonable persons 
skilled in the art that the program can reasonably be expected to 
perform its intended purpose;
    (iii) Computer software, other than computer programs, has been 
tested or analyzed to the extent sufficient to demonstrate to reasonable 
persons skilled in the art that the software can reasonably be expected 
to perform its intended purpose; or
    (iv) Computer software documentation required to be delivered under 
a contract has been written, in any medium, in sufficient detail to 
comply with requirements under that contract.
    (9) Developed exclusively at private expense means development was 
accomplished entirely with costs charged to indirect cost pools, costs 
not allocated to a government contract, or any combination thereof.
    (i) Private expense determinations should be made at the lowest 
practicable level.
    (ii) Under fixed-price contracts, when total costs are greater than 
the firm-fixed-price or ceiling price of the contract, the additional 
development costs necessary to complete development shall not be 
considered when determining whether development was at government, 
private, or mixed expense.
    (10) Developed exclusively with government funds means development 
was not accomplished exclusively or partially at private expense.
    (11) Developed with mixed funding means development was accomplished 
partially with costs charged to indirect cost pools and/or costs not 
allocated to a government contract, and partially with costs charged 
directly to a government contract.
    (12) Form, fit, and function data means technical data that describe 
the required overall physical, functional, and performance 
characteristics (along with the qualification requirements, if 
applicable) of an item, component, or process to the extent necessary to 
permit identification of physically and functionally interchangeable 
items.
    (13) Generated means technical data or computer software first 
created in the performance of this contract.
    (14) Government purpose means any activity in which the United 
States Government is a party, including cooperative agreements with 
international or multi-national defense organizations or sales or 
transfers by the United States Government to foreign governments or 
international organizations. Government purposes include competitive 
procurement, but do not include the rights to use, modify, reproduce, 
release, perform, display, or disclose technical data or computer 
software for commercial purposes or authorize others to do so.
    (15) ``Limited rights'' means the rights to use, modify, reproduce, 
release, perform, display, or disclose technical data, in whole or in 
part, within the Government. The Government may not, without the written 
permission of the party asserting limited rights, release or disclose 
the technical data outside the Government, use the technical data for 
manufacture, or authorize the technical data to be used by another 
party, except that the Government may reproduce, release, or disclose 
such data or authorize the use or reproduction of the data by persons 
outside the Government if--
    (i) The reproduction, release, disclosure, or use is--
    (A) Necessary for emergency repair and overhaul; or
    (B) A release or disclosure to--
    (1) A covered Government support contractor in performance of its 
covered Government support contracts for use, modification, 
reproduction, performance, display, or release or disclosure to a person 
authorized to receive limited rights technical data; or
    (2) A foreign government, of technical data other than detailed 
manufacturing or process data, when use of such data by the foreign 
government is in the interest of the Government and is required for 
evaluational or informational purposes;

[[Page 570]]

    (ii) The recipient of the technical data is subject to a prohibition 
on the further reproduction, release, disclosure, or use of the 
technical data; and
    (iii) The contractor or subcontractor asserting the restriction is 
notified of such reproduction, release, disclosure, or use.
    (16) Minor modification means a modification that does not 
significantly alter the nongovernmental function or purpose of computer 
software or is of the type customarily provided in the commercial 
marketplace.
    (17) Noncommercial computer software means software that does not 
qualify as commercial computer software under paragraph (a)(1) of this 
clause.
    (18) ``Restricted rights'' apply only to noncommercial computer 
software and mean the Government's rights to--
    (i) Use a computer program with one computer at one time. The 
program may not be accessed by more than one terminal or central 
processing unit or time shared unless otherwise permitted by this 
contract;
    (ii) Transfer a computer program to another Government agency 
without the further permission of the Contractor if the transferor 
destroys all copies of the program and related computer software 
documentation in its possession and notifies the licensor of the 
transfer. Transferred programs remain subject to the provisions of this 
clause;
    (iii) Make the minimum number of copies of the computer software 
required for safekeeping (archive), backup, or modification purposes;
    (iv) Modify computer software provided that the Government may--
    (A) Use the modified software only as provided in paragraphs 
(a)(18)(i) and (iii) of this clause; and
    (B) Not release or disclose the modified software except as provided 
in paragraphs (a)(18)(ii), (v), (vi), and (vii) of this clause;
    (v) Permit contractors or subcontractors performing service 
contracts (see 37.101 of the Federal Acquisition Regulation) in support 
of this or a related contract to use computer software to diagnose and 
correct deficiencies in a computer program, to modify computer software 
to enable a computer program to be combined with, adapted to, or merged 
with other computer programs or when necessary to respond to urgent 
tactical situations, provided that--
    (A) The Government notifies the party which has granted restricted 
rights that a release or disclosure to particular contractors or 
subcontractors was made;
    (B) Such contractors or subcontractors are subject to the non-
disclosure agreement at 227.7103-7 of the Defense Federal Acquisition 
Regulation Supplement or are Government contractors receiving access to 
the software for performance of a Government contract that contains the 
clause at 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends;
    (C) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(18)(iv) of this clause, for any other purpose; 
and
    (D) Such use is subject to the limitations in paragraphs (a)(18)(i) 
through (iii) of this clause;
    (vi) Permit contractors or subcontractors performing emergency 
repairs or overhaul of items or components of items procured under this 
or a related contract to use the computer software when necessary to 
perform the repairs or overhaul, or to modify the computer software to 
reflect the repairs or overhaul made, provided that--
    (A) The intended recipient is subject to the non-disclosure 
agreement at 227.7103-7 or is a Government contractor receiving access 
to the software for performance of a Government contract that contains 
the clause at 252.227-7025, Limitations on the Use or Disclosure of 
Government Furnished Information Marked with Restrictive Legends;
    (B) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(18)(iv) of this clause, for any other purpose; 
and
    (C) Such use is subject to the limitations in paragraphs (a)(18)(i) 
through (iii) of this clause; and
    (vii) Permit covered Government support contractors in the 
performance of Government contracts that contain the clause at 252.227-
7025, Limitations on the Use or Disclosure of Government-Furnished 
Information Marked with Restrictive Legends, to use, modify, reproduce, 
perform, display, or release or disclose the computer software to a 
person authorized to receive restricted rights computer software, 
provided that--
    (A) The Government shall not permit the covered Government support 
contractor to decompile, disassemble, or reverse engineer the software, 
or use software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (a)(18)(iv) of this clause, for any 
other purpose; and
    (B) Such use is subject to the limitations in paragraphs (a)(18)(i) 
through (iv) of this clause.
    (19) ``SBIR data rights'' means the Government's rights during the 
SBIR data protection period (specified in paragraph (b)(4) of this 
clause) to use, modify, reproduce, release, perform, display, or 
disclose technical data or computer software generated a SBIR award as 
follows:

[[Page 571]]

    (i) Limited rights in such SBIR technical data; and
    (ii) Restricted rights in such SBIR computer software.
    (20) 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.
    (21) Unlimited rights means rights to use, modify, reproduce, 
release, perform, display, or disclose, technical data or computer 
software in whole or in part, in any manner and for any purpose 
whatsoever, and to have or authorize others to do so.
    (b) Rights in technical data and computer software. The Contractor 
grants or shall obtain for the Government the following royalty-free, 
world-wide, nonexclusive, irrevocable license rights in technical data 
or noncommercial computer software. All rights not granted to the 
Government are retained by the Contractor.
    (1) Unlimited rights. The Government shall have unlimited rights in 
technical data, including computer software documentation, or computer 
software generated under this contract that are--
    (i) Form, fit, and function data;
    (ii) Necessary for installation, operation, maintenance, or training 
purposes (other than detailed manufacturing or process data);
    (iii) Corrections or changes to Government-furnished technical data 
or computer software;
    (iv) Otherwise publicly available or have been released or disclosed 
by the Contractor or a subcontractor without restrictions on further 
use, release or disclosure other than a release or disclosure resulting 
from the sale, transfer, or other assignment of interest in the 
technical data or computer software to another party or the sale or 
transfer of some or all of a business entity or its assets to another 
party;
    (v) Data or software in which the Government has acquired previously 
unlimited rights under another Government contract or through a specific 
license; and
    (vi) SBIR data upon expiration of the SBIR data rights period.
    (2) Limited rights. The Government shall have limited rights in 
technical data, that were not generated under this contract, pertain to 
items, components or processes developed exclusively at private expense, 
and are marked, in accordance with the marking instructions in paragraph 
(f)(1) of this clause, with the legend prescribed in paragraph (f)(2) of 
this clause.
    (3) Restricted rights in computer software. The Government shall 
have restricted rights in noncommercial computer software required to be 
delivered or otherwise furnished to the Government under this contract 
that were developed exclusively at private expense and were not 
generated under this contract.
    (4) SBIR data rights. Except for technical data, including computer 
software documentation, or computer software in which the Government has 
unlimited rights under paragraph (b)(1) of this clause, the Government 
shall have SBIR data rights in all technical data or computer software 
generated under this contract during the period commencing with contract 
award and ending upon the date five years after completion of the 
project from which such data were generated.
    (5) Specifically negotiated license rights. The standard license 
rights granted to the Government under paragraphs (b)(1) through (b)(4) 
of this clause may be modified by mutual agreement to provide such 
rights as the parties consider appropriate but shall not provide the 
Government lesser rights in technical data, including computer software 
documentation, than are enumerated in paragraph (a)(15) of this clause 
or lesser rights in computer software than are enumerated in paragraph 
(a)(18) of this clause. Any rights so negotiated shall be identified in 
a license agreement made part of this contract.
    (6) Prior government rights. Technical data, including computer 
software documentation, or computer software that will be delivered, 
furnished, or otherwise provided to the Government under this contract, 
in which the Government has previously obtained rights shall be 
delivered, furnished, or provided with the pre-existing rights, unless--
    (i) The parties have agreed otherwise; or
    (ii) Any restrictions on the Government's rights to use, modify, 
release, perform, display, or disclose the technical data or computer 
software have expired or no longer apply.
    (7) Release from liability. The Contractor agrees to release the 
Government from liability for any release or disclosure of technical 
data, computer software, or computer software documentation made in 
accordance with paragraph (a)(14), (a)(17), or (b)(4) of this clause, or 
in accordance with the terms of a license negotiated under paragraph 
(b)(5) of this clause, or by others to whom the recipient has released 
or disclosed the data, software, or documentation and to seek relief 
solely from the party who has improperly used, modified, reproduced, 
released, performed, displayed, or disclosed Contractor data or software 
marked with restrictive legends.
    (8) Covered Government support contractors. The Contractor 
acknowledges that--

[[Page 572]]

    (i) Limited rights technical data and restricted rights computer 
software are authorized to be released or disclosed to covered 
Government support contractors;
    (ii) The Contractor will be notified of such release or disclosure;
    (iii) The Contractor may require each such covered Government 
support contractor to enter into a non-disclosure agreement directly 
with the Contractor (or the party asserting restrictions as identified 
in a restrictive legend) regarding the covered Government support 
contractor's use of such data or software, or alternatively that the 
Contractor (or party asserting restrictions) may waive in writing the 
requirement for a non-disclosure agreement; and
    (iv) Any such non-disclosure agreement shall address the 
restrictions on the covered Government support contractor's use of the 
data or software as set forth in the clause at 252.227-7025, Limitations 
on the Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends. The non-disclosure agreement shall not include any 
additional terms and conditions unless mutually agreed to by the parties 
to the non-disclosure agreement.
    (c) Rights in derivative computer software or computer software 
documentation. The Government shall retain its rights in the unchanged 
portions of any computer software or computer software documentation 
delivered under this contract that the Contractor uses to prepare, or 
includes in, derivative software or documentation.
    (d) Third party copyrighted technical data and computer software. 
The Contractor shall not, without the written approval of the 
Contracting Officer, incorporate any copyrighted technical data, 
including computer software documentation, or computer software in the 
data or software to be delivered under this contract unless the 
Contractor is the copyright owner or has obtained for the Government the 
license rights necessary to perfect a license or licenses in the 
deliverable data or software of the appropriate scope set forth in 
paragraph (b) of this clause and, prior to delivery of such--
    (1) Technical data, has affixed to the transmittal document a 
statement of the license rights obtained; or
    (2) Computer software, has provided a statement of the license 
rights obtained in a form acceptable to the Contracting Officer.
    (e) Identification and delivery of technical data or computer 
software to be furnished with restrictions on use, release, or 
disclosure. (1) This paragraph does not apply to technical data or 
computer software that were or will be generated under this contract or 
to restrictions based solely on copyright.
    (2) Except as provided in paragraph (e)(3) of this clause, technical 
data or computer software that the Contractor asserts should be 
furnished to the Government with restrictions on use, release, or 
disclosure is identified in an attachment to this contract (the 
Attachment). The Contractor shall not deliver any technical data or 
computer software with restrictive markings unless the technical data or 
computer software are listed on the Attachment.
    (3) In addition to the assertions made in the Attachment, other 
assertions may be identified after award when based on new information 
or inadvertent omissions unless the inadvertent omissions would have 
materially affected the source selection decision. Such identification 
and assertion shall be submitted to the Contracting Officer as soon as 
practicable prior to the scheduled date for delivery of the technical 
data or computer software, in the following format, and signed by an 
official authorized to contractually obligate the Contractor:

 Identification and Assertion of Restrictions on the Government's Use, 
      Release, or Disclosure of Technical Data or Computer Software

    The Contractor asserts for itself, or the persons identified below, 
that the Government's rights to use, release, or disclose the following 
technical data or computer software should be restricted:

------------------------------------------------------------------------
                                                               Name of
  Technical data or computer                    Asserted       person
software to be furnished with    Basis for       rights       asserting
       restrictions \1\        assertion \2\  category \3\  restrictions
                                                                 \4\
------------------------------------------------------------------------
(LIST).......................  (LIST).......  (LIST)......  (LIST)
------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components, or processes
  developed at private expense, identify both the technical data and
  each such item, component, or process.
\2\ Generally, development at private expense, either exclusively or
  partially, is the only basis for asserting restrictions on the
  Government's rights to use, release, or disclose technical data or
  computer software. Indicate whether development was exclusively or
  partially at private expense. If development was not at private
  expense, enter the specific reason for asserting that the Government's
  rights should be restricted.
\3\ Enter asserted rights category (e.g., limited rights, restricted
  rights, government purpose rights, or government purpose license
  rights from a prior contract, SBIR data rights under another contract,
  or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.

Date____________________________________________________________________

Printed Name and Title__________________________________________________

Signature_______________________________________________________________

                  (End of identification and assertion)

    (4) When requested by the Contracting Officer, the Contractor shall 
provide sufficient information to enable the Contracting Officer to 
evaluate the Contractor's assertions. The Contracting Officer reserves 
the right to add the Contractor's assertions to the Attachment and 
validate any listed assertions, at a later date, in accordance with the 
procedures of the Validation of Asserted Restrictions--Computer Software 
and/or Validation

[[Page 573]]

of Restrictive Markings on Technical Data clauses of this contract.
    (f) Marking requirements. The Contractor, and its subcontractors or 
suppliers, may only assert restrictions on the Government's rights to 
use, modify, reproduce, release, perform, display, or disclose technical 
data or computer software to be delivered under this contract by marking 
the deliverable data or software subject to restriction. Except as 
provided in paragraph (f)(6) of this clause, only the following markings 
are authorized under this contract: the limited rights legend at 
paragraph (f)(2) of this clause; the restricted rights legend at 
paragraph (f)(3) of this clause, the SBIR data rights legend at 
paragraph (f)(4) of this clause, or the special license rights legend at 
paragraphs (f)(5) of this clause; and/or a notice of copyright as 
prescribed under 17 U.S.C. 401 or 402.
    (1) General marking instructions. The Contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark the 
appropriate legend to all technical data and computer software that 
qualify for such markings. The authorized legends shall be placed on the 
transmittal document or storage container and, for printed material, 
each page of the printed material containing technical data or computer 
software for which restrictions are asserted. When only portions of a 
page of printed material are subject to the asserted restrictions, such 
portions shall be identified by circling, underscoring, with a note, or 
other appropriate identifier. Technical data or computer software 
transmitted directly from one computer or computer terminal to another 
shall contain a notice of asserted restrictions. However, instructions 
that interfere with or delay the operation of computer software in order 
to display a restrictive rights legend or other license statement at any 
time prior to or during use of the computer software, or otherwise cause 
such interference or delay, shall not be inserted in software that will 
or might be used in combat or situations that simulate combat 
conditions, unless the Contracting Officer's written permission to 
deliver such software has been obtained prior to delivery. Reproductions 
of technical data, computer software, or any portions thereof subject to 
asserted restrictions shall also reproduce the asserted restrictions.
    (2) Limited rights markings. Technical data not generated under this 
contract that pertain to items, components, or processes developed 
exclusively at private expense and delivered or otherwise furnished with 
limited rights shall be marked with the following legend:

                             Limited Rights

Contract No.____________________________________________________________

Contractor Name_________________________________________________________

Contractor Address______________________________________________________

________________________________________________________________________

The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose these technical data are restricted by paragraph 
(b)(2) of the Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovation Research (SBIR) Program clause 
contained in the above identified contract. Any reproduction of 
technical data or portions thereof marked with this legend must also 
reproduce the markings. Any person, other than the Government, who has 
been provided access to such data must promptly notify the above named 
Contractor.

                             (End of legend)

    (3) Restricted rights markings. Computer software delivered or 
otherwise furnished to the Government with restricted rights shall be 
marked with the following legend:

                            Restricted Rights

Contract No.____________________________________________________________

Contractor Name_________________________________________________________

Contractor Address______________________________________________________

________________________________________________________________________

The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose this software are restricted by paragraph (b)(3) of 
the Rights in Noncommercial Technical Data and Computer Software--Small 
Business Innovation Research (SBIR) Program clause contained in the 
above identified contract. Any reproduction of computer software or 
portions thereof marked with this legend must also reproduce the 
markings. Any person, other than the Government, who has been provided 
access to such data must promptly notify the above named Contractor.

                             (End of legend)

    (4) SBIR data rights markings: Except for technical data or computer 
software in which the Government has acquired unlimited rights under 
paragraph (b)(1) of this clause, or negotiated special license rights as 
provided in paragraph (b)(5) of this clause, technical data or computer 
software generated under this contract shall be marked with the 
following legend. The Contractor shall enter the expiration date for the 
SBIR data rights period on the legend:

                            SBIR Data Rights

Contract No.____________________________________________________________

Contractor Name_________________________________________________________

Address_________________________________________________________________

________________________________________________________________________

Expiration of SBIR Data Rights Period___________________________________


[[Page 574]]

________________________________________________________________________
The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose technical data or computer software marked with 
this legend are restricted during the period shown as provided in 
paragraph (b)(4) of the Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovation Research (SBIR) Program 
clause contained in the above identified contract. No restrictions apply 
after the expiration date shown above. Any reproduction of technical 
data, computer software, or portions thereof marked with this legend 
must also reproduce the markings.

                             (End of legend)

    (5) Special license rights markings. (i) Technical data or computer 
software in which the Government's rights stem from a specifically 
negotiated license shall be marked with the following legend:

                         Special License Rights

    The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose this technical data or computer software are 
restricted by Contract No. ________ (Insert contract number) ________, 
License No. ________ (Insert license identifier) ________. Any 
reproduction of technical data, computer software, or portions thereof 
marked with this legend must also reproduce the markings.

                             (End of legend)

    (ii) For purposes of this clause, special licenses do not include 
government purpose license rights acquired under a prior contract (see 
paragraph (b)(6) of this clause).
    (6) Pre-existing data markings. If the terms of a prior contract or 
license permitted the Contractor to restrict the Government's rights to 
use, modify, reproduce, release, perform, display, or disclose technical 
data or computer software, and those restrictions are still applicable, 
the Contractor may mark such data or software with the appropriate 
restrictive legend for which the data or software qualified under the 
prior contract or license. The marking procedures in paragraph (f)(1) of 
this clause shall be followed.
    (g) Contractor procedures and records. Throughout performance of 
this contract, the Contractor, and its subcontractors or suppliers that 
will deliver technical data or computer software with other than 
unlimited rights, shall--
    (1) Have, maintain, and follow written procedures sufficient to 
assure that restrictive markings are used only when authorized by the 
terms of this clause; and
    (2) Maintain records sufficient to justify the validity of any 
restrictive markings on technical data or computer software delivered 
under this contract.
    (h) Removal of unjustified and nonconforming markings--(1) 
Unjustified markings. The rights and obligations of the parties 
regarding the validation of restrictive markings on technical data or 
computer software furnished or to be furnished under this contract are 
contained in the Validation of Restrictive Markings on Technical Data 
and the Validation of Asserted Restrictions--Computer Software clauses 
of this contract, respectively. Notwithstanding any provision of this 
contract concerning inspection and acceptance, the Government may ignore 
or, at the Contractor's expense, correct or strike a marking if, in 
accordance with the applicable procedures of those clauses, a 
restrictive marking is determined to be unjustified.
    (2) Nonconforming markings. A nonconforming marking is a marking 
placed on technical data or computer software delivered or otherwise 
furnished to the Government under this contract that is not in the 
format authorized by this contract. Correction of nonconforming markings 
is not subject to the Validation of Restrictive Markings on Technical 
Data or the Validation of Asserted Restrictions--Computer Software 
clause of this contract. If the Contracting Officer notifies the 
Contractor of a nonconforming marking or markings and the Contractor 
fails to remove or correct such markings within sixty (6)) days, the 
Government may ignore or, at the Contractor's expense, remove or correct 
any nonconforming markings.
    (i) Relation to patents. Nothing contained in this clause shall 
imply a license to the Government under any patent or be construed as 
affecting the scope of any license or other right otherwise granted to 
the Government under any patent.
    (j) Limitation on charges for rights in technical data or computer 
software. (1) The Contractor shall not charge to this contract any cost, 
including but not limited to, license fees, royalties, or similar 
charges, for rights in technical data or computer software to be 
delivered under this contract when--
    (i) The Government has acquired, by any means, the same or greater 
rights in the data or software; or
    (ii) The data are available to the public without restrictions.
    (2) The limitation in paragraph (j)(1) of this clause--
    (i) Includes costs charged by a subcontractor or supplier, at any 
tier, or costs incurred by the Contractor to acquire rights in 
subcontractor of supplier technical data or computer software, if the 
subcontractor or supplier has been paid for such rights under any other 
Government contract or under a license conveying the rights to the 
Government; and

[[Page 575]]

    (ii) Does not include the reasonable costs of reproducing, handling, 
or mailing the documents or other media in which the technical data or 
computer software will be delivered.
    (k) Applicability to subcontractors or suppliers. (1) the Contractor 
shall assure that the rights afforded its subcontractors and suppliers 
under 10 U.S.C. 2320, 10 U.S.C. 2321, and the identification, assertion, 
and delivery processes required by paragraph (e) of this clause are 
recognized and protected.
    (2) Whenever any noncommercial technical data or computer software 
is to be obtained from a subcontractor or supplier for delivery to the 
Government under this contract, the Contractor shall use this same 
clause in the subcontract or other contractual instrument, and require 
its subcontractors or suppliers to do so, without alteration, except to 
identify the parties. The Contractor shall use the Technical Data--
Commercial Items clause of this contract to obtain technical data 
pertaining to commercial items, components, or processes. No other 
clause shall be used to enlarge or diminish the Government's, the 
Contractor's, or a higher tier subcontractor's or supplier's rights in a 
subcontractor's or supplier's technical data or computer software.
    (3) Technical data required to be delivered by a subcontractor or 
supplier shall normally be delivered to the next higher tier contractor, 
subcontractor, or supplier. However, when there is a requirement in the 
prime contract for technical data which may be submitted with other than 
unlimited rights by a subcontractor or supplier, then said subcontractor 
or supplier may fulfill its requirement by submitting such technical 
data directly to the Government, rather than through a higher tier 
contractor, subcontractor, or supplier.
    (4) The Contractor and higher tier subcontractors or suppliers shall 
not use their power to award contracts as economic leverage to obtain 
rights in technical data or computer software from their subcontractors 
or suppliers.
    (5) In no event shall the Contractor use its obligation to recognize 
and protect subcontractor or supplier rights in technical data or 
computer software as an excuse for failing to satisfy its contractual 
obligation to the Government.

                             (End of clause)

    Alternate I (JUN 1995). As prescribed in 227.7104(d), add the 
following paragraph (l) to the basic clause:

    (l) Publication for sale. (1) This paragraph applies only to 
technical data or computer software delivered to the Government with 
SBIR data rights.
    (2) Upon expiration of the SBIR data rights period, the Government 
will not exercise its right to publish or authorize others to publish an 
item of technical data or computer software identified in this contract 
as being subject to paragraph (l) of this clause if the Contractor, 
prior to the expiration of the SBIR data rights period, or within two 
years following delivery of the data or software item, or within twenty-
four months following the removal of any national security or export 
control restrictions, whichever is later, publishes such data or 
software item(s) and promptly notifies the Contracting Officer of such 
publication(s). Any such publication(s) shall include a notice 
identifying the number of this contract and the Government's rights in 
the published data.
    (3) This limitation on the Government's right to publish for sale 
shall continue as long as the technical data or computer software are 
reasonably available to the public for purchase.

[60 FR 33499, June 28, 1995, as amended at 60 FR 61602, Nov. 30, 1995; 
76 FR 3538, Jan. 20, 2011; 76 FR 11369, Mar. 2, 2011; 78 FR 30239, May 
22, 2013; 79 FR 11341, Feb. 28, 2014]



252.227-7019  Validation of asserted restrictions--Computer software.

    As prescribed in 227.7104(e)(3) or 227.7203-6(c), use the following 
clause:

    Validation of Asserted Restrictions--Computer Software (SEP 2016)

    (a) Definitions. (1) As used in this clause, unless otherwise 
specifically indicated, the term ``Contractor'' means the Contractor and 
its subcontractors or suppliers.
    (2) Other terms used in this clause are defined in the Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation clause of this contract.
    (b) Justification. The Contractor shall maintain records sufficient 
to justify the validity of any markings that assert restrictions on the 
Government's rights to use, modify, reproduce, perform, display, 
release, or disclose computer software delivered or required to be 
delivered under this contract and shall be prepared to furnish to the 
Contracting Officer a written justification for such restrictive 
markings in response to a request for information under paragraph (d) or 
a challenge under paragraph (f) of this clause.
    (c) Direct contact with subcontractors or suppliers. The Contractor 
agrees that the Contracting Officer may transact matters under this 
clause directly with subcontractors or suppliers at any tier who assert 
restrictions on the Government's right to use, modify, reproduce, 
release, perform, display, or disclose computer software. Neither this 
clause,

[[Page 576]]

nor any action taken by the Government under this clause, creates or 
implies privity of contract between the Government and the Contractor's 
subcontractors or suppliers.
    (d) Requests for information. (1) The Contracting Officer may 
request the Contractor to provide sufficient information to enable the 
Contracting Officer to evaluate the Contractor's asserted restrictions. 
Such information shall be based upon the records required by this clause 
or other information reasonably available to the Contractor.
    (2) Based upon the information provided, if the--
    (i) Contractor agrees that an asserted restriction is not valid, the 
Contracting Officer may--
    (A) Strike or correct the unjustified marking at the Contractor's 
expense; or
    (B) Return the computer software to the Contractor for correction at 
the Contractor's expense. If the Contractor fails to correct or strike 
the unjustified restrictions and return the corrected software to the 
Contracting Officer within sixty (60) days following receipt of the 
software, the Contracting Officer may correct the strike the markings at 
the Contractor's expense.
    (ii) Contracting Officer concludes that the asserted restriction is 
appropriate for this contract, the Contracting Officer shall so notify 
the Contractor in writing.
    (3) The Contractor's failure to provide a timely response to a 
Contracting Officer's request for information or failure to provide 
sufficient information to enable the Contracting Officer to evaluate an 
asserted restriction shall constitute reasonable grounds for questioning 
the validity of an asserted restriction.
    (e) Government right to challenge and validate asserted 
restrictions. (1) The Government, when there are reasonable grounds to 
do so, has the right to review and challenge the validity of any 
restrictions asserted by the Contractor on the Government's rights to 
use, modify, reproduce, release, perform, display, or disclose computer 
software delivered, to be delivered under this contract, or otherwise 
provided to the Government in the performance of this contract. Except 
for software that is publicly available, has been furnished to the 
Government without restrictions, or has been otherwise made available 
without restrictions, the Government may exercise this right only within 
three years after the date(s) the software is delivered or otherwise 
furnished to the Government, or three years following final payment 
under this contract, whichever is later.
    (2) The absence of a challenge to an asserted restriction shall not 
constitute validation under this clause. Only a Contracting Officer's 
final decision or actions of an agency Board of Contract Appeals or a 
court of competent jurisdiction that sustain the validity of an asserted 
restriction constitute validation of the restriction.
    (f) Challenge procedures. (1) A challenge must be in writing and 
shall--
    (i) State the specific grounds for challenging the asserted 
restriction;
    (ii) Require the Contractor to respond within sixty (60) days;
    (iii) Require the Contractor to provide justification for the 
assertion based upon records kept in accordance with paragraph (b) of 
this clause and such other documentation that are reasonably available 
to the Contractor, in sufficient detail to enable the Contracting 
Officer to determine the validity of the asserted restrictions; and
    (iv) State that a Contracting Officer's final decision, during the 
three-year period preceding this challenge, or action of a court of 
competent jurisdiction or Board of Contract Appeals that sustained the 
validity of an identical assertion made by the Contractor (or a 
licensee) shall serve as justification for the asserted restriction.
    (2) The Contracting Officer shall extend the time for response if 
the Contractor submits a written request showing the need for additional 
time to prepare a response.
    (3) The Contracting Officer may request additional supporting 
documentation if, in the Contracting Officer's opinion, the Contractor's 
explanation does not provide sufficient evidence to justify the validity 
of the asserted restrictions. The Contractor agrees to promptly respond 
to the Contracting Officer's request for additional supporting 
documentation.
    (4) Notwithstanding challenge by the Contracting Officer, the 
parties may agree on the disposition of an asserted restriction at any 
time prior to a Contracting Officer's final decision or, if the 
Contractor has appealed that decision, filed suit, or provided notice of 
an intent to file suit, at any time prior to a decision by a court of 
competent jurisdiction or Board of Contract Appeals.
    (5) If the Contractor fails to respond to the Contracting Officer's 
request for information or additional information under paragraph (f)(1) 
of this clause, the Contracting Officer shall issue a final decision, in 
accordance with the Disputes clause of this contract, pertaining to the 
validity of the asserted restriction.
    (6) If the Contracting Officer, after reviewing any available 
information pertaining to the validity of an asserted restriction, 
determines that the asserted restriction has--
    (i) Not been justified, the Contracting Officer shall issue promptly 
a final decision, in accordance with the Disputes clause of this 
contract, denying the validity of the asserted restriction; or
    (ii) Been justified, the Contracting Officer shall issue promptly a 
final decision, in accordance with the Disputes clause of this contract, 
validating the asserted restriction.

[[Page 577]]

    (7) A Contractor receiving challenges to the same asserted 
restriction(s) from more than one Contracting Officer shall notify each 
Contracting Officer of the other challenges. The notice shall also state 
which Contracting Officer initiated the first in time unanswered 
challenge. The Contracting Officer who initiated the first in time 
unanswered challenge, after consultation with the other Contracting 
Officers who have challenged the restrictions and the Contractor, shall 
formulate and distribute a schedule that provides the contractor a 
reasonable opportunity for responding to each challenge.
    (g) Contractor appeal--Government obligation. (1) The Government 
agrees that, notwithstanding a Contracting Officer's final decision 
denying the validity of an asserted restriction and except as provided 
in paragraph (g)(3) of this clause, it will honor the asserted 
restriction--
    (i) For a period of ninety (90) days from the date of the 
Contracting Officer's final decision to allow the Contractor to appeal 
to the appropriate Board of Contract Appeals or to file suit in an 
appropriate court;
    (ii) For a period of one year from the date of the Contracting 
Officer's final decision if, within the first ninety (90) days following 
the Contracting Officer's final decision, the Contractor has provided 
notice of an intent to file suit in an appropriate court; or
    (iii) Until final disposition by the appropriate Board of Contract 
Appeals or court of competent jurisdiction, if the Contractor has: (A) 
appealed to the Board of Contract Appeals or filed suit an appropriate 
court within ninety (90) days; or (B) submitted, within ninety (90) 
days, a notice of intent to file suit in an appropriate court and filed 
suit within one year.
    (2) The Contractor agrees that the Government may strike, correct, 
or ignore the restrictive markings if the Contractor fails to--
    (i) Appeal to a Board of Contract Appeals within ninety (90) days 
from the date of the Contracting Officer's final decision;
    (ii) File suit in an appropriate court within ninety (90) days from 
such date; or
    (iii) File suit within one year after the date of the Contracting 
Officer's final decision if the Contractor had provided notice of intent 
to file suit within ninety (90) days following the date of the 
Contracting Officer's final decision.
    (3) The agency head, on a nondelegable basis, may determine that 
urgent or compelling circumstances do not permit awaiting the filing of 
suit in an appropriate court, or the rendering of a decision by a court 
of competent jurisdiction or Board of Contract Appeals. In that event, 
the agency head shall notify the Contractor of the urgent or compelling 
circumstances. Notwithstanding paragraph (g)(1) of this clause, the 
Contractor agrees that the agency may use, modify, reproduce, release, 
perform, display, or disclose computer software marked with (i) 
government purpose legends for any purpose, and authorize others to do 
so; or (ii) restricted or special license rights for government purposes 
only. The Government agrees not to release or disclose such software 
unless, prior to release or disclosure, the intended recipient is 
subject to the use and non-disclosure agreement at 227.7103-7 of the 
Defense Federal Acquisition Regulation Supplement (DFARS), or is a 
Government contractor receiving access to the software for performance 
of a Government contract that contains the clause at DFARS 252.227-7025, 
Limitations on the Use or Disclosure of Government-Furnished Information 
Marked with Restrictive Legends. The agency head's determination may be 
made at any time after the date of the Contracting Officer's final 
decision and shall not affect the Contractor's right to damages against 
the United States, or other relief provided by law, if its asserted 
restrictions are ultimately upheld.
    (h) Final disposition of appeal or suit. If the Contractor appeals 
or files suit and if, upon final disposition of the appeal or suit, the 
Contracting Officer's decision is:
    (1) Sustained--
    (i) Any restrictive marking on such computer software shall be 
struck or corrected at the contractor's expense or ignored; and
    (ii) If the asserted restriction is found not to be substantially 
justified, the Contractor shall be liable to the Government for payment 
of the cost to the Government of reviewing the asserted restriction and 
the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) 
incurred by the Government in challenging the restriction, unless 
special circumstances would make such payment unjust.
    (2) Not sustained--
    (i) The Government shall be bound by the asserted restriction; and
    (ii) If the challenge by the Government is found not to have been 
made in good faith, the Government shall be liable to the Contractor for 
payment of fees and other expenses (as defined in 28 U.S.C. 
2412(d)(2)(A)) incurred by the Contractor in defending the restriction.
    (i) Flowdown. The Contractor shall insert this clause in all 
contracts, purchase orders, and other similar instruments with its 
subcontractors or suppliers, at any tier, who will be furnishing 
computer software to the Government in the performance of this contract. 
The clause may not be altered other than to identify the appropriate 
parties.

                             (End of clause)

[60 FR 33503, June 28, 1995, as amended at 76 FR 58148, Sept. 20, 2011; 
81 FR 65566, Sept. 23, 2016]

[[Page 578]]



252.227-7020  Rights in special works.

    As prescribed in 227.7105-3, 227.7106(a) or 227.7205(a), use the 
following clause:

                   Rights in Special Works (JUN 1995)

    (a) Applicability. This clause applies to works first created, 
generated, or produced and required to be delivered under this contract.
    (b) Definitions. As used in this clause:
    (1) ``Computer data base'' means a collection of data recorded in a 
form capable of being processed by a computer. The term does not include 
computer software.
    (2) ``Computer program'' means a set of instructions, rules, or 
routines recorded in a form that is capable of causing a computer to 
perform a specific operation or series of operations.
    (3) ``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.
    (4) ``Computer software documentation'' means owner's manuals, 
user's manuals, installation instructions, operating instructions, and 
other similar items, regardless of storage medium, that explain the 
capabilities of the computer software or provide instructions for using 
the software.
    (5) ``Unlimited rights'' means the rights to use, modify, reproduce, 
perform, display, release, or disclose a work in whole or in part, in 
any manner, and for any purpose whatsoever, and to have or authorize 
others to do so.
    (6) The term ``works'' includes computer data bases, computer 
software, or computer software documentation; literary, musical, 
choreographic, or dramatic compositions; pantomimes; pictorial, graphic, 
or sculptural compositions; motion pictures and other audiovisual 
compositions; sound recordings in any medium; or, items of similar 
nature.
    (c) License rights. (1) The Government shall have unlimited rights 
in works first produced, created, or generated and required to be 
delivered under this contract.
    (2) When a work is first produced, created, or generated under this 
contract, and such work is required to be delivered under this contract, 
the Contractor shall assign copyright in those works to the Government. 
The Contractor, unless directed to the contrary by the Contracting 
Officer, shall place the following notice on such works: 
``(copyright) (Year date of delivery) United States 
Government, as represented by the Secretary of (department). All rights 
reserved.''
    For phonorecords, the ``(copyright)'' markings shall be 
replaced by a ``P''.
    (3) The Contractor grants to the Government a royalty-free, world-
wide, nonexclusive, irrevocable license to reproduce, prepare derivative 
works from, distribute, perform, or display, and to have or authorize 
others to do so, the Contractor's copyrighted works not first produced, 
created, or generated under this contract that have been incorporated 
into the works deliverable under this contract.
    (d) Third party copyrighted data. The Contractor shall not 
incorporate, without the written approval of the Contracting Officer, 
any copyrighted works in the works to be delivered under this contract 
unless the Contractor is the copyright owner or has obtained for the 
Government the license rights necessary to perfect a license of the 
scope identified in paragraph (c)(3) of this clause and, prior to 
delivery of such works--
    (1) Has affixed to the transmittal document a statement of the 
license rights obtained; or
    (2) For computer software, has provided a statement of the license 
rights obtained in a form acceptable to the Contracting Officer.
    (e) Indemnification. The Contractor shall indemnify and save and 
hold harmless the Government, and its officers, agents and employees 
acting for the Government, against any liability, including costs and 
expenses, (1) for violation of proprietary rights, copyrights, or rights 
of privacy or publicity, arising out of the creation, delivery, use, 
modification, reproduction, release, performance, display, or disclosure 
of any works furnished under this contract, or (2) based upon any 
libelous or other unlawful matter contained in such works.
    (f) Government-furnished information. Paragraphs (d) and (e) of this 
clause are not applicable to information furnished to the Contractor by 
the Government and incorporated in the works delivered under this 
contract.

                             (End of clause)

[60 FR 33504, June 28, 1995]



252.227-7021  Rights in data--existing works.

    As prescribed at 227.7105-2(a), use the following clause:

                Rights in Data--Existing Works (MAR 1979)

    (a) The term works as used herein includes literary, musical, and 
dramatic works; pantomimes and choreographic works; pictorial, graphic 
and sculptural works; motion pictures and other audiovisual works; sound 
recordings; and works of a similar nature. The term does not include 
financial reports, cost analyses, and other information incidental to 
contract administration.
    (b) Except as otherwise provided in this contract, the Contractor 
hereby grants to

[[Page 579]]

the Government a nonexclusive, paid-up license throughout the world (1) 
to distribute, perform publicly, and display publicly the works called 
for under this contract and (2) to authorize others to do so for 
Government purposes.
    (c) The Contractor shall indemnify and save and hold harmless the 
Government, and its officers, agents, and employees acting for the 
Government, against any liability, including costs and expenses, (1) for 
violation of proprietary rights, copyrights, or rights of privacy or 
publicity arising out of the creation, delivery, or use, of any works 
furnished under this contract, or (2) based upon any libelous or other 
unlawful matter contained in same works.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33504, June 28, 1994]



252.227-7022  Government rights (unlimited).

    As prescribed at 227.7107-1(a), use the following clause:

                Government Rights (Unlimited) (MAR 1979)

    The Government shall have unlimited rights, in all drawings, 
designs, specifications, notes and other works developed in the 
performance of this contract, including the right to use same on any 
other Government design or construction without additional compensation 
to the Contractor. The Contractor hereby grants to the Government a 
paid-up license throughout the world to all such works to which he may 
assert or establish any claim under design patent or copyright laws. The 
Contractor for a period of three (3) years after completion of the 
project agrees to furnish the original or copies of all such works on 
the request of the Contracting Officer.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33504, June 28, 1994]



252.227-7023  Drawings and other data to become property of Government.

    As prescribed at 227.7107-1(b), use the following clause:

   Drawings and Other Data to Become Property of Government (MAR 1979)

    All designs, drawings, specifications, notes and other works 
developed in the performance of this contract shall become the sole 
property of the Government and may be used on any other design or 
construction without additional compensation to the Contractor. The 
Government shall be considered the ``person for whom the work was 
prepared'' for the purpose of authorship in any copyrightable work under 
17 U.S.C. 201(b). With respect thereto, the Contractor agrees not to 
assert or authorize others to assert any rights nor establish any claim 
under the design patent or copyright laws. The Contractor for a period 
of three (3) years after completion of the project agrees to furnish all 
retained works on the request of the Contracting Officer. Unless 
otherwise provided in this contract, the Contractor shall have the right 
to retain copies of all works beyond such period.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]



252.227-7024  Notice and approval of restricted designs.

    As prescribed at 227.7107-3, use the following clause:

          Notice and Approval of Restricted Designs (APR 1984)

    In the performance of this contract, the Contractor shall, to the 
extent practicable, make maximum use of structures, machines, products, 
materials, construction methods, and equipment that are readily 
available through Government or competitive commercial channels, or 
through standard or proven production techniques, methods, and 
processes. Unless approved by the Contracting Officer, the Contractor 
shall not produce a design or specification that requires in this 
construction work the use of structures, products, materials, 
construction equipment, or processes that are known by the Contractor to 
be available only from a sole source. The Contractor shall promptly 
report any such design or specification to the Contracting Officer and 
give the reason why it is considered necessary to so restrict the design 
or specification.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]



252.227-7025  Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.

    As prescribed in 227.7103-6(c), 227.7104(f)(1), or 227.7203-6(d), 
use the following clause:

[[Page 580]]

Limitations on the Use or Disclosure of Government-Furnished Information 
               Marked With Restrictive Legends (MAY 2013)

    (a)(1) For contracts in which the Government will furnish the 
Contractor with technical data, the terms ``covered Government support 
contractor,'' ``limited rights,'' and ``Government purpose rights'' are 
defined in the clause at 252.227-7013, Rights in Technical Data-
Noncommercial Items.
    (2) For contracts in which the Government will furnish the 
Contractor with computer software or computer software documentation, 
the terms ``covered Government support contractor,'' ``government 
purpose rights,'' and ``restricted rights'' are defined in the clause at 
252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation.
    (3) For Small Business Innovation Research program contracts, the 
terms ``covered Government support contractor,'' ``limited rights,'' 
``restricted rights,'' and ``SBIR data rights'' are defined in the 
clause at 252.227-7018, Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovation Research (SBIR) Program.
    (b) Technical data or computer software provided to the Contractor 
as Government-furnished information (GFI) under this contract may be 
subject to restrictions on use, modification, reproduction, release, 
performance, display, or further disclosure.
    (1) GFI marked with limited rights, restricted rights, or SBIR data 
rights legends. (i) The Contractor shall use, modify, reproduce, 
perform, or display technical data received from the Government with 
limited rights legends, computer software received with restricted 
rights legends, or SBIR technical data or computer software received 
with SBIR data rights legends (during the SBIR data protection period) 
only in the performance of this contract. The Contractor shall not, 
without the express written permission of the party whose name appears 
in the legend, release or disclose such data or software to any 
unauthorized person.
    (ii) If the Contractor is a covered Government support contractor, 
the Contractor is also subject to the additional terms and conditions at 
paragraph (b)(5) of this clause
    (2) GFI marked with government purpose rights legends. The 
Contractor shall use technical data or computer software received from 
the Government with government purpose rights legends for government 
purposes only. The Contractor shall not, without the express written 
permission of the party whose name appears in the restrictive legend, 
use, modify, reproduce, release, perform, or display such data or 
software for any commercial purpose or disclose such data or software to 
a person other than its subcontractors, suppliers, or prospective 
subcontractors or suppliers, who require the data or software to submit 
offers for, or perform, contracts under this contract. Prior to 
disclosing the data or software, the Contractor shall require the 
persons to whom disclosure will be made to complete and sign the non-
disclosure agreement at 227.7103-7.
    (3) GFI marked with specially negotiated license rights legends. (i) 
The Contractor shall use, modify, reproduce, release, perform, or 
display technical data or computer software received from the Government 
with specially negotiated license legends only as permitted in the 
license. Such data or software may not be released or disclosed to other 
persons unless permitted by the license and, prior to release or 
disclosure, the intended recipient has completed the non-disclosure 
agreement at 227.7103-7. The Contractor shall modify paragraph (1)(c) of 
the non-disclosure agreement to reflect the recipient's obligations 
regarding use, modification, reproduction, release, performance, 
display, and disclosure of the data or software.
    (ii) If the Contractor is a covered Government support contractor, 
the Contractor may also be subject to some or all of the additional 
terms and conditions at paragraph (b)(5) of this clause, to the extent 
such terms and conditions are required by the specially negotiated 
license.
    (4) GFI technical data marked with commercial restrictive legends. 
(i) The Contractor shall use, modify, reproduce, perform, or display 
technical data that is or pertains to a commercial item and is received 
from the Government with a commercial restrictive legend (i.e., marked 
to indicate that such data are subject to use, modification, 
reproduction, release, performance, display, or disclosure restrictions) 
only in the performance of this contract. The Contractor shall not, 
without the express written permission of the party whose name appears 
in the legend, use the technical data to manufacture additional 
quantities of the commercial items, or release or disclose such data to 
any unauthorized person.
    (ii) If the Contractor is a covered Government support contractor, 
the Contractor is also subject to the additional terms and conditions at 
paragraph (b)(5) of this clause
    (5) Covered Government support contractors. If the Contractor is a 
covered Government support contractor receiving technical data or 
computer software marked with restrictive legends pursuant to paragraphs 
(b)(1)(ii), (b)(3)(ii), or (b)(4)(ii) of this clause, the Contractor 
further agrees and acknowledges that--
    (i) The technical data or computer software will be accessed and 
used for the sole purpose of furnishing independent and impartial advice 
or technical assistance directly to the Government in support of the

[[Page 581]]

Government's management and oversight of the program or effort to which 
such technical data or computer software relates, as stated in this 
contract, and shall not be used to compete for any Government or non-
Government contract;
    (ii) The Contractor will take all reasonable steps to protect the 
technical data or computer software against any unauthorized release or 
disclosure;
    (iii) The Contractor will ensure that the party whose name appears 
in the legend is notified of the access or use within thirty (30) days 
of the Contractor's access or use of such data or software;
    (iv) The Contractor will enter into a non-disclosure agreement with 
the party whose name appears in the legend, if required to do so by that 
party, and that any such non-disclosure agreement will implement the 
restrictions on the Contractor's use of such data or software as set 
forth in this clause. The non-disclosure agreement shall not include any 
additional terms and conditions unless mutually agreed to by the parties 
to the non-disclosure agreement; and
    (v) That a breach of these obligations or restrictions may subject 
the Contractor to--
    (A) Criminal, civil, administrative, and contractual actions in law 
and equity for penalties, damages, and other appropriate remedies by the 
United States; and
    (B) Civil actions for damages and other appropriate remedies by the 
party whose name appears in the legend.
    (c) Indemnification and creation of third party beneficiary rights. 
The Contractor agrees--
    (1) To indemnify and hold harmless the Government, its agents, and 
employees from every claim or liability, including attorneys fees, court 
costs, and expenses, arising out of, or in any way related to, the 
misuse or unauthorized modification, reproduction, release, performance, 
display, or disclosure of technical data or computer software received 
from the Government with restrictive legends by the Contractor or any 
person to whom the Contractor has released or disclosed such data or 
software; and
    (2) That the party whose name appears on the restrictive legend, in 
addition to any other rights it may have, is a third party beneficiary 
who has the right of direct action against the Contractor, or any person 
to whom the Contractor has released or disclosed such data or software, 
for the unauthorized duplication, release, or disclosure of technical 
data or computer software subject to restrictive legends.
    (d) The Contractor shall ensure that its employees are subject to 
use and non-disclosure obligations consistent with this clause prior to 
the employees being provided access to or use of any GFI covered by this 
clause.

[78 FR 30241, May 22, 2013]



252.227-7026  Deferred delivery of technical data or computer software.

    As prescribed at 227.7103-8(a), use the following clause:

   Deferred Delivery of Technical Data or Computer Software (APR 1988)

    The Government shall have the right to require, at any time during 
the performance of this contract, within two (2) years after either 
acceptance of all items (other than data or computer software) to be 
delivered under this contract or termination of this contract, whichever 
is later, delivery of any technical data or computer software item 
identified in this contract as ``deferred delivery'' data or computer 
software. The obligation to furnish such technical data required to be 
prepared by a subcontractor and pertaining to an item obtained from him 
shall expire two (2) years after the date Contractor accepts the last 
delivery of that item from that subcontractor for use in performing this 
contract.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]



252.227-7027  Deferred ordering of technical data or computer software.

    As prescribed at 227.7103-8(b), use the following clause:

   Deferred Ordering of Technical Data or Computer Software (APR 1988)

    In addition to technical data or computer software specified 
elsewhere in this contract to be delivered hereunder, the Government 
may, at any time during the performance of this contract or within a 
period of three (3) years after acceptance of all items (other than 
technical data or computer software) to be delivered under this contract 
or the termination of this contract, order any technical data or 
computer software generated in the performance of this contract or any 
subcontract hereunder. When the technical data or computer software is 
ordered, the Contractor shall be compensated for converting the data or 
computer software into the prescribed form, for reproduction and 
delivery. The obligation to deliver the technical data of a 
subcontractor and pertaining to an item obtained from him shall expire 
three (3) years after the date the Contractor accepts the last delivery 
of that item from that subcontractor under this contract. The 
Government's rights to use said data or computer software shall be 
pursuant to the ``Rights in

[[Page 582]]

Technical Data and Computer Software'' clause of this contract.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]



252.227-7028  Technical data or computer software previously delivered
to the government.

    As prescribed in 227.7103-6(d), 227.7104(f)(2), or 227.7203-6(e), 
use the following provision:

    Technical Data or Computer Software Previously Delivered to the 
                          Government (JUN 1995)

    The Offeror shall attach to its offer an identification of all 
documents or other media incorporating technical data or computer 
software it intends to deliver under this contract with other than 
unlimited rights that are identical or substantially similar to 
documents or other media that the Offeror has produced for, delivered 
to, or is obligated to deliver to the Government under any contract or 
subcontract. The attachment shall identify--
    (a) The contract number under which the data or software were 
produced;
    (b) The contract number under which, and the name and address of the 
organization to whom, the data or software were most recently delivered 
or will be delivered; and
    (c) Any limitations on the Government's rights to use or disclose 
the data or software, including, when applicable, identification of the 
earliest date the limitations expire.

                           (End of provision)

[60 FR 33505, June 28, 1995]



252.227-7029  [Reserved]



252.227-7030  Technical data--withholding of payment.

    As prescribed at 227.7103-6(e)(2) or 227.7104(e)(4), use the 
following clause:

            Technical Data--Withholding of Payment (MAR 2000)

    (a) If technical data specified to be delivered under this contract, 
is not delivered within the time specified by this contract or is 
deficient upon delivery (including having restrictive markings not 
identified in the list described in the clause at 252.227-7013(e)(2) or 
252.227-7018(e)(2) of this contract), the Contracting Officer may until 
such data is accepted by the Government, withhold payment to the 
Contractor of ten percent (10%) of the total contract price or amount 
unless a lesser withholding is specified in the contract. Payments shall 
not be withheld nor any other action taken pursuant to this paragraph 
when the Contractor's failure to make timely delivery or to deliver such 
data without deficiencies arises out of causes beyond the control and 
without the fault or negligence of the Contractor.
    (b) The withholding of any amount or subsequent payment to the 
Contractor shall not be construed as a waiver of any rights accruing to 
the Government under this contract.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995; 
62 FR 34132, June 24, 1997; 65 FR 14398, Mar. 16, 2000]



252.227-7031  [Reserved]



252.227-7032  Rights in technical data and computer software (foreign).

    As prescribed in 227.7103-17, use the following clause:

   Rights in Technical Data and Computer Software (Foreign) (JUN 1975)

    The United States Government may duplicate, use, and disclose in any 
manner for any purposes whatsoever, including delivery to other 
governments for the furtherance of mutual defense of the United States 
Government and other governments, all technical data including reports, 
drawings and blueprints, and all computer software, specified to be 
delivered by the Contractor to the United States Government under this 
contract.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]



252.227-7033  Rights in shop drawings.

    As prescribed in 227.7107-(1)(c), use the following clause:

                   Rights in Shop Drawings (APR 1966)

    (a) Shop drawings for construction means drawings, submitted to the 
Government by the Construction Contractor, subcontractor or any lower-
tier subcontractor pursuant to a construction contract, showing in 
detail (i) the proposed fabrication and assembly of structural elements 
and (ii) the installation (i.e., form, fit, and attachment details) of 
materials or equipment. The Government may duplicate, use, and disclose 
in any manner and for any purpose shop drawings delivered under this 
contract.
    (b) This clause, including this paragraph (b), shall be included in 
all subcontracts hereunder at any tier.

[[Page 583]]

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]



252.227-7034--252.227-7036  [Reserved]



252.227-7037  Validation of restrictive markings on technical data.

    As prescribed in 227.7102-4(c), 227.7103-6(e)(3), 27.7104(e)(5), or 
227.7203-6(f), use the following clause:

     Validation of Restrictive Markings on Technical Data (SEP 2016)

    (a) Definitions. The terms used in this clause are defined in the 
Rights in Technical Data--Noncommercial Items clause of this contract.
    (b) Presumption regarding development exclusively at private 
expense--(1) Commercial items. (i) Except as provided in paragraph 
(b)(2) of this clause, the Contracting Officer will presume that the 
Contractor's or a subcontractor's asserted use or release restrictions 
with respect to a commercial item is justified on the basis that the 
item was developed exclusively at private expense.
    (ii) The Contracting Officer will not challenge such assertions 
unless the Contracting Officer has information that demonstrates that 
the commercial item was not developed exclusively at private expense.
    (2) Major weapon systems. In the case of a challenge to a use or 
release restriction that is asserted with respect to data of the 
Contractor or a subcontractor for a major weapon system or a subsystem 
or component thereof on the basis that the major weapon system, 
subsystem, or component was developed exclusively at private expense--
    (i) The presumption in paragraph (b)(1) of this clause applies to--
    (A) A commercial subsystem or component of a major weapon system, if 
the major weapon system was acquired as a commercial item in accordance 
with DFARS subpart 234.70 (10 U.S.C. 2379(a));
    (B) A component of a subsystem, if the subsystem was acquired as a 
commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 
2379(b)); and
    (C) Any other component, if the component is a commercially 
available off-the-shelf item or a commercially available off-the-shelf 
item with modifications of a type customarily available in the 
commercial marketplace or minor modifications made to meet Federal 
Government requirements; and
    (ii) In all other cases, the challenge to the use or release 
restriction will be sustained unless information provided by the 
Contractor or a subcontractor demonstrates that the item or process was 
developed exclusively at private expense.
    (c) Justification. The Contractor or subcontractor at any tier is 
responsible for maintaining records sufficient to justify the validity 
of its markings that impose restrictions on the Government and others to 
use, duplicate, or disclose technical data delivered or required to be 
delivered under the contract or subcontract. Except as provided in 
paragraph (b)(1) of this clause, the Contractor or subcontractor shall 
be prepared to furnish to the Contracting Officer a written 
justification for such restrictive markings in response to a challenge 
under paragraph (e) of this clause.
    (d) Prechallenge request for information. (1) The Contracting 
Officer may request the Contractor or subcontractor to furnish a written 
explanation for any restriction asserted by the Contractor or 
subcontractor on the right of the United States or others to use 
technical data. If, upon review of the explanation submitted, the 
Contracting Officer remains unable to ascertain the basis of the 
restrictive marking, the Contracting Officer may further request the 
Contractor or subcontractor to furnish additional information in the 
records of, or otherwise in the possession of or reasonably available 
to, the Contractor or subcontractor to justify the validity of any 
restrictive marking on technical data delivered or to be delivered under 
the contract or subcontract (e.g., a statement of facts accompanied with 
supporting documentation). The Contractor or subcontractor shall submit 
such written data as requested by the Contracting Officer within the 
time required or such longer period as may be mutually agreed.
    (2) If the Contracting Officer, after reviewing the written data 
furnished pursuant to paragraph (d)(1) of this clause, or any other 
available information pertaining to the validity of a restrictive 
marking, determines that reasonable grounds exist to question the 
current validity of the marking and that continued adherence to the 
marking would make impracticable the subsequent competitive acquisition 
of the item, component, or process to which the technical data relates, 
the Contracting Officer shall follow the procedures in paragraph (e) of 
this clause.
    (3) If the Contractor or subcontractor fails to respond to the 
Contracting Officer's request for information under paragraph (d)(1) of 
this clause, and the Contracting Officer determines that continued 
adherence to the marking would make impracticable the subsequent 
competitive acquisition of the item, component, or process to which the 
technical data relates, the Contracting Officer may challenge the 
validity of the marking as described in paragraph (e) of this clause.
    (e) Challenge. (1) Notwithstanding any provision of this contract 
concerning inspection and acceptance, if the Contracting Officer 
determines that a challenge to the restrictive marking is warranted, the 
Contracting

[[Page 584]]

Officer shall send a written challenge notice to the Contractor or 
subcontractor asserting the restrictive markings. Such challenge shall--
    (i) State the specific grounds for challenging the asserted 
restriction;
    (ii) Require a response within sixty (60) days justifying and 
providing sufficient evidence as to the current validity of the asserted 
restriction;
    (iii) State that a DoD Contracting Officer's final decision, issued 
pursuant to paragraph (g) of this clause, sustaining the validity of a 
restrictive marking identical to the asserted restriction, within the 
three-year period preceding the challenge, shall serve as justification 
for the asserted restriction if the validated restriction was asserted 
by the same Contractor or subcontractor (or any licensee of such 
Contractor or subcontractor) to which such notice is being provided; and
    (iv) State that failure to respond to the challenge notice may 
result in issuance of a final decision pursuant to paragraph (f) of this 
clause.
    (2) The Contracting Officer shall extend the time for response as 
appropriate if the Contractor or subcontractor submits a written request 
showing the need for additional time to prepare a response.
    (3) The Contractor's or subcontractor's written response shall be 
considered a claim within the meaning of the 41 U.S.C. 7101, Contract 
Disputes and shall be certified in the form prescribed at 33.207 of the 
Federal Acquisition Regulation, regardless of dollar amount.
    (4) A Contractor or subcontractor receiving challenges to the same 
restrictive markings from more than one Contracting Officer shall notify 
each Contracting Officer of the existence of more than one challenge. 
The notice shall also state which Contracting Officer initiated the 
first in time unanswered challenge. The Contracting Officer initiating 
the first in time unanswered challenge after consultation with the 
Contractor or subcontractor and the other Contracting Officers, shall 
formulate and distribute a schedule for responding to each of the 
challenge notices to all interested parties. The schedule shall afford 
the Contractor or subcontractor an opportunity to respond to each 
challenge notice. All parties will be bound by this schedule.
    (f) Final decision when Contractor or subcontractor fails to 
respond. Upon a failure of a Contractor or subcontractor to submit any 
response to the challenge notice the Contracting Officer will issue a 
final decision to the Contractor or subcontractor in accordance with 
paragraph (b) of this clause and the Disputes clause of this contract 
pertaining to the validity of the asserted restriction. This final 
decision shall be issued as soon as possible after the expiration of the 
time period of paragraph (e)(1)(ii) or (e)(2) of this clause. Following 
issuance of the final decision, the Contracting Officer will comply with 
the procedures in paragraphs (g)(2)(ii) through (iv) of this clause.
    (g) Final decision when Contractor or subcontractor responds. (1) if 
the Contracting Officer determines that the Contractor or subcontractor 
has justified the validity of the restrictive marking, the Contracting 
Officer shall issue a final decision to the Contractor or subcontractor 
sustaining the validity of the restrictive marking, and stating that the 
Government will continue to be bound by the restrictive marking. This 
final decision shall be issued within sixty (60) days after receipt of 
the Contractor's or subcontractor's response to the challenge notice, or 
within such longer period that the Contracting Officer has notified the 
Contractor or subcontractor that the Government will require. The 
notification of a longer period for issuance of a final decision will be 
made within sixty (60) days after receipt of the response to the 
challenge notice.
    (2)(i) If the Contracting Officer determines that the validity of 
the restrictive marking is not justified, the Contracting Officer shall 
issue a final decision to the Contractor or subcontractor in accordance 
with the Disputes clause of this contract. Notwithstanding paragraph (e) 
of the Disputes clause, the final decision shall be issued within sixty 
(60) days after receipt of the Contractor's or subcontractor's response 
to the challenge notice, or within such longer period that the 
Contracting Officer has notified the Contractor or subcontractor of the 
longer period that the Government will require. The notification of a 
longer period for issuance of a final decision will be made within sixty 
(60) days after receipt of the response to the challenge notice.
    (ii) The Government agrees that it will continue to be bound by the 
restrictive marking of a period of ninety (90) days from the issuance of 
the Contracting Officer's final decision under paragraph (g)(2)(i) of 
this clause. The Contractor or subcontractor agrees that, if it intends 
to file suit in the United States Claims Court it will provide a notice 
of intent to file suit to the Contracting Officer within ninety (90) 
days from the issuance of the Contracting Officer's final decision under 
paragraph (g)(2)(i) of this clause. If the Contractor or subcontractor 
fails to appeal, file suit, or provide a notice of intent to file suit 
to the Contracting Officer within the ninety (90)-day period, the 
Government may cancel or ignore the restrictive markings, and the 
failure of the Contractor or subcontractor to take the required action 
constitutes agreement with such Government action.
    (iii) The Government agrees that it will continue to be bound by the 
restrictive marking where a notice of intent to file suit

[[Page 585]]

in the United States Claims Court is provided to the Contracting Officer 
within ninety (90) days from the issuance of the final decision under 
paragraph (g)(2)(i) of this clause. The Government will no longer be 
bound, and the Contractor or subcontractor agrees that the Government 
may strike or ignore the restrictive markings, if the Contractor or 
subcontractor fails to file its suit within one (1) year after issuance 
of the final decision. Notwithstanding the foregoing, where the head of 
an agency determines, on a nondelegable basis, that urgent or compelling 
circumstances will not permit waiting for the filing of a suit in the 
United States Claims Court, the Contractor or subcontractor agrees that 
the agency may, following notice to the Contractor or subcontractor, 
authorize release or disclosure of the technical data. Such agency 
determination may be made at any time after issuance of the final 
decision and will not affect the Contractor's or subcontractor's right 
to damages against the United States where its restrictive markings are 
ultimately upheld or to pursue other relief, if any, as may be provided 
by law.
    (iv) The Government agrees that it will be bound by the restrictive 
marking where an appeal or suit is filed pursuant to the Contract 
Disputes statute until final disposition by an agency Board of Contract 
Appeals or the United States Claims Court. Notwithstanding the 
foregoing, where the head of an agency determines, on a nondelegable 
basis, following notice to the Contractor that urgent or compelling 
circumstances will not permit awaiting the decision by such Board of 
Contract Appeals or the United States Claims Court, the Contractor or 
subcontractor agrees that the agency may authorize release or disclosure 
of the technical data. Such agency determination may be made at any time 
after issuance of the final decision and will not affect the 
Contractor's or subcontractor's right to damages against the United 
States where its restrictive markings are ultimately upheld or to pursue 
other relief, if any, as may be provided by law.
    (h) Final disposition of appeal or suit. (1) If the Contractor or 
subcontractor appeals or files suit and if, upon final disposition of 
the appeal or suit, the Contracting Officer's decision is sustained--
    (i) The restrictive marking on the technical data shall be 
cancelled, corrected or ignored; and
    (ii) If the restrictive marking is found not to be substantially 
justified, the Contractor or subcontractor, as appropriate, shall be 
liable to the Government for payment of the cost to the Government of 
reviewing the restrictive marking and the fees and other expenses (as 
defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in 
challenging the marking, unless special circumstances would make such 
payment unjust.
    (2) If the Contractor or subcontractor appeals or files suit and if, 
upon final disposition of the appeal or suit, the Contracting Officer's 
decision is not sustained--
    (i) The Government shall continue to be bound by the restrictive 
marking; and
    (ii) The Government shall be liable to the Contractor or 
subcontractor for payment of fees and other expenses (as defined in 28 
U.S.C. 2412(d)(2)(A)) incurred by the Contractor or subcontractor in 
defending the marking, if the challenge by the Government is found not 
to have been made in good faith.
    (i) Duration of right to challenge. The Government may review the 
validity of any restriction on technical data, delivered or to be 
delivered under a contract, asserted by the Contractor or subcontractor. 
During the period within three (3) years of final payment on a contract 
or within three (3) years of delivery of the technical data to the 
Government, whichever is later, the Contracting Officer may review and 
make a written determination to challenge the restriction. The 
Government may, however, challenge a restriction on the release, 
disclosure or use of technical data at any time if such technical data--
    (1) Is publicly available;
    (2) Has been furnished to the United States without restriction; or
    (3) Has been otherwise made available without restriction. Only the 
Contracting Officer's final decision resolving a formal challenge by 
sustaining the validity of a restrictive marking constitutes 
``validation'' as addressed in 10 U.S.C. 2321.
    (j) Decision not to challenge. A decision by the Government, or a 
determination by the Contracting Officer, to not challenge the 
restrictive marking or asserted restriction shall not constitute 
``validation.''
    (k) Privity of contract. The Contractor or subcontractor agrees that 
the Contracting Officer may transact matters under this clause directly 
with subcontractors at any tier that assert restrictive markings. 
However, this clause neither creates nor implies privity of contract 
between the Government and subcontractors.
    (l) Flowdown. The Contractor or subcontractor agrees to insert this 
clause in contractual instruments, including subcontracts and other 
contractual instruments for commercial items, with its subcontractors or 
suppliers at any tier requiring the delivery of technical data.

[[Page 586]]

                             (End of clause)

[60 FR 33505, June 28, 1995, as amended at 60 FR 61602, Nov. 30, 1995; 
64 FR 51077, Sept. 21, 1999; 69 FR 31912, June 8, 2004; 76 FR 58138, 
58149, Sept. 20, 2011; 77 FR 23632, Apr. 20, 2012; 77 FR 76938, Dec. 31, 
2012; 78 FR 37990, June 25, 2013; 81 FR 65567, Sept. 23, 2016]



252.227-7038  Patent Rights--Ownership by the Contractor (Large Business).

    As prescribed in 227.303(2), use the following clause:

 Patent Rights--Ownership by the Contractor (Large Business) (JUN 2012)

    (a) Definitions. As used in this clause--Invention means--
    (1) Any invention or discovery that is or may be patentable or 
otherwise protectable under Title 35 of the United States Code; or
    (2) Any variety of plant that is or may be protectable under the 
Plant Variety Protection Act (7 U.S.C. 2321, et seq.).
    Made--
    (1) When used in relation to any invention other than a plant 
variety, means the conception or first actual reduction to practice of 
the invention; or
    (2) When used in relation to a plant variety, means that the 
Contractor has at least tentatively determined that the variety has been 
reproduced with recognized characteristics.
    Nonprofit organization means--
    (1) A university or other institution of higher education;
    (2) An organization of the type described in the Internal Revenue 
Code at 26 U.S.C. 501(c)(3) and exempt from taxation under 26 U.S.C. 
501(a); or
    (3) Any nonprofit scientific or educational organization qualified 
under a State nonprofit organization statute.
    Practical application means--
    (1)(i) To manufacture, in the case of a composition or product;
    (ii) To practice, in the case of a process or method; or
    (iii) To operate, in the case of a machine or system; and
    (2) In each case, under such conditions as to establish that--
    (i) The invention is being utilized; and
    (ii) The benefits of the invention are, to the extent permitted by 
law or Government regulations, available to the public on reasonable 
terms.
    Subject invention means any invention of the Contractor made in the 
performance of work under this contract.
    (b) Contractor's rights--(1) Ownership. The Contractor may elect to 
retain ownership of each subject invention throughout the world in 
accordance with the provisions of this clause.
    (2) License. (i) The Contractor shall retain a nonexclusive royalty-
free license throughout the world in each subject invention to which the 
Government obtains title, unless the Contractor fails to disclose the 
invention within the times specified in paragraph (c) of this clause. 
The Contractor's license-
    (A) Extends to any domestic subsidiaries and affiliates within the 
corporate structure of which the Contractor is a part;
    (B) Includes the right to grant sublicenses to the extent the 
Contractor was legally obligated to do so at the time of contract award; 
and
    (C) Is transferable only with the approval of the agency, except 
when transferred to the successor of that part of the Contractor's 
business to which the invention pertains.
    (ii) The agency--
    (A) May revoke or modify the Contractor's domestic license to the 
extent necessary to achieve expeditious practical application of the 
subject invention pursuant to an application for an exclusive license 
submitted in accordance with 37 CFR Part 404 and agency licensing 
regulations;
    (B) Will not revoke the license in that field of use or the 
geographical areas in which the Contractor has achieved practical 
application and continues to make the benefits of the invention 
reasonably accessible to the public; and
    (C) May revoke or modify the license in any foreign country to the 
extent the Contractor, its licensees, or the domestic subsidiaries or 
affiliates have failed to achieve practical application in that foreign 
country.
    (iii) Before revoking or modifying the license, the agency--
    (A) Will furnish the Contractor a written notice of its intention to 
revoke or modify the license; and
    (B) Will allow the Contractor 30 days (or such other time as the 
funding agency may authorize for good cause shown by the Contractor) 
after the notice to show cause why the license should not be revoked or 
modified.
    (iv) The Contractor has the right to appeal, in accordance with 37 
CFR part 404 and agency regulations, concerning the licensing of 
Government-owned inventions, any decision concerning the revocation or 
modification of the license.
    (c) Contractor's obligations. (1) The Contractor shall--
    (i) Disclose, in writing, each subject invention to the Contracting 
Officer within 2 months after the inventor discloses it in writing to 
Contractor personnel responsible for patent matters, or within 6 months 
after the Contractor first becomes aware that a subject invention has 
been made, whichever is earlier;

[[Page 587]]

    (ii) Include in the disclosure--
    (A) The inventor(s) and the contract under which the invention was 
made;
    (B) Sufficient technical detail to convey a clear understanding of 
the invention; and
    (C) Any publication, on sale (i.e., sale or offer for sale), or 
public use of the invention and whether a manuscript describing the 
invention has been submitted for publication and, if so, whether it has 
been accepted for publication; and
    (iii) After submission of the disclosure, promptly notify the 
Contracting Officer of the acceptance of any manuscript describing the 
invention for publication and of any on sale or public use.
    (2) The Contractor shall elect in writing whether or not to retain 
ownership of any subject invention by notifying the Contracting Officer 
at the time of disclosure or within 8 months of disclosure, as to those 
countries (including the United States) in which the Contractor will 
retain ownership. However, in any case where publication, on sale, or 
public use has initiated the 1-year statutory period during which valid 
patent protection can be obtained in the United States, the agency may 
shorten the period of election of title to a date that is no more than 
60 days prior to the end of the statutory period.
    (3) The Contractor shall--
    (i) File either a provisional or a nonprovisional patent application 
on an elected subject invention within 1 year after election, provided 
that in all cases the application is filed prior to the end of any 
statutory period wherein valid patent protection can be obtained in the 
United States after a publication, on sale, or public use;
    (ii) File a nonprovisional application within 10 months of the 
filing of any provisional application; and
    (iii) File patent applications in additional countries or 
international patent offices within either 10 months of the first filed 
patent application (whether provisional or nonprovisional) or 6 months 
from the date the Commissioner of Patents grants permission to file 
foreign patent applications where such filing has been prohibited by a 
Secrecy Order.
    (4) The Contractor may request extensions of time for disclosure, 
election, or filing under paragraphs (c)(1), (2), and (3) of this 
clause. The Contracting Officer will normally grant the extension unless 
there is reason to believe the extension would prejudice the 
Government's interests.
    (d) Government's rights--(1) Ownership. The Contractor shall assign 
to the agency, upon written request, title to any subject invention--
    (i) If the Contractor elects not to retain title to a subject 
invention;
    (ii) If the Contractor fails to disclose or elect the subject 
invention within the times specified in paragraph (c) of this clause and 
the agency requests title within 60 days after learning of the 
Contractor's failure to report or elect within the specified times;
    (iii) In those countries in which the Contractor fails to file 
patent applications within the times specified in paragraph (c) of this 
clause, provided that, if the Contractor has filed a patent application 
in a country after the times specified in paragraph (c) of this clause, 
but prior to its receipt of the written request of the agency, the 
Contractor shall continue to retain ownership in that country; and
    (iv) In any country in which the Contractor decides not to continue 
the prosecution of any application for, to pay the maintenance fees on, 
or defend in reexamination or opposition proceeding on, a patent on a 
subject invention.
    (2) License. If the Contractor retains ownership of any subject 
invention, the Government shall have a nonexclusive, nontransferable, 
irrevocable, paid-up license to practice, or have practiced for or on 
behalf of the United States, the subject invention throughout the world.
    (e) Contractor action to protect the Government's interest. (1) The 
Contractor shall execute or have executed and promptly deliver to the 
agency all instruments necessary to--
    (i) Establish or confirm the rights the Government has throughout 
the world in those subject inventions in which the Contractor elects to 
retain ownership; and
    (ii) Assign title to the agency when requested under paragraph 
(d)(1) of this clause and enable the Government to obtain patent 
protection for that subject invention in any country.
    (2) The Contractor shall--
    (i) Require, by written agreement, its employees, other than 
clerical and nontechnical employees, to--
    (A) Disclose each subject invention promptly in writing to personnel 
identified as responsible for the administration of patent matters, so 
that the Contractor can comply with the disclosure provisions in 
paragraph (c) of this clause; and
    (B) Provide the disclosure in the Contractor's format, which should 
require, as a minimum, the information required by paragraph (c)(1) of 
this clause;
    (ii) Instruct its employees, through employee agreements or other 
suitable educational programs, as to the importance of reporting 
inventions in sufficient time to permit the filing of patent 
applications prior to U.S. or statutory foreign bars; and
    (iii) Execute all papers necessary to file patent applications on 
subject inventions and to establish the Government's rights in the 
subject inventions.
    (3) The Contractor shall notify the Contracting Officer of any 
decisions not to file a nonprovisional patent application, continue

[[Page 588]]

the prosecution of a patent application, pay maintenance fees, or defend 
in a reexamination or opposition proceeding on a patent, in any country, 
not less than 30 days before the expiration of the response or filing 
period required by the relevant patent office.
    (4) The Contractor shall include, within the specification of any 
United States nonprovisional patent application and any patent issuing 
thereon covering a subject invention, the following statement: ``This 
invention was made with Government support under (identify the contract) 
awarded by (identify the agency). The Government has certain rights in 
this invention.''
    (5) The Contractor shall--
    (i) Establish and maintain active and effective procedures to ensure 
that subject inventions are promptly identified and disclosed to 
Contractor personnel responsible for patent matters;
    (ii) Include in these procedures the maintenance of--
    (A) Laboratory notebooks or equivalent records and other records as 
are reasonably necessary to document the conception and/or the first 
actual reduction to practice of subject inventions; and
    (B) Records that show that the procedures for identifying and 
disclosing the inventions are followed; and
    (iii) Upon request, furnish the Contracting Officer a description of 
these procedures for evaluation and for determination as to their 
effectiveness.
    (6) The Contractor shall, when licensing a subject invention, 
arrange to--
    (i) Avoid royalty charges on acquisitions involving Government 
funds, including funds derived through the Government's Military 
Assistance Program or otherwise derived through the Government;
    (ii) Refund any amounts received as royalty charges on the subject 
inventions in acquisitions for, or on behalf of, the Government; and
    (iii) Provide for the refund in any instrument transferring rights 
in the invention to any party.
    (7) The Contractor shall furnish to the Contracting Officer the 
following:
    (i) Interim reports every 12 months (or any longer period as may be 
specified by the Contracting Officer) from the date of the contract, 
listing subject inventions during that period and stating that all 
subject inventions have been disclosed or that there are no subject 
inventions.
    (ii) A final report, within 3 months after completion of the 
contracted work, listing all subject inventions or stating that there 
were no subject inventions, and listing all subcontracts at any tier 
containing a patent rights clause or stating that there were no 
subcontracts.
    (8)(i) The Contractor shall promptly notify the Contracting Officer 
in writing upon the award of any subcontract at any tier containing a 
patent rights clause by identifying--
    (A) The subcontractor;
    (B) The applicable patent rights clause;
    (C) The work to be performed under the subcontract; and
    (D) The dates of award and estimated completion.
    (ii) The Contractor shall furnish, upon request, a copy of the 
subcontract, and no more frequently than annually, a listing of the 
subcontracts that have been awarded.
    (9) In the event of a refusal by a prospective subcontractor to 
accept one of the clauses specified in paragraph (l)(1) of this clause, 
the Contractor--
    (i) Shall promptly submit a written notice to the Contracting 
Officer setting forth the subcontractor's reasons for the refusal and 
other pertinent information that may expedite disposition of the matter; 
and
    (ii) Shall not proceed with that subcontract without the written 
authorization of the Contracting Officer.
    (10) The Contractor shall provide to the Contracting Officer, upon 
request, the following information for any subject invention for which 
the Contractor has retained ownership:
    (i) Filing date.
    (ii) Serial number and title.
    (iii) A copy of any patent application (including an English-
language version if filed in a language other than English).
    (iv) Patent number and issue date.
    (11) The Contractor shall furnish to the Government, upon request, 
an irrevocable power to inspect and make copies of any patent 
application file.
    (f) Reporting on utilization of subject inventions. (1) The 
Contractor shall--
    (i) Submit upon request periodic reports no more frequently than 
annually on the utilization of a subject invention or on efforts in 
obtaining utilization of the subject invention that are being made by 
the Contractor or its licensees or assignees;
    (ii) Include in the reports information regarding the status of 
development, date of first commercial sale or use, gross royalties 
received by the Contractor, and other information as the agency may 
reasonably specify; and
    (iii) Provide additional reports that the agency may request in 
connection with any march-in proceedings undertaken by the agency in 
accordance with paragraph (h) of this clause.
    (2) To the extent permitted by law, the agency shall not disclose 
the information provided under paragraph (f)(1) of this clause to 
persons outside the Government without the Contractor's permission, if 
the data or information is considered by the Contractor or its licensee 
or assignee to be ``privileged

[[Page 589]]

and confidential'' (see 5 U.S.C. 552(b)(4)) and is so marked.
    (g) Preference for United States industry. Notwithstanding any other 
provision of this clause, the Contractor agrees that neither the 
Contractor nor any assignee shall grant to any person the exclusive 
right to use or sell any subject invention in the United States unless 
the person agrees that any products embodying the subject invention or 
produced through the use of the subject invention will be manufactured 
substantially in the United States. However, in individual cases, the 
agency may waive the requirement for an exclusive license agreement upon 
a showing by the Contractor or its assignee that--
    (1) Reasonable but unsuccessful efforts have been made to grant 
licenses on similar terms to potential licensees that would be likely to 
manufacture substantially in the United States; or
    (2) Under the circumstances, domestic manufacture is not 
commercially feasible.
    (h) March-in rights. The Contractor acknowledges that, with respect 
to any subject invention in which it has retained ownership, the agency 
has the right to require licensing pursuant to 35 U.S.C. 203 and 210(c), 
37 CFR 401.6, and any supplemental regulations of the agency in effect 
on the date of contract award.
    (i) Other inventions. Nothing contained in this clause shall be 
deemed to grant to the Government any rights with respect to any 
invention other than a subject invention.
    (j) Examination of records relating to inventions. (1) The 
Contracting Officer or any authorized representative shall, until 3 
years after final payment under this contract, have the right to examine 
any books (including laboratory notebooks), records, and documents of 
the Contractor relating to the conception or first reduction to practice 
of inventions in the same field of technology as the work under this 
contract to determine whether--
    (i) Any inventions are subject inventions;
    (ii) The Contractor has established procedures required by paragraph 
(e)(5) of this clause; and
    (iii) The Contractor and its inventors have complied with the 
procedures.
    (2) If the Contracting Officer learns of an unreported Contractor 
invention that the Contracting Officer believes may be a subject 
invention, the Contractor shall be required to disclose the invention to 
the agency for a determination of ownership rights.
    (3) Any examination of records under this paragraph (j) shall be 
subject to appropriate conditions to protect the confidentiality of the 
information involved.
    (k) Withholding of payment (this paragraph does not apply to 
subcontracts). (1) Any time before final payment under this contract, 
the Contracting Officer may, in the Government's interest, withhold 
payment until a reserve not exceeding $50,000 or 5 percent of the amount 
of the contract, whichever is less, is set aside if, in the Contracting 
Officer's opinion, the Contractor fails to--
    (i) Establish, maintain, and follow effective procedures for 
identifying and disclosing subject inventions pursuant to paragraph 
(e)(5) of this clause;
    (ii) Disclose any subject invention pursuant to paragraph (c)(1) of 
this clause;
    (iii) Deliver acceptable interim reports pursuant to paragraph 
(e)(7)(i) of this clause; or
    (iv) Provide the information regarding subcontracts pursuant to 
paragraph (e)(8) of this clause.
    (2) The reserve or balance shall be withheld until the Contracting 
Officer has determined that the Contractor has rectified whatever 
deficiencies exist and has delivered all reports, disclosures, and other 
information required by this clause.
    (3) The Government will not make final payment under this contract 
before the Contractor delivers to the Contracting Officer--
    (i) All disclosures of subject inventions required by paragraph 
(c)(1) of this clause;
    (ii) An acceptable final report pursuant to paragraph (e)(7)(ii) of 
this clause; and
    (iii) All past due confirmatory instruments.
    (4) The Contracting Officer may decrease or increase the sums 
withheld up to the maximum authorized in paragraph (k)(1) of this 
clause. No amount shall be withheld under this paragraph while the 
amount specified by this paragraph is being withheld under other 
provisions of the contract. The withholding of any amount or the 
subsequent payment thereof shall not be construed as a waiver of any 
Government right.
    (l) Subcontracts. (1) The Contractor--
    (i) Shall include the substance of the Patent Rights-Ownership by 
the Contractor clause set forth at 52.227-11 of the Federal Acquisition 
Regulation (FAR), in all subcontracts for experimental, developmental, 
or research work to be performed by a small business concern or 
nonprofit organization; and
    (ii) Shall include the substance of this clause, including this 
paragraph (l), in all other subcontracts for experimental, 
developmental, or research work, unless a different patent rights clause 
is required by FAR 27.303.
    (2) For subcontracts at any tier--
    (i) The patents rights clause included in the subcontract shall 
retain all references to the Government and shall provide to the 
subcontractor all the rights and obligations provided to the Contractor 
in the clause. The Contractor shall not, as consideration for awarding 
the subcontract, obtain rights in the subcontractor's subject 
inventions; and

[[Page 590]]

    (ii) The Government, the Contractor, and the subcontractor agree 
that the mutual obligations of the parties created by this clause 
constitute a contract between the subcontractor and the Government with 
respect to those matters covered by this clause. However, nothing in 
this paragraph is intended to confer any jurisdiction under the Contract 
Disputes statute in connection with proceedings under paragraph (h) of 
this clause.

                             (End of clause)

    Alternate I (DEC 2007). As prescribed in 227.303(2)(ii), add the 
following paragraph (b)(2)(v) to the basic clause:

    (v) The license shall include the right of the Government to 
sublicense foreign governments, their nationals, and international 
organizations pursuant to the following treaties or international 
agreements: ________*.
    [* Contracting Officer to complete with the names of applicable 
existing treaties or international agreements. This paragraph is not 
intended to apply to treaties or agreements that are in effect on the 
date of the award but are not listed.]

    Alternate II (DEC 2007). As prescribed in 227.303(2)(iii), add the 
following paragraph (b)(2)(v) to the basic clause:

    (v) The agency reserves the right to--
    (A) Unilaterally amend this contract to identify specific treaties 
or international agreements entered into or to be entered into by the 
Government after the effective date of this contract; and
    (B) Exercise those license or other rights that are necessary for 
the Government to meet its obligations to foreign governments, their 
nationals, and international organizations under any treaties or 
international agreement with respect to subject inventions made after 
the date of the amendment.

[72 FR 69160, Dec. 7, 2007, as amended at 77 FR 76938, Dec. 31, 2012]



252.227-7039  Patents--reporting of subject inventions.

    As prescribed in 227.303(1), use the following clause:

           Patents--Reporting of Subject Inventions (APR 1990)

    The Contractor shall furnish the Contracting Officer the following:
    (a) Interim reports every twelve (12) months (or such longer period 
as may be specified by the Contracting Officer) from the date of the 
contract, listing subject inventions during that period and stating that 
all subject inventions have been disclosed or that there are no such 
inventions.
    (b) A final report, within three (3) months after completion of the 
contracted work, listing all subject inventions or stating that there 
were no such inventions.
    (c) Upon request, the filing date, serial number and title, a copy 
of the patent application and patent number, and issue data for any 
subject invention for which the Contractor has retained title.
    (d) Upon request, the Contractor shall furnish the Government an 
irrevocable power to inspect and make copies of the patent application 
file.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 72 FR 69162, Dec. 7, 2007]



252.228-7000  Reimbursement for war-hazard losses.

    As prescribed in 228.370(a), use the following clause:

             Reimbursement for War-Hazard Losses (DEC 1991)

    (a) Costs for providing employee war-hazard benefits in accordance 
with paragraph (b) of the Workers' Compensation and War-Hazard Insurance 
clause of this contract are allowable if the Contractor--
    (1) Submits proof of loss files to support payment or denial of each 
claim;
    (2) Subject to Contracting Officer approval, makes lump sum final 
settlement of any open claims and obtains necessary release documents 
within one year of the expiration or termination of this contract, 
unless otherwise extended by the Contracting Officer; and
    (3) Provides the Contracting Officer at the time of final settlement 
of this contract--
    (i) An investigation report and evaluation of any potential claim; 
and
    (ii) An estimate of the dollar amount involved should the potential 
claim mature.
    (b) The cost of insurance for liabilities reimbursable under this 
clause is not allowable.
    (c) The Contracting Officer may require the Contractor to assign to 
the Government all right, title, and interest to any refund, rebate, or 
recapture arising out of any claim settlements.
    (d) The Contractor agrees to--
    (1) Investigate and promptly notify the Contracting Officer in 
writing of any occurrence which may give rise to a claim or potential 
claim, including the estimated amount of the claim;
    (2) Give the Contracting Officer immediate written notice of any 
suit or action filed which may result in a payment under this clause; 
and
    (3) Provide assistance to the Government in connection with any 
third party suit or

[[Page 591]]

claim relating to this clause which the Government elects to prosecute 
or defend in its own behalf.

                             (End of clause)



252.228-7001  Ground and flight risk.

    As prescribed in 228.370(b), use the following clause:

                    Ground and Flight Risk (JUN 2010)

    (a) Definitions. As used in this clause--
    (1) Aircraft, unless otherwise provided in the contract
    Schedule, means--
    (i) Aircraft to be delivered to the Government under this contract 
(either before or after Government acceptance), including complete 
aircraft and aircraft in the process of being manufactured, 
disassembled, or reassembled; provided that an engine, portion of a 
wing, or a wing is attached to a fuselage of the aircraft;
    (ii) Aircraft, whether in a state of disassembly or reassembly, 
furnished by the Government to the Contractor under this contract, 
including all Government property installed, in the process of 
installation, or temporarily removed; provided that the aircraft and 
property are not covered by a separate bailment agreement;
    (iii) Aircraft furnished by the Contractor under this contract 
(either before or after Government acceptance); or
    (iv) Conventional winged aircraft, as well as helicopters, vertical 
take-off or landing aircraft, lighter-than-air airships, unmanned aerial 
vehicles, or other nonconventional aircraft specified in this contract.
    (2) Contractor's managerial personnel means the Contractor's 
directors, officers, and any of the Contractor's managers, 
superintendents, or other equivalent representatives who have 
supervision or direction of--
    (i) All or substantially all of the Contractor's business;
    (ii) All or substantially all of the Contractor's operation at any 
one plant or separate location; or
    (iii) A separate and complete major industrial operation.
    (3) Contractor's premises means those premises, including 
subcontractors' premises, designated in the Schedule or in writing by 
the Contracting Officer, and any other place the aircraft is moved for 
safeguarding.
    (4) Flight means any flight demonstration, flight test, taxi test, 
or other flight made in the performance of this contract, or for the 
purpose of safeguarding the aircraft, or previously approved in writing 
by the Contracting Officer.
    (i) For land-based aircraft, ``flight'' begins with the taxi roll 
from a flight line on the Contractor's premises and continues until the 
aircraft has completed the taxi roll in returning to a flight line on 
the Contractor's premises.
    (ii) For seaplanes, ``flight'' begins with the launching from a ramp 
on the Contractor's premises and continues until the aircraft has 
completed its landing run and is beached at a ramp on the Contractor's 
premises.
    (iii) For helicopters, ``flight'' begins upon engagement of the 
rotors for the purpose of take-off from the Contractor's premises and 
continues until the aircraft has returned to the ground on the 
Contractor's premises and the rotors are disengaged.
    (iv) For vertical take-off or landing aircraft, ``flight'' begins 
upon disengagement from any launching platform or device on the 
Contractor's premises and continues until the aircraft has been engaged 
to any launching platform or device on the Contractor's premises.
    (v) All aircraft off the Contractor's premises shall be considered 
to be in flight when on the ground or water for reasonable periods of 
time following emergency landings, landings made in performance of this 
contract, or landings approved in writing by the Contracting Officer.
    (5) Flight crew member means the pilot, the co-pilot, and, unless 
otherwise provided in the Schedule, the flight engineer, navigator, and 
bombardier-navigator when assigned to their respective crew positions 
for the purpose of conducting any flight on behalf of the Contractor. It 
also includes any pilot or operator of an unmanned aerial vehicle. If 
required, a defense systems operator may also be assigned as a flight 
crew member.
    (6) In the open means located wholly outside of buildings on the 
Contractor's premises or other places described in the Schedule as being 
``in the open.'' Government-furnished aircraft shall be considered to be 
located ``in the open'' at all times while in the Contractor's 
possession, care, custody, or control.
    (7) Operation means operations and tests of the aircraft and its 
installed equipment, accessories, and power plants, while the aircraft 
is in the open or in motion. The term does not apply to aircraft on any 
production line or in flight.
    (b) Combined regulation/instruction. The Contractor shall be bound 
by the operating procedures contained in the combined regulation/
instruction entitled ``Contractor's Flight and Ground Operations'' (Air 
Force Instruction 10-220, Army Regulation 95-20, NAVAIR Instruction 
3710.1 (Series), Coast Guard Instruction M13020.3, and Defense Contract 
Management Agency Instruction 8210.1) in effect on the date of contract 
award.
    (c) Government as self-insurer. Subject to the conditions in 
paragraph (d) of this clause, the Government self-insures and assumes 
the risk of damage to, or loss or destruction of aircraft ``in the 
open,'' during ``operation,'' and in ``flight,'' except as may

[[Page 592]]

be specifically provided in the Schedule as an exception to this clause. 
The Contractor shall not be liable to the Government for such damage, 
loss, or destruction beyond the Contractor's share of loss amount under 
the Government's self-insurance.
    (d) Conditions for Government's self-insurance. The Government's 
assumption of risk for aircraft in the open shall continue unless the 
Contracting Officer finds that the Contractor has failed to comply with 
paragraph (b) of this clause, or that the aircraft is in the open under 
unreasonable conditions, and the Contractor fails to take prompt 
corrective action.
    (1) The Contracting Officer, when finding that the Contractor has 
failed to comply with paragraph (b) of this clause or that the aircraft 
is in the open under unreasonable conditions, shall notify the 
Contractor in writing and shall require the Contractor to make 
corrections within a reasonable time.
    (2) Upon receipt of the notice, the Contractor shall promptly 
correct the cited conditions, regardless of whether there is agreement 
that the conditions are unreasonable.
    (i) If the Contracting Officer later determines that the cited 
conditions were not unreasonable, an equitable adjustment shall be made 
in the contract price for any additional costs incurred in correcting 
the conditions.
    (ii) Any dispute as to the unreasonableness of the conditions or the 
equitable adjustment shall be considered a dispute under the Disputes 
clause of this contract.
    (3) If the Contracting Officer finds that the Contractor failed to 
act promptly to correct the cited conditions or failed to correct the 
conditions within a reasonable time, the Contracting Officer may 
terminate the Government's assumption of risk for any aircraft in the 
open under the cited conditions. The termination will be effective at 
12:01 a.m. on the fifteenth day following the day the written notice is 
received by the Contractor.
    (i) If the Contracting Officer later determines that the Contractor 
acted promptly to correct the cited conditions or that the time taken by 
the Contractor was not unreasonable, an equitable adjustment shall be 
made in the contract price for any additional costs incurred as a result 
of termination of the Government's assumption of risk.
    (ii) Any dispute as to the timeliness of the Contractor's action or 
the equitable adjustment shall be considered a dispute under the 
Disputes clause of this contract.
    (4) If the Government terminates its assumption of risk pursuant to 
the terms of this clause--
    (i) The Contractor shall thereafter assume the entire risk for 
damage, loss, or destruction of the affected aircraft;
    (ii) Any costs incurred by the Contractor (including the costs of 
the Contractor's self-insurance, insurance premiums paid to insure the 
Contractor's assumption of risk, deductibles associated with such 
purchased insurance, etc.) to mitigate its assumption of risk are 
unallowable costs; and
    (iii) The liability provisions of the Government Property clause of 
this contract are not applicable to the affected aircraft.
    (5) The Contractor shall promptly notify the Contracting Officer 
when unreasonable conditions have been corrected.
    (i) If, upon receipt of the Contractor's notice of the correction of 
the unreasonable conditions, the Government elects to again assume the 
risk of loss and relieve the Contractor of its liability for damage, 
loss, or destruction of the aircraft, the Contracting Officer will 
notify the Contractor of the Contracting Officer's decision to resume 
the Government's risk of loss. The Contractor shall be entitled to an 
equitable adjustment in the contract price for any insurance costs 
extending from the end of the third working day after the Government's 
receipt of the Contractor's notice of correction until the Contractor is 
notified that the Government will resume the risk of loss.
    (ii) If the Government does not again assume the risk of loss and 
the unreasonable conditions have been corrected, the Contractor shall be 
entitled to an equitable adjustment for insurance costs, if any, 
extending after the third working day after the Government's receipt of 
the Contractor's notice of correction.
    (6) The Government's termination of its assumption of risk of loss 
does not relieve the Contractor of its obligation to comply with all 
other provisions of this clause, including the combined regulation/
instruction entitled ``Contractor's Flight and Ground Operations.''
    (e) Exclusions from the Government's assumption of risk. The 
Government's assumption of risk shall not extend to damage, loss, or 
destruction of aircraft which--
    (1) Results from failure of the Contractor, due to willful 
misconduct or lack of good faith of any of the Contractor's managerial 
personnel, to maintain and administer a program for the protection and 
preservation of aircraft in the open and during operation in accordance 
with sound industrial practice, including oversight of a subcontractor's 
program;
    (2) Is sustained during flight if either the flight or the flight 
crew members have not been approved in advance of any flight in writing 
by the Government Flight Representative, who has been authorized in 
accordance with the combined regulation/instruction entitled 
``Contractor's Flight and Ground Operations'';
    (3) Occurs in the course of transportation by rail, or by conveyance 
on public streets, highways, or waterways, except for Government-
furnished property;
    (4) Is covered by insurance;

[[Page 593]]

    (5) Consists of wear and tear; deterioration (including rust and 
corrosion); freezing; or mechanical, structural, or electrical breakdown 
or failure, unless these are the result of other loss, damage or 
destruction covered by this clause. (This exclusion does not apply to 
Government-furnished property if damage consists of reasonable wear and 
tear or deterioration, or results from inherent vice, e.g., a known 
condition or design defect in the property); or
    (6) Is sustained while the aircraft is being worked on and is a 
direct result of the work unless such damage, loss, or destruction would 
be covered by insurance which would have been maintained by the 
Contractor, but for the Government's assumption of risk.
    (f) Contractor's share of loss and Contractor's deductible under the 
Government's self-insurance. (1) The Contractor assumes the risk of loss 
and shall be responsible for the Contractor's share of loss under the 
Government's self-insurance. That share is the lesser of--
    (i) The first $100,000 of loss or damage to aircraft in the open, 
during operation, or in flight resulting from each separate event, 
except for reasonable wear and tear and to the extent the loss or damage 
is caused by negligence of Government personnel; or
    (ii) Twenty percent of the price or estimated cost of this contract.
    (2) If the Government elects to require that the aircraft be 
replaced or restored by the Contractor to its condition immediately 
prior to the damage, the equitable adjustment in the price authorized by 
paragraph (j) of this clause shall not include the dollar amount of the 
risk assumed by the Contractor.
    (3) In the event the Government does not elect repair or 
replacement, the Contractor agrees to credit the contract price or pay 
the Government, as directed by the Contracting Officer, the lesser of--
    (i) $100,000;
    (ii) Twenty percent of the price or estimated cost of this contract; 
or
    (iii) The amount of the loss.
    (4) For task order and delivery order contracts, the Contractor's 
share of the loss shall be the lesser of $100,000 or twenty percent of 
the combined total price or total estimated cost of those orders issued 
to date to which the clause applies.
    (5) The costs incurred by the Contractor for its share of the loss 
and for insuring against that loss are unallowable costs, including but 
not limited to--
    (i) The Contractor's share of loss under the Government's self-
insurance;
    (ii) The costs of the Contractor's self-insurance;
    (iii) The deductible for any Contractor-purchased insurance;
    (iv) Insurance premiums paid for Contractor-purchased insurance; and
    (v) Costs associated with determining, litigating, and defending 
against the Contractor's liability.
    (g) Subcontractor possession or control. The Contractor shall not be 
relieved from liability for damage, loss, or destruction of aircraft 
while such aircraft is in the possession or control of its 
subcontractors, except to the extent that the subcontract, with the 
written approval of the Contracting Officer, provides for relief from 
each liability. In the absence of approval, the subcontract shall 
contain provisions requiring the return of aircraft in as good condition 
as when received, except for reasonable wear and tear or for the 
utilization of the property in accordance with the provisions of this 
contract.
    (h) Contractor's exclusion of insurance costs. The Contractor 
warrants that the contract price does not and will not include, except 
as may be authorized in this clause, any charge or contingency reserve 
for insurance covering damage, loss, or destruction of aircraft while in 
the open, during operation, or in flight when the risk has been assumed 
by the Government, including the Contractor share of loss in this 
clause, even if the assumption may be terminated for aircraft in the 
open.
    (i) Procedures in the event of loss. (1) In the event of damage, 
loss, or destruction of aircraft in the open, during operation, or in 
flight, the Contractor shall take all reasonable steps to protect the 
aircraft from further damage, to separate damaged and undamaged 
aircraft, and to put all aircraft in the best possible order. Except in 
cases covered by paragraph (f)(2) of this clause, the Contractor shall 
furnish to the Contracting Officer a statement of--
    (i) The damaged, lost, or destroyed aircraft;
    (ii) The time and origin of the damage, loss, or destruction;
    (iii) All known interests in commingled property of which aircraft 
are a part; and
    (iv) The insurance, if any, covering the interest in commingled 
property.
    (2) The Contracting Officer will make an equitable adjustment for 
expenditures made by the Contractor in performing the obligations under 
this paragraph.
    (j) Loss prior to delivery. (1) If prior to delivery and acceptance 
by the Government, aircraft is damaged, lost, or destroyed and the 
Government assumed the risk, the Government shall either--
    (i) Require that the aircraft be replaced or restored by the 
Contractor to the condition immediately prior to the damage, in which 
event the Contracting Officer will make an equitable adjustment in the 
contract price and the time for contract performance; or
    (ii) Terminate this contract with respect to the aircraft. 
Notwithstanding the provisions in any other termination clause under 
this contract, in the event of termination,

[[Page 594]]

the Contractor shall be paid the contract price for the aircraft (or, if 
applicable, any work to be performed on the aircraft) less any amount 
the Contracting Officer determines--
    (A) It would have cost the Contractor to complete the aircraft (or 
any work to be performed on the aircraft) together with anticipated 
profit on uncompleted work; and
    (B) Would be the value of the damaged aircraft or any salvage 
retained by the Contractor.
    (2) The Contracting Officer shall prescribe the manner of 
disposition of the damaged, lost, or destroyed aircraft, or any parts of 
the aircraft. If any additional costs of such disposition are incurred 
by the Contractor, a further equitable adjustment will be made in the 
amount due the Contractor. Failure of the parties to agree upon 
termination costs or an equitable adjustment with respect to any 
aircraft shall be considered a dispute under the Disputes clause of this 
contract.
    (k) Reimbursement from a third party. In the event the Contractor is 
reimbursed or compensated by a third party for damage, loss, or 
destruction of aircraft and has also been compensated by the Government, 
the Contractor shall equitably reimburse the Government. The Contractor 
shall do nothing to prejudice the Government's right to recover against 
third parties for damage, loss, or destruction. Upon the request of the 
Contracting Officer or authorized representative, the Contractor shall 
at Government expense furnish to the Government all reasonable 
assistance and cooperation (including the prosecution of suit and the 
execution of instruments of assignment or subrogation) in obtaining 
recovery.
    (l) Government acceptance of liability. To the extent the Government 
has accepted such liability under other provisions of this contract, the 
Contractor shall not be reimbursed for liability to third persons for 
loss or damage to property or for death or bodily injury caused by 
aircraft during flight unless the flight crew members previously have 
been approved for this flight in writing by the Government Flight 
Representative, who has been authorized in accordance with the combined 
regulation entitled ``Contractor's Flight and Ground Operations''.
    (m) Subcontracts. The Contractor shall incorporate the requirements 
of this clause, including this paragraph (m), in all subcontracts.

                             (End of clause)

[75 FR 32645, June 8, 2010]



252.228-7002  [Reserved]



252.228-7003  Capture and detention.

    As prescribed in 228.370(c), use the following clause:

                    Capture and Detention (DEC 1991)

    (a) As used in this clause--
    (1) Captured person means any employee of the Contractor who is--
    (i) Assigned to duty outside the United States for the performance 
of this contract; and
    (ii) Found to be missing from his or her place of employment under 
circumstances that make it appear probable that the absence is due to 
the action of the force of any power not allied with the United States 
in a common military effort; or
    (iii) Known to have been taken prisoner, hostage, or otherwise 
detained by the force of such power, whether or not actually engaged in 
employment at the time of capture; provided, that at the time of capture 
or detention, the person was either--
    (A) Engaged in activity directly arising out of and in the course of 
employment under this contract; or
    (B) Captured in an area where required to be only in order to 
perform this contract.
    (2) A period of detention begins with the day of capture and 
continues until the captured person is returned to the place of 
employment, the United States, or is able to be returned to the 
jurisdiction of the United States, or until the person's death is 
established or legally presumed to have occurred by evidence 
satisfactory to the Contracting Officer, whichever occurs first.
    (3) United States comprises geographically the 50 states and the 
District of Columbia.
    (4) War Hazards Compensation Act refers to the statute compiled in 
chapter 12 of title 42, U.S. Code (sections 1701-1717), as amended.
    (b) If pursuant to an agreement entered into prior to capture, the 
Contractor is obligated to pay and has paid detention benefits to a 
captured person, or the person's dependents, the Government will 
reimburse the Contractor up to an amount equal to the lesser of--
    (1) Total wage or salary being paid at the time of capture due from 
the Contractor to the captured person for the period of detention; or
    (2) That amount which would have been payable if the detention had 
occurred under circumstances covered by the War Hazards Compensation 
Act.
    (c) The period of detention shall not be considered as time spent in 
contract performance, and the Government shall not be obligated to make 
payment for that time except as provided in this clause.

[[Page 595]]

    (d) The obligation of the Government shall apply to the entire 
period of detention, except that it is subject to the availability of 
funds from which payment can be made. The rights and obligations of the 
parties under this clause shall survive prior expiration, completion, or 
termination of this contract.
    (e) The Contractor shall not be reimbursed under this clause for 
payments made if the employees were entitled to compensation for capture 
and detention under the War Hazards Compensation Act, as amended.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 57 FR 42633, Sept. 15, 1992; 
75 FR 32647, June 8, 2010]



252.228-7004  [Reserved]



252.228-7005  Mishap reporting and investigation involving aircraft, 
missiles, and space launch vehicles.

    As prescribed in 228.370(d), use the following clause:

  Mishap Reporting and Investigation Involving Aircraft, Missiles, and 
                    Space Launch Vehicles (NOV 2019)

    (a) The Contractor shall report promptly to the Administrative 
Contracting Officer all pertinent facts relating to each mishap 
involving an aircraft, missile, or space launch vehicle being 
manufactured, modified, repaired, or overhauled in connection with this 
contract.
    (b) If the Government conducts an investigation of the mishap, the 
Contractor shall cooperate and assist the Government's personnel until 
the investigation is complete.
    (c) The Contractor shall include a clause in subcontracts under this 
contract to require subcontractor cooperation and assistance in mishap 
investigations.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 75 FR 32647, June 8, 2010, 84 
FR 65312, Nov. 27, 2019]



252.228-7006  Compliance with Spanish laws and insurance.

    As prescribed at 228.370(e), use the following clause:

          Compliance with Spanish Laws and Insurance (DEC 1998)

    (a) The requirements of this clause apply only if the Contractor is 
not a Spanish concern.
    (b) The Contractor shall, without additional expense to the United 
States Government, comply with all applicable Spanish Government laws 
pertaining to sanitation, traffic, security, employment of labor, and 
all other laws relevant to the performance of this contract. The 
Contractor shall hold the United States Government harmless and free 
from any liability resulting from the Contractor's failure to comply 
with such laws.
    (c) The contractor shall, at its own expense, provide and maintain 
during the entire performance of this contract, all workmen's 
compensation, employees' liability, bodily injury insurance, and other 
required insurance adequate to cover the risk assumed by the Contractor. 
The Contractor shall indemnify and hold harmless the United States 
Government from liability resulting from all claims for damages as a 
result of death or injury to personnel or damage to real or personal 
property related to the performance of this contract.
    (d) The Contractor agrees to represent in writing to the Contracting 
Officer, prior to commencement of work and not later than 15 days after 
the date of the Notice to Proceed, that the Contractor has obtained the 
required types of insurance in the following minimum amounts. The 
representation also shall state that the Contractor will promptly notify 
the Contracting Officer of any notice of cancellation of insurance or 
material change in insurance coverage that could affect the United 
States Government's interests.

------------------------------------------------------------------------
                                                  Coverage
        Type of insurance            Coverage       per        Property
                                    per person    accident      damage
------------------------------------------------------------------------
Comprehensive General Liability..     $300,000   $1,000,000     $100,000
------------------------------------------------------------------------

    (e) The Contractor shall provide the Contracting Officer with a 
similar representation for all subcontracts with non-Spanish concerns 
that will perform work in Spain under this contract.
    (f) Insurance policies required herein shall be purchased from 
Spanish insurance companies or other insurance companies legally 
authorized to conduct business in Spain. Such policies shall conform to 
Spanish laws and regulations and shall--
    (1) Contain provisions requiring submission to Spanish law and 
jurisdiction of any problem that may arise with regard to the 
interpretation or application of the clauses and conditions of the 
insurance policy;
    (2) Contain a provision authorizing the insurance company, as 
subrogee of the insured entity, to assume and attend to directly, with 
respect to any person damaged, the legal consequences arising from the 
occurrence of such damages;
    (3) Contain a provision worded as follows: ``The insurance company 
waives any right of subrogation against the United States of America 
that may arise by reason of any payment under this policy.'';

[[Page 596]]

    (4) Not contain any deductible amount or similar limitation; and
    (5) Not contain any provisions requiring submission to any type of 
arbitration.

                             (End of clause)

[62 FR 34132, June 24, 1997, as amended at 63 FR 69006, Dec. 15, 1998; 
75 FR 32647, June 8, 2010]



252.229-7000    [Reserved]



252.229-7001  Tax Relief.

    Basic. As prescribed in 229.402-70(a) and (a)(1), use the following 
clause:

                      Tax Relief--Basic (APR 2020)

    (a) Prices set forth in this contract are exclusive of all taxes and 
duties from which the United States Government is exempt by virtue of 
tax agreements between the United States Government and the Contractor's 
government. The following taxes or duties have been excluded from the 
contract price:

    NAME OF TAX: (Offeror Insert) RATE (PERCENTAGE): (Offeror Insert)

    (b) Invoices submitted in accordance with the terms and conditions 
of this contract shall be exclusive of all taxes or duties for which 
relief is available. The Contractor's invoice shall list separately the 
gross price, amount of tax deducted, and net price charged.
    (c) When items manufactured to United States Government 
specifications are being acquired, the Contractor shall identify the 
materials or components intended to be imported in order to ensure that 
relief from import duties is obtained. If the Contractor intends to use 
imported products from inventories on hand, the price of which includes 
a factor for import duties, the Contractor shall ensure the United 
States Government's exemption from these taxes. The Contractor may 
obtain a refund of the import duties from its government or request the 
duty-free import of an amount of supplies or components corresponding to 
that used from inventory for this contract.

                             (End of clause)

    Alternate I. As prescribed in 229.402-70(a) and (a)(2), use the 
following clause, which adds a paragraph (d) not included in the basic 
clause:

                   Tax Relief--Alternate I (APR 2020)

    (a) Prices set forth in this contract are exclusive of all taxes and 
duties from which the United States Government is exempt by virtue of 
tax agreements between the United States Government and the Contractor's 
government. The following taxes or duties have been excluded from the 
contract price:

NAME OF TAX: [Offeror insert]
RATE (PERCENTAGE): [Offeror insert]

    (b) Invoices submitted in accordance with the terms and conditions 
of this contract shall be exclusive of all taxes or duties for which 
relief is available. The Contractor's invoice shall list separately the 
gross price, amount of tax deducted, and net price charged.
    (c) When items manufactured to United States Government 
specifications are being acquired, the Contractor shall identify the 
materials or components intended to be imported in order to ensure that 
relief from import duties is obtained. If the Contractor intends to use 
imported products from inventories on hand, the price of which includes 
a factor for import duties, the Contractor shall ensure the United 
States Government's exemption from these taxes. The Contractor may 
obtain a refund of the import duties from its government or request the 
duty-free import of an amount of supplies or components corresponding to 
that used from inventory for this contract.
    (d) Tax relief will be claimed in Germany pursuant to the provisions 
of the Agreement Between the United States of America and Germany 
Concerning Tax Relief to be Accorded by Germany to United States 
Expenditures in the Interest of Common Defense. The Contractor shall use 
Abwicklungsschein fuer abgabenbeguenstigte Lieferungen/Leistungen nach 
dem Offshore Steuerabkommen (Performance Certificate for Tax-Free 
Deliveries/Performance according to the Offshore Tax Relief Agreement) 
or other documentary evidence acceptable to the German tax authorities. 
All purchases made and paid for on a tax-free basis during a 30-day 
period may be accumulated, totaled, and reported as tax-free.

                             (End of clause)

[62 FR 34132, June 24, 1997, as amended at 79 FR 58700, Sept. 30, 2014; 
80 FR 36899, June 26, 2015; 85 FR 19698, Apr. 8, 2020]



252.229-7002  Customs exemptions (Germany).

    As prescribed in 229.402-70(b), use the following clause:

                 Customs Exemptions (Germany) (JUN 1997)

    Imported products required for the direct benefit of the United 
States Forces are authorized to be acquired duty-free by the Contractor 
in accordance with the provisions of the Agreement Between the United 
States of America and Germany Concerning Tax Relief to be Accorded by 
Germany to United

[[Page 597]]

States Expenditures in the Interest of Common Defense.

                             (End of clause)

[62 FR 34133, June 24, 1997]



252.229-7003  Tax Exemptions (Italy).

    As prescribed in 229.402-70(c)(1), use the following clause:

                    Tax Exemptions (Italy) (MAR 2012)

    (a) As the Contractor represented in its offer, the contract price, 
including the prices in subcontracts awarded under this contract, does 
not include taxes from which the United States Government is exempt.
    (b) The United States Government is exempt from payment of Imposta 
Valore Aggiunto (IVA) tax in accordance with Article 72 of the IVA 
implementing decree on all supplies and services sold to United States 
Military Commands in Italy.
    (1) The Contractor shall include the following information on 
invoices submitted to the United States Government:
    (i) The contract number.
    (ii) The IVA tax exemption claimed pursuant to Article 72 of Decree 
Law 633, dated October 26, 1972.
    (iii) The following fiscal code(s): [Contracting Officer must insert 
the applicable fiscal code(s) for military activities within Italy: 
80028250241 for Army, 80156020630 for Navy, or 91000190933 for Air 
Force].
    (2)(i) Upon receipt of the invoice, the paying office will include 
the following certification on one copy of the invoice:
    ``I certify that this invoice is true and correct and reflects 
expenditures made in Italy for the Common Defense by the United States 
Government pursuant to international agreements. The amount to be paid 
does not include the IVA tax, because this transaction is not subject to 
the tax in accordance with Article 72 of Decree Law 633, dated October 
26, 1972.'' An authorized United States Government official will sign 
the copy of the invoice containing this certification.
    (ii) The paying office will return the certified copy together with 
payment to the Contractor. The payment will not include the amount of 
the IVA tax.
    (iii) The Contractor shall retain the certified copy to substantiate 
non-payment of the IVA tax.
    (3) The Contractor may address questions regarding the IVA tax to 
the Ministry of Finance, IVA Office, Rome (06) 520741.
    (c) In addition to the IVA tax, purchases by the United States 
Forces in Italy are exempt from the following taxes:
    (1) Imposta di Fabbricazione (Production Tax for Petroleum 
Products).
    (2) Imposta di Consumo (Consumption Tax for Electrical Power).
    (3) Dazi Doganali (Customs Duties).
    (4) Tassa di Sbarco e d'Imbarco sulle Merci Transportate per Via 
Aerea e per Via Maritima (Port Fees).
    (5) Tassa de Circolazione sui Veicoli (Vehicle Circulation Tax).
    (6) Imposta di Registro (Registration Tax).
    (7) Imposta di Bollo (Stamp Tax).

                             (End of clause)

[67 FR 4210, Jan. 29, 2002, as amended at 77 FR 19131, Mar. 30, 2012]



252.229-7004  Status of contractors as a direct contractor (Spain).

    As prescribed in 229.402-70(d), use the following clause:

    Status of Contractor as a Director Contractor (Spain) (JUN 1997)

    (a) ``Direct Contractor,'' as used in this clause, means an 
individual, company, or entity with whom an agency of the United States 
Department of Defense has executed a written agreement that allows duty-
free import of equipment, materials, and supplies into Spain for the 
construction, development, maintenance, and operation of Spanish-
American installations and facilities.
    (b) The Contractor is hereby designated as a Direct Contractor under 
the provisions of Complementary Agreement 5, articles 11, 14, 15, 17, 
and 18 of the Agreement on Friendship, Defense and Cooperation between 
the United States Government and the Kingdom of Spain, dated July 2, 
1982. The Agreement relates to contacts to be performed in whole or part 
in Spain, the provisions of which are hereby incorporated into and made 
a part of this contract by reference.
    (c) The Contractor shall apply to the appropriate Spanish 
authorities for approval of status as a Direct Contractor in order to 
complete duty-free import of non-Spanish equipment, materials, and 
supplies represented as necessary for contract performance by the 
Contracting Officer. Orders for equipment, materials, and supplies 
placed prior to official notification of such approval shall be at the 
Contractor's own risk. The Contractor must submit its documentation in 
sufficient time to permit processing by the appropriate United States 
and Spanish Government agencies prior to the arrival of the equipment, 
material, or supplies in Spain. Seasonal variations in processing times 
are common, and the Contractor should program its projects accordingly. 
Any delay or expense arising directly or indirectly from this process 
shall not excuse untimely performance (except as expressly allowed in 
other provisions of this contract), constitute a direct or constructive 
change,

[[Page 598]]

or otherwise provide a basis for additional compensation or adjustment 
of any kind.
    (d) To ensure that all duty-free imports are properly accounted for, 
exported, or disposed of, in accordance with Spanish law, the Contractor 
shall obtain a written bank letter of guaranty payable to the Treasurer 
of the United States, or such other authority as may be designated by 
the Contracting Officer, in the amount set forth in paragraph (g) of 
this clause, prior to effecting any duty-free imports for the 
performance of this contract.
    (e) If the Contractor fails to obtain the required guaranty, the 
Contractor agrees that the Contracting Officer may withhold a portion of 
the contract payments in order to establish a fund in the amount set 
forth in paragraph (g) of this clause. The fund shall be used for the 
payment of import taxes in the event that the Contractor fails to 
properly account for, export, or dispose of equipment, materials, or 
supplies imported on a duty-free basis.
    (f) The amount of the bank letter of guaranty or size of the fund 
required under paragraph (d) or (e) of this clause normally shall be 5 
percent of the contract value. However, if the Contractor demonstrates 
to the Contracting Officer's satisfaction that the amount retained by 
the United States Government or guaranteed by the bank is excessive, the 
amount shall be reduced to an amount commensurate with contingent import 
tax and duty-free liability. This bank guaranty or fund shall not be 
released to the Contractor until the Spanish General Directorate of 
Customs verifies the accounting, export, or disposition of the 
equipment, material, or supplies imported on a duty-free basis.
    (g) The amount required under paragraph (d), (e), or (f) of this 
clause is (Contracting Officer insert amount at time of contract award).
    (h) The Contractor agrees to insert the provisions of this clause, 
including this paragraph (h), in all subcontracts.

                             (End of clause)

[62 FR 34133, June 24, 1997, as amended at 63 FR 11548, Mar. 9, 1998]



252.229-7005  Tax exemptions (Spain).

    As prescribed in 229.402-70(e)(1), use the following clause:

                    Tax Exemptions (Spain) (MAR 2012)

    (a) As the Contractor represented in its offer, the contract price, 
including the prices in subcontracts awarded under this contract, does 
not include taxes from which the United States Government is exempt.
    (b) In accordance with tax relief agreements between the United 
States Government and the Spanish Government, and because the incumbent 
contract arises from the activities of the United States Forces in 
Spain, the contract will be exempt from the following excise, luxury, 
and transaction taxes:
    (1) Derechos de Aduana (Customs Duties).
    (2) Impuesto de Compensacion a la Importacion (Compensation Tax on 
Imports).
    (3) Transmissiones Patrionomiales (Property Transfer Tax).
    (4) Impuesto Sobre el Lujo (Luxury Tax).
    (5) Actos Juridocos Documentados (Legal Official Transactions).
    (6) Impuesto Sobre el Trafico de Empresas (Business Trade Tax).
    (7) Impuestos Especiales de Fabricacion (Special Products Tax).
    (8) Impuesto Sobre el Petroleo y Derivados (Tax on Petroleum and its 
By-Products).
    (9) Impuesto Sobre el Uso de Telefona (Telephone Tax).
    (10) Impuesto General Sobre la Renta de Sociedades y demas Entidades 
Juridicas (General Corporation Income Tax).
    (11) Impuesto Industrial (Industrial Tax).
    (12) Impuesto de Rentas Sobre el Capital (Capital Gains Tax).
    (13) Plus Vailia (Increase on Real Property).
    (14) Contribucion Territorial Urbana (Metropolitan Real Estate Tax).
    (15) Contribucion Territorial Rustica y Pecuaria (Farmland Real 
Estate Tax).
    (16) Impuestos de la Diputacion (County Service Charges).
    (17) Impuestos Municipal y Tasas Parafiscales (Municipal Tax and 
Charges).

                             (End of clause)

[62 FR 34133, June 24, 1997, as amended at 77 FR 19131, Mar. 30, 2012]



252.229-7006  Value Added Tax Exclusion (United Kingdom)

    As prescribed in 229.402-70(f), use the follow clause:

          Value Added Tax Exclusion (United Kingdom) (DEC 2011)

    The supplies or services identified in this contract are to be 
delivered at a price exclusive of value added tax under arrangements 
between the appropriate United States authorities and Her Majesty's 
Revenue and Customs (HMRC) (Reference HMRC Notice 431, entitled ``Relief 
from Customs Duty and/or Value Added Tax on United States Government 
Expenditures in the United Kingdom''). By executing this contract, the 
Contracting Officer certifies that these supplies or services are being 
purchased for United States Government official purposes only.

[[Page 599]]

                             (End of clause)

[76 FR 76320, Dec. 7, 2011]



252.229-7007  Verification of United States receipt of goods.

    As prescribed in 229.402-70(g), use the following clause:

        Verification of United States Receipt of Goods (JUN 1997)

    The Contractor shall insert the following statement on all Material 
Inspection and Receiving Reports (DD Form 250 series) for Contracting 
Officer approval: ``I certify that the items listed on this invoice have 
been received by the United States.''

                             (End of clause)

[62 FR 34134, June 24, 1997]



252.229-7008  Relief from Import Duty (United Kingdom)

    As prescribed in 229.402-70(h), use the following clause:

           Relief from Import Duty (United Kingdom) (DEC 2011)

    Any import dutiable articles, components, or raw materials supplied 
to the United States Government under this contract shall be exclusive 
of any United Kingdom import duties. Any imported items supplied for 
which import duty already has been paid will be supplied at a price 
exclusive of the amount of import duty paid. The Contractor is advised 
to contact Her Majesty's Revenue and Customs (HMRC) to obtain a refund 
upon completion of the contract (Reference HMRC Notice No. 431, entitled 
``Relief from Customs Duty and/or Value Added Tax on United States 
Government Expenditures in the United Kingdom'').

                             (End of clause)

[76 FR 76320, Dec. 7, 2011]



252.229-7009  Relief from customs duty and value added tax on 
fuel (passenger vehicles) (United Kingdom).

    As prescribed in 229.402-70(i), use the following clause:

    Relief from Customs Duty and Value Added Tax on Fuel (Passenger 
                  Vehicles) (United Kingdom) (JUN 1997)

    (a) Pursuant to an agreement between the United States Government 
and Her Majesty's (HM) Customs and Excise, fuels and lubricants used by 
passenger vehicles (except taxis) in the performance of this contract 
will be exempt from customs duty and value added tax. Therefore, the 
procedures outlined in HM Customs and Excise Notice No. 431B, August 
1982, and any amendment thereto, shall be used to obtain relief from 
both customs duty and value added tax for fuel used under the contract. 
These procedures shall apply to both loaded and unloaded miles. The unit 
prices shall be based on the recoupment by the Contractor of customs 
duty in accordance with the following allowances:
    (1) Vehicles (except taxis) with a seating capacity of less than 29, 
one gallon for every 27 miles.
    (2) Vehicles with a seating capacity of 29-53, one gallon for every 
13 miles.
    (3) Vehicles with a seating capacity of 54 or more, one gallon for 
every 10 miles.
    (b) In the event the mileage of any route is increased or decreased 
within 10 percent, resulting in no change in route price, the customs 
duty shall be reclaimed from HM Customs and Excise on actual mileage 
performed.

                             (End of clause)

[62 FR 34134, June 24, 1997]



252.229-7010  Relief from customs duty on fuel (United Kingdom).

    As prescribed in 229.402-70(j), use the following clause:

      Relief from Customs Duty on Fuel (United Kingdom) (JUN 1997)

    (a) Pursuant to an agreement between the United States Government 
and Her Majesty's (HM) Customs and Excise, it is possible to obtain 
relief from customs duty on fuels and lubricants used in support of 
certain contracts. If vehicle fuels and lubricants are used in support 
of this contract, the Contractor shall seek relief from customs duty in 
accordance with HM Customs Notice No. 431, February 1973, entitled 
``Relief from Customs Duty and/or Value Added Tax on United States 
Government Expenditures in the United Kingdom.'' Application should be 
sent to the Contractor's local Customs and Excise Office.
    (b) Specific information should be included in the request for tax 
relief, such as the number of vehicles involved, types of vehicles, 
rating of vehicles, fuel consumption, estimated mileage per contract 
period, and any other information that will assist HM Customs and Excise 
in determining the amount of relief to be granted.
    (c) Within 30 days after the award of this contract, the Contractor 
shall provide the Contracting Officer with evidence that an attempt to 
obtain such relief has been initiated. In the event the Contractor does 
not attempt to obtain relief within the time

[[Page 600]]

specified, the Contracting Officer may deduct from the contract price 
the amount of relief that would have been allowed if HM Customs and 
Excise had favorably considered the request for relief.
    (d) The amount of any rebate granted by HM Customs and Excise shall 
be paid in full to the United States Government. Checks shall be made 
payable to the Treasurer of the United States and forwarded to the 
Administrative Contracting Officer.

                             (End of clause)

[62 FR 34134, June 24, 1997]



252.229-7011  Reporting of Foreign Taxes--U.S. Assistance Programs.

    As prescribed in 229.170-4, use the following clause:

     Reporting of Foreign Taxes--U.S. Assistance Programs (SEP 2005)

    (a) Definition. Commodities, as used in this clause, means any 
materials, articles, supplies, goods, or equipment.
    (b) Commodities acquired under this contract shall be exempt from 
all value added taxes and customs duties imposed by the recipient 
country. This exemption is in addition to any other tax exemption 
provided through separate agreements or other means.
    (c) The Contractor shall inform the foreign government of the tax 
exemption, as documented in the Letter of Offer and Acceptance, country-
to-country agreement, or interagency agreement.
    (d) If the foreign government or entity nevertheless imposes taxes, 
the Contractor shall promptly notify the Contracting Officer and shall 
provide documentation showing that the foreign government was apprised 
of the tax exemption in accordance with paragraph (c) of this clause.
    (e) The Contractor shall insert the substance of this clause, 
including this paragraph (e), in all subcontracts for commodities that 
exceed $500.

                             (End of clause)

[70 FR 57192, Sept. 30, 2005]



252.229-7012  Tax exemptions (Italy)--representation.

    As prescribed in 229.402-70(c)(2), use the following provision:

            Tax Exemptions (Italy)--Representation (MAR 2012)

    (a) Exemptions. The United States Government is exempt from payment 
of--
    (1) Imposta Valore Aggiunto (IVA) tax in accordance with Article 72 
of the IVA implementing decree on all supplies and services sold to 
United States Military Commands in Italy; and
    (2) The other taxes specified in paragraph (c) of the clause DFARS 
252.229-7003, Tax Exemptions (Italy).
    (b) Representation. By submission of its offer, the offeror 
represents that the offered price, including the prices of subcontracts 
to be awarded under the contract, does not include the taxes identified 
herein, or any other taxes from which the United States Government is 
exempt.

                           (End of provision)

[77 FR 19131, Mar. 30, 2012]



252.229-7013  Tax exemptions (Spain)--representation.

    As prescribed in 229.402-70(e)(2), use the following provision:

            Tax Exemptions (Spain)--Representation (APR 2012)

    (a) Exemptions. In accordance with tax relief agreements between the 
United States Government and the Spanish Government, and because the 
resultant contract arises from the activities of the United States 
Forces in Spain, the contract will be exempt from the excise, luxury, 
and transaction taxes listed in paragraph (b) of the clause DFARS 
252.229-7005, Tax Exemptions (Spain).
    (b) Representation. By submission of its offer, the offeror 
represents that the offered price, including the prices of subcontracts 
to be awarded under the contract, does not include the taxes identified 
herein, or any other taxes from which the United States Government is 
exempt.

                           (End of provision)

[77 FR 19131, Mar. 30, 2012, as amended at 77 FR 23632, Apr. 20, 2012]



252.231-7000  Supplemental cost principles.

    As prescribed in 231.100-70, use the following clause:

                 Supplemental Cost Principles (DEC 1991)

    When the allowability of costs under this contract is determined in 
accordance with part 31 of the Federal Acquisition Regulation (FAR), 
allowability shall also be determined in accordance with part 231 of the 
Defense FAR Supplement, in effect on the date of this contract.

[[Page 601]]

                             (End of clause)



252.232-7000  Advance payment pool.

    As prescribed in 232.412-70(a), use the following clause:

                     Advance Payment Pool (APR 2020)

    (a) Notwithstanding any other provision of this contract, advance 
payments will be made for contract performance in accordance with the 
Determinations, Findings, and Authorization for Advance payment dated 
_______.
    (b) Payments made in accordance with this clause shall be governed 
by the terms and conditions of the Advance Payment Pool Agreement 
between the United States of America and [insert the name of the 
Contractor]''. The Agreement is incorporated in the contract by 
reference.
    (c) When a letter of credit has not been issued to the Contractor in 
conjunction with the contract, payment will be by a dual payee Treasury 
check made payable to the Contractor or the disbursing office in the 
Advance Payment Pool Agreement and will be forwarded to that disbursing 
office for appropriate disposition.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 85 FR 19700, Apr. 8, 2020]



252.232-7001  [Reserved]



252.232-7002  Progress payments for foreign military sales acquisitions.

    As prescribed in 232.502-4-70(a), use the following clause:

  Progress Payments for Foreign Military Sales Acquisitions (DEC 1991)

    If this contract includes foreign military sales (FMS) requirements, 
the Contractor shall--
    (a) Submit a separate progress payment request for each progress 
payment rate; and
    (b) Submit a supporting schedule showing--
    (1) The amount of each request distributed to each country's 
requirements; and
    (2) Total price per contract line item applicable to each separate 
progress payment rate.
    (c) Identify in each progress payment request the contract 
requirements to which it applies (i.e., FMS or U.S.);
    (d) Calculate each request on the basis of the prices, costs 
(including costs to complete), subcontractor progress payments, and 
progress payment liquidations of the contract requirements to which it 
applies; and
    (e) Distribute costs among contract line items and countries in a 
manner acceptable to the Administrative Contracting Officer.

                             (End of clause)



252.232-7003  Electronic Submission of Payment Requests and Receiving 
Reports.

    As prescribed in 232.7004(a), use the following clause:

  Electronic Submission of Payment Requests and Receiving Reports (DEC 
                                  2018)

    (a) Definitions. As used in this clause--
    Contract financing payment means an authorized Government 
disbursement of monies to a contractor prior to acceptance of supplies 
or services by the Government.
    (1) Contract financing payments include--
    (i) Advance payments;
    (ii) Performance-based payments;
    (iii) Commercial advance and interim payments;
    (iv) Progress payments based on cost under the clause at Federal 
Acquisition Regulation (FAR) 52.232-16, Progress Payments;
    (v) Progress payments based on a percentage or stage of completion 
(see FAR 32.102(e)), except those made under the clause at FAR 52.232-5, 
Payments Under Fixed-Price Construction Contracts, or the clause at FAR 
52.232-10, Payments Under Fixed-Price Architect-Engineer Contracts; and
    (vi) Interim payments under a cost reimbursement contract, except 
for a cost reimbursement contract for services when Alternate I of the 
clause at FAR 52.232-25, Prompt Payment, is used.
    (2) Contract financing payments do not include--
    (i) Invoice payments;
    (ii) Payments for partial deliveries; or
    (iii) Lease and rental payments.
    Electronic form means any automated system that transmits 
information electronically from the initiating system to affected 
systems.
    Invoice payment means a Government disbursement of monies to a 
contractor under a contract or other authorization for supplies or 
services accepted by the Government.
    (1) Invoice payments include--
    (i) Payments for partial deliveries that have been accepted by the 
Government;
    (ii) Final cost or fee payments where amounts owed have been settled 
between the Government and the contractor;
    (iii) For purposes of subpart 32.9 only, all payments made under the 
clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, 
and the clause at 52.232-10, Payments Under Fixed-Price Architect-
Engineer Contracts; and

[[Page 602]]

    (iv) Interim payments under a cost-reimbursement contract for 
services when Alternate I of the clause at 52.232-25, Prompt Payment, is 
used.
    (2) Invoice payments do not include contract financing payments.
    Payment request means any request for contract financing payment or 
invoice payment submitted by the Contractor under this contract or task 
or delivery order.
    Receiving report means the data prepared in the manner and to the 
extent required by Appendix F, Material Inspection and Receiving Report, 
of the Defense Federal Acquisition Regulation Supplement.
    (b) Except as provided in paragraph (d) of this clause, the 
Contractor shall submit payment requests and receiving reports in 
electronic form using Wide Area WorkFlow (WAWF). The Contractor shall 
prepare and furnish to the Government a receiving report at the time of 
each delivery of supplies or services under this contract or task or 
delivery order.
    (c) Submit payment requests and receiving reports to WAWF in one of 
the following electronic formats:
    (1) Electronic Data Interchange.
    (2) Secure File Transfer Protocol.
    (3) Direct input through the WAWF website.
    (d) The Contractor may submit a payment request and receiving report 
using methods other than WAWF only when--
    (1) The Contractor has requested permission in writing to do so, and 
the Contracting Officer has provided instructions for a temporary 
alternative method of submission of payment requests and receiving 
reports in the contract administration data section of this contract or 
task or delivery order;
    (2) DoD makes payment for commercial transportation services 
provided under a Government rate tender or a contract for transportation 
services using a DoD-approved electronic third party payment system or 
other exempted vendor payment/invoicing system (e.g., PowerTrack, 
Transportation Financial Management System, and Cargo and Billing 
System);
    (3) DoD makes payment on a contract or task or delivery order for 
rendered health care services using the TRICARE Encounter Data System; 
or
    (4) The Governmentwide commercial purchase card is used as the 
method of payment, in which case submission of only the receiving report 
in WAWF is required.
    (e) Information regarding WAWF is available at https://wawf.eb.mil/.
    (f) In addition to the requirements of this clause, the Contractor 
shall meet the requirements of the appropriate payment clauses in this 
contract when submitting payment requests.

                             (End of clause)

[83 FR 66064, Dec. 21, 2018]



252.232-7004  DoD Progress Payment Rates.

    As prescribed in 232.502-4-70(b), use the following clause:

                  DoD Progress Payment Rates (OCT 2014)

    If the Contractor is a small business concern, the Progress Payments 
clause of this contract is modified to change each mention of the 
progress payment rate and liquidations rate (excepting paragraph (k), 
Limitations on Undefinitized Contract Actions) to 90 percent.

                             (End of clause)

[79 FR 61582, Oct. 14, 2014]



252.232-7005  Reimbursement of subcontractor advance payments--DoD 
pilot mentor-prot[eacute]g[eacute] program.

    As prescribed in 232.412-70(b), use the following clause:

   Reimbursement of Subcontractor Advance Payments--DoD Pilot Mentor-
                Prot[eacute]g[eacute] Program (SEP 2001)

    (a) The Government will reimburse the Contractor for any advance 
payments made by the Contractor, as a mentor firm, to a 
prot[eacute]g[eacute] firm, pursuant to an approved mentor-
prot[eacute]g[eacute] agreement, provided--
    (1) The Contractor's subcontract with the prot[eacute]g[eacute] firm 
includes a provision substantially the same as FAR 52.232-12, Advance 
Payments;
    (2) The Contractor has administered the advance payments in 
accordance with the policies of FAR subpart 32.4; and
    (3) The Contractor agrees that any financial loss resulting from the 
failure or inability of the prot[eacute]g[eacute] firm to repay any 
unliquidated advance payments is the sole financial responsibility of 
the Contractor.
    (b) For a fixed price type contract, advance payments made to a 
prot[eacute]g[eacute] firm shall be paid and administered as if there 
were 100 percent progress payments. The Contractor shall include as a 
separate attachment with each Standard Form (SF) 1443, Contractor's 
Request for Progress Payment, a request for reimbursement of advance 
payments made to a prot[eacute]g[eacute] firm. The attachment shall 
provide a separate calculation of lines 14a through 14e of SF 1443 for 
each prot[eacute]g[eacute], reflecting the status of advance payments 
made to that prot[eacute]g[eacute].
    (c) For cost reimbursable, contracts, reimbursement of advance 
payments shall be made via public voucher. The Contractor

[[Page 603]]

shall show the amounts of advance payments made to each 
prot[eacute]g[eacute] on the public voucher, in the form and detail 
directed by the cognizant contracting officer or contract auditor.

                             (End of clause)

[56 FR 67221, Dec. 30, 1991, as amended at 57 FR 53602, Nov. 12, 1992; 
66 FR 47109, Sept. 11, 2001; 85 FR 19700, Apr. 8, 2020]



252.232-7006  Wide Area WorkFlow Payment Instructions.

    As prescribed in 232.7004(b), use the following clause:

           Wide Area Workflow Payment Instructions (DEC 2018)

    (a) Definitions. As used in this clause--
    Department of Defense Activity Address Code (DoDAAC) is a six 
position code that uniquely identifies a unit, activity, or 
organization.
    Document type means the type of payment request or receiving report 
available for creation in Wide Area WorkFlow (WAWF).
    Local processing office (LPO) is the office responsible for payment 
certification when payment certification is done external to the 
entitlement system.
    Payment request and receiving report are defined in the clause at 
252.232-7003, Electronic Submission of Payment Requests and Receiving 
Reports.
    (b) Electronic invoicing. The WAWF system provides the method to 
electronically process vendor payment requests and receiving reports, as 
authorized by Defense Federal Acquisition Regulation System (DFARS) 
252.232-7003, Electronic Submission of Payment Requests and Receiving 
Reports.
    (c) WAWF access. To access WAWF, the Contractor shall--
    (1) Have a designated electronic business point of contact in the 
System for Award Management at https://www.sam.gov and
    (2) Be registered to use WAWF at https://wawf.eb.mil/ following the 
step-by-step procedures for self-registration available at this Web 
site.
    (d) WAWF training. The Contractor should follow the training 
instructions of the WAWF Web-Based Training Course and use the Practice 
Training Site before submitting payment requests through WAWF. Both can 
be accessed by selecting the ``Web Based Training'' link on the WAWF 
home page at https://wawf.eb.mil/.
    (e) WAWF methods of document submission. Document submissions may be 
via Web entry, Electronic Data Interchange, or File Transfer Protocol.
    (f) WAWF payment instructions. The Contractor shall use the 
following information when submitting payment requests and receiving 
reports in WAWF for this contract or task or delivery order:
    (1) Document type. The Contractor shall submit payment requests 
using the following document type(s):
    (i) For cost-type line items, including labor-hour or time-and-
materials, submit a cost voucher.
    (ii) For fixed price line items--
    (A) That require shipment of a deliverable, submit the invoice and 
receiving report specified by the Contracting Officer.

(Contracting Officer: Insert applicable invoice and receiving report 
document type(s) for fixed price line items that require shipment of a 
deliverable.)

    (B) For services that do not require shipment of a deliverable, 
submit either the Invoice 2in1, which meets the requirements for the 
invoice and receiving report, or the applicable invoice and receiving 
report, as specified by the Contracting Officer.

(Contracting Officer: Insert either ``Invoice 2in1'' or the applicable 
invoice and receiving report document type(s) for fixed price line items 
for services.)

    (iii) For customary progress payments based on costs incurred, 
submit a progress payment request.
    (iv) For performance based payments, submit a performance based 
payment request.
    (v) For commercial item financing, submit a commercial item 
financing request.
    (2) Fast Pay requests are only permitted when Federal Acquisition 
Regulation (FAR) 52.213-1 is included in the contract.

[Note: The Contractor may use a WAWF ``combo'' document type to create 
some combinations of invoice and receiving report in one step.]

    (3) Document routing. The Contractor shall use the information in 
the Routing Data Table below only to fill in applicable fields in WAWF 
when creating payment requests and receiving reports in the system.

                          Routing Data Table *
------------------------------------------------------------------------
            Field name in WAWF               Data to be entered in WAWF
------------------------------------------------------------------------
Pay Official DoDAAC......................
Issue By DoDAAC..........................
Admin DoDAAC **..........................
Inspect By DoDAAC........................
Ship To Code.............................
Ship From Code...........................
Mark For Code............................
Service Approver (DoDAAC)................
Service Acceptor (DoDAAC)................
Accept at Other DoDAAC...................
LPO DoDAAC...............................
DCAA Auditor DoDAAC......................
Other DoDAAC(s)..........................
------------------------------------------------------------------------
(* Contracting Officer: Insert applicable DoDAAC information. If
  multiple ship to/acceptance locations apply, insert ``See Schedule''
  or ``Not applicable.'')

[[Page 604]]

 
(** Contracting Officer: If the contract provides for progress payments
  or performance-based payments, insert the DoDAAC for the contract
  administration office assigned the functions under FAR 42.302(a)(13).)

    (4) Payment request. The Contractor shall ensure a payment request 
includes documentation appropriate to the type of payment request in 
accordance with the payment clause, contract financing clause, or 
Federal Acquisition Regulation 52.216-7, Allowable Cost and Payment, as 
applicable.
    (5) Receiving report. The Contractor shall ensure a receiving report 
meets the requirements of DFARS Appendix F.
    (g) WAWF point of contact. (1) The Contractor may obtain 
clarification regarding invoicing in WAWF from the following contracting 
activity's WAWF point of contact.

________________________________________________________________________


(Contracting Officer: Insert applicable information or ``Not 
applicable.'')
    (2) Contact the WAWF helpdesk at 866-618-5988, if assistance is 
needed.

[77 FR 38734, June 29, 2012, as amended at 78 FR 28758, May 16, 2013; 78 
FR 30232, May 22, 2013; 83 FR 66064, Dec. 21, 2018]



252.232-7007  Limitation of Government's obligation.

    As prescribed in 232.705-70, use the following clause:

            Limitation of Government's Obligation (APR 2014)

    (a) Contract line item(s) [Contracting Officer insert after 
negotiations] is/are incrementally funded. For this/these item(s), the 
sum of $__ [Contracting Officer insert after negotiations] of the total 
price is presently available for payment and allotted to this contract. 
An allotment schedule is set forth in paragraph (j) of this clause.
    (b) For item(s) identified in paragraph (a) of this clause, the 
Contractor agrees to perform up to the point at which the total amount 
payable by the Government, including reimbursement in the event of 
termination of those item(s) for the Government's convenience, 
approximates the total amount currently allotted to the contract. The 
Contractor is not authorized to continue work on those item(s) beyond 
that point. The Government will not be obligated in any event to 
reimburse the Contractor in excess of the amount allotted to the 
contract for those item(s) regardless of anything to the contrary in the 
clause entitled ``Termination for Convenience of the Government.'' As 
used in this clause, the total amount payable by the Government in the 
event of termination of applicable contract line item(s) for convenience 
includes costs, profit, and estimated termination settlement costs for 
those items(s).
    (c) Notwithstanding the dates specified in the allotment schedule in 
paragraph (j) of this clause, the Contractor will notify the Contracting 
Officer in writing at least ninety days prior to the date when, in the 
Contractor's best judgment, the work will reach the point at which the 
total amount payable by the Government, including any cost for 
termination for convenience, will approximate 85 percent of the total 
amount then allotted to the contract for performance of the applicable 
item(s). The notification will state (1) the estimated date when that 
point will be reached and (2) an estimate of additional funding, if any, 
needed to continue performance of applicable line items up to the next 
scheduled date for allotment of funds identified in paragraph (j) of 
this clause, or to a mutually agreed upon substitute date. The 
notification will also advise the Contracting Officer of the estimated 
amount of additional funds that will be required for the timely 
performance of the item(s) funded pursuant to this clause, for a 
subsequent period as may be specified in the allotment schedule in 
paragraph (j) of this clause, or otherwise agreed to by the parties. If 
after such notification additional funds are not allotted by the date 
identified in the Contractor's notification, or by an agreed substitute 
date, the Contracting Officer will terminate any item(s) for which 
additional funds have not been allotted, pursuant to the clause of this 
contract entitled ``Termination for Convenience of the Government.''
    (d) When additional funds are allotted for continued performance of 
the contract line item(s) identified in paragraph (a) of this clause, 
the parties will agree as to the period of contract performance which 
will be covered by the funds. The provisions of paragraph (b) through 
(d) of this clause will apply in like manner to the additional allotted 
funds and agreed substitute date, and the contract will be modified 
accordingly.
    (e) If, solely by reason of failure of the Government to allot 
additional funds, by the dates indicated below, in amounts sufficient 
for timely performance of the contract line item(s) identified in 
paragraph (a) of this clause, the Contractor incurs additional costs or 
is delayed in the performance of the work under this contract and if 
additional funds are allotted, an equitable adjustment will be made in 
the price or prices (including appropriate target, billing, and ceiling 
prices where applicable) of the item(s), or in the time of delivery, or 
both. Failure to agree to any such equitable adjustment hereunder will 
be a dispute concerning a question of fact within the meaning of the 
clause entitled ``Disputes.''
    (f) The Government may at any time prior to termination allot 
additional funds for the performance of the contract line item(s) 
identified in paragraph (a) of this clause.

[[Page 605]]

    (g) The termination provisions of this clause do not limit the 
rights of the Government under the clause entitled ``Default.'' The 
provisions of this clause are limited to the work and allotment of funds 
for the contract line item(s) set forth in paragraph (a) of this clause. 
This clause no longer applies once the contract is fully funded except 
with regard to the rights or obligations of the parties concerning 
equitable adjustments negotiated under paragraphs (d) or (e) of this 
clause.
    (h) Nothing in this clause affects the right of the Government to 
terminate this contract pursuant to the clause of this contract entitled 
``Termination for Convenience of the Government.''
    (i) Nothing in this clause shall be construed as authorization of 
voluntary services whose acceptance is otherwise prohibited under 31 
U.S.C. 1342.
    (j) The parties contemplate that the Government will allot funds to 
this contract in accordance with the following schedule:
    On execution of contract $__
    (month) (day), (year) $__
    (month) (day), (year) $__
    (month) (day), (year) $__

                             (End of clause)

[58 FR 46093, Sept. 1, 1993, as amended at 71 FR 18673, Apr. 12, 2006; 
71 FR 27644, May 12, 2006; 79 FR 22042, Apr. 21, 2014]



252.232-7008  Assignment of claims (overseas).

    As prescribed in 232.806(a)(1), use the following clause:

               Assignment of Claims (Overseas) (JUN 1997)

    (a) No claims for monies due, or to become due, shall be assigned by 
the Contractor unless--
    (1) Approved in writing by the Contracting Officer;
    (2) Made in accordance with the laws and regulations of the United 
States of America; and
    (3) Permitted by the laws and regulations of the Contractor's 
country.
    (b) In no event shall copies of this contract of any plans, 
specifications, or other similar documents relating to work under this 
contract, if marked ``Top Secret,'' ``Secret,'' or ``Confidential'' be 
furnished to any assignee of any claim arising under this contract or to 
any other person not entitled to receive such documents. However, a copy 
of any part or all of this contract so marked may be furnished, or any 
information contained herein may be disclosed, to such assignee upon the 
Contracting Officer's prior written authorization.
    (c) Any assignment under this contract shall cover all amounts 
payable under this contract and not already paid, and shall not be made 
to more than one party, except that any such assignment may be made to 
one party as agent or trustee for two or more parties participating in 
such financing. On each invoice or voucher submitted for payment under 
this contract to which any assignment applies, and for which direct 
payment thereof is to be made to an assignee, the Contractor shall--
    (1) Identify the assignee by name and complete address; and
    (2) Acknowledge the validity of the assignment and the right of the 
named assignee to receive payment in the amount invoiced or vouchered.

                             (End of clause)

[62 FR 34134, June 24, 1997]



252.232-7009  Mandatory payment by Governmentwide commercial purchase 
card.

    As prescribed in 232.1110, use the following clause:

 Mandatory Payment by Governmentwide Commercial Purchase Card (MAY 2018)

    The Contractor agrees to accept the Governmentwide commercial 
purchase card as the method of payment for orders or calls valued at or 
below the micro-purchase threshold in part 202 of the Defense Federal 
Acquisition Regulation Supplement, under this contract or agreement.

                             (End of clause)

[65 FR 46626, July 31, 2000, as amended at 71 FR 75893, Dec. 19, 2006; 
83 FR 24896, May 30, 2018]



252.232-7010  Levies on Contract Payments.

    As prescribed in 232.7102, use the following clause:

                 Levies on Contract Payments (DEC 2006)

    (a) 26 U.S.C. 6331(h) authorizes the Internal Revenue Service (IRS) 
to continuously levy up to 100 percent of contract payments, up to the 
amount of tax debt.
    (b) When a levy is imposed on a payment under this contract and the 
Contractor believes that the levy may result in an inability to perform 
the contract, the Contractor shall promptly notify the Procuring 
Contracting Officer in writing, with a copy to the Administrative 
Contracting Officer, and shall provide--
    (1) The total dollar amount of the levy;

[[Page 606]]

    (2) A statement that the Contractor believes that the levy may 
result in an inability to perform the contract, including rationale and 
adequate supporting documentation; and
    (3) Advice as to whether the inability to perform may adversely 
affect national security, including rationale and adequate supporting 
documentation.
    (c) DoD shall promptly review the Contractor's assessment, and the 
Procuring Contracting Officer shall provide a written notification to 
the Contractor including--
    (1) A statement as to whether DoD agrees that the levy may result in 
an inability to perform the contract; and
    (2)(i) If the levy may result in an inability to perform the 
contract and the lack of performance will adversely affect national 
security, the total amount of the monies collected that should be 
returned to the Contractor; or
    (ii) If the levy may result in an inability to perform the contract 
but will not impact national security, a recommendation that the 
Contractor promptly notify the IRS to attempt to resolve the tax 
situation.
    (d) Any DoD determination under this clause is not subject to appeal 
under the Contract Disputes Act.

                             (End of clause)

[70 FR 52032, Sept. 1, 2005, as amended at 71 FR 69492, Dec. 1, 2006]



252.232-7011  Payments in Support of Emergencies and Contingency
Operations.

    As prescribed in section 232.908, use the following clause:

Payments in Support of Emergencies and Contingency Operations 
(MAY 2013)

    (a) Definitions of pertinent terms are set forth in sections 2.101, 
32.001, and 32.902 of the Federal Acquisition Regulation.
    (b) Notwithstanding any other payment clause in this contract, the 
Government will make invoice payments under the terms and conditions 
specified in this clause. The Government considers payment as being made 
on the day a check is dated or the date of an electronic funds transfer
    (c) Invoice payments--(1) Due date. (i) Payment will be made as soon 
as possible once a proper invoice is received and matched with the 
contract and the receiving/acceptance report.
    (ii) If the contract does not require submission of an invoice for 
payment (e.g., periodic lease payments), the due date will be as 
specified in the contract.
    (2) Contractor's invoice. The Contractor shall prepare and submit 
invoices to the designated billing office specified in the contract. A 
proper invoice should include the items listed in paragraphs (c)(2)(i) 
through (c)(2)(x) of this clause.
    (i) Name and address of the Contractor.
    (ii) Invoice date and invoice number. (The Contractor should date 
invoices as close as possible to the date of the mailing or 
transmission.)
    (iii) Contract number or other authorization for supplies delivered 
or services performed (including order number and contract line item 
number).
    (iv) Description, quantity, unit of measure, unit price, and 
extended price of supplies delivered or services performed.
    (v) Shipping and payment terms (e.g., shipment number and date of 
shipment, discount for prompt payment terms). Bill of lading number and 
weight of shipment will be shown for shipments on Government bills of 
lading.
    (vi) Name and address of Contractor official to whom payment is to 
be sent (must be the same as that in the contract or in a proper notice 
of assignment).
    (vii) Name (where practicable), title, phone number, and mailing 
address of person to notify in the event of a defective invoice.
    (viii) Taxpayer Identification Number (when required). The taxpayer 
identification number is required for all payees subject to the U.S. 
Internal Revenue Code.
    (ix) Electronic funds transfer banking information.
    (A) The Contractor shall include electronic funds transfer banking 
information on the invoice only if required elsewhere in this contract.
    (B) If electronic funds transfer banking information is not required 
to be on the invoice, in order for the invoice to be a proper invoice, 
the Contractor shall have submitted correct electronic funds transfer 
banking information in accordance with the applicable solicitation 
provision (e.g., FAR 52.232-38, Submission of Electronic Funds Transfer 
Information with Offer), contract clause (e.g., FAR 52.232-33, Payment 
by Electronic Funds Transfer--System for Award Management, or FAR 
52.232-34, Payment by Electronic Funds Transfer--Other Than System for 
Award Management), or applicable agency procedures.
    (C) Electronic funds transfer banking information is not required if 
the Government waived the requirement to pay by electronic funds 
transfer.
    (x) Any other information or documentation required by the contract 
(e.g., evidence of shipment).
    (3) Discounts for prompt payment. The designated payment office will 
take cost-effective discounts if the payment is made within the discount 
terms of the contract.
    (4) Contract financing payment. If this contract provides for 
contract financing, the Government will make contract financing

[[Page 607]]

payments in accordance with the applicable contract financing clause.
    (5) Overpayments. If the Contractor becomes aware of a duplicate 
contract financing or invoice payment or that the Government has 
otherwise overpaid on a contract financing or invoice payment, the 
Contractor shall--
    (i) Remit the overpayment amount to the payment office cited in the 
contract along with a description of the overpayment, including the--
    (A) Circumstances of the overpayment (e.g., duplicate payment, 
erroneous payment, liquidation errors, date(s) of overpayment);
    (B) Affected contract number and delivery order number, if 
applicable;
    (C) Affected contract line item or subline item, if applicable; and
    (D) Contractor point of contact; and
    (ii) Provide a copy of the remittance and supporting documentation 
to the Contracting Officer.
    (d) This clause is applicable until otherwise notified by the 
Contracting Officer. Upon notification by issuance of a contract 
modification, the appropriate FAR Prompt Payment clause in the contract 
becomes applicable.

                             (End of clause)

[75 FR 40714, July 13, 2010, as amended at 78 FR 28758, May 16, 2013; 78 
FR 30232, May 22, 2013]



252.232-7012  Performance-Based Payments--Whole-Contract Basis.

    As prescribed in 232.1005-70(a)(1), use the following clause: 
PERFORMANCE-BASED PAYMENTS--WHOLE-CONTRACT BASIS (APR 2020)

    (a) Performance-based payments shall form the basis for the contract 
financing payments provided under this contract, and shall apply to the 
whole contract. The performance-based payments schedule (Contract 
Attachment ___) describes the basis for payment, to include 
identification of the individual payment events, evidence of completion, 
and amount of payment due upon completion of each event.
    (b) In accordance with 10 U.S.C. 2307(b)(4)(A), the Contractor's 
financial statements shall be in compliance with Generally Accepted 
Accounting Principles in order to receive performance-based payments.
    (c)(1) The Contractor shall, in addition to providing the 
information required by FAR 52.232-32, submit information for all 
payment requests using the following format:

[[Page 608]]

[GRAPHIC] [TIFF OMITTED] TR08AP20.002

    (2) Incurred cost is determined by the Contractor's accounting books 
and records, to which the Contractor shall provide access upon request 
of the Contracting Officer. An acceptable accounting system in 
accordance with DFARS 252.242-7006 is not required for reporting of 
incurred costs under this clause. If the Contractor's accounting system 
is not capable of tracking costs on a job order basis, the Contractor 
shall provide a realistic approximation of the allocation of incurred 
costs attributable to this contract in accordance with the Contractor's 
accounting system. FAR 52.232-32(m) does not require certification of 
incurred costs.
    (d) Security for financing. (1) Title to the property described in 
paragraph (f) of the clause at FAR 52.232-32, Performance-Based 
Payments, is the preferred security for receipt of performance-based 
payments.
    (2)(i) If the Contractor's accounting system is not capable of 
identifying and tracking through the build cycle the property that is 
allocable and properly chargeable to this contract, the Contracting 
Officer may consider acceptance of one or a combination of the following 
alternative forms of security sufficient to constitute adequate security 
for the performance-based payments and so specify in the contract, 
consistent with FAR 32.202-4:
    (A) A paramount lien on assets.
    (B) An irrevocable letter of credit from a federally insured 
financial institution.
    (C) A bond from a surety, acceptable in accordance with FAR part 28.
    (D) A guarantee of repayment from a person or corporation of 
demonstrated liquid net worth, connected by significant ownership 
interest to the Contractor.
    (E) Title to identified Contractor assets of adequate worth.
    (ii) Paragraph (f) of the clause at FAR 52.232-32 does not apply to 
the extent that the Contractor and the Contracting Officer agree on 
alternative forms of security. In the event the Contractor fails to 
provide adequate security, as required in this contract, no financing 
payment will be made under this contract. Upon receipt of adequate 
security, financing payments will be made, including all previous 
payments to which the Contractor is entitled, in accordance with the 
terms of the provisions for contract financing. If at any time the 
Contracting Officer determines that the security provided by

[[Page 609]]

the Contractor is insufficient, the Contractor shall promptly provide 
such additional security as the Contracting Officer determines 
necessary. In the event the Contractor fails to provide such additional 
security, the Contracting Officer may collect or liquidate such security 
that has been provided and suspend further payments to the Contractor; 
and the Contractor shall repay to the Government the amount of 
unliquidated financing payments as the Contracting Officer at his sole 
discretion deems repayable.

                             (End of clause)

[79 FR 17936, Mar. 31, 2014, as amended at 85 FR 19688, Apr. 8, 2020]



252.232-7013  Performance-Based Payments--Deliverable-Item Basis.

    As prescribed in 232.1005-70(a)(2), use the following clause:

      Performance-Based Payments--Deliverable-Item Basis (APR 2020)

    (a) Performance-based payments shall form the basis for the contract 
financing payments provided under this contract and shall apply to 
Contract Line Item Number(s) (CLIN(s)) [Contracting Officer insert 
applicable CLIN(s)]. The performance-based payments schedule (Contract 
Attachment __) describes the basis for payment, to include 
identification of the individual payment events, CLINs to which each 
event applies, evidence of completion, and amount of payment due upon 
completion of each event.
    (b) In accordance with 10 U.S.C. 2307(b)(4)(A), the Contractor's 
financial statements shall be in compliance with Generally Accepted 
Accounting Principles in order to receive performance-based payments.
    (c)(1) The Contractor shall, in addition to providing the 
information required by FAR 52.232-32, submit information for all 
payment requests using the following format:
[GRAPHIC] [TIFF OMITTED] TR08AP20.003


[[Page 610]]


    (2) Incurred cost is determined by the Contractor's accounting books 
and records, to which the Contractor shall provide access upon request 
of the Contracting Officer. An acceptable accounting system in 
accordance with DFARS 252.242-7006 is not required for reporting of 
incurred costs under this clause. If the Contractor's accounting system 
is not capable of tracking costs on a job order basis, the Contractor 
shall provide a realistic approximation of the allocation of incurred 
costs attributable to this contract in accordance with the Contractor's 
accounting system. FAR 52.232-32(m) does not require certification of 
incurred costs.
    (d) Security for financing. (1) Title to the property described in 
paragraph (f) of the clause at FAR 52.232-32, Performance-Based 
Payments, is the preferred security for receipt of performance-based 
payments.
    (2)(i) If the Contractor's accounting system is not capable of 
identifying and tracking through the build cycle the property that is 
allocable and properly chargeable to this contract, the Contracting 
Officer may consider acceptance of one or a combination of the following 
alternative forms of security sufficient to constitute adequate security 
for the performance-based payments and so specify in the contract, 
consistent with FAR 32.202-4:
    (A) A paramount lien on assets.
    (B) An irrevocable letter of credit from a federally insured 
financial institution.
    (C) A bond from a surety, acceptable in accordance with FAR part 28.
    (D) A guarantee of repayment from a person or corporation of 
demonstrated liquid net worth, connected by significant ownership 
interest to the Contractor.
    (E) Title to identified Contractor assets of adequate worth.
    (ii) Paragraph (f) of the clause at FAR 52.232-32 does not apply to 
the extent that the Contractor and the Contracting Officer agree on 
alternative forms of security. In the event the Contractor fails to 
provide adequate security, as required in this contract, no financing 
payment will be made under this contract. Upon receipt of adequate 
security, financing payments will be made, including all previous 
payments to which the Contractor is entitled, in accordance with the 
terms of the provisions for contract financing. If at any time the 
Contracting Officer determines that the security provided by the 
Contractor is insufficient, the Contractor shall promptly provide such 
additional security as the Contracting Officer determines necessary. In 
the event the Contractor fails to provide such additional security, the 
Contracting Officer may collect or liquidate such security that has been 
provided and suspend further payments to the Contractor; and the 
Contractor shall repay to the Government the amount of unliquidated 
financing payments as the Contracting Officer at his sole discretion 
deems repayable.

                             (End of clause)

[79 FR 17936, Mar. 31, 2014, as amended at 79 FR 23278, Apr. 28, 2014; 
85 FR 19689, Apr. 8, 2020]



252.232-7014  Notification of Payment in Local Currency (Afghanistan).

    As prescribed in 232.7202, use the following provision:

   Notification of Payment in Local Currency (Afghanistan) (SEP 2014)

    (a) The contract resulting from this solicitation will be paid in 
Afghani (local currency) if the contract is awarded to a host nation 
vendor (Afghan), pursuant to the authority of USCENTCOM Fragmentary 
Order (FRAGO) 09-1567 and FRAGO 10-143. Contract payment will be made in 
Afghani (local currency) via electronic funds transfer (EFT) to a local 
(Afghan) banking institution, unless an exception in paragraph (c) 
applies. Contracts shall not be awarded to host nation vendors who do 
not bank locally. If award is made to other than a host nation vendor, 
the contract will be awarded in U.S. dollars.
    (b) Vendors shall submit quotations and offers in U.S. dollars. If 
the contract is awarded to an Afghan vendor, the quotation or offer will 
be converted to Afghani using a Government budget rate of [Insert 
current budget rate here.] Afghani per U.S. dollar.
    (c) By exception, the following forms of payment are acceptable, in 
the following order of priority, when the local finance office 
determines that EFT using ITS.gov is not available:
    (1) EFT using Limited Depository Account (LDA).
    (2) Check from the local finance office LDA.
    (3) Local currency cash payments in Afghani (must be approved in 
writing by the local finance office and contracting office prior to 
contract award). Payments in cash are restricted to contracts when--
    (i) The vendor provides proof via a letter from the host nation 
banking institution that it is not EFT capable; and
    (ii) The local finance office validates that the vendor's banking 
institution is not EFT capable. Cash payments will be made in Afghani.

                           (End of provision)

[79 FR 58696, Sept. 30, 2014]

[[Page 611]]



252.232-7015  Performance-Based Payments--Representation.

    As prescribed in 232.1005-70(b), use the following provision:

          Performance-Based Payments--Representation (APR 2020)

    (a) In accordance with 10 U.S.C. 2307(b)(4)(A), the Contractor's 
financial statements shall be in compliance with Generally Accepted 
Accounting Principles in order to receive performance-based payments.
    (b) The Offeror represents that its financial statements are [ ] are 
not [ ] in compliance with Generally Accepted Accounting Principles.

                           (End of provision)

[85 FR 19691, Apr. 8, 2020]



252.232-7016  Notice of Progress Payments or Performance-Based Payments.

    As prescribed in 232.1005-70(c), insert the following provision:

  Notice of Progress Payments or Performance-Based Payments (APR 2020)

    (a) The need for customary progress payments in accordance with 
subpart 32.5 of the Federal Acquisition Regulation (FAR) or performance-
based payments in accordance with FAR subpart 32.10 will not be 
considered as a handicap or adverse factor in the award of the contract.
    (b) This solicitation includes a FAR and Defense Federal Acquisition 
Regulation Supplement (DFARS) clause for performance-based payments and 
a FAR clause for progress payments. The resultant contract will include 
either performance-based payments or progress payments, not both, except 
as may be authorized on separate orders subject to FAR 32.1003(c).
    (1) The performance-based payments clauses will be included in the 
contract if--
    (i) The Offeror has provided positive representation in response to 
DFARS 252.232-7015, Performance-Based Payments--Representation;
    (ii) The Offeror proposes a performance-based payment arrangement in 
accordance with FAR 52.232-28, Invitation to Propose Performance-Based 
Payments, including proposed events and timing, event completion 
criteria, event values, and expected expenditure profile; and
    (iii) The Offeror and the Government reach agreement on all aspects 
of the arrangement.
    (2) If performance-based payments clauses are not included in the 
resultant contract, the progress payments clause included in this 
solicitation will be included in any resultant contract, modified or 
altered if necessary in accordance with FAR 52.232-16 and its Alternate 
I. Even though the progress payments clause is included in the contract, 
the clause shall be inoperative during any time the contractor's 
accounting system and controls are determined by the Government to be 
inadequate for segregation and accumulation of contract costs.

                           (End of provision)

[85 FR 19691, Apr. 8, 2020]



252.232-7017  Accelerating Payments to Small Business Subcontractors
--Prohibition on Fees and Consideration.

    As prescribed in 232.009-2, use the following clause:

 Accelerating Payments to Small Business Subcontractors--Prohibition on 
                    Fees and Consideration (APR 2020)

    (a) Definition. Accelerated payment, as used in this clause, means a 
payment made to a small business subcontractor as quickly as possible, 
with a goal of 15 days or less after receipt of payment from the 
Government or receipt of a proper invoice from the subcontractor, 
whichever is later.
    (b) In accordance with section 852 of Public Law 115-232, the 
Contractor shall not require any further consideration from or charge 
fees to the small business subcontractor when making accelerated 
payments, as defined in paragraph (a) of this clause, to subcontractors 
under the clause at FAR 52.232-40, Providing Accelerated Payments to 
Small Business Subcontractors.
    (c) Subcontracts. Include the substance of this clause, including 
this paragraph (c), in all subcontracts with small business concerns, 
including those for the acquisition of commercial items.

                             (End of clause)

[85 FR 19697, Apr. 8, 2020]



252.233-7000  [Reserved]



252.233-7001  Choice of law (overseas).

    As prescribed in 233.215-70, use the following clause:

                   Choice of Law (Overseas) (JUN 1997)

    This contract shall be construed and interpreted in accordance with 
the substantive laws of the United States of America. By the execution 
of this contract, the Contractor expressly agrees to waive any rights to 
invoke the jurisdiction of local national courts where this contract is 
performed and agrees to accept the exclusive jurisdiction of the

[[Page 612]]

United States Armed Services Board of Contract Appeals and the United 
States Court of Federal Claims for hearing and determination of any and 
all disputes that may arise under the Disputes clause of this contract.

                             (End of clause)

[62 FR 34135, June 24, 1997]



252.234-7001  Notice of Earned Value Management System.

    As prescribed in 234.203(1), use the following provision:

           Notice of Earned Value Management System (APR 2008)

    (a) If the offeror submits a proposal in the amount of $50,000,000 
or more--
    (1) The offeror shall provide documentation that the Cognizant 
Federal Agency (CFA) has determined that the proposed Earned Value 
Management System (EVMS) complies with the EVMS guidelines in the 
American National Standards Institute/Electronic Industries Alliance 
Standard 748, Earned Value Management Systems (ANSI/EIA-748) (current 
version at time of solicitation). The Government reserves the right to 
perform reviews of the EVMS when deemed necessary to verify compliance.
    (2) If the offeror proposes to use a system that has not been 
determined to be in compliance with the requirements of paragraph (a)(1) 
of this provision, the offeror shall submit a comprehensive plan for 
compliance with the guidelines in ANSI/EIA-748.
    (i) The plan shall--
    (A) Describe the EVMS the offeror intends to use in performance of 
the contract, and how the proposed EVMS complies with the EVMS 
guidelines in ANSI/EIA-748;
    (B) Distinguish between the offeror's existing management system and 
modifications proposed to meet the EVMS guidelines;
    (C) Describe the management system and its application in terms of 
the EVMS guidelines;
    (D) Describe the proposed procedure for administration of the EVMS 
guidelines as applied to subcontractors; and
    (E) Describe the process the offeror will use to determine 
subcontractor compliance with ANSI/EIA-748.
    (ii) The offeror shall provide information and assistance as 
required by the Contracting Officer to support review of the plan.
    (iii) The offeror's EVMS plan must provide milestones that indicate 
when the offeror anticipates that the EVMS will be compliant with the 
guidelines in ANSI/EIA-748.
    (b) If the offeror submits a proposal in an amount less than 
$50,000,000--
    (1) The offeror shall submit a written description of the management 
procedures it will use and maintain in the performance of any resultant 
contract to comply with the requirements of the Earned Value Management 
System clause of the contract. The description shall include--
    (i) A matrix that correlates each guideline in ANSI/EIA-748 (current 
version at time of solicitation) to the corresponding process in the 
offeror's written management procedures; and
    (ii) The process the offeror will use to determine subcontractor 
compliance with ANSI/EIA-748.
    (2) If the offeror proposes to use an EVMS that has been determined 
by the CFA to be in compliance with the EVMS guidelines in ANSI/EIA-748, 
the offeror may submit a copy of the documentation of such determination 
instead of the written description required by paragraph (b)(1) of this 
provision.
    (c) The offeror shall identify the subcontractors (or the 
subcontracted effort if subcontractors have not been selected) to whom 
the EVMS requirements will apply. The offeror and the Government shall 
agree to the subcontractors or the subcontracted effort selected for 
application of the EVMS requirements. The offeror shall be responsible 
for ensuring that the selected subcontractors comply with the 
requirements of the Earned Value Management System clause of the 
contract.

                           (End of provision)

[73 FR 21848, Apr. 23, 2008]



252.234-7002  Earned Value Management System.

    As prescribed in 234.203(2), use the following clause:

                Earned Value Management System (MAY 2011)

    (a) Definitions. As used in this clause--
    Acceptable earned value management system means an earned value 
management system that generally complies with system criteria in 
paragraph (b) of this clause.
    Earned value management system means an earned value management 
system that complies with the earned value management system guidelines 
in the ANSI/EIA-748.
    Significant deficiency means a shortcoming in the system that 
materially affects the ability of officials of the Department of Defense 
to rely upon information produced by the system that is needed for 
management purposes.
    (b) System criteria. In the performance of this contract, the 
Contractor shall use--

[[Page 613]]

    (1) An Earned Value Management System (EVMS) that complies with the 
EVMS guidelines in the American National Standards Institute/Electronic 
Industries Alliance Standard 748, Earned Value Management Systems (ANSI/
EIA-748); and
    (2) Management procedures that provide for generation of timely, 
reliable, and verifiable information for the Contract Performance Report 
(CPR) and the Integrated Master Schedule (IMS) required by the CPR and 
IMS data items of this contract.
    (c) If this contract has a value of $50 million or more, the 
Contractor shall use an EVMS that has been determined to be acceptable 
by the Cognizant Federal Agency (CFA). If, at the time of award, the 
Contractor's EVMS has not been determined by the CFA to be in compliance 
with the EVMS guidelines as stated in paragraph (b)(1) of this clause, 
the Contractor shall apply its current system to the contract and shall 
take necessary actions to meet the milestones in the Contractor's EVMS 
plan.
    (d) If this contract has a value of less than $50 million, the 
Government will not make a formal determination that the Contractor's 
EVMS complies with the EVMS guidelines in ANSI/EIA-748 with respect to 
the contract. The use of the Contractor's EVMS for this contract does 
not imply a Government determination of the Contractor's compliance with 
the EVMS guidelines in ANSI/EIA-748 for application to future contracts. 
The Government will allow the use of a Contractor's EVMS that has been 
formally reviewed and determined by the CFA to be in compliance with the 
EVMS guidelines in ANSI/EIA-748.
    (e) The Contractor shall submit notification of any proposed 
substantive changes to the EVMS procedures and the impact of those 
changes to the CFA. If this contract has a value of $50 million or more, 
unless a waiver is granted by the CFA, any EVMS changes proposed by the 
Contractor require approval of the CFA prior to implementation. The CFA 
will advise the Contractor of the acceptability of such changes as soon 
as practicable (generally within 30 calendar days) after receipt of the 
Contractor's notice of proposed changes. If the CFA waives the advance 
approval requirements, the Contractor shall disclose EVMS changes to the 
CFA at least 14 calendar days prior to the effective date of 
implementation.
    (f) The Government will schedule integrated baseline reviews as 
early as practicable, and the review process will be conducted not later 
than 180 calendar days after--
    (1) Contract award;
    (2) The exercise of significant contract options; and
    (3) The incorporation of major modifications.

During such reviews, the Government and the Contractor will jointly 
assess the Contractor's baseline to be used for performance measurement 
to ensure complete coverage of the statement of work, logical scheduling 
of the work activities, adequate resourcing, and identification of 
inherent risks.
    (g) The Contractor shall provide access to all pertinent records and 
data requested by the Contracting Officer or duly authorized 
representative as necessary to permit Government surveillance to ensure 
that the EVMS complies, and continues to comply, with the performance 
criteria referenced in paragraph (b) of this clause.
    (h) When indicated by contract performance, the Contractor shall 
submit a request for approval to initiate an over-target baseline or 
over-target schedule to the Contracting Officer. The request shall 
include a top-level projection of cost and/or schedule growth, a 
determination of whether or not performance variances will be retained, 
and a schedule of implementation for the rebaselining. The Government 
will acknowledge receipt of the request in a timely manner (generally 
within 30 calendar days).
    (i) Significant deficiencies. (1) The Contracting Officer will 
provide an initial determination to the Contractor, in writing, on any 
significant deficiencies. The initial determination will describe the 
deficiency in sufficient detail to allow the Contractor to understand 
the deficiency.
    (2) The Contractor shall respond within 30 days to a written initial 
determination from the Contracting Officer that identifies significant 
deficiencies in the Contractor's EVMS. If the Contractor disagrees with 
the initial determination, the Contractor shall state, in writing, its 
rationale for disagreeing.
    (3) The Contracting Officer will evaluate the Contractor's response 
and notify the Contractor, in writing, of the Contracting Officer's 
final determination concerning--
    (i) Remaining significant deficiencies;
    (ii) The adequacy of any proposed or completed corrective action;
    (iii) System noncompliance, when the Contractor's existing EVMS 
fails to comply with the earned value management system guidelines in 
the ANSI/EIA-748; and
    (iv) System disapproval, if initial EVMS validation is not 
successfully completed within the timeframe approved by the Contracting 
Officer, or if the Contracting Officer determines that the Contractor's 
earned value management system contains one or more significant 
deficiencies in high-risk guidelines in ANSI/EIA-748 standards 
(guidelines 1, 3, 6, 7, 8, 9, 10, 12, 16, 21, 23, 26, 27, 28, 30, or 
32). When the Contracting Officer determines that the existing earned 
value management system contains one or more significant deficiencies in 
one or more of the remaining 16 guidelines in ANSI/EIA-748 standards, 
the contracting officer will use discretion to disapprove the system 
based on input

[[Page 614]]

received from functional specialists and the auditor.
    (4) If the Contractor receives the Contracting Officer's final 
determination of significant deficiencies, the Contractor shall, within 
45 days of receipt of the final determination, either correct the 
significant deficiencies or submit an acceptable corrective action plan 
showing milestones and actions to eliminate the significant 
deficiencies.
    (j) Withholding payments. If the Contracting Officer makes a final 
determination to disapprove the Contractor's EVMS, and the contract 
includes the clause at 252.242-7005, Contractor Business Systems, the 
Contracting Officer will withhold payments in accordance with that 
clause.
    (k) With the exception of paragraphs (i) and (j) of this clause, the 
Contractor shall require its subcontractors to comply with EVMS 
requirements as follows:
    (1) For subcontracts valued at $50 million or more, the following 
subcontractors shall comply with the requirements of this clause:
    [Contracting Officer to insert names of subcontractors (or 
subcontracted effort if subcontractors have not been selected) 
designated for application of the EVMS requirements of this clause.]

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (2) For subcontracts valued at less than $50 million, the following 
subcontractors shall comply with the requirements of this clause, 
excluding the requirements of paragraph (c) of this clause:
    [Contracting Officer to insert names of subcontractors (or 
subcontracted effort if subcontractors have not been selected) 
designated for application of the EVMS requirements of this clause.]

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                             (End of clause)

[76 FR 28873, May 18, 2011]



252.234-7003  Notice of Cost and Software Data Reporting System.

    Basic. As prescribed in 234.7101(a) and (a)(1), use the following 
provision:

   Notice of Cost and Software Data Reporting System--Basic (NOV 2014)

    (a) This solicitation includes--
    (1) The Government-approved cost and software data reporting (CSDR) 
plan for the contract, DD Form 2794; and
    (2) The related Resource Distribution Table.
    (b) As part of its proposal, the Offeror shall--
    (1) Describe the process to be used to satisfy the requirements of 
the DoD 5000.04-M-1, CSDR Manual, and the Government-approved CSDR plan 
for the proposed contract;
    (2) Demonstrate how contractor cost and data reporting (CCDR) will 
be based, to the maximum extent possible, upon actual cost transactions 
and not cost allocations;
    (3) Demonstrate how the data from its accounting system will be 
mapped into the standard reporting categories required in the CCDR data 
item descriptions;
    (4) Describe how recurring and nonrecurring costs will be 
segregated;
    (5) Provide comments on the adequacy of the CSDR contract plan and 
related Resource Distribution Table; and
    (6) Submit the DD Form 1921, Cost Data Summary Report, and DD Form 
1921-1, Functional Cost-Hour Report, with its pricing proposal.
    (c) CSDR reporting will be required for subcontractors at any tier 
with a subcontract that exceeds $50 million. The offeror shall identify, 
by providing comments on the Resource Distribution Table, the 
subcontractors, or, if the subcontractors have not been selected, the 
subcontracted effort in this category.

                           (End of provision)

    Alternate I. As prescribed in 234.7101(a) and (a)(2), use the 
following provision, which uses a different paragraph (c) than the basic 
provision:

  Notice of Cost and Software Data Reporting System--Alternate I (NOV 
                                  2014)

    (a) This solicitation includes--
    (1) The Government-approved cost and software data reporting (CSDR) 
plan for the contract, DD Form 2794; and
    (2) The related Resource Distribution Table.
    (b) As part of its proposal, the Offeror shall--
    (1) Describe the process to be used to satisfy the requirements of 
the DoD 5000.04-M-1, CSDR Manual, and the Government-approved CSDR plan 
for the proposed contract;
    (2) Demonstrate how contractor cost and data reporting (CCDR) will 
be based, to the maximum extent possible, upon actual cost transactions 
and not cost allocations;
    (3) Demonstrate how the data from its accounting system will be 
mapped into the standard reporting categories required in the CCDR data 
item descriptions;
    (4) Describe how recurring and nonrecurring costs will be 
segregated;

[[Page 615]]

    (5) Provide comments on the adequacy of the CSDR contract plan and 
related Resource Distribution Table; and
    (6) Submit the DD Form 1921, Cost Data Summary Report, and DD Form 
1921-1, Functional Cost-Hour Report, with its pricing proposal.
    (c) CSDR reporting will be required for subcontractors for selected 
subcontracts identified in the CSDR contract plan as requiring such 
reporting. The offeror shall identify, by providing comments on the 
Resource Distribution Table, the subcontractors, or, if the 
subcontractors have not been selected, the subcontracted effort.

                           (End of provision)

[75 FR 71562, Nov. 24, 2010, as amended at 79 FR 65594, Nov. 5, 2014; 80 
FR 36899, June 26, 2015]



252.234-7004  Cost and Software Data Reporting System.

    Basic. As prescribed in 234.7101(b) and (b)(1), use the following 
clause:

        Cost and Software Data Reporting System--Basic (NOV 2014)

    (a) In the performance of this contract, the Contractor shall use--
    (1) A documented standard cost and software data reporting (CSDR) 
process that satisfies the guidelines contained in the DoD 5000.04-M-1, 
CSDR Manual;
    (2) Management procedures that provide for generation of timely and 
reliable information for the contractor cost data reports (CCDRs) and 
software resources data reports (SRDRs) required by the CCDR and SRDR 
data items of this contract; and
    (3) The Government-approved CSDR plan for this contract, DD Form 
2794, and the related Resource Distribution Table as the basis for 
reporting in accordance with the required CSDR data item descriptions.
    (b) The Contractor shall require CSDR reporting from subcontractors 
at any tier with a subcontract that exceeds $50 million. If, for 
subcontracts that exceed $50 million, the Contractor changes 
subcontractors or makes new subcontract awards, the Contractor shall 
notify the Government.

                             (End of clause)

    Alternate I. As prescribed in 234.7101(b) and (b)(2), use the 
following clause, which uses a different paragraph (b) than the basic 
clause:

     Cost and Software Data Reporting System--Alternate I (NOV 2014)

    (a) In the performance of this contract, the Contractor shall use--
    (1) A documented standard cost and software data reporting (CSDR) 
process that satisfies the guidelines contained in the DoD 5000.04-M-1, 
CSDR Manual;
    (2) Management procedures that provide for generation of timely and 
reliable information for the contractor cost data reports (CCDRs) and 
software resources data reports (SRDRs) required by the CCDR and SRDR 
data items of this contract; and
    (3) The Government-approved CSDR plan for this contract, DD Form 
2794, and the related Resource Distribution Table as the basis for 
reporting in accordance with the required CSDR data item descriptions 
(DIDs).
    (b) The Contractor shall require CSDR reporting from selected 
subcontractors identified in the CSDR contract plan as requiring such 
reporting. If the Contractor changes subcontractors or makes new awards 
for selected subcontract effort, the Contractor shall notify the 
Government.

                             (End of clause)

[75 FR 71562, Nov. 24, 2010, as amended at 79 FR 65594, Nov. 5, 2014; 80 
FR 36900, June 26, 2015]



252.235-7000  Indemnification under 10 U.S.C. 2354--fixed price.

    As prescribed in 235.070-3, use the following clause:

      Indemnification Under 10 U.S.C. 2354--Fixed Price (DEC 1991)

    (a) This clause provides for indemnification under 10 U.S.C. 2354 if 
the Contractor meets all the terms and conditions of this clause.
    (b) Claims, losses, and damages covered--
    (1) Claims by third persons for death, bodily injury, sickness, or 
disease, or the loss, damage, or lost use of property. Claims include 
those for reasonable expenses of litigation or settlement. The term 
third persons includes employees of the contractor;
    (2) The loss, damage, and lost use of the Contractor's property, but 
excluding lost profit; and
    (3) Loss, damage, or lost use of the Government's property.
    (c) The claim, loss, or damage--
    (1) Must arise from the direct performance of this contract;
    (2) Must not be compensated by insurance or other means, or be 
within deductible amounts of the Contractor's insurance;
    (3) Must result from an unusually hazardous risk as specifically 
defined in the contract;
    (4) Must not result from willful misconduct or lack of good faith on 
the part of any of the Contractor's directors or officers, managers, 
superintendents, or other equivalent

[[Page 616]]

representatives who have supervision or direction of--
    (i) All or substantially all of the Contractor's business;
    (ii) All or substantially all of the Contractor's operations at any 
one plant or separate location where this contract is being performed; 
or
    (iii) A separate and complete major industrial operation connected 
with the performance of this contract;
    (5) Must not be a liability assumed under any contract or agreement 
(except for subcontracts covered by paragraph (h) of this clause), 
unless the Contracting Officer (or in contracts with the Department of 
the Navy, the Department) specifically approved the assumption of 
liability; and
    (6) Must be certified as just and reasonable by the Secretary of the 
department or designated representative.
    (d) The Contractor shall buy and maintain, to the extent available, 
insurance against unusually hazardous risks in the form, amount, 
period(s) of time, at the rate(s), and with such insurers, as the 
Contracting Officer (or, for Navy contracts, the Department) may from 
time to time require and approve. If the cost of this insurance is 
higher than the cost of the insurance the Contractor had as of the date 
of the contract, the Government shall reimburse the Contractor for the 
difference in cost, as long as it is properly allocable to this contract 
and is not included in the contract price. The Government shall not be 
liable for claims, loss, or damage if insurance was available and is 
either required or approved under this paragraph.
    (e) A reduction of the insurance coverage maintained by the 
Contractor on the date of the execution of this contract shall not 
increase the Government's liability under this clause unless the 
Contracting Officer consents, and the contract price is equitably 
adjusted, if appropriate, to reflect the Contractor's consideration for 
the Government's assumption of increased liability.
    (f) Notice. The Contractor shall--
    (1) Promptly notify the Contracting Officer of any occurrence, 
action, or claim that might trigger the Government's liability under 
this clause;
    (2) Furnish the proof or evidence of any claim, loss, or damage in 
the form and manner that the Government requires; and
    (3) Immediately provide copies of all pertinent papers that the 
Contractor receives or has received.
    (g) The Government may direct, participate in, and supervise the 
settlement or defense of the claim or action. The Contractor shall 
comply with the Government's directions and execute any authorizations 
required.
    (h) Flowdown. The Government shall indemnify the Contractor if the 
Contractor has an obligation to indemnify a subcontractor under any 
subcontract at any tier under this contract for the unusually hazardous 
risk identified in this contract only if--
    (1) The Contracting Officer gave prior written approval for the 
Contractor to provide in a subcontract for the Contractor to indemnify 
the subcontractor for unusually hazardous risks defined in this 
contract;
    (2) The Contracting Officer approved those indemnification 
provisions;
    (3) The subcontract indemnification provisions entitle the 
Contractor, or the Government, or both, to direct, participate in, and 
supervise the settlement or defense of relevant actions and claims; and
    (4) The subcontract provides the same rights and duties, the same 
provisions for notice, furnishing of papers and the like, between the 
Contractor and the subcontractor, as exist between the Government and 
the Contractor under this clause.
    (i) The Government may discharge its obligations under paragraph (h) 
of this clause by making payments directly to subcontractors or to 
persons to whom the subcontractors may be liable.
    (j) The rights and obligations of the parties under this clause 
shall survive the termination, expiration, or completion of this 
contract.

                             (End of clause)



252.235-7001  Indemnification under 10 U.S.C. 2354--cost reimbursement.

    As prescribed in 235.070-3, use the following clause:

   Indemnification Under 10 U.S.C. 2354--Cost Reimbursement (DEC 1991)

    (a) This clause provides for indemnification under 10 U.S.C. 2354 if 
the Contractor meets all the terms and conditions of this clause.
    (b) Claims, losses, and damages covered--
    (1) Claims by third persons for death, bodily injury, sickness, or 
disease, or the loss, damage, or lost use of property. Claims include 
those for reasonable expenses of litigation or settlement. The term 
``third persons'' includes employees of the Contractor;
    (2) The loss, damage, and lost use of the Contractor's property, but 
excluding lost profit; and
    (3) Loss, damage, or lost use of the Government's property.
    (c) The claim, loss, or damage--
    (1) Must arise from the direct performance of this contract;
    (2) Must not be compensated by insurance or other means, or be 
within deductible amounts of the Contractor's insurance;
    (3) Must result from an unusually hazardous risk as specifically 
defined in the contract;

[[Page 617]]

    (4) Must not result from willful misconduct or lack of good faith on 
the part of any of the Contractor's directors or officers, managers, 
superintendents, or other equivalent representatives who have 
supervision or direction of--
    (i) All or substantially all of the Contractor's business;
    (ii) All or substantially all of the Contractor's operations at any 
one plant or separate location where this contract is being performed; 
or
    (iii) A separate and complete major industrial operation connected 
with the performance of this contract;
    (5) Must not be a liability assumed under any contract or agreement 
(except for subcontracts covered by paragraph (i) of this clause), 
unless the Contracting Officer (or in contracts with the Department of 
the Navy, the Department) specifically approved the assumption of 
liability; and
    (6) Must be certified as just and reasonable by the Secretary of the 
department or designated representative.
    (d) A reduction of the insurance coverage maintained by the 
Contractor on the date of the execution of this contract shall not 
increase the Government's liability under this clause unless the 
Contracting Officer consents, and the contract price is equitably 
adjusted, if appropriate, to reflect the Contractor's consideration for 
the Government's assumption of increased liability.
    (e) Notice. The Insurance--Liability to Third Persons clause of this 
contract applies also to claims under this clause. In addition, the 
Contractor shall--
    (1) Promptly notify the Contracting Officer of any occurrence, 
action, or claim that might trigger the Government's liability under 
this clause;
    (2) Furnish the proof or evidence of any claim, loss, or damage in 
the form and manner that the Government requires; and
    (3) Immediately provide copies of all pertinent papers that the 
contractor receives or has received.
    (f) The Government may direct, participate in, and supervise the 
settlement or defense of the claim or action. The Contractor shall 
comply with the Government's directions, and execute any authorizations 
required.
    (g) The Limitation of Cost clause of this contract does not apply to 
the Government's obligations under this clause. The obligations under 
this clause are excepted from the release required by the Allowable 
Cost, Fee, and Payment clause of this contract.
    (h) Under this clause, a claim, loss, or damage arises from the 
direct performance of this contract if the cause of the claim, loss, or 
damage occurred during the period of performance of this contract or as 
a result of the performance of this contract.
    (i) Flowdown. The Government shall indemnify the Contractor if the 
Contractor has an obligation to indemnify a subcontractor under any 
subcontract at any tier under this contract for the unusually hazardous 
risk identified in this contract only if--
    (1) The Contracting Officer gave prior written approval for the 
Contractor to provide in a subcontract for the Contractor to indemnify 
the subcontractor for unusually hazardous risks defined in this 
contract;
    (2) The Contracting Officer approved those indemnification 
provisions;
    (3) The subcontract indemnification provisions entitle the 
Contractor, or the Government, or both, to direct, participate in, and 
supervise the settlement or defense of relevant actions and claims; and
    (4) The subcontract provides the same rights and duties, the same 
provisions for notice, furnishing of paper and the like, between the 
Contractor and the subcontractor, as exist between the Government and 
the Contractor under this clause.
    (j) The Government may discharge its obligations under paragraph (i) 
of this clause by making payments directly to subcontractors or to 
persons to whom the subcontractors may be liable.
    (k) The rights and obligations of the parties under this clause 
shall survive the termination, expiration, or completion of this 
contract.

                             (End of clause)



252.235-7002  Animal welfare.

    As prescribed in 235.072(a), use the following clause:

                        Animal Welfare (DEC 2014)

    (a)(1) The Contractor shall register its research, development, 
test, and evaluation or training facility with the Secretary of 
Agriculture in accordance with 7 U.S.C. 2136 and 9 CFR subpart C, and 
section 2.30, unless otherwise exempt from this requirement by meeting 
the conditions in 7 U.S.C. 2136 and 9 CFR parts 1 through 4 for the 
duration of the activity. The Contractor shall have its proposed animal 
use approved in accordance with Department of Defense Instruction (DoDI) 
3216.01, Use of Animals in DoD Programs, by a DoD Component Headquarters 
Oversight Office. The Contractor shall furnish evidence of such 
registration and approval to the Contracting Officer before beginning 
work under this contract.
    (2) The Contractor shall make its animals, and all premises, 
facilities, vehicles, equipment, and records that support animal care 
available during business hours and at other times mutually agreeable to 
the Contractor and the United States Department of Agriculture Office of 
Animal and Plant Health

[[Page 618]]

Inspection Service (USDA/APHIS) representative, personnel representing 
the DoD component oversight offices, as well as the Contracting Officer, 
to ascertain that the Contractor is compliant with 7 U.S.C. 2131-2159 
and 9 CFR parts 1 through 4.
    (b) The Contractor shall acquire animals in accordance with DoDI 
3216.01, current at time of award (http://www.dtic.mil/whs/directives/
corres/pdf/321601p.pdf).
    (c) The Contractor agrees that the care and use of animals will 
conform with the pertinent laws of the United States, regulations of the 
Department of Agriculture, and policies and procedures of the Department 
of Defense (see 7 U.S.C. 2131 et seq., and 9 CFR subchapter A, parts 1 
through 4, DoDI 3216.01, Army Regulation 40-33/SECNAVINST 3900.38C/AFMAN 
40-401(I)/DARPAINST 18/USUHSINST 3203). The Contractor shall also comply 
with DoDI 1322.24, Medical Readiness Training, if this contract includes 
acquisition of training.
    (d) The Contracting Officer may immediately suspend, in whole or in 
part, work and further payments under this contract for failure to 
comply with the requirements of paragraphs (a) through (c) of this 
clause.
    (1) The suspension will stay in effect until the Contractor complies 
with the requirements.
    (2) Failure to complete corrective action within the time specified 
by the Contracting Officer may result in termination of this contract 
and, if applicable, removal of the Contractor's name from the approved 
vendor list for live animals used in medical training.
    (e) The Contractor may request registration of its facility by 
contacting USDA/APHIS/AC, 4700 River Road, Unit 84, Riverdale, MD 20737-
1234, or via the APHIS Animal Care Web site at: http://
www.aphis.usda.gov/wps/portal/aphis/ourfocus/animalwelfare.
    (f) The Contractor shall include the substance of this clause, 
including this paragraph (f), in all subcontracts involving research, 
development, test, and evaluation or training that use live vertebrate 
animals.

[79 FR 73501, Dec. 11, 2014]



252.235-7003  Frequency Authorization.

    Basic. As prescribed in 234.7101(b) and (b)(1), use the following 
clause:

                Frequency Authorization--Basic (MAR 2014)

    (a) The Contractor shall obtain authorization for radio frequencies 
required in support of this contract.
    (b) For any experimental, developmental, or operational equipment 
for which the appropriate frequency allocation has not been made, the 
Contractor shall provide the technical operating characteristics of the 
proposed electromagnetic radiating device to the Contracting Officer 
during the initial planning, experimental, or developmental phase of 
contract performance.
    (c) The Contracting Officer shall furnish the procedures for 
obtaining radio frequency authorization.
    (d) The Contractor shall include this clause, including this 
paragraph (d), in all subcontracts requiring the development, 
production, construction, testing, or operation of a device for which a 
radio frequency authorization is required.

                             (End of clause)

    Alternate I. As prescribed in 234.072(b) and (b)(2), use the 
following clause, which uses a different paragraph (c) than the basic 
clause:

             Frequency Authorization--Alternate I (MAR 2014)

    (a) The Contractor shall obtain authorization for radio frequencies 
required in support of this contract.
    (b) For any experimental, developmental, or operational equipment 
for which the appropriate frequency allocation has not been made, the 
Contractor shall provide the technical operating characteristics of the 
proposed electromagnetic radiating device to the Contracting Officer 
during the initial planning, experimental, or developmental phase of 
contract performance.
    (c) The Contractor shall use DD Form 1494, Application for Equipment 
Frequency Allocation, to obtain radio frequency authorization.
    (d) The Contractor shall include this clause, including this 
paragraph (d), in all subcontracts requiring the development, 
production, construction, testing, or operation of a device for which a 
radio frequency authorization is required.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 73 FR 42279, July 21, 2008; 
79 FR 17448, Mar. 28, 2014; 80 FR 36900, June 26, 2015; 86 FR 27278, May 
20, 2021]



252.235-7004  Protection of Human Subjects.

    As prescribed in 235.072(e), use the following clause:

                 Protection of Human Subjects (JUL 2009)

    (a) Definitions. As used in this clause--
    (1) Assurance of compliance means a written assurance that an 
institution will comply with requirements of 32 CFR Part 219, as well as 
the terms of the assurance, which the

[[Page 619]]

Human Research Protection Official determines to be appropriate for the 
research supported by the Department of Defense (DoD) component (32 CFR 
219.103).
    (2) Human Research Protection Official (HRPO) means the individual 
designated by the head of the applicable DoD component and identified in 
the component's Human Research Protection Management Plan as the 
official who is responsible for the oversight and execution of the 
requirements of this clause, although some DoD components may use a 
different title for this position.
    (3) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains data through intervention or interaction with the individual, or 
identifiable private information (32 CFR 219.102(f)). For example, this 
could include the use of human organs, tissue, and body fluids from 
individually identifiable living human subjects as well as graphic, 
written, or recorded information derived from individually identifiable 
living human subjects.
    (4) Institution means any public or private entity or agency (32 CFR 
219.102(b)).
    (5) Institutional Review Board (IRB) means a board established for 
the purposes expressed in 32 CFR Part 219 (32 CFR 219.102(g)).
    (6) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
Federal requirements (32 CFR 219.102(h)).
    (7) Research means a systematic investigation, including research, 
development, testing, and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities that meet this definition 
constitute research for purposes of 32 CFR Part 219, whether or not they 
are conducted or supported under a program that is considered research 
for other purposes. For example, some demonstration and service programs 
may include research activities (32 CFR 219.102(d)).
    (b) The Contractor shall oversee the execution of the research to 
ensure compliance with this clause. The Contractor shall comply fully 
with 32 CFR Part 219 and DoD Directive 3216.02, applicable DoD component 
policies, 10 U.S.C. 980, and, when applicable, Food and Drug 
Administration policies and regulations.
    (c) The Contractor shall not commence performance of research 
involving human subjects that is covered under 32 CFR Part 219 or that 
meets exemption criteria under 32 CFR 219.101(b), or expend funding on 
such effort, until and unless the conditions of either the following 
paragraph (c)(1) or (c)(2) have been met:
    (1) The Contractor furnishes to the HRPO, with a copy to the 
Contracting Officer, an assurance of compliance and IRB approval and 
receives notification from the Contracting Officer that the HRPO has 
approved the assurance as appropriate for the research under the 
Statement of Work and also that the HRPO has reviewed the protocol and 
accepted the IRB approval for compliance with the DoD component 
policies. The Contractor may furnish evidence of an existing assurance 
of compliance for acceptance by the HRPO, if an appropriate assurance 
has been approved in connection with previous research. The Contractor 
shall notify the Contracting Officer immediately of any suspensions or 
terminations of the assurance.
    (2) The Contractor furnishes to the HRPO, with a copy to the 
Contracting Officer, a determination that the human research proposed 
meets exemption criteria in 32 CFR 219.101(b) and receives written 
notification from the Contracting Officer that the exemption is 
determined acceptable. The determination shall include citation of the 
exemption category under 32 CFR 219.101(b) and a rationale statement. In 
the event of a disagreement regarding the Contractor's furnished 
exemption determination, the HRPO retains final judgment on what 
research activities or classes of research are covered or are exempt 
under the contract.
    (d) DoD staff, consultants, and advisory groups may independently 
review and inspect the Contractor's research and research procedures 
involving human subjects and, based on such findings, DoD may prohibit 
research that presents unacceptable hazards or otherwise fails to comply 
with DoD procedures.
    (e) Failure of the Contractor to comply with the requirements of 
this clause will result in the issuance of a stop-work order under 
Federal Acquisition Regulation clause 52.242-15 to immediately suspend, 
in whole or in part, work and further payment under this contract, or 
will result in other issuance of suspension of work and further payment 
for as long as determined necessary at the discretion of the Contracting 
Officer.
    (f) The Contractor shall include the substance of this clause, 
including this paragraph (f), in all subcontracts that may include 
research involving human subjects in accordance with 32 CFR Part 219, 
DoD Directive 3216.02, and 10 U.S.C. 980, including research that meets 
exemption criteria under 32 CFR 219.101(b). This clause does not apply 
to subcontracts that involve only the use of cadaver materials.

                             (End of clause)

[74 FR 37648, July 29, 2009]

[[Page 620]]



252.235-7005--252.235-7009  [Reserved]



252.235-7010  Acknowledgment of support and disclaimer.

    As prescribed in 235.072(c), use the following clause:

           Acknowledgment of Support and Disclaimer (MAY 1995)

    (a) The Contractor shall include an acknowledgment of the 
Government's support in the publication of any material based on or 
developed under this contract, stated in the following terms: This 
material is based upon work supported by the (name of contracting 
agency(ies)) under Contract No. (Contracting agency(ies) contract 
number(s)).
    (b) All material, except scientific articles or papers published in 
scientific journals, must, in addition to any notices or disclaimers by 
the Contractor, also contain the following disclaimer: Any opinions, 
findings and conclusions or recommendations expressed in this material 
are those of the author(s) and do not necessarily reflect the views of 
the (name of contracting agency(ies)).

                             (End of clause)

[60 FR 29503, June 5, 1995, as amended at 73 FR 42279, July 21, 2008]



252.235-7011  Final scientific or technical report.

    As prescribed in 235.072(d), use the following clause:

             Final Scientific or Technical Report (DEC 2019)

    The Contractor shall--
    (a) Submit an electronic copy of the approved final scientific or 
technical report, not a summary, delivered under this contract to the 
Defense Technical Information Center (DTIC) through the web-based input 
system at https://discover.dtic.mil/submit-documents/ as required by DoD 
Instruction 3200.12, DoD Scientific and Technical Information Program 
(STIP). Include a completed Standard Form (SF) 298, Report Documentation 
Page, in the document, or complete the web-based SF 298.
    (b) For instructions on submitting multi-media reports, follow the 
instructions at https://discover.dtic.mil/submit-documents/.
    (c) Email classified reports (up to Secret) to 
[email protected]. If a SIPRNET email capability is 
not available, follow the classified submission instructions at https://
discover.dtic.mil/submit-documents/.

                             (End of clause)

[80 FR 4806, Jan. 29, 2015, as amended at 84 FR 72563, Dec. 31, 2019]



252.236-7000  Modification proposals--price breakdown.

    As prescribed in 236.570(a), use the following clause:

           Modification Proposals--Price Breakdown (DEC 1991)

    (a) The Contractor shall furnish a price breakdown, itemized as 
required and within the time specified by the Contracting Officer, with 
any proposal for a contract modification.
    (b) The price breakdown--
    (1) Must include sufficient detail to permit an analysis of profit, 
and of all costs for--
    (i) Material;
    (ii) Labor;
    (iii) Equipment;
    (iv) Subcontracts; and
    (v) Overhead; and
    (2) Must cover all work involved in the modification, whether the 
work was deleted, added, or changed.
    (c) The Contractor shall provide similar price breakdowns to support 
any amounts claimed for subcontracts.
    (d) The Contractor's proposal shall include a justification for any 
time extension proposed.

                             (End of clause)



252.236-7001  Contract drawings and specifications.

    As prescribed in 236.570(a), use the following clause:

             Contract Drawings and Specifications (AUG 2000)

    (a) The Government will provide to the Contractor, without charge, 
one set of contract drawings and specifications, except publications 
incorporated into the technical provisions by reference, in electronic 
or paper media as chosen by the Contracting Officer.
    (b) The Contractor shall--
    (1) Check all drawings furnished immediately upon receipt;
    (2) Compare all drawings and verify the figures before laying out 
the work;
    (3) Promptly notify the Contracting Officer of any discrepancies;
    (4) Be responsible for any errors that might have been avoided by 
complying with this paragraph (b); and
    (5) Reproduce and print contract drawings and specifications as 
needed.
    (c) In general--

[[Page 621]]

    (1) Large-scale drawings shall govern small-scale drawings; and
    (2) The Contractor shall follow figures marked on drawings in 
preference to scale measurements.
    (d) Omissions from the drawings or specifications or the 
misdescription of details of work that are manifestly necessary to carry 
out the intent of the drawings and specifications, or that are 
customarily performed, shall not relieve the Contractor from performing 
such omitted or misdescribed details of the work. The Contractor shall 
perform such details as if fully and correctly set forth and described 
in the drawings and specifications.
    (e) The work shall conform to the specifications and the contract 
drawings identified on the following index of drawings:

Title File Drawing No.

                             (End of clause)

[65 FR 50152, Aug. 17, 2000]



252.236-7002  Obstruction of navigable waterways.

    As prescribed in 236.570(b)(1), use the following clause:

              Obstruction of Navigable Waterways (DEC 1991)

    (a) The Contractor shall--
    (1) Promptly recover and remove any material, plant, machinery, or 
appliance which the contractor loses, dumps, throws overboard, sinks, or 
misplaces, and which, in the opinion of the Contracting Officer, may be 
dangerous to or obstruct navigation;
    (2) Give immediate notice, with description and locations of any 
such obstructions, to the Contracting Officer; and
    (3) When required by the Contracting Officer, mark or buoy such 
obstructions until the same are removed.
    (b) The Contracting Officer may--
    (1) Remove the obstructions by contract or otherwise should the 
Contractor refuse, neglect, or delay compliance with paragraph (a) of 
this clause; and
    (2) Deduct the cost of removal from any monies due or to become due 
to the Contractor; or
    (3) Recover the cost of removal under the Contractor's bond.
    (c) The Contractor's liability for the removal of a vessel wrecked 
or sunk without fault or negligence is limited to that provided in 
sections 15, 19, and 20 of the River and Harbor Act of March 3, 1899 (33 
U.S.C. 410 et seq.).

                             (End of clause)



252.236-7003  Payment for mobilization and preparatory work.

    As prescribed in 236.570(b)(2), use the following clause:

        Payment for Mobilization and Preparatory Work (JAN 1997)

    (a) The Government will make payment to the Contractor under the 
procedures in this clause for mobilization and preparatory work under 
item no. _____.
    (b) Payments will be made for actual payments by the Contractor on 
work preparatory to commencing actual work on the construction items for 
which payment is provided under the terms of this contract, as follows--
    (1) For construction plant and equipment exceeding $25,000 in value 
per unit (as appraised by the Contracting Officer at the work site) 
acquired for the execution of the work;
    (2) Transportation of all plant and equipment to the site;
    (3) Material purchased for the prosecution of the contract, but not 
to be incorporated in the work;
    (4) Construction of access roads or railroads, camps, trailer 
courts, mess halls, dormitories or living quarters, field headquarters 
facilities, and construction yards;
    (5) Personal services; and
    (6) Hire of plant.
    (c) Requests for payment must include--
    (1) An account of the Contractor's actual expenditures;
    (2) Supporting documentation, including receipted bills or copies of 
payrolls and freight bills; and
    (3) The Contractor's documentation--
    (i) Showing that it has acquired the construction plant, equipment, 
and material free from all encumbrances;
    (ii) Agreeing that the construction plant, equipment, and material 
will not be removed from the site without the written permission of the 
Contracting Officer; and
    (iii) Agreeing that structures and facilities prepared or erected 
for the prosecution of the contract work will be maintained and not 
dismantled prior to the completion and acceptance of the entire work, 
without the written permission of the Contracting Officer.
    (d) Upon receiving a request for payment, the Government will make 
payment, less any prescribed retained percentage, if--
    (1) The Contracting Officer finds the--
    (i) Construction plant, material, equipment, and the mobilization 
and preparatory work performed are suitable and necessary to the 
efficient prosecution of the contract; and

[[Page 622]]

    (ii) Preparatory work has been done with proper economy and 
efficiency.
    (2) Payments for construction plant, equipment, material, and 
structures and facilities prepared or erected for prosecution of the 
contract work do not exceed--
    (i) The Contractor's cost for the work performed less the estimated 
value upon completion of the contract; and
    (ii) 100 percent of the cost to the contractor of any items having 
no appreciable salvage value; and
    (iii) 75 percent of the cost to the contractor of items which do 
have an appreciable salvage value.
    (e) (1) Payments will continue to be made for item no. ____, and all 
payments will be deducted from the contract price for this item, until 
the total deductions reduce this item to zero, after which no further 
payments will be made under this item.
    (2) If the total of payments so made does not reduce this item to 
zero, the balance will be paid to the Contractor in the final payment 
under the contract.
    (3) The retained percentage will be paid in accordance with the 
Payments to Contractor clause of this contract.
    (f) The Contracting Officer shall determine the value and 
suitability of the construction plant, equipment, materials, structures 
and facilities. The Contracting Officer's determinations are not subject 
to appeal.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 62 FR 2614, Jan. 17, 1997]



252.236-7004  Payment for mobilization and demobilization.

    As prescribed in 236.570(b)(2), use the following clause:

         Payment for Mobilization and Demobilization (DEC 1991)

    (a) The Government will pay all costs for the mobilization and 
demobilization of all of the Contractor's plant and equipment at the 
contract lump sum price for this item.
    (1) ____ percent of the lump sum price upon completion of the 
contractor's mobilization at the work site.
    (2) The remaining ____ percent upon completion of demobilization.
    (b) The Contracting Officer may require the Contractor to furnish 
cost data to justify this portion of the bid if the Contracting Officer 
believes that the percentages in paragraphs (a) (1) and (2) of this 
clause do not bear a reasonable relation to the cost of the work in this 
contract.
    (1) Failure to justify such price to the satisfaction of the 
Contracting Officer will result in payment, as determined by the 
Contracting Officer, of--
    (i) Actual mobilization costs at completion of mobilization;
    (ii) Actual demobilization costs at completion of demobilization; 
and
    (iii) The remainder of this item in the final payment under this 
contract.
    (2) The Contracting Officer's determination of the actual costs in 
paragraph (b)(1) of this clause is not subject to appeal.

                             (End of clause)



252.236-7005  Airfield safety precautions.

    As prescribed in 236.570(b)(3), use the following clause. At some 
airfields, the width of the primary surface is 1,500 feet (750 feet on 
each side of the runway centerline). In such instances, substitute the 
proper width in the clause.

                 Airfield Safety Precautions (DEC 1991)

    (a) Definitions. As used in this clause--
    (1) Landing areas means--
    (i) The primary surfaces, comprising the surface of the runway, 
runway shoulders, and lateral safety zones. The length of each primary 
surface is the same as the runway length. The width of each primary 
surface is 2,000 feet (1,000 feet on each side of the runway 
centerline);
    (ii) The clear zone beyond the ends of each runway, i.e., the 
extension of the primary surface for a distance of 1,000 feet beyond 
each end of each runway;
    (iii) All taxiways, plus the lateral clearance zones along each side 
for the length of the taxiways (the outer edge of each lateral clearance 
zone is laterally 250 feet from the far or opposite edge of the taxiway, 
e.g., a 75-foot-wide taxiway would have a combined width of taxiway and 
lateral clearance zones of 425 feet); and
    (iv) All aircraft parking aprons, plus the area 125 feet in width 
extending beyond each edge all around the aprons.
    (2) Safety precaution areas means those portions of approach-
departure clearance zones and transitional zones where placement of 
objects incident to contract performance might result in vertical 
projections at or above the approach-departure clearance, or the 
transitional surface.
    (i) The approach-departure clearance surface is an extension of the 
primary surface and the clear zone at each end of each runway, for a 
distance of 50,000 feet, first along an inclined (glide angle) and then 
along a horizontal plane, both flaring symmetrically about the runway 
centerline extended.
    (A) The inclined plane (glide angle) begins in the clear zone 200 
feet past the end of the runway (and primary surface) at the same 
elevation as the end of the runway. It continues upward at a slope of 
50:1 (1 foot

[[Page 623]]

vertically for each 50 feet horizontally) to an elevation of 500 feet 
above the established airfield elevation. At that point the plane 
becomes horizontal, continuing at that same uniform elevation to a point 
50,000 feet longitudinally from the beginning of the inclined plane 
(glide angle) and ending there.
    (B) The width of the surface at the beginning of the inclined plane 
(glide angle) is the same as the width of the clear zone. It then flares 
uniformly, reaching the maximum width of 16,000 feet at the end.
    (ii) The approach-departure clearance zone is the ground area under 
the approach-departure clearance surface.
    (iii) The transitional surface is a sideways extension of all 
primary surfaces, clear zones, and approach-departure clearance surfaces 
along inclined planes.
    (A) The inclined plane in each case begins at the edge of the 
surface.
    (B) The slope of the incline plane is 7:1 (1 foot vertically for 
each 7 feet horizontally). It continues to the point of intersection 
with the--
    (1) Inner horizontal surface (which is the horizontal plane 150 feet 
above the established airfield elevation); or
    (2) Outer horizontal surface (which is the horizontal plane 500 feet 
above the established airfield elevation), whichever is applicable.
    (iv) The ``transitional zone'' is the ground area under the 
transitional surface. (It adjoins the primary surface, clear zone, and 
approach-departure clearance zone.)
    (b) General. (1) The Contractor shall comply with the requirements 
of this clause while--
    (i) Operating all ground equipment (mobile or stationary);
    (ii) Placing all materials; and
    (iii) Performing all work, upon and around all airfields.
    (2) The requirements of this clause are in addition to any other 
safety requirements of this contract.
    (c) The Contractor shall--
    (1) Report to the Contracting Officer before initiating any work;
    (2) Notify the Contracting Officer of proposed changes to locations 
and operations;
    (3) Not permit either its equipment or personnel to use any runway 
for purposes other than aircraft operation without permission of the 
Contracting Officer, unless the runway is--
    (i) Closed by order of the Contracting Officer; and
    (ii) Marked as provided in paragraph (d)(2) of this clause;
    (4) Keep all paved surfaces, such as runways, taxiways, and 
hardstands, clean at all times and, specifically, free from small stones 
which might damage aircraft propellers or jet aircraft;
    (5) Operate mobile equipment according to the safety provisions of 
this clause, while actually performing work on the airfield. At all 
other times, the Contractor shall remove all mobile equipment to 
locations--
    (i) Approved by the Contracting Officer;
    (ii) At a distance of at least 750 feet from the runway centerline, 
plus any additional distance; and
    (iii) Necessary to ensure compliance with the other provisions of 
this clause; and
    (6) Not open a trench unless material is on hand and ready for 
placing in the trench. As soon as practicable after material has been 
placed and work approved, the Contractor shall backfill and compact 
trenches as required by the contract. Meanwhile, all hazardous 
conditions shall be marked and lighted in accordance with the other 
provisions of this clause.
    (d) Landing areas. The Contractor shall--
    (1) Place nothing upon the landing areas without the authorization 
of the Contracting Officer;
    (2) Outline those landing areas hazardous to aircraft, using (unless 
otherwise authorized by the Contracting Officer) red flags by day, and 
electric, battery-operated low-intensity red flasher lights by night;
    (3) Obtain, at an airfield where flying is controlled, additional 
permission from the control tower operator every time before entering 
any landing area, unless the landing area is marked as hazardous in 
accordance with paragraph (d)(2) of this clause;
    (4) Identify all vehicles it operates in landing areas by means of a 
flag on a staff attached to, and flying above, the vehicle. The flag 
shall be three feet square, and consist of a checkered pattern of 
international orange and white squares of 1 foot on each side (except 
that the flag may vary up to ten percent from each of these dimensions);
    (5) Mark all other equipment and materials in the landing areas, 
using the same marking devices as in paragraph (d)(2) of this clause; 
and
    (6) Perform work so as to leave that portion of the landing area 
which is available to aircraft free from hazards, holes, piles of 
material, and projecting shoulders that might damage an airplane tire.
    (e) Safety precaution areas. The Contractor shall--
    (1) Place nothing upon the safety precaution areas without 
authorization of the Contracting Officer;
    (2) Mark all equipment and materials in safety precaution areas, 
using (unless otherwise authorized by the Contracting Officer) red flags 
by day, and electric, battery-operated, low-intensity red flasher lights 
by night; and
    (3) Provide all objects placed in safety precaution areas with a red 
light or red lantern

[[Page 624]]

at night, if the objects project above the approach-departure clearance 
surface or above the transitional surface.

                             (End of clause)



252.236-7006  Cost limitation.

    As prescribed in 236.570(b)(4), use the following provision:

                       Cost Limitation (JAN 1997)

    (a) Certain items in this solicitation are subject to statutory cost 
limitations. The limitations are stated in the Schedule.
    (b) An offer which does not state separate prices for the items 
identified in the Schedule as subject to a cost limitation may be 
considered nonresponsive.
    (c) Prices stated in offers for items subject to cost limitations 
shall include an appropriate apportionment of all costs, direct and 
indirect, overhead, and profit.
    (d) Offers may be rejected which--
    (1) Are materially unbalanced for the purpose of bringing items 
within cost limitations; or
    (2) Exceed the cost limitations, unless the limitations have been 
waived by the Government prior to award.

                           (End of provision)

[56 FR 36479, July 31, 1991, as amended at 62 FR 2615, Jan. 17, 1997]



252.236-7007  Additive or deductive items.

    As prescribed in 236.570(b)(5), use the following provision:

                 Additive or Deductive Items (DEC 1991)

    (a) The low offeror and the items to be awarded shall be determined 
as follows--
    (1) Prior to the opening of bids, the Government will determine the 
amount of funds available for the project.
    (2) The low offeror shall be the Offeror that--
    (i) Is otherwise eligible for award; and
    (ii) Offers the lowest aggregate amount for the first or base bid 
item, plus or minus (in the order stated in the list of priorities in 
the bid schedule) those additive or deductive items that provide the 
most features within the funds determined available.
    (3) The Contracting Officer shall evaluate all bids on the basis of 
the same additive or deductive items.
    (i) If adding another item from the bid schedule list of priorities 
would make the award exceed the available funds for all offerors, the 
Contracting Officer will skip that item and go to the next item from the 
bid schedule of priorities; and
    (ii) Add that next item if an award may be made that includes that 
item and is within the available funds.
    (b) The Contracting Officer will use the list of priorities in the 
bid schedule only to determine the low offeror. After determining the 
low offeror, an award may be made on any combination of items if--
    (1) It is in the best interest of the Government;
    (2) Funds are available at the time of award; and
    (3) The low offeror's price for the combination to be awarded is 
less than the price offered by any other responsive, responsible 
offeror.
    (c) Example. The amount available is $100,000. Offeror A's base bid 
and four additives (in the order stated in the list of priorities in the 
bid Schedule) are $85,000, $10,000, $8,000, $6,000, and $4,000. Offeror 
B's base bid and four additives are $80,000, $16,000, $9,000, $7,000, 
and $4,000. Offeror A is the low offeror. The aggregate amount of 
offeror A's bid for purposes of award would be $99,000, which includes a 
base bid plus the first and fourth additives. The second and third 
additives were skipped because each of them would cause the aggregate 
bid to exceed $100,000.

                           (End of provision)



252.236-7008  Contract prices--bidding schedules.

    As prescribed in 236.570(b)(6), use the following provision:

              Contract Prices--Bidding Schedules (DEC 1991)

    (a) The Government's payment for the items listed in the Bidding 
Schedule shall constitute full compensation to the Contractor for--
    (1) Furnishing all plant, labor, equipment, appliances, and 
materials; and
    (2) Performing all operations required to complete the work in 
conformity with the drawings and specifications.
    (b) The Contractor shall include in the prices for the items listed 
in the Bidding Schedule all costs for work in the specifications, 
whether or not specifically listed in the Bidding Schedule.

                           (End of provision)



252.236-7009  [Reserved]



252.236-7010  Overseas military construction--Preference for 
United States firms.

    As prescribed in 236.570(c)(1), use the following provision:

[[Page 625]]

Overseas Military Construction--Preference for United States Firms (JAN 
                                  1997)

    (a) Definition. ``United States firm,'' as used in this provision, 
means a firm incorporated in the United States that complies with the 
following:
    (1) The corporate headquarters are in the United States;
    (2) The firm has filed corporate and employment tax returns in the 
United States for a minimum of 2 years (if required), has filed State 
and Federal income tax returns (if required) for 2 years, and has paid 
any taxes due as a result of these filings; and
    (3) The firm employs United States citizens in key management 
positions.
    (b) Evaluation. Offers from firms that do not qualify as United 
States firms will be evaluated by adding 20 percent to the offer.
    (c) Status. The offeror ___ is, ___ is not a United States firm.

                           (End of provision)

[62 FR 2857, Jan. 17, 1997, as amended at 63 FR 11549, Mar. 9, 1998]



252.236-7011  Overseas architect-engineer services--Restriction to 
United States firms.

    As prescribed in 236.609-70, use the following provision:

Overseas Architect-Engineer Services--Restriction to United States Firms 
                               (JAN 1997)

    (a) Definition. United States firm, as used in this provision, means 
a firm incorporated in the United States that complies with the 
following:
    (1) The corporate headquarters are in the United States;
    (2) The firm has filed corporate and employment tax returns in the 
United States for a minimum of 12 years (if required), has filed State 
and Federal income tax returns (if required) for 2 years, and has paid 
any taxes due as a result of these filings; and
    (3) The firm employs United States citizens in key management 
positions.
    (b) Restriction. Military construction appropriations acts restrict 
award of a contract, resulting from this solicitation, to a United 
States firm or a joint venture of United States and host nation firms.
    (c) Status. The offeror confirms, by submission of its offer, that 
it is a United States firm or a joint venture of United States and host 
nation firms.

                           (End of provision)

[62 FR 2858, Jan. 17, 1997, as amended at 83 FR 54681, Oct. 31, 2018]



252.236-7012  Military construction on Kwajalein Atoll--evaluation 
preference.

    As prescribed in 236.570(c)(2), use the following provision:

  Military Construction on Kwajalein Atoll--Evaluation Preference (MAR 
                                  1998)

    (a) Definitions. As used in this provision--
    (1) Marshallese firm means a local firm incorporated in the Marshall 
Islands, or otherwise legally organized under the laws of the Marshall 
Islands, that--
    (i) Is more than 50 percent owned by citizens of the Marshall 
Islands; or
    (ii) Complies with the following:
    (A) The firm has done business in the Marshall Islands on a 
continuing basis for not less than 3 years prior to the date of issuance 
of this solicitation;
    (B) Substantially all of the firm's directors of local operations, 
senior staff, and operating personnel are resident in the Marshall 
Islands or are U.S. citizens; and
    (C) Most of the operating equipment and physical plant are in the 
Marshall Islands.
    (2) United States firm means a firm incorporated in the United 
States that complies with the following:
    (i) The corporate headquarters are in the United States;
    (ii) The firm has filed corporate and employment tax returns in the 
United States for a minimum of 2 years (if required), has filed State 
and Federal income tax returns (if required) for 2 years, and has paid 
any taxes due as a result of these filings; and
    (iii) The firm employs United States citizens in key management 
positions.
    (b) Evaluation. Offers from firms that do not qualify as United 
States firms or Marshallese firms will be evaluated by adding 20 percent 
to the offer, unless application of the factor would not result in award 
to a United States firm.
    (c) Status. The offeror is ____ a United States firm; ____ a 
Marshallese firm; ____ Other.

                           (End of provision)

[63 FR 11549, Mar. 9, 1998]



252.236-7013  Requirement for competition opportunity for American
steel producers, fabricators, and manufacturers.

    As prescribed in 236.570(d), use the following clause:

 Requirement for Competition Opportunity for American Steel Producers, 
                Fabricators, and Manufacturers (JUN 2013)

    (a) Definition. Construction material, as used in this clause, means 
an article, material, or

[[Page 626]]

supply brought to the construction site by the Contractor or a 
subcontractor for incorporation into the building or work.
    (b) The Contractor shall provide American steel producers, 
fabricators, and manufacturers the opportunity to compete when acquiring 
steel as a construction material (e.g., steel beams, rods, cables, 
plates).
    (c) The Contractor shall insert the substance of this clause, 
including this paragraph (c), in any subcontract that involves the 
acquisition of steel as a construction material, including subcontracts 
for the acquisition of commercial items.

                             (End of clause)

[74 FR 2418, Jan. 15, 2009, as amended at 78 FR 37990, June 25, 2013]



252.237-7000  Notice of special standards of responsibility.

    As prescribed in 237.270(d)(1), use the following provision:

        Notice of Special Standards of Responsibility (DEC 1991)

    (a) To be determined responsible, the Offeror must meet the general 
standards of responsibility set forth at FAR 9.104-1 and the following 
criteria, as described in Chapter 3, General Standards, of ``Government 
Auditing Standards.''
    (1) Qualifications;
    (2) Independence; and
    (3) Quality Control.
    (b) ``Government Auditing Standards'' is issued by the Comptroller 
General of the United States and is available for sale from the: 
Superintendent of Documents, U.S. Government Printing Office. 
Washington, DC 20401, Stock number 020-000-00243-3.
    (c) The apparently successful Offeror, before award, shall give the 
Contracting Officer evidence that it is licensed by the cognizant 
licensing authority in the state or other political jurisdiction where 
the Offeror operates its professional practice.

                           (End of provision)

[56 FR 36479, July 31, 1991, as amended at 66 FR 49861, Oct. 1, 2001]



252.237-7001  Compliance with audit standards.

    As prescribed in 237.270(d)(2), use the following clause:

               Compliance With Audit Standards (MAY 2000)

    The Contractor, in performance of all audit services under this 
contract, shall comply with ``Government Auditing Standards'' issued by 
the Comptroller General of the United States.

                             (End of clause)

[65 FR 32041, May 22, 2000]



252.237-7002  [Reserved]



252.237-7003  Requirements.

    As prescribed in 237.7003(a) and (a)(1), use the following clause:

                         Requirements (DEC 1991)

    (a) Except as provided in paragraphs (c) and (d) of this clause, the 
Government will order from the Contractor all of its requirements in the 
area of performance for the supplies and services listed in the schedule 
of this contract.
    (b) Each order will be issued as a delivery order and will list--
    (1) The supplies or services being ordered;
    (2) The quantities to be furnished;
    (3) Delivery or performance dates;
    (4) Place of delivery or performance;
    (5) Packing and shipping instructions;
    (6) The address to send invoices; and
    (7) The funds from which payment will be made.
    (c) The Government may elect not to order supplies and services 
under this contract in instances where the body is removed from the area 
for medical, scientific, or other reason.
    (d) In an epidemic or other emergency, the contracting activity may 
obtain services beyond the capacity of the Contractor's facilities from 
other sources.
    (e) Contracting Officers of the following activities may order 
services and supplies under this contract--

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 84 
FR 48505, Sept. 13, 2019]



252.237-7004  Area of performance.

    As prescribed in 237.7003(a) and (a)(2), use the following clause:

                     Area of Performance (DEC 1991)

    (a) The area of performance is as specified in the contract.
    (b) The Contractor shall take possession of the remains at the place 
where they are located, transport them to the Contractor's place of 
preparation, and later transport

[[Page 627]]

them to a place designated by the Contracting Officer.
    (c) The Contractor will not be reimbursed for transportation when 
both the place where the remains were located and the delivery point are 
within the area of performance.
    (d) If remains are located outside the area of performance, the 
Contracting Officer may place an order with the Contractor under this 
contract or may obtain the services elsewhere. If the Contracting 
Officer requires the Contractor to transport the remains into the area 
of performance, the Contractor shall be paid the amount per mile in the 
schedule for the number of miles required to transport the remains by a 
reasonable route from the point where located to the boundary of the 
area of performance.
    (e) The Contracting Officer may require the Contractor to deliver 
remains to any point within 100 miles of the area of performance. In 
this case, the Contractor shall be paid the amount per mile in the 
schedule for the number of miles required to transport the remains by a 
reasonable route from the boundary of the area of performance to the 
delivery point.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 84 
FR 48505, Sept. 13, 2019]



252.237-7005  Performance and delivery.

    As prescribed in 237.7003(a) and (a)(3), use the following clause:

                   Performance and Delivery (DEC 1991)

    (a) The Contractor shall furnish the material ordered and perform 
the services specified as promptly as possible but not later than 36 
hours after receiving notification to remove the remains, excluding the 
time necessary for the Government to inspect and check results of 
preparation.
    (b) The Government may, at no additional charge, require the 
Contractor to hold the remains for an additional period not to exceed 72 
hours from the time the remains are casketed and final inspection 
completed.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 84 
FR 48505, Sept. 13, 2019]



252.237-7006  Subcontracting.

    As prescribed in 237.7003(a) and (a)(4), use the following clause:

                        Subcontracting (DEC 1991)

    The Contractor shall not subcontract any work under this contract 
without the Contracting Officer's written approval. This clause does not 
apply to contracts of employment between the Contractor and its 
personnel.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 84 
FR 48505, Sept. 13, 2019]



252.237-7007  Termination for default.

    As prescribed in 237.7003(a) and (a)(5), use the following clause:

                   Termination for Default (DEC 1991)

    (a) This clause supplements and is in addition to the Default clause 
of this contract.
    (b) The Contracting Officer may terminate this contract for default 
by written notice without the ten day notice required by paragraph 
(a)(2) of the Default clause if--
    (1) The Contractor, through circumstances reasonably within its 
control or that of its employees, performs any act under or in 
connection with this contract, or fails in the performance of any 
service under this contract and the act or failures may reasonably be 
considered to reflect discredit upon the Department of Defense in 
fulfilling its responsibility for proper care of remains;
    (2) The Contractor, or its employees, solicits relatives or friends 
of the deceased to purchase supplies or services not under this 
contract. (The Contractor may furnish supplies or arrange for services 
not under this contract, only if representatives of the deceased 
voluntarily request, select, and pay for them.);
    (3) The services or any part of the services are performed by anyone 
other than the Contractor or the Contractor's employees without the 
written authorization of the Contracting Officer;
    (4) The Contractor refuses to perform the services required for any 
particular remains; or
    (5) The Contractor mentions or otherwise uses this contract in its 
advertising in any way.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 84 
FR 48505, Sept. 13, 2019]



252.237-7008  Group interment.

    As prescribed in 237.7003(a) and (a)(6), use the following clause:

[[Page 628]]

                       Group Interment (DEC 1991)

    The Government will pay the Contractor for supplies and services 
provided for remains interred as a group on the basis of the number of 
caskets furnished, rather than on the basis of the number of persons in 
the group.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 84 
FR 48506, Sept. 13, 2019]



252.237-7009  Permits.

    As prescribed in 237.7003(a) and (a)(7), use the following clause:

                           Permits (DEC 1991)

    The Contractor shall meet all State and local licensing requirements 
and obtain and furnish all necessary health department and shipping 
permits at no additional cost to the Government. The Contractor shall 
ensure that all necessary health department permits are in order for 
disposition of the remains.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 84 
FR 48505, Sept. 13, 2019]



252.237-7010  Prohibition on interrogation of detainees by contractor
personnel.

    As prescribed in 237.173-5, use the following clause:

Prohibition on Interrogation of Detainees by Contractor Personnel ((JUN 
                                 2013))

    (a) Definitions. As used in this clause--
    Detainee means any person captured, detained, held, or otherwise 
under the effective control of DoD personnel (military or civilian) in 
connection with hostilities. This includes, but is not limited to, enemy 
prisoners of war, civilian internees, and retained personnel. This does 
not include DoD personnel or DoD contractor personnel being held for law 
enforcement purposes.
    Interrogation of detainees means a systematic process of formally 
and officially questioning a detainee for the purpose of obtaining 
reliable information to satisfy foreign intelligence collection 
requirements.
    (b) Contractor personnel shall not interrogate detainees.
    (c) Subcontracts. The Contractor shall include the substance of this 
clause, including this paragraph (c), in all subcontracts, including 
subcontracts for commercial items, that may require subcontractor 
personnel to interact with detainees in the course of their duties.

                             (End of clause)

[75 FR 67634, Nov. 3, 2010, as amended at 78 FR 37991, June 25, 2013]



252.237-7011  Preparation history.

    As prescribed in 237.7003(a) and (a)(8), use the following clause:

                     Preparation History (DEC 1991)

    For each body prepared, or for each casket handled in a group 
interment, the Contractor shall state briefly the results of the 
embalming process on a certificate furnished by the Contracting Officer.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 84 
FR 48505, Sept. 13, 2019]



252.237-7012  Instruction to offerors (count-of-articles).

    As prescribed in 237.7101(a), use the following provision:

         Instruction to Offerors (Count-of-Articles) (DEC 1991)

    (a) The Offeror shall include unit prices for each item in a lot. 
Unit prices shall include all costs to the Government of providing the 
services, including pickup and delivery charges.
    (b) Failure to offer on any item in a lot shall be cause for 
rejection of the offer on that lot. The Contracting Officer will 
evaluate offers based on the estimated quantities in the solicitation.
    (c) Award generally will be made to a single offeror for all lots. 
However, the Contracting Officer may award by individual lot when it is 
more advantageous to the Government.
    (d) Prospective offerors may inspect the types of articles to be 
serviced. Contact the Contracting Officer to make inspection 
arrangements.

                           (End of provision)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006]



252.237-7013  Instruction to offerors (bulk weight).

    As prescribed in 237.7101(b), use the following provision:

[[Page 629]]

            Instruction to Offerors (Bulk Weight) (DEC 1991)

    (a) Offers shall be submitted on a unit price per pound of serviced 
laundry. Unit prices shall include all costs to the Government of 
providing the service, including pickup and delivery charges.
    (b) The Contracting Officer will evaluate bids based on the 
estimated pounds of serviced laundry stated in the solicitation.
    (c) Award generally will be made to a single offeror for all lots. 
However, the Contracting Officer may award by individual lot when it is 
more advantageous to the Government.
    (d) Prospective offerors may inspect the types of articles to be 
serviced. Contact the Contracting Officer to make inspection 
arrangements.

                           (End of provision)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006]



252.237-7014  Loss or damage (count-of-articles).

    As prescribed in 237.7101(c), use the following clause:

              Loss or Damage (Count-of-Articles) (DEC 1991)

    (a) The count-of-articles will be--
    (1) The count of the Contracting Officer; or
    (2) The count agreed upon as a result of a joint count by the 
Contractor and the Contracting Officer at the time of delivery to the 
Contractor.
    (b) The Contractor shall--
    (1) Be liable for return of the number and kind of articles 
furnished for service under this contract; and
    (2) Shall indemnify the Government for any loss or damage to such 
articles.
    (c) The Contractor shall pay to the Government the value of any lost 
or damaged property using Federal supply schedule price lists. If the 
property is not on these price lists, the Contracting Officer shall 
determine a fair and reasonable price.
    (d) The Contracting Officer will allow credit for any depreciation 
in the value of the property at the time of loss or damage. The 
Contracting Officer and the Contractor shall mutually determine the 
amount of the allowable credit.
    (e) Failure to agree upon the value of the property or on the amount 
of credit due will be treated as a dispute under the Disputes clause of 
this contract.
    (f) In case of damage to any property that the Contracting Officer 
and the Contractor agree can be satisfactorily repaired, the Contractor 
may repair the property at its expense in a manner satisfactory to the 
Contracting Officer, rather than make payment under paragraph (c) of 
this clause.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006]



252.237-7015  Loss or damage (weight of articles).

    As prescribed in 237.7101(d), use the following clause:

             Loss or Damage (Weight of Articles) (DEC 1991)

    (a) The Contractor shall--
    (1) Be liable for return of the articles furnished for service under 
this contract; and
    (2) Indemnify the Government for any articles delivered to the 
Contractor for servicing under this contract that are lost or damaged, 
and in the opinion of the Contracting Officer, cannot be repaired 
satisfactorily.
    (b) The Contractor shall pay to the Government ____ per pound for 
lost or damaged articles. The Contractor shall pay the Government only 
for losses which exceed the maximum weight loss in paragraph (e) of this 
clause.
    (c) Failure to agree on the amount of credit due will be treated as 
a dispute under the Disputes clause of this contract.
    (d) In the case of damage to any articles that the Contracting 
Officer and the Contractor agree can be satisfactorily repaired, the 
Contractor shall repair the articles at its expense in a manner 
satisfactory to the Contracting Officer.
    (e) The maximum weight loss allowable in servicing the laundry is 
____ percent of the weight recorded on delivery tickets when the laundry 
is picked up. Any weight loss in excess of this amount shall be subject 
to the loss provisions of this clause.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006]



252.237-7016  Delivery tickets.

    Basic. As prescribed in 237.7101(e) and (e)(1), use the following 
clause:

                   Delivery Tickets--Basic (NOV 2014)

    (a) The Contractor shall complete delivery tickets in the number of 
copies required and in the form approved by the Contracting Officer, 
when it receives the articles to be serviced.
    (b) The Contractor shall include one copy of each delivery ticket 
with its invoice for payment.

[[Page 630]]

                             (End of clause)

    Alternate I. As prescribed in 237.7101(e) and (e)(2), use the 
following clause, which includes paragraphs (c), (d), and (e) not 
included in the basic clause:

                Delivery Tickets--Alternate I (NOV 2014)

    (a) The Contractor shall complete delivery tickets in the number of 
copies required and in the form approved by the Contracting Officer, 
when it receives the articles to be serviced.
    (b) The Contractor shall include one copy of each delivery ticket 
with its invoice for payment.
    (c) Before the Contractor picks up articles for service under this 
contract, the Contracting Officer will ensure that--
    (1) Each bag contains only articles within a single bag type as 
specified in the schedule; and
    (2) Each bag is weighed and the weight and bag type are identified 
on the bag.
    (d) The Contractor shall, at time of pickup--
    (1) Verify the weight and bag type and record them on the delivery 
ticket; and
    (2) Provide the Contracting Officer, or representative, a copy of 
the delivery ticket.
    (e) At the time of delivery, the Contractor shall record the weight 
and bag type of serviced laundry on the delivery ticket. The Contracting 
Officer will ensure that this weight and bag type are verified at time 
of delivery.

                             (End of clause)

    Alternate II. As prescribed in 237.7101(e) and (e)(3), use the 
following clause, which includes paragraphs (c), (d), and (e) not 
included in the basic clause:

                Delivery Tickets--Alternate II (NOV 2014)

    (a) The Contractor shall complete delivery tickets in the number of 
copies required and in the form approved by the Contracting Officer, 
when it receives the articles to be serviced.
    (b) The Contractor shall include one copy of each delivery ticket 
with its invoice for payment.
    (c) Before the Contractor picks up articles for service under this 
contract, the Contracting Officer will ensure that each bag is weighed 
and that the weight is identified on the bag.
    (d) The Contractor, at time of pickup, shall verify and record the 
weight on the delivery ticket and shall provide the Contracting Officer, 
or representative, a copy of the delivery ticket.
    (e) At the time of delivery, the Contractor shall record the weight 
of serviced laundry on the delivery ticket. The Contracting Officer will 
ensure that this weight is verified at time of delivery.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006; 79 
FR 65594, Nov. 5, 2014; 80 FR 36900, June 26, 2015]



252.237-7017  Individual laundry.

    As prescribed in 237.7101(f), use the following clause:

                      Individual Laundry (DEC 1991)

    (a) The Contractor shall provide laundry service under this contract 
on both a unit bundle and on a piece-rate bundle basis for individual 
personnel.
    (b) The total number of pieces listed in the ``Estimated Quantity'' 
column in the schedule is the estimated amount of individual laundry for 
this contract. The estimate is for information only and is not a 
representation of the amount of individual laundry to be ordered. 
Individuals may elect whether or not to use the laundry services.
    (c) Charges for individual laundry will be on a per unit bundle or a 
piece-rate basis. The Contractor shall provide individual laundry bundle 
delivery tickets for use by the individuals in designating whether the 
laundry is a unit bundle or a piece-rate bundle. An individual laundry 
bundle will be accompanied by a delivery ticket listing the contents of 
the bundle.
    (d) The maximum number of pieces to be allowed per bundle is as 
specified in the schedule and as follows--
    (1) Bundle consisting of 26 pieces, including laundry bag. This 
bundle will contain approximately ____ pieces of outer garments which 
shall be starched and pressed. Outer garments include, but are not 
limited to, shirts, trousers, jackets, dresses, and coats.
    (2) Bundle consisting of 13 pieces, including laundry bag. This 
bundle will contain approximately ____ pieces of outer garments which 
shall be starched and pressed. Outer garments include, but are not 
limited to, shirts, trousers, jackets, dresses, and coats.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006]



252.237-7018  Special definitions of Government property.

    As prescribed in 237.7101(g), use the following clause:

[[Page 631]]

          Special Definitions of Government Property (DEC 1991)

    Articles delivered to the Contractor to be laundered or dry-cleaned, 
including any articles which are actually owned by individual Government 
personnel, are Government-owned property, not Government-furnished 
property. Government-owned property does not fall under the requirements 
of any Government-furnished property clause of this contract.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 71 FR 3416, Jan. 23, 2006]



252.237-7019  Training for Contractor Personnel Interacting with Detainees.

    As prescribed in 237.171-4, use the following clause:

 Training for Contractor Personnel Interacting With Detainees (JUN 2013)

    (a) Definitions. As used in this clause--
    Combatant Commander means the commander of a unified or specified 
combatant command established in accordance with 10 U.S.C. 161.
    Detainee means a person in the custody or under the physical control 
of the Department of Defense on behalf of the United States Government 
as a result of armed conflict or other military operation by United 
States armed forces.
    Personnel interacting with detainees means personnel who, in the 
course of their duties, are expected to interact with detainees.
    (b) Training requirement. This clause implements Section 1092 of the 
National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-
375).
    (1) The Combatant Commander responsible for the area where a 
detention or interrogation facility is located will arrange for training 
to be provided to contractor personnel interacting with detainees. The 
training will address the international obligations and laws of the 
United States applicable to the detention of personnel, including the 
Geneva Conventions. The Combatant Commander will arrange for a training 
receipt document to be provided to personnel who have completed the 
training.
    (2)(i) The Contractor shall arrange for its personnel interacting 
with detainees to--
    (A) Receive the training specified in paragraph (b)(1) of this 
clause--
    (1) Prior to interacting with detainees, or as soon as possible if, 
for compelling reasons, the Contracting Officer authorizes interaction 
with detainees prior to receipt of such training; and
    (2) Annually thereafter; and
    (B) Provide a copy of the training receipt document specified in 
paragraph (b)(1) of this clause to the Contractor for retention.
    (ii) To make these arrangements, the following points of contact 
apply:
    [Contracting Officer to insert applicable point of contact 
information cited in PGI 237.171-3(b).]
    (3) The Contractor shall retain a copy of the training receipt 
document(s) provided in accordance with paragraphs (b)(1) and (2) of 
this clause until the contract is closed, or 3 years after all work 
required by the contract has been completed and accepted by the 
Government, whichever is sooner.
    (c) Subcontracts. The Contractor shall include the substance of this 
clause, including this paragraph (c), in all subcontracts, including 
subcontracts for commercial items, that may require subcontractor 
personnel to interact with detainees in the course of their duties.

                             (End of clause)

[70 FR 52034, Sept. 1, 2005, as amended at 71 FR 53049, Sept. 8, 2006; 
78 FR 37991, June 25, 2013]



252.237-7020--252.237-7021  [Reserved]



252.237-7022  Services at installations being closed.

    As prescribed in 237.7402, use the following clause:

            Services at Installations Being Closed (MAY 1995)

    Professional employees shall be used by the local government to 
provide services under this contract to the extent that professionals 
are available in the area under the jurisdiction of such government.

                             (End of clause)

[59 FR 36090, July 15, 1994, as amended at 60 FR 29503, June 5, 1995]



252.237-7023  Continuation of Essential Contractor Services.

    As prescribed in 237.7603(a), use the following clause:

        Continuation of Essential Contractor Services (OCT 2010)

    (a) Definitions. As used in this clause-
    (1) Essential contractor service means a service provided by a firm 
or individual under contract to DoD to support mission-essential 
functions, such as support of vital systems, including ships owned, 
leased, or operated in support of military missions or roles at sea;

[[Page 632]]

associated support activities, including installation, garrison, and 
base support services; and similar services provided to foreign military 
sales customers under the Security Assistance Program. Services are 
essential if the effectiveness of defense systems or operations has the 
potential to be seriously impaired by the interruption of these 
services, as determined by the appropriate functional commander or 
civilian equivalent.
    (2) Mission-essential functions means those organizational 
activities that must be performed under all circumstances to achieve DoD 
component missions or responsibilities, as determined by the appropriate 
functional commander or civilian equivalent. Failure to perform or 
sustain these functions would significantly affect DoD's ability to 
provide vital services or exercise authority, direction, and control.
    (b) The Government has identified all or a portion of the contractor 
services performed under this contract as essential contractor services 
in support of mission-essential functions. These services are listed in 
attachment _, Mission-Essential Contractor Services, dated ____.
    (c)(1) The Mission-Essential Contractor Services Plan submitted by 
the Contractor, is incorporated in this contract.
    (2) The Contractor shall maintain and update its plan as necessary. 
The Contractor shall provide all plan updates to the Contracting Officer 
for approval.
    (3) As directed by the Contracting Officer, the Contractor shall 
participate in training events, exercises, and drills associated with 
Government efforts to test the effectiveness of continuity of operations 
procedures and practices.
    (d)(1) Notwithstanding any other clause of this contract, the 
Contractor shall be responsible to perform those services identified as 
essential contractor services during crisis situations (as directed by 
the Contracting Officer), in accordance with its Mission-Essential 
Contractor Services Plan.
    (2) In the event the Contractor anticipates not being able to 
perform any of the essential contractor services identified in 
accordance with paragraph (b) of this clause during a crisis situation, 
the Contractor shall notify the Contracting Officer or other designated 
representative as expeditiously as possible and use its best efforts to 
cooperate with the Government in the Government's efforts to maintain 
the continuity of operations.
    (e) The Government reserves the right in such crisis situations to 
use Federal employees, military personnel, or contract support from 
other contractors, or to enter into new contracts for essential 
contractor services.
    (f) Changes. The Contractor shall segregate and separately identify 
all costs incurred in continuing performance of essential services in a 
crisis situation. The Contractor shall notify the Contracting Officer of 
an increase or decrease in costs within ninety days after continued 
performance has been directed by the Contracting Officer, or within any 
additional period that the Contracting Officer approves in writing, but 
not later than the date of final payment under the contract. The 
Contractor's notice shall include the Contractor's proposal for an 
equitable adjustment and any data supporting the increase or decrease in 
the form prescribed by the Contracting Officer. The parties shall 
negotiate an equitable price adjustment to the contract price, delivery 
schedule, or both as soon as is practicable after receipt of the 
Contractor's proposal.
    (g) The Contractor shall include the substance of this clause, 
including this paragraph (g), in subcontracts for the essential 
services.

                             (End of clause)

[75 FR 66682, Oct. 29, 2010]



252.237-7024  Notice of Continuation of Essential Contractor Services.

    As prescribed in 237.7603(b), use the following provision:

   Notice of Continuation of Essential Contractor Services (OCT 2010)

    (a) Definitions. Essential contractor service and mission-essential 
functions have the meanings given in the clause at 252.237-7023, 
Continuation of Essential Contractor Services, in this solicitation.
    (b) The offeror shall provide with its offer a written plan 
describing how it will continue to perform the essential contractor 
services listed in attachment _, Mission Essential Contractor Services, 
dated ____, during periods of crisis. The offeror shall--
    (1) Identify provisions made for the acquisition of essential 
personnel and resources, if necessary, for continuity of operations for 
up to 30 days or until normal operations can be resumed;
    (2) Address in the plan, at a minimum--
    (i) Challenges associated with maintaining essential contractor 
services during an extended event, such as a pandemic that occurs in 
repeated waves;
    (ii) The time lapse associated with the initiation of the 
acquisition of essential personnel and resources and their actual 
availability on site;
    (iii) The components, processes, and requirements for the 
identification, training, and preparedness of personnel who are capable 
of relocating to alternate facilities or performing work from home;
    (iv) Any established alert and notification procedures for 
mobilizing identified ``essential contractor service'' personnel; and
    (v) The approach for communicating expectations to contractor 
employees regarding

[[Page 633]]

their roles and responsibilities during a crisis.

                           (End of provision)

[75 FR 66683, Oct. 29, 2010]



252.239-7000  Protection against compromising emanations.

    As prescribed in 239.7103(a), use the following clause:

          Protection Against Compromising Emanations (OCT 2019)

    (a) The Contractor shall provide or use only information technology, 
as specified by the Government, that has been accredited to meet the 
appropriate information assurance requirements of--
    (1) The National Security Agency National TEMPEST Standards 
(NSTISSAM TEMPEST 1-92, Compromising Emanations Laboratory Test 
Requirements, Electromagnetics (U)); or
    (2) Other standards specified by this contract, including the date 
through which the required accreditation is current or valid for the 
contract.
    (b) Upon request of the Contracting Officer, the Contractor shall 
provide documentation supporting the accreditation.
    (c) The Government may, as part of its inspection and acceptance, 
conduct additional tests to ensure that information technology delivered 
under this contract satisfies the information assurance standards 
specified. The Government may conduct additional tests--
    (1) At the installation site or contractor's facility; and
    (2) Notwithstanding the existence of valid accreditations of 
information technology prior to the award of this contract.
    (d) Unless otherwise provided in this contract under the Warranty of 
Supplies or Warranty of Systems and Equipment clause, the Contractor 
shall correct or replace accepted information technology found to be 
deficient within 1 year after proper installations.
    (1) The correction or replacement shall be at no cost to the 
Government.
    (2) Should a modification to the delivered information technology be 
made by the Contractor, the 1-year period applies to the modification 
upon its proper installation.
    (3) This paragraph (d) applies regardless of f.o.b. point or the 
point of acceptance of the deficient information technology.

                             (End of clause)

[69 FR 35535, June 25, 2004, as amended at 73 FR 1829, Jan. 10, 2008; 84 
FR 58337, Oct. 31, 2019]



252.239-7001  Information Assurance Contractor Training and 
Certification.

    As prescribed in 239.7103(b), use the following clause:

 Information Assurance Contractor Training and Certification (JAN 2008)

    (a) The Contractor shall ensure that personnel accessing information 
systems have the proper and current information assurance certification 
to perform information assurance functions in accordance with DoD 
8570.01-M, Information Assurance Workforce Improvement Program. The 
Contractor shall meet the applicable information assurance certification 
requirements, including--
    (1) DoD-approved information assurance workforce certifications 
appropriate for each category and level as listed in the current version 
of DoD 8570.01-M; and
    (2) Appropriate operating system certification for information 
assurance technical positions as required by DoD 8570.01-M.
    (b) Upon request by the Government, the Contractor shall provide 
documentation supporting the information assurance certification status 
of personnel performing information assurance functions.
    (c) Contractor personnel who do not have proper and current 
certifications shall be denied access to DoD information systems for the 
purpose of performing information assurance functions.

                             (End of clause)

[73 FR 1829, Jan. 10, 2008]



252.239-7002  Access.

    As prescribed in 239.7411(a), use the following clause:

                            Access (DEC 1991)

    (a) Subject to military security regulations, the Government shall 
permit the Contractor access at all reasonable times to Contractor 
furnished facilities. However, if the Government is unable to permit 
access, the Government at its own risk and expense shall maintain these 
facilities and the Contractor shall not be responsible for the service 
involving any of these facilities during the period of nonaccess, unless 
the service failure results from the Contractor's fault or negligence.
    (b) During periods when the Government does not permit Contractor 
access, the Government will reimburse the Contractor at mutually 
acceptable rates for the loss of or damage to the equipment due to the 
fault or negligence of the Government. Failure to agree shall be a 
dispute concerning a question of fact within the meaning of the Disputes 
clause of this contract.

[[Page 634]]

                             (End of clause)



252.239-7003  [Reserved]



252.239-7004  Orders for Facilities and Services.

    As prescribed in 239.7411(a), use the following clause:

              ORDERS FOR FACILITIES AND SERVICES (SEP 2019)

    (a) Definitions. As used in this clause--
    Governmental regulatory body means the Federal Communications 
Commission, any statewide regulatory body, or any body with less than 
statewide jurisdiction when operating under the state authority. 
Regulatory bodies whose decisions are not subject to judicial appeal and 
regulatory bodies which regulate a company owned by the same entity that 
creates the regulatory body are not governmental regulatory bodies.
    (b) The Contractor shall acknowledge a communication service 
authorization or other type order for supplies and facilities by--
    (1) Commencing performance after receipt of an order; or
    (2) Written acceptance by a duly authorized representative.
    (c) The Contractor shall furnish the services and facilities under 
this agreement/contract in accordance with all applicable tariffs, 
rates, charges, regulations, requirements, terms, and conditions of--
    (1) Service and facilities furnished or offered by the Contractor to 
the general public or the Contractor's subscribers; or
    (2) Service as lawfully established by a governmental regulatory 
body.
    (d) The Government will not prepay for services.
    (e) For nontariffed services, the Contractor shall charge the 
Government at the lowest rate and under the most favorable terms and 
conditions for similar service and facilities offered to any other 
customer.
    (f) Recurring charges for services and facilities shall, in each 
case, start with the satisfactory beginning of service or provision of 
facilities or equipment and are payable monthly in arrears.
    (g) Expediting charges are costs necessary to get services earlier 
than normal. Examples are overtime pay or special shipment. When 
authorized, expediting charges shall be the additional costs incurred by 
the Contractor and the subcontractor. The Government shall pay 
expediting charges only when--
    (1) They are provided for in the tariff established by a 
governmental regulatory body; or
    (2) They are authorized in a communication service authorization or 
other contractual document.
    (h) When services normally provided are technically unacceptable and 
the development, fabrication, or manufacture of special equipment is 
required, the Government may--
    (1) Provide the equipment; or
    (2) Direct the Contractor to acquire the equipment or facilities. If 
the Contractor acquires the equipment or facilities, the acquisition 
shall be competitive, if practicable.
    (i) If at any time the Government defers or changes its orders for 
any of the services but does not cancel or terminate them, the amount 
paid or payable to the Contractor for the services deferred or modified 
shall be equitably adjusted under applicable tariffs filed by the 
Contractor with the regulatory commission in effect at the time of 
deferral or change. If no tariffs are in effect, the Government and the 
Contractor shall equitably adjust the rates by mutual agreement. Failure 
to agree on any adjustment shall be a dispute concerning a question of 
fact within the meaning of the Disputes clause of this contract.

                             (End of clause)

[84 FR 48499, Sept. 13, 2019]



252.239-7005  [Reserved]



252.239-7006  [Reserved]



252.239-7007  Cancellation or Termination of Orders.

    As prescribed in 239.7411(a), use the following clause:

            Cancellation or Termination of Orders (SEP 2019)

    (a) Definitions. As used in this clause--
    Actual nonrecoverable costs means the installed costs of the 
facilities and equipment, less cost of reusable materials, and less net 
salvage value.
    Basic cancellation liability means the actual nonrecoverable cost, 
which the Government shall reimburse the Contractor at the time services 
are cancelled.
    Basic termination liability means the nonrecoverable cost amortized 
in equal monthly increments throughout the liability period.
    Installed costs means the actual cost of equipment and materials 
specifically provided or used, plus the actual cost of installing 
(including engineering, labor, supervision, transportation, rights-of-
way, and any other items which are chargeable to the capital accounts of 
the Contractor), less any costs the government may have directly 
reimbursed the Contractor under the Special Construction and Equipment 
Charges clause of this agreement/contract.

[[Page 635]]

    Net salvage value means the salvage value less the cost of removal.
    (b) If the Government cancels any of the services ordered under this 
agreement/contract, before the services are made available to the 
Government, or terminates any of these services after they are made 
available to the Government, the Government will reimburse the 
Contractor for the actual nonrecoverable costs the Contractor has 
reasonably incurred in providing facilities and equipment for which the 
Contractor has no foreseeable reuse. The Government will not reimburse 
the Contractor for any actual nonrecoverable costs incurred after notice 
of award, but prior to execution of the order.
    (c) When feasible, the Contractor shall reuse cancelled or 
terminated facilities or equipment to minimize the charges to the 
Government.
    (d) If at any time the Government requires that telecommunications 
facilities or equipment be relocated within the Contractor's service 
area, the Government will have the option of paying the costs of 
relocating the facilities or equipment in lieu of paying any termination 
or cancellation charge under this clause. The basic cancellation 
liability or basic termination liability applicable to the facilities or 
equipment in their former location shall continue to apply to the 
facilities and equipment in their new location. Monthly recurring 
charges shall continue to be paid during the period.
    (e) When there is another requirement or foreseeable reuse in place 
of cancelled or terminated facilities or equipment, no charge shall 
apply and the basic cancellation liability or basic termination 
liability shall be appropriately reduced. When feasible, the Contractor 
shall promptly reuse discontinued channels or facilities, including 
equipment for which the Government is obligated to pay a minimum service 
charge.
    (f) The amount of the Government's liability upon cancellation or 
termination of any of the services ordered under this agreement/contract 
will be determined under applicable tariffs governing cancellation and 
termination charges which--
    (1) Are filed by the Contractor with a governmental regulatory body, 
as defined in the Orders For Facilities and Services clause of this 
agreement/contract;
    (2) Are in effect on the date of termination; and
    (3) Provide specific cancellation or termination charges for the 
facilities and equipment involved or show how to determine the charges.
    (g) The amount of the Government's liability upon cancellation or 
termination of any of the services ordered under this agreement/
contract, which are not subject to a governmental regulatory body, will 
be determined under a mutually agreed schedule in the communication 
services authorization (CSA) or other contractual document.
    (h) If no applicable tariffs are in effect on the date of 
cancellation or termination or set forth in the applicable CSA or other 
contractual document, the Government's liability will be determined 
under the following settlement procedures--
    (1) The Contractor agrees to provide the Contracting Officer, in 
such reasonable detail as the Contracting Officer may require, inventory 
schedules covering all items of property or facilities in the 
Contractor's possession, the cost of which is included in the Basic 
Cancellation or Termination Liability for which the Contractor has no 
foreseeable reuse.
    (2) The Contractor shall use its best efforts to sell property or 
facilities when the Contractor has no foreseeable reuse or when the 
Government has not exercised its option to take title under the Title to 
Telecommunications Facilities and Equipment clause of this agreement/
contract. The Contractor shall apply any proceeds of the sale to reduce 
any payments by the Government to the Contractor under a cancellation or 
termination settlement.
    (3) The Contractor shall record actual nonrecoverable costs under 
established accounting procedures prescribed by the cognizant 
governmental regulatory authority or, if no such procedures have been 
prescribed, under generally accepted accounting procedures applicable to 
the provision of telecommunication services for public use.
    (4) The net salvage value shall be deducted from the Contractor's 
installed cost. In determining net salvage value, the Contractor shall 
consider the foreseeable reuse of the facilities and equipment by the 
Contractor. The Contractor shall make allowance for the cost of 
dismantling, removal, reconditioning, and disposal of the facilities and 
equipment when necessary either for the sale of facilities or their 
reuse by the Contractor in another location.
    (5) Upon termination of services, the Government will reimburse the 
Contractor for the nonrecoverable cost less such costs amortized to the 
date services are terminated and establish the liability period as 
mutually agreed to but not to exceed ten years. In the case of either a 
cancellation or a termination, the Government's presumed maximum 
liability will be capped by the unpaid non-recurring charges and the 
monthly recurring charges set out in the contract/agreement. The 
presumed maximum liability for monthly recurring charges shall be capped 
at monthly recurring charges for the minimum service period and any 
required notice period.
    (6) When the basic cancellation liability or basic termination 
liability established by the CSA or other contractual document is based 
on estimated costs, the Contractor

[[Page 636]]

agrees to settle on the basis of actual cost at the time of cancellation 
or termination.
    (7) The Contractor agrees that, if after settlement but within the 
termination liability period of the services, should the Contractor make 
reuse of equipment or facilities which were treated as nonreusable or 
nonsalvable in the settlement, the Contractor shall reimburse the 
Government for the value of the equipment or facilities.
    (8) The Contractor agrees to exclude--
    (i) Any costs which are not included in determining cancellation and 
termination charges under the Contractor's standard practices or 
procedures; and
    (ii) Charges not ordinarily made by the Contractor for similar 
facilities or equipment, furnished under similar circumstances.
    (i) The Government may, under such terms and conditions as it may 
prescribe, make partial payments and payments on account against costs 
incurred by the Contractor in connection with the cancelled or 
terminated portion of this agreement/contract. The Government may make 
these payments if the Contracting Officer determines that the total of 
the payments is within the amount the Contractor is entitled. If the 
total of the payments is in excess of the amount finally agreed or 
determined to be due under this clause, the Contractor shall pay the 
excess to the Government upon demand.
    (j) Failure to agree shall be a dispute concerning a question of 
fact within the meaning of the Disputes clause.

                             (End of clause)

[84 FR 48497, Sept. 13, 2019]



252.239-7008  [Reserved]



252.239-7009  Representation of use of cloud computing.

    As prescribed in 239.7604(a), use the following provision:

           Representation of Use of Cloud Computing (SEP 2015)

    (a) Definition. Cloud computing, as used in this provision, means a 
model for enabling ubiquitous, convenient, on-demand network access to a 
shared pool of configurable computing resources (e.g., networks, 
servers, storage, applications, and services) that can be rapidly 
provisioned and released with minimal management effort or service 
provider interaction. This includes other commercial terms, such as on-
demand self-service, broad network access, resource pooling, rapid 
elasticity, and measured service. It also includes commercial offerings 
for software-as-a-service, infrastructure-as-a-service, and platform-as-
a-service.
    (b) The Offeror shall indicate by checking the appropriate blank in 
paragraph (c) of this provision whether the use of cloud computing is 
anticipated under the resultant contract.
    (c) Representation. The Offeror represents that it--
    __Does anticipate that cloud computing services will be used in the 
performance of any contract or subcontract resulting from this 
solicitation.
    __Does not anticipate that cloud computing services will be used in 
the performance of any contract or subcontract resulting from this 
solicitation.

                           (End of provision)

[80 FR 51745, Aug. 26, 2015, as amended at 80 FR 56930, Sept. 21, 2015; 
80 FR 74695, Nov. 30, 2015]



252.239-7010  Cloud computing services.

    As prescribed in 239.7604(b), use the following clause:

                   Cloud Computing Services (OCT 2016)

    (a) Definitions. As used in this clause--
    Authorizing official, as described in DoD Instruction 8510.01, Risk 
Management Framework (RMF) for DoD Information Technology (IT), means 
the senior Federal official or executive with the authority to formally 
assume responsibility for operating an information system at an 
acceptable level of risk to organizational operations (including 
mission, functions, image, or reputation), organizational assets, 
individuals, other organizations, and the Nation.
    Cloud computing means a model for enabling ubiquitous, convenient, 
on-demand network access to a shared pool of configurable computing 
resources (e.g., networks, servers, storage, applications, and services) 
that can be rapidly provisioned and released with minimal management 
effort or service provider interaction. This includes other commercial 
terms, such as on-demand self-service, broad network access, resource 
pooling, rapid elasticity, and measured service. It also includes 
commercial offerings for software-as-a-service, infrastructure-as-a-
service, and platform-as-a-service.
    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.
    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

[[Page 637]]

system and/or the information residing therein.
    Government data means any information, document, media, or machine 
readable material regardless of physical form or characteristics, that 
is created or obtained by the Government in the course of official 
Government business.
    Government-related data means any information, document, media, or 
machine readable material regardless of physical form or characteristics 
that is created or obtained by a contractor through the storage, 
processing, or communication of Government data. This does not include 
contractor's business records e.g. financial records, legal records etc. 
or data such as operating procedures, software coding or algorithms that 
are not uniquely applied to the Government data.
    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 information is 
recorded, stored, or printed within an information system.
    Spillage security incident that results in the transfer of 
classified or controlled unclassified information onto an information 
system not accredited (i.e., authorized) for the appropriate security 
level.
    (b) Cloud computing security requirements. The requirements of this 
clause are applicable when using cloud computing to provide information 
technology services in the performance of the contract.
    (1) If the Contractor indicated in its offer that it ``does not 
anticipate the use of cloud computing services in the performance of a 
resultant contract,'' in response to provision 252.239-7009, 
Representation of Use of Cloud Computing, and after the award of this 
contract, the Contractor proposes to use cloud computing services in the 
performance of the contract, the Contractor shall obtain approval from 
the Contracting Officer prior to utilizing cloud computing services in 
performance of the contract.
    (2) The Contractor shall implement and maintain administrative, 
technical, and physical safeguards and controls with the security level 
and services required in accordance with the Cloud Computing Security 
Requirements Guide (SRG) (version in effect at the time the solicitation 
is issued or as authorized by the Contracting Officer) found at http://
iase.disa.mil/cloud_security/Pages/index.aspx, unless notified by the 
Contracting Officer that this requirement has been waived by the DoD 
Chief Information Officer.
    (3) The Contractor shall maintain within the United States or 
outlying areas all Government data that is not physically located on DoD 
premises, unless the Contractor receives written notification from the 
Contracting Officer to use another location, in accordance with DFARS 
239.7602-2(a).
    (c) Limitations on access to, and use and disclosure of Government 
data and Government-related data.
    (1) The Contractor shall not access, use, or disclose Government 
data unless specifically authorized by the terms of this contract or a 
task order or delivery order issued hereunder.
    (i) If authorized by the terms of this contract or a task order or 
delivery order issued hereunder, any access to, or use or disclosure of, 
Government data shall only be for purposes specified in this contract or 
task order or delivery order.
    (ii) The Contractor shall ensure that its employees are subject to 
all such access, use, and disclosure prohibitions and obligations.
    (iii) These access, use, and disclosure prohibitions and obligations 
shall survive the expiration or termination of this contract.
    (2) The Contractor shall use Government-related data only to manage 
the operational environment that supports the Government data and for no 
other purpose unless otherwise permitted with the prior written approval 
of the Contracting Officer.
    (d) Cloud computing services cyber incident reporting. The 
Contractor shall report all cyber incidents that are related to the 
cloud computing service provided under this contract. Reports shall be 
submitted to DoD via http://dibnet.dod.mil/.
    (e) Malicious software. The Contractor or subcontractors that 
discover and isolate malicious software in connection with a reported 
cyber incident shall submit the malicious software in accordance with 
instructions provided by the Contracting Officer.
    (f) Media preservation and protection. When a Contractor discovers a 
cyber incident has occurred, the Contractor shall preserve and protect 
images of all known affected information systems identified in the cyber 
incident report (see paragraph (d) of this clause) and all relevant 
monitoring/packet capture data for at least 90 days from the submission 
of the cyber incident report to allow DoD to request the media or 
decline interest.
    (g) Access to additional information or equipment necessary for 
forensic analysis. Upon request by DoD, the Contractor shall provide DoD 
with access to additional information or equipment that is necessary to 
conduct a forensic analysis.
    (h) Cyber incident damage assessment activities. If DoD elects to 
conduct a damage assessment, the Contracting Officer will request that 
the Contractor provide all of the damage assessment information gathered 
in accordance with paragraph (f) of this clause.
    (i) Records management and facility access.

[[Page 638]]

    (1) The Contractor shall provide the Contracting Officer all 
Government data and Government-related data in the format specified in 
the contract.
    (2) The Contractor shall dispose of Government data and Government-
related data in accordance with the terms of the contract and provide 
the confirmation of disposition to the Contracting Officer in accordance 
with contract closeout procedures.
    (3) The Contractor shall provide the Government, or its authorized 
representatives, access to all Government data and Government-related 
data, access to contractor personnel involved in performance of the 
contract, and physical access to any Contractor facility with Government 
data, for the purpose of audits, investigations, inspections, or other 
similar activities, as authorized by law or regulation.
    (j) Notification of third party access requests. The Contractor 
shall notify the Contracting Officer promptly of any requests from a 
third party for access to Government data or Government-related data, 
including any warrants, seizures, or subpoenas it receives, including 
those from another Federal, State, or local agency. The Contractor shall 
cooperate with the Contracting Officer to take all measures to protect 
Government data and Government-related data from any unauthorized 
disclosure.
    (k) Spillage. Upon notification by the Government of a spillage, or 
upon the Contractor's discovery of a spillage, the Contractor shall 
cooperate with the Contracting Officer to address the spillage in 
compliance with agency procedures.
    (l) Subcontracts. The Contractor shall include this clause, 
including this paragraph (l), in all subcontracts that involve or may 
involve cloud services, including subcontracts for commercial items.

                             (End of clause)

[80 FR 51747, Aug. 26, 2015, as amended at 80 FR 74695, Nov. 30, 2015; 
81 FR 73001, Oct. 21, 2016]



252.239-7011  Special construction and equipment charges.

    As prescribed in 239.7411(b), use the following clause:

          Special Construction and Equipment Charges (DEC 1991)

    (a) The Government will not directly reimburse the Contractor for 
the cost of constructing any facilities or providing any equipment, 
unless the Contracting Officer authorizes direct reimbursement.
    (b) If the Contractor stops using facilities or equipment which the 
Government has, in whole or part, directly reimbursed, the Contractor 
shall allow the Government credit for the value of the facilities or 
equipment attributable to the Government's contribution. Determine the 
value of the facilities and equipment on the basis of their foreseeable 
reuse by the Contractor at the time their use is discontinued or on the 
basis of the net salvage value, whichever is greater. The Contractor 
shall promptly pay the Government the amount of any credit.
    (c) The amount of the direct special construction charge shall not 
exceed--
    (1) The actual costs to the Contractor; and
    (2) An amount properly allocable to the services to be provided to 
the Government.
    (d) The amount of the direct special construction charge shall not 
include costs incurred by the Contractor which are covered by--
    (1) A cancellation or termination liability; or
    (2) The Contractor's recurring or other nonrecurring charges.
    (e) The Contractor represents that--
    (1) Recurring charges for the services, facilities, and equipment do 
not include in the rate base any costs that have been reimbursed by the 
Government to the Contractor; and
    (2) Depreciation charges are based only on the cost of facilities 
and equipment paid by the Contractor and not reimbursed by the 
Government.
    (f) If it becomes necessary for the Contractor to incur costs to 
replace any facilities or equipment, the Government shall assume those 
costs or reimburse the Contractor for replacement costs at mutually 
acceptable rates under the following circumstances--
    (1) The Government paid direct special construction charges; or
    (2) The Government reimbursed the Contractor for those facilities or 
equipment as a part of the recurring charges; and
    (3) The need for replacement was due to circumstances beyond the 
control and without the fault of the Contractor.
    (g) Before incurring any costs under paragraph (f) of this clause, 
the Government shall have the right to terminate the service under the 
Cancellation or Termination of Orders clause of this contract.

                             (End of clause)



252.239-7012  Title to telecommunication facilities and equipment.

    As prescribed in 239.7411(b), use the following clause:

     Title to Telecommunication Facilities and Equipment (DEC 1991)

    (a) Title to all Contractor furnished facilities and equipment used 
under this agreement/contract shall remain with the Contractor even if 
the Government paid the

[[Page 639]]

costs of constructing the facilities or equipment. A mutually accepted 
communications service authorization may provide for exceptions.
    (b) The Contractor shall operate and maintain all telecommunication 
facilities and equipment used under this agreement/contract whether the 
Government or the Contractor has title.

                             (End of clause)



252.239-7013  Term of Agreement and Continuation of Services.

    Basic. As prescribed in 239.7411(c)(1), use the following clause:

     Term of Agreement and Continuation of Services--Basic (OCT 2019

    (a) This basic agreement is not a contract. The Government incurs 
liability only upon issuance of a communication service authorization, 
which is a contract that incorporates the terms and conditions of this 
basic agreement.
    (b) This agreement shall continue in force from year to year, unless 
terminated by either party by 30 days' written notice. Termination of 
this basic agreement does not terminate or cancel any communication 
service authorizations issued under this basic agreement prior to the 
termination.
    (c) Communication service authorizations issued under this basic 
agreement may be modified to incorporate the terms and conditions of a 
new basic agreement negotiated with the Contractor.

                             (End of clause)

    Alternate I. As prescribed in 239.7411(c)(2), use the following 
clause, which uses a different paragraph (c) than the basic clause and 
adds a new paragraph (d).

 Term of Agreement and Continuation of Services--Alternate I (OCT 2019)

    (a) This basic agreement is not a contract. The Government incurs 
liability only upon issuance of a communication service authorization, 
which is a contract that incorporates the terms and conditions of this 
basic agreement.
    (b) This agreement shall continue in force from year to year, unless 
terminated by either party by 30 days' written notice. Termination of 
this basic agreement does not terminate or cancel any communication 
service authorizations issued under this basic agreement prior to the 
termination.
    (c) The Contractor's current communication services authorizations 
have been modified to incorporate the terms and conditions of this basic 
agreement.
    (1) All current communication service authorizations issued by ____ 
that incorporate Basic Agreement Number ____, dated ____, are modified 
to incorporate this basic agreement.
    (2) Current communication service authorizations, issued by the 
activity in paragraph (c)(1) of this clause, that incorporate other 
agreements with the Contractor may also be modified to incorporate this 
basic agreement.
    (d) Communication service authorizations issued under this basic 
agreement may be modified to incorporate a new basic agreement with the 
Contractor.

                             (End of clause)

[84 FR 58338, Oct. 31, 2019]



252.239-7015  [Reserved]



252.239-7016  Telecommunications security equipment, devices, techniques, and services.

    As prescribed in 239.7411(d), use the following clause:

Telecommunications Security Equipment, Devices, Techniques, and Services 
                               (DEC 1991)

    (a) Definitions. As used in this clause--
    (1) Securing means the application of Government-approved 
telecommunications security equipment, devices, techniques, or services 
to contractor telecommunications systems.
    (2) Sensitive information means any information the loss, misuse, or 
modification of which, or unauthorized access to, could adversely affect 
the national interest or the conduct of Federal programs, or the privacy 
to which individuals are entitled under 5 U.S.C. 552a (the Privacy Act), 
but which has not been specifically authorized under criteria 
established by an Executive Order or Act of Congress to be kept secret 
in the interest of national defense or foreign policy.
    (3) Telecommunications systems means voice, record, and data 
communications, including management information systems and local data 
networks that connect to external transmission media, when employed by 
Government agencies, contractors, and subcontractors to transmit--
    (i) Classified or sensitive information;
    (ii) Matters involving intelligence activities, cryptologic 
activities related to national security, the command and control of 
military forces, or equipment that is an integral part of a weapon or 
weapons system; or
    (iii) Matters critical to the direct fulfillment of military or 
intelligence missions.
    (b) This solicitation/contract identifies classified or sensitive 
information that requires securing during telecommunications

[[Page 640]]

and requires the Contractor to secure telecommunications systems. The 
Contractor agrees to secure information and systems at the following 
location: (Identify the location.)
    (c) To provide the security, the Contractor shall use Government-
approved telecommunications equipment, devices, techniques, or services. 
A list of the approved equipment, etc. may be obtained from (identify 
where list can be obtained). Equipment, devices, techniques, or services 
used by the Contractor must be compatible or interoperable with (list 
and identify the location of any telecommunications security equipment, 
device, technique, or service currently being used by the technical or 
requirements organization or other offices with which the Contractor 
must communicate).
    (d) Except as may be provided elsewhere in this contract, the 
Contractor shall furnish all telecommunications security equipment, 
devices, techniques, or services necessary to perform this contract. The 
Contractor must meet ownership eligibility conditions for communications 
security equipment designated as controlled cryptographic items.
    (e) The Contractor agrees to include this clause, including this 
paragraph (e), in all subcontracts which require securing 
telecommunications.

                             (End of clause)



252.239-7017  Notice of supply chain risk.

    As prescribed in 239.7306(a), use the following provision:

                 Notice of Supply Chain Risk (FEB 2019)

    (a) Definition. Supply chain risk, as used in this provision, means 
the risk that an adversary may sabotage, maliciously introduce unwanted 
function, or otherwise subvert the design, integrity, manufacturing, 
production, distribution, installation, operation, or maintenance of a 
covered system so as to surveil, deny, disrupt, or otherwise degrade the 
function, use, or operation of such system (see 10 U.S.C. 2339a).
    (b) In order to manage supply chain risk, the Government may use the 
authorities provided by 10 U.S.C. 2339a. In exercising these 
authorities, the Government may consider information, public and non-
public, including all-source intelligence, relating to an offeror and 
its supply chain.
    (c) If the Government exercises the authority provided in 10 U.S.C. 
2339a to limit disclosure of information, no action undertaken by the 
Government under such authority shall be subject to review in a bid 
protest before the Government Accountability Office or in any Federal 
court.

                           (End of provision)

[78 FR 69272, Nov. 18, 2013, as amended at 84 FR 4370, Feb. 15, 2019]



252.239-7018  Supply chain risk.

    As prescribed in 239.7306(b), use the following clause:

                      Supply Chain Risk (FEB 2019)

    (a) Definitions. As used in this clause--
    Information technology (see 40 U.S.C 11101(6)) means, in lieu of the 
definition at FAR 2.1, any equipment, or interconnected system(s) or 
subsystem(s) of equipment, that is used in the automatic acquisition, 
storage, analysis, evaluation, manipulation, management, movement, 
control, display, switching, interchange, transmission, or reception of 
data or information by the agency.
    (1) For purposes of this definition, equipment is used by an agency 
if the equipment is used by the agency directly or is used by a 
contractor under a contract with the agency that requires--
    (i) Its use; or
    (ii) To a significant extent, its use in the performance of a 
service or the furnishing of a product.
    (2) The term ``information technology'' includes computers, 
ancillary equipment (including imaging peripherals, input, output, and 
storage devices necessary for security and surveillance), peripheral 
equipment designed to be controlled by the central processing unit of a 
computer, software, firmware and similar procedures, services (including 
support services), and related resources.
    (3) The term ``information technology'' does not include any 
equipment acquired by a contractor incidental to a contract.
    Supply chain risk means the risk that an adversary may sabotage, 
maliciously introduce unwanted function, or otherwise subvert the 
design, integrity, manufacturing, production, distribution, 
installation, operation, or maintenance of a covered system so as to 
surveil, deny, disrupt, or otherwise degrade the function, use, or 
operation of such system (see 10 U.S.C. 2339a).
    (b) The Contractor shall mitigate supply chain risk in the provision 
of supplies and services to the Government.
    (c) In order to manage supply chain risk, the Government may use the 
authorities provided by 10 U.S.C. 2339a. In exercising these 
authorities, the Government may consider information, public and non-
public, including all-source intelligence, relating to a Contractor's 
supply chain.
    (d) If the Government exercises the authority provided in 10 U.S.C. 
2339a to limit disclosure of information, no action undertaken by the 
Government under such authority shall be subject to review in a bid 
protest before

[[Page 641]]

the Government Accountability Office or in any Federal court.

                             (End of clause)

[78 FR 69272, Nov. 18, 2013, as amended at 80 FR 67252, Oct. 30, 2015; 
84 FR 4370, Feb. 15, 2019]



252.241-7000  Superseding contract.

    As prescribed in 241.501-70(a), use the following clause:

                     Superseding Contract (DEC 1991)

    This contract supersedes contract No. ___, dated __ which provided 
similar services. Any capital credits accrued to the Government, any 
remaining credits due to the Government under the connection charge, or 
any termination liability are transferred to this contract, as follows:

                             Capital Credits

    (List years and accrued credits by year and separate delivery 
points.)

                  Outstanding Connection Charge Credits

    (List by month and year the amount credited and show the remaining 
amount of outstanding credits due the Government.)

                      Termination Liability Charges

    (List by month and year the amount of monthly facility cost 
recovered and show the remaining amount of facility cost to be 
recovered.)

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 63 FR 11549, Mar. 9, 1998]



252.241-7001  Government access.

    As prescribed in 241.501-70(b), use the following clause:

                      Government Access (DEC 1991)

    Authorized representatives of the Government may have access to the 
Contractor's on-base facilities upon reasonable notice or in case of 
emergency.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 63 FR 11549, Mar. 9, 1998]



252.242-7000--252.242-7002  [Reserved]



252.242-7004  Material Management and Accounting System.

    As prescribed in 242.7204, use the following clause:

          Material Management and Accounting System (MAY 2011)

    (a) Definitions. As used in this clause--
    (1) Material management and accounting system (MMAS) means the 
Contractor's system or systems for planning, controlling, and accounting 
for the acquisition, use, issuing, and disposition of material. Material 
management and accounting systems may be manual or automated. They may 
be stand-alone systems or they may be integrated with planning, 
engineering, estimating, purchasing, inventory, accounting, or other 
systems.
    (2) Valid time-phased requirements means material that is--
    (i) Needed to fulfill the production plan, including reasonable 
quantities for scrap, shrinkage, yield, etc.; and
    (ii) Charged/billed to contracts or other cost objectives in a 
manner consistent with the need to fulfill the production plan.
    (3) Contractor means a business unit as defined in section 31.001 of 
the Federal Acquisition Regulation (FAR).
    (4) Acceptable material management and accounting system means a 
MMAS that generally complies with the system criteria in paragraph (d) 
of this clause.
    (5) Significant deficiency means a shortcoming in the system that 
materially affects the ability of officials of the Department of Defense 
to rely upon information produced by the system that is needed for 
management purposes.
    (b) General. The Contractor shall--
    (1) Maintain an MMAS that--
    (i) Reasonably forecasts material requirements;
    (ii) Ensures that costs of purchased and fabricated material charged 
or allocated to a contract are based on valid time-phased requirements; 
and
    (iii) Maintains a consistent, equitable, and unbiased logic for 
costing of material transactions; and
    (2) Assess its MMAS and take reasonable action to comply with the 
MMAS standards in paragraph (e) of this clause.
    (c) Disclosure and maintenance requirements. The Contractor shall--
    (1) Have policies, procedures, and operating instructions that 
adequately describe its MMAS;
    (2) Provide to the Administrative Contracting Officer (ACO), upon 
request, the results of internal reviews that it has conducted to ensure 
compliance with established MMAS policies, procedures, and operating 
instructions; and
    (3) Disclose significant changes in its MMAS to the ACO at least 30 
days prior to implementation.
    (d) System criteria. The MMAS shall have adequate internal controls 
to ensure system and data integrity, and shall--

[[Page 642]]

    (1) Have an adequate system description including policies, 
procedures, and operating instructions that comply with the Federal 
Acquisition Regulation and Defense Federal Acquisition Regulation 
Supplement;
    (2) Ensure that costs of purchased and fabricated material charged 
or allocated to a contract are based on valid time-phased requirements 
as impacted by minimum/economic order quantity restrictions.
    (i) A 98 percent bill of material accuracy and a 95 percent master 
production schedule accuracy are desirable as a goal in order to ensure 
that requirements are both valid and appropriately time-phased.
    (ii) If systems have accuracy levels below these, the Contractor 
shall provide adequate evidence that--
    (A) There is no material harm to the Government due to lower 
accuracy levels; and
    (B) The cost to meet the accuracy goals is excessive in relation to 
the impact on the Government;
    (3) Provide a mechanism to identify, report, and resolve system 
control weaknesses and manual override. Systems should identify 
operational exceptions, such as excess/residual inventory, as soon as 
known;
    (4) Provide audit trails and maintain records (manual and those in 
machine-readable form) necessary to evaluate system logic and to verify 
through transaction testing that the system is operating as desired;
    (5) Establish and maintain adequate levels of record accuracy, and 
include reconciliation of recorded inventory quantities to physical 
inventory by part number on a periodic basis. A 95 percent accuracy 
level is desirable. If systems have an accuracy level below 95 percent, 
the Contractor shall provide adequate evidence that--
    (i) There is no material harm to the Government due to lower 
accuracy levels; and
    (ii) The cost to meet the accuracy goal is excessive in relation to 
the impact on the Government;
    (6) Provide detailed descriptions of circumstances that will result 
in manual or system generated transfers of parts;
    (7) Maintain a consistent, equitable, and unbiased logic for costing 
of material transactions as follows:
    (i) The Contractor shall maintain and disclose written policies 
describing the transfer methodology and the loan/pay-back technique.
    (ii) The costing methodology may be standard or actual cost, or any 
of the inventory costing methods in 48 CFR 9904.411-50(b). The 
Contractor shall maintain consistency across all contract and customer 
types, and from accounting period to accounting period for initial 
charging and transfer charging.
    (iii) The system should transfer parts and associated costs within 
the same billing period. In the few instances where this may not be 
appropriate, the Contractor may accomplish the material transaction 
using a loan/pay-back technique. The ``loan/pay-back technique'' means 
that the physical part is moved temporarily from the contract, but the 
cost of the part remains on the contract. The procedures for the loan/
pay-back technique must be approved by the ACO. When the technique is 
used, the Contractor shall have controls to ensure--
    (A) Parts are paid back expeditiously;
    (B) Procedures and controls are in place to correct any overbilling 
that might occur;
    (C) Monthly, at a minimum, identification of the borrowing contract 
and the date the part was borrowed; and
    (D) The cost of the replacement part is charged to the borrowing 
contract;
    (8) Where allocations from common inventory accounts are used, have 
controls (in addition to those in paragraphs (d)(2) and (7) of this 
clause) to ensure that--
    (i) Reallocations and any credit due are processed no less 
frequently than the routine billing cycle;
    (ii) Inventories retained for requirements that are not under 
contract are not allocated to contracts; and
    (iii) Algorithms are maintained based on valid and current data;
    (9) Have adequate controls to ensure that physically commingled 
inventories that may include material for which costs are charged or 
allocated to fixed-price, cost-reimbursement, and commercial contracts 
do not compromise requirements of any of the standards in paragraphs 
(d)(1) through (8) of this clause. Government-furnished material shall 
not be--
    (i) Physically commingled with other material; or
    (ii) Used on commercial work; and
    (10) Be subjected to periodic internal reviews to ensure compliance 
with established policies and procedures.
    (e) Significant deficiencies. (1) The Contracting Officer will 
provide an initial determination to the Contractor, in writing, of any 
significant deficiencies. The initial determination will describe the 
deficiency in sufficient detail to allow the Contractor to understand 
the deficiency.
    (2) The Contractor shall respond within 30 days to a written initial 
determination from the Contracting Officer that identifies significant 
deficiencies in the Contractor's MMAS. If the Contractor disagrees with 
the initial determination, the Contractor shall state, in writing, its 
rationale for disagreeing.
    (3) The Contracting Officer will evaluate the Contractor's response 
and notify the Contractor, in writing, of the Contracting Officer's 
final determination concerning--
    (i) Remaining significant deficiencies;
    (ii) The adequacy of any proposed or completed corrective action; 
and

[[Page 643]]

    (iii) System disapproval if the Contracting Officer determines that 
one or more significant deficiencies remain.
    (f) If the Contractor receives the Contracting Officer's final 
determination of significant deficiencies, the Contractor shall, within 
45 days of receipt of the final determination, either correct the 
significant deficiencies or submit an acceptable corrective action plan 
showing milestones and actions to eliminate the significant 
deficiencies.
    (g) Withholding payments. If the Contracting Officer makes a final 
determination to disapprove the Contractor's MMAS, and the contract 
includes the clause at 252.242-7005, Contractor Business Systems, the 
Contracting Officer will withhold payments in accordance with that 
clause.

                             (End of clause)

[76 FR 28874, May 18, 2011]



252.242-7005  Contractor business systems.

    As prescribed in 242.7001, use the following clause:

                 Contractor Business Systems (FEB 2012)

    (a) This clause only applies to covered contracts that are subject 
to the Cost Accounting Standards under 41 U.S.C. chapter 15, as 
implemented in regulations found at 48 CFR 9903.201-1 (see the FAR 
Appendix).
    (b) Definitions. As used in this clause--
    Acceptable contractor business systems means contractor business 
systems that comply with the terms and conditions of the applicable 
business system clauses listed in the definition of ``contractor 
business systems'' in this clause.
    Contractor business systems means--
    (1) Accounting system, if this contract includes the clause at 
252.242-7006, Accounting System Administration;
    (2) Earned value management system, if this contract includes the 
clause at 252.234-7002, Earned Value Management System;
    (3) Estimating system, if this contract includes the clause at 
252.215-7002, Cost Estimating System Requirements;
    (4) Material management and accounting system, if this contract 
includes the clause at 252.242-7004, Material Management and Accounting 
System;
    (5) Property management system, if this contract includes the clause 
at 252.245-7003, Contractor Property Management System Administration; 
and
    (6) Purchasing system, if this contract includes the clause at 
252.244-7001, Contractor Purchasing System Administration.
    Significant deficiency, in the case of a contractor business system, 
means a shortcoming in the system that materially affects the ability of 
officials of the Department of Defense to rely upon information produced 
by the system that is needed for management purposes.
    (c) General. The Contractor shall establish and maintain acceptable 
business systems in accordance with the terms and conditions of this 
contract.
    (d) Significant deficiencies. (1) The Contractor shall respond, in 
writing, within 30 days to an initial determination that there are one 
or more significant deficiencies in one or more of the Contractor's 
business systems.
    (2) The Contracting Officer will evaluate the Contractor's response 
and notify the Contractor, in writing, of the final determination as to 
whether the Contractor's business system contains significant 
deficiencies. If the Contracting Officer determines that the 
Contractor's business system contains significant deficiencies, the 
final determination will include a notice to withhold payments.
    (e) Withholding payments. (1) If the Contracting Officer issues the 
final determination with a notice to withhold payments for significant 
deficiencies in a contractor business system required under this 
contract, the Contracting Officer will withhold five percent of amounts 
due from progress payments and performance-based payments, and direct 
the Contractor, in writing, to withhold five percent from its billings 
on interim cost vouchers on cost-reimbursement, labor-hour, and time-
and-materials contracts until the Contracting Officer has determined 
that the Contractor has corrected all significant deficiencies as 
directed by the Contracting Officer's final determination. The 
Contractor shall, within 45 days of receipt of the notice, either 
correct the deficiencies or submit an acceptable corrective action plan 
showing milestones and actions to eliminate the deficiencies.
    (2) If the Contractor submits an acceptable corrective action plan 
within 45 days of receipt of a notice of the Contracting Officer's 
intent to withhold payments, and the Contracting Officer, in 
consultation with the auditor or functional specialist, determines that 
the Contractor is effectively implementing such plan, the Contracting 
Officer will reduce withholding directly related to the significant 
deficiencies covered under the corrective action plan, to two percent 
from progress payments and performance-based payments, and direct the 
Contractor, in writing, to reduce the percentage withheld on interim 
cost vouchers to two percent until the Contracting Officer determines 
the Contractor has corrected all significant deficiencies as directed by 
the Contracting Officer's final determination. However, if at any time, 
the Contracting Officer determines that the Contractor has failed to 
follow the accepted corrective action plan, the Contracting Officer will 
increase withholding

[[Page 644]]

from progress payments and performance-based payments, and direct the 
Contractor, in writing, to increase the percentage withheld on interim 
cost vouchers to the percentage initially withheld, until the 
Contracting Officer determines that the Contractor has corrected all 
significant deficiencies as directed by the Contracting Officer's final 
determination.
    (3) Payment withhold percentage limits.
    (i) The total percentage of payments withheld on amounts due under 
each progress payment, performance-based payment, or interim cost 
voucher, on this contract shall not exceed--
    (A) Five percent for one or more significant deficiencies in any 
single contractor business system; and
    (B) Ten percent for significant deficiencies in multiple contractor 
business systems.
    (ii) If this contract contains pre-existing withholds, and the 
application of any subsequent payment withholds will cause withholding 
under this clause to exceed the payment withhold percentage limits in 
paragraph (e)(3)(i) of this clause, the Contracting Officer will reduce 
the payment withhold percentage in the final determination to an amount 
that will not exceed the payment withhold percentage limits.
    (4) For the purpose of this clause, payment means any of the 
following payments authorized under this contract:
    (i) Interim payments under--
    (A) Cost-reimbursement contracts;
    (B) Incentive type contracts;
    (C) Time-and-materials contracts;
    (D) Labor-hour contracts.
    (ii) Progress payments.
    (iii) Performance-based payments.
    (5) Payment withholding shall not apply to payments on fixed-price 
line items where performance is complete and the items were accepted by 
the Government.
    (6) The withholding of any amount or subsequent payment to the 
Contractor shall not be construed as a waiver of any rights or remedies 
the Government has under this contract.
    (7) Notwithstanding the provisions of any clause in this contract 
providing for interim, partial, or other payment withholding on any 
basis, the Contracting Officer may withhold payment in accordance with 
the provisions of this clause.
    (8) The payment withholding authorized in this clause is not subject 
to the interest-penalty provisions of the Prompt Payment Act.
    (f) Correction of deficiencies. (1) The Contractor shall notify the 
Contracting Officer, in writing, when the Contractor has corrected the 
business system's deficiencies.
    (2) Once the Contractor has notified the Contracting Officer that 
all deficiencies have been corrected, the Contracting Officer will take 
one of the following actions:
    (i) If the Contracting Officer determines that the Contractor has 
corrected all significant deficiencies as directed by the Contracting 
Officer's final determination, the Contracting Officer will, as 
appropriate, discontinue the withholding of progress payments and 
performance-based payments, and direct the Contractor, in writing, to 
discontinue the payment withholding from billings on interim cost 
vouchers under this contract associated with the Contracting Officer's 
final determination, and authorize the Contractor to bill for any monies 
previously withheld that are not also being withheld due to other 
significant deficiencies. Any payment withholding under this contract 
due to other significant deficiencies, will remain in effect until the 
Contracting Officer determines that those significant deficiencies are 
corrected.
    (ii) If the Contracting Officer determines that the Contractor still 
has significant deficiencies, the Contracting Officer will continue the 
withholding of progress payments and performance-based payments, and the 
Contractor shall continue withholding amounts from its billings on 
interim cost vouchers n accordance with paragraph (e) of this clause, 
and not bill for any monies previously withheld.
    (iii) If the Contracting Officer determines, based on the evidence 
submitted by the Contractor, that there is a reasonable expectation that 
the corrective actions have been implemented and are expected to correct 
the significant deficiencies, the Contracting Officer will discontinue 
withholding payments, and release any payments previously withheld 
directly related to the significant deficiencies identified in the 
Contractor notification, and direct the Contractor, in writing, to 
discontinue the payment withholding from billings on interim cost 
vouchers associated with the Contracting Officer's final determination, 
and authorize the Contractor to bill for any monies previously withheld.
    (iv) If, within 90 days of receipt of the Contractor notification 
that the Contractor has corrected the significant deficiencies, the 
Contracting Officer has not made a determination in accordance with 
paragraphs (f)(2)(i), (ii), or (iii) of this clause, the Contracting 
Officer will reduce withholding directly related to the significant 
deficiencies identified in the Contractor notification by at least 50 
percent of the amount being withheld from progress payments and 
performance-based payments, and direct the Contractor, in writing, to 
reduce the payment withholding from billings on interim cost vouchers 
directly related to the significant deficiencies identified in the 
Contractor notification by a specified percentage that is at least 50 
percent, but not authorize the Contractor to bill for any monies 
previously withheld until the Contracting Officer

[[Page 645]]

makes a determination in accordance with paragraphs (f)(2)(i), (ii), or 
(iii) of this clause.
    (v) At any time after the Contracting Officer reduces or 
discontinues the withholding of progress payments and performance-based 
payments, or directs the Contractor to reduce or discontinue the payment 
withholding from billings on interim cost vouchers under this contract, 
if the Contracting Officer determines that the Contractor has failed to 
correct the significant deficiencies identified in the Contractor's 
notification, the Contracting Officer will reinstate or increase 
withholding from progress payments and performance-based payments, and 
direct the Contractor, in writing, to reinstate or increase the 
percentage withheld on interim cost vouchers to the percentage initially 
withheld, until the Contracting Officer determines that the Contractor 
has corrected all significant deficiencies as directed by the 
Contracting Officer's final determination.

                             (End of clause)

[76 FR 28875, May 18, 2011, as amended at 77 FR 11366, Feb. 24, 2012]



252.242-7006  Accounting system administration.

    As prescribed in 242.7503, use the following clause:

               Accounting System Administration (FEB 2012)

    (a) Definitions. As used in this clause--
    (1) Acceptable accounting system means a system that complies with 
the system criteria in paragraph (c) of this clause to 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 billing 
procedures.
    (2) Accounting system means the Contractor's system or systems for 
accounting methods, procedures, and controls established to gather, 
record, classify, analyze, summarize, interpret, and present accurate 
and timely financial data for reporting in compliance with applicable 
laws, regulations, and management decisions, and may include subsystems 
for specific areas such as indirect and other direct costs, 
compensation, billing, labor, and general information technology.
    (3) Significant deficiency means a shortcoming in the system that 
materially affects the ability of officials of the Department of Defense 
to rely upon information produced by the system that is needed for 
management purposes.
    (b) General. The Contractor shall establish and maintain an 
acceptable accounting system. Failure to maintain an acceptable 
accounting system, as defined in this clause, shall result in the 
withholding of payments if the contract includes the clause at 252.242-
7005, Contractor Business Systems, and also may result in disapproval of 
the system.
    (c) System criteria. The Contractor's accounting system shall 
provide for--
    (1) A sound internal control environment, accounting framework, and 
organizational structure;
    (2) Proper segregation of direct costs from indirect costs;
    (3) Identification and accumulation of direct costs by contract;
    (4) A logical and consistent method for the accumulation and 
allocation of indirect costs to intermediate and final cost objectives;
    (5) Accumulation of costs under general ledger control;
    (6) Reconciliation of subsidiary cost ledgers and cost objectives to 
general ledger;
    (7) Approval and documentation of adjusting entries;
    (8) Management reviews or internal audits of the system to ensure 
compliance with the Contractor's established policies, procedures, and 
accounting practices;
    (9) A timekeeping system that identifies employees' labor by 
intermediate or final cost objectives;
    (10) A labor distribution system that charges direct and indirect 
labor to the appropriate cost objectives;
    (11) Interim (at least monthly) determination of costs charged to a 
contract through routine posting of books of account;
    (12) Exclusion from costs charged to Government contracts of amounts 
which are not allowable in terms of Federal Acquisition Regulation (FAR) 
part 31, Contract Cost Principles and Procedures, and other contract 
provisions;
    (13) Identification of costs by contract line item and by units (as 
if each unit or line item were a separate contract), if required by the 
contract;
    (14) Segregation of preproduction costs from production costs, as 
applicable;
    (15) Cost accounting information, as required--
    (i) By contract clauses concerning limitation of cost (FAR 52.232-
20), limitation of funds (FAR 52.232-22), or allowable cost and payment 
(FAR 52.216-7); and
    (ii) To readily calculate indirect cost rates from the books of 
accounts;
    (16) Billings that can be reconciled to the cost accounts for both 
current and cumulative amounts claimed and comply with contract terms;
    (17) Adequate, reliable data for use in pricing follow-on 
acquisitions; and

[[Page 646]]

    (18) Accounting practices in accordance with standards promulgated 
by the Cost Accounting Standards Board, if applicable, otherwise, 
Generally Accepted Accounting Principles.
    (d) Significant deficiencies. (1) The Contracting Officer will 
provide an initial determination to the Contractor, in writing, on any 
significant deficiencies. The initial determination will describe the 
deficiency in sufficient detail to allow the Contractor to understand 
the deficiency.
    (2) The Contractor shall respond within 30 days to a written initial 
determination from the Contracting Officer that identifies significant 
deficiencies in the Contractor's accounting system. If the Contractor 
disagrees with the initial determination, the Contractor shall state, in 
writing, its rationale for disagreeing.
    (3) The Contracting Officer will evaluate the Contractor's response 
and notify the Contractor, in writing, of the Contracting Officer's 
final determination concerning--
    (i) Remaining significant deficiencies;
    (ii) The adequacy of any proposed or completed corrective action; 
and
    (iii) System disapproval, if the Contracting Officer determines that 
one or more significant deficiencies remain.
    (e) If the Contractor receives the Contracting Officer's final 
determination of significant deficiencies, the Contractor shall, within 
45 days of receipt of the final determination, either correct the 
significant deficiencies or submit an acceptable corrective action plan 
showing milestones and actions to eliminate the significant 
deficiencies.
    (f) Withholding payments. If the Contracting Officer makes a final 
determination to disapprove the Contractor's accounting system, and the 
contract includes the clause at 252.242-7005, Contractor Business 
Systems, the Contracting Officer will withhold payments in accordance 
with that clause.

                             (End of clause)

[76 FR 28877, May 18, 2011, as amended at 77 FR 11366, Feb. 24, 2012]



252.243-7000  [Reserved]



252.243-7001  Pricing of contract modifications.

    As prescribed in 243.205-70, use the following clause:

              Pricing of Contract Modifications (DEC 1991)

    When costs are a factor in any price adjustment under this contract, 
the contract cost principles and procedures in FAR part 31 and DFARS 
part 231, in effect on the date of this contract, apply.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 66 FR 49865, Oct. 1, 2001]



252.243-7002  Requests for equitable adjustment.

    As prescribed in 243.205-71, use the following clause:

              Requests for Equitable Adjustment (DEC 2012)

    (a) The amount of any request for equitable adjustment to contract 
terms shall accurately reflect the contract adjustment for which the 
Contractor believes the Government is liable. The request shall include 
only costs for performing the change, and shall not include any costs 
that already have been reimbursed or that have been separately claimed. 
All indirect costs included in the request shall be properly allocable 
to the change in accordance with applicable acquisition regulations.
    (b) In accordance with 10 U.S.C. 2410(a), any request for equitable 
adjustment to contract terms that exceeds the simplified acquisition 
threshold shall bear, at the time of submission, the following 
certificate executed by an individual authorized to certify the request 
on behalf of the Contractor:
    I certify that the request is made in good faith, and that the 
supporting data are accurate and complete to the best of my knowledge 
and belief.

________________________________________________________________________
(Official's Name)
________________________________________________________________________
(Title)

    (c) The certification in paragraph (b) of this clause requires full 
disclosure of all relevant facts, including--
    (1) Certified cost or pricing data if required in accordance with 
subsection 15.403-4 of the Federal Acquisition Regulation (FAR); and
    (2) Data other than certified cost or pricing data, in accordance 
with subsection 15.403-3 of the FAR, including actual cost data and data 
to support any estimated costs, even if certified cost or pricing data 
are not required.
    (d) The certification requirement in paragraph (b) of this clause 
does not apply to--
    (1) Requests for routine contract payments; for example, requests 
for payment for accepted supplies and services, routine vouchers under a 
cost-reimbursement type contract, or progress payment invoices; or
    (2) Final adjustment under an incentive provision of the contract.

[[Page 647]]

                             (End of clause)

[63 FR 11549, Mar. 9, 1998, as amended at 66 FR 49865, Oct. 1, 2001; 77 
FR 76941, Dec. 31, 2012]



252.244-7000  Subcontracts for Commercial Items.

    As prescribed in 244.403, use the following clause:

              Subcontracts for Commercial Items (JAN 2021)

    (a) The Contractor is not required to flow down the terms of any 
Defense Federal Acquisition Regulation Supplement (DFARS) clause in 
subcontracts for commercial items at any tier under this contract, 
unless so specified in the particular clause.
    (b) While not required, the Contractor may flow down to subcontracts 
for commercial items a minimal number of additional clauses necessary to 
satisfy its contractual obligation.
    (c)(1) In accordance with 10 U.S.C. 2380b, the Contractor shall 
treat as commercial items any items valued at less than $10,000 per item 
that were purchased by the Contractor for use in the performance of 
multiple contracts with the Department of Defense and other parties and 
are not identifiable to any particular contract when purchased.
    (2) The Contractor shall ensure that any items to be used in 
performance of this contract, that are treated as commercial items 
pursuant to paragraph (c)(1) of this clause, meet all terms and 
conditions of this contract that are applicable to commercial items in 
accordance with the clause at Federal Acquisition Regulation 52.244-6 
and paragraph (a) of this clause.
    (d) The Contractor shall include the terms of this clause, including 
this paragraph (d), in subcontracts awarded under this contract, 
including subcontracts for the acquisition of commercial items.

                             (End of clause)

[78 FR 37991, June 25, 2013, as amended at 85 FR 60921, Sept. 29, 2020; 
85 FR 65734, Oct. 16, 2020; 86 FR 3836, Jan. 15, 2021]



252.244-7001  Contractor purchasing system administration.

    Basic. As prescribed in 244.305-71 and 244.305-71(a), use the 
following clause:

      Contractor Purchasing System Administration--Basic (MAY 2014)

    (a) Definitions. As used in this clause--
    Acceptable purchasing system means a purchasing system that complies 
with the system criteria in paragraph (c) of this clause.
    Purchasing system means the Contractor's system or systems for 
purchasing and subcontracting, including make-or-buy decisions, the 
selection of vendors, analysis of quoted prices, negotiation of prices 
with vendors, placing and administering of orders, and expediting 
delivery of materials.
    Significant deficiency means a shortcoming in the system that 
materially affects the ability of officials of the Department of Defense 
to rely upon information produced by the system that is needed for 
management purposes.
    (b) General. The Contractor shall establish and maintain an 
acceptable purchasing system. Failure to maintain an acceptable 
purchasing system, as defined in this clause, may result in disapproval 
of the system by the Contracting Officer and/or withholding of payments.
    (c) System criteria. The Contractor's purchasing system shall--
    (1) Have an adequate system description including policies, 
procedures, and purchasing practices that comply with the Federal 
Acquisition Regulation (FAR) and the Defense Federal Acquisition 
Regulation Supplement (DFARS);
    (2) Ensure that all applicable purchase orders and subcontracts 
contain all flowdown clauses, including terms and conditions and any 
other clauses needed to carry out the requirements of the prime 
contract;
    (3) Maintain an organization plan that establishes clear lines of 
authority and responsibility;
    (4) Ensure all purchase orders are based on authorized requisitions 
and include a complete and accurate history of purchase transactions to 
support vendor selected, price paid, and document the subcontract/
purchase order files which are subject to Government review;
    (5) Establish and maintain adequate documentation to provide a 
complete and accurate history of purchase transactions to support 
vendors selected and prices paid;
    (6) Apply a consistent make-or-buy policy that is in the best 
interest of the Government;
    (7) Use competitive sourcing to the maximum extent practicable, and 
ensure debarred or suspended contractors are properly excluded from 
contract award;
    (8) Evaluate price, quality, delivery, technical capabilities, and 
financial capabilities of competing vendors to ensure fair and 
reasonable prices;
    (9) Require management level justification and adequate cost or 
price analysis, as applicable, for any sole or single source award;
    (10) Perform timely and adequate cost or price analysis and 
technical evaluation for each subcontractor and supplier proposal or

[[Page 648]]

quote to ensure fair and reasonable subcontract prices;
    (11) Document negotiations in accordance with FAR 15.406-3;
    (12) Seek, take, and document economically feasible purchase 
discounts, including cash discounts, trade discounts, quantity 
discounts, rebates, freight allowances, and company-wide volume 
discounts;
    (13) Ensure proper type of contract selection and prohibit issuance 
of cost-plus-a-percentage-of-cost subcontracts;
    (14) Maintain subcontract surveillance to ensure timely delivery of 
an acceptable product and procedures to notify the Government of 
potential subcontract problems that may impact delivery, quantity, or 
price;
    (15) Document and justify reasons for subcontract changes that 
affect cost or price;
    (16) Notify the Government of the award of all subcontracts that 
contain the FAR and DFARS flowdown clauses that allow for Government 
audit of those subcontracts, and ensure the performance of audits of 
those subcontracts;
    (17) Enforce adequate policies on conflict of interest, gifts, and 
gratuities, including the requirements of the 41 U.S.C. chapter 87, 
Kickbacks;
    (18) Perform internal audits or management reviews, training, and 
maintain policies and procedures for the purchasing department to ensure 
the integrity of the purchasing system;
    (19) Establish and maintain policies and procedures to ensure 
purchase orders and subcontracts contain mandatory and applicable 
flowdown clauses, as required by the FAR and DFARS, including terms and 
conditions required by the prime contract and any clauses required to 
carry out the requirements of the prime contract, including the 
requirements of 252.246-7007, Contractor Counterfeit Electronic Part 
Detection and Avoidance System, if applicable;
    (20) Provide for an organizational and administrative structure that 
ensures effective and efficient procurement of required quality 
materials and parts at the best value from responsible and reliable 
sources, including the requirements of 252.246-7007, Contractor 
Counterfeit Electronic Part Detection and Avoidance System, if 
applicable;
    (21) Establish and maintain selection processes to ensure the most 
responsive and responsible sources for furnishing required quality parts 
and materials and to promote competitive sourcing among dependable 
suppliers so that purchases are reasonably priced and from sources that 
meet contractor quality requirements, including the requirements of 
252.246-7007, Contractor Counterfeit Electronic Part Detection and 
Avoidance System, and the item marking requirements of 252.211-7003, 
Item Unique Identification and Valuation, if applicable;
    (22) Establish and maintain procedures to ensure performance of 
adequate price or cost analysis on purchasing actions;
    (23) Establish and maintain procedures to ensure that proper types 
of subcontracts are selected, and that there are controls over 
subcontracting, including oversight and surveillance of subcontracted 
effort; and
    (24) Establish and maintain procedures to timely notify the 
Contracting Officer, in writing, if--
    (i) The Contractor changes the amount of subcontract effort after 
award such that it exceeds 70 percent of the total cost of the work to 
be performed under the contract, task order, or delivery order. The 
notification shall identify the revised cost of the subcontract effort 
and shall include verification that the Contractor will provide added 
value; or
    (ii) Any subcontractor changes the amount of lower-tier 
subcontractor effort after award such that it exceeds 70 percent of the 
total cost of the work to be performed under its subcontract. The 
notification shall identify the revised cost of the subcontract effort 
and shall include verification that the subcontractor will provide added 
value as related to the work to be performed by the lower-tier 
subcontractor(s).
    (d) Significant deficiencies. (1) The Contracting Officer will 
provide notification of initial determination to the Contractor, in 
writing, of any significant deficiencies. The initial determination will 
describe the deficiency in sufficient detail to allow the Contractor to 
understand the deficiency.
    (2) The Contractor shall respond within 30 days to a written initial 
determination from the Contracting Officer that identifies significant 
deficiencies in the Contractor's purchasing system. If the Contractor 
disagrees with the initial determination, the Contractor shall state, in 
writing, its rationale for disagreeing.
    (3) The Contracting Officer will evaluate the Contractor's response 
and notify the Contractor, in writing, of the Contracting Officer's 
final determination concerning--
    (i) Remaining significant deficiencies;
    (ii) The adequacy of any proposed or completed corrective action; 
and
    (iii) System disapproval, if the Contracting Officer determines that 
one or more significant deficiencies remain.
    (e) If the Contractor receives the Contracting Officer's final 
determination of significant deficiencies, the Contractor shall, within 
45 days of receipt of the final determination, either correct the 
significant deficiencies or submit an acceptable corrective action plan 
showing milestones and actions to eliminate the deficiencies.
    (f) Withholding payments. If the Contracting Officer makes a final 
determination to disapprove the Contractor's purchasing system, and the 
contract includes the clause at

[[Page 649]]

252.242-7005, Contractor Business Systems, the Contracting Officer will 
withhold payments in accordance with that clause.

    Alternate I. As prescribed in 244.305-71 and 244.305-71(b), use the 
following clause, which amends paragraph (c) of the basic clause by 
deleting paragraphs (c)(1) through (c)(18) and (c)(22) through (c)(24), 
and revising and renumbering paragraphs (c)(19) through (c)(21) of the 
basic clause:

   Contractor Purchasing System Administration--Alternate I (MAY 2014)

    The following paragraphs (a) through (f) of this clause do not apply 
unless the Contractor is subject to the Cost Accounting Standards under 
41 U.S.C. chapter 15, as implemented in regulations found at 48 CFR 
9903.201-1.
    (a) Definitions. As used in this clause--
    Acceptable purchasing system means a purchasing system that complies 
with the system criteria in paragraph (c) of this clause.
    Purchasing system means the Contractor's system or systems for 
purchasing and subcontracting, including make-or-buy decisions, the 
selection of vendors, analysis of quoted prices, negotiation of prices 
with vendors, placing and administering of orders, and expediting 
delivery of materials.
    Significant deficiency means a shortcoming in the system that 
materially affects the ability of officials of the Department of Defense 
to rely upon information produced by the system that is needed for 
management purposes.
    (b) Acceptable purchasing system. The Contractor shall establish and 
maintain an acceptable purchasing system. Failure to maintain an 
acceptable purchasing system, as defined in this clause, may result in 
disapproval of the system by the Contracting Officer and/or withholding 
of payments.
    (c) System criteria. The Contractor's purchasing system shall--
    (1) Establish and maintain policies and procedures to ensure 
purchase orders and subcontracts contain mandatory and applicable 
flowdown clauses, as required by the FAR and DFARS, including terms and 
conditions required by the prime contract and any clauses required to 
carry out the requirements of the prime contract, including the 
requirements of 252.246-7007, Contractor Counterfeit Electronic Part 
Detection and Avoidance System;
    (2) Provide for an organizational and administrative structure that 
ensures effective and efficient procurement of required quality 
materials and parts at the best value from responsible and reliable 
sources, including the requirements of 252.246-7007, Contractor 
Counterfeit Electronic Part Detection and Avoidance System, and, if 
applicable, the item marking requirements of 252.211-7003, Item Unique 
Identification and Valuation; and
    (3) Establish and maintain selection processes to ensure the most 
responsive and responsible sources for furnishing required quality parts 
and materials and to promote competitive sourcing among dependable 
suppliers so that purchases are from sources that meet contractor 
quality requirements, including the requirements of 252.246-7007, 
Contractor Counterfeit Electronic Part Detection and Avoidance System.
    (d) Significant deficiencies. (1) The Contracting Officer will 
provide notification of initial determination to the Contractor, in 
writing, of any significant deficiencies. The initial determination will 
describe the deficiency in sufficient detail to allow the Contractor to 
understand the deficiency.
    (2) The Contractor shall respond within 30 days to a written initial 
determination from the Contracting Officer that identifies significant 
deficiencies in the Contractor's purchasing system. If the Contractor 
disagrees with the initial determination, the Contractor shall state, in 
writing, its rationale for disagreeing.
    (3) The Contracting Officer will evaluate the Contractor's response 
and notify the Contractor, in writing, of the Contracting Officer's 
final determination concerning--
    (i) Remaining significant deficiencies;
    (ii) The adequacy of any proposed or completed corrective action; 
and
    (iii) System disapproval, if the Contracting Officer determines that 
one or more significant deficiencies remain.
    (e) If the Contractor receives the Contracting Officer's final 
determination of significant deficiencies, the Contractor shall, within 
45 days of receipt of the final determination, either correct the 
significant deficiencies or submit an acceptable corrective action plan 
showing milestones and actions to eliminate the deficiencies.
    (f) Withholding payments. If the Contracting Officer makes a final 
determination to disapprove the Contractor's purchasing system, and the 
contract includes the clause at 252.242-7005, Contractor Business 
Systems, the Contracting Officer will withhold payments in accordance 
with that clause.

                             (End of clause)

[76 FR 28877, May 18, 2011, as amended at 77 FR 35882, June 15, 2012; 79 
FR 26107, May 6, 2014; 80 FR 36900, June 26, 2015]



252.245-7000  Government-furnished mapping, charting, and geodesy 
property.

    As prescribed in 245.107(2), use the following clause:

[[Page 650]]

 Government-Furnished Mapping, Charting, and Geodesy Property 
 (APR 2012)

    (a) Definition--Mapping, charting, and geodesy (MC&G) property means 
geodetic, geomagnetic, gravimetric, aeronautical, topographic, 
hydrographic, cultural, and toponymic data presented in the form of 
topographic, planimetric, relief, or thematic maps and graphics; 
nautical and aeronautical charts and publications; and in simulated, 
photographic, digital, or computerized formats.
    (b) The Contractor shall not duplicate, copy, or otherwise reproduce 
MC&G property for purposes other than those necessary for performance of 
the contract.
    (c) At the completion of performance of the contract, the 
Contractor, as directed by the Contracting Officer, shall either destroy 
or return to the Government all Government-furnished MC&G property not 
consumed in the performance of this contract.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 74 FR 37648, July 29, 2009; 
76 FR 6006, Feb. 2, 2011; 77 FR 23632, Apr. 20, 2012; 85 FR 53683, Aug. 
31, 2020]



252.245-7001  Tagging, labeling, and marking of government-furnished
property

    As prescribed in 245.107(3), use the following clause:

  Tagging, Labeling, and Marking of Government-furnished Property (APR 
                                  2012)

    (a) Definitions. As used in this clause--
    Government-furnished property is defined in the clause at FAR 
52.245-1, Government Property.
    Serially-managed item means an item designated by DoD to be uniquely 
tracked, controlled, or managed in maintenance, repair, and/or supply 
systems by means of its serial number.
    (b) The Contractor shall tag, label, or mark Government-furnished 
property items identified in the contract as subject to serialized item 
management (serially-managed items).
    (c) The Contractor is not required to tag, label, or mark 
Government-furnished property previously tagged, labeled, or marked.

                             (End of clause)

[76 FR 6006, Feb. 2, 2011, as amended at 77 FR 23632, Apr. 20, 2012; 85 
FR 53683, Aug. 31, 2020]



252.245-7002  Reporting Loss of Government Property.

    As prescribed in 245.107(4), use the following clause:

            Reporting Loss of Government Property (JAN 2021)

    (a) Definitions. As used in this clause--
    Government property is defined in the clause at FAR 52.245-1, 
Government Property.
    Loss of Government property means unintended, unforeseen, or 
accidental loss, damage, or destruction of Government property that 
reduces the Government's expected economic benefits of the property. 
Loss of Government property does not include purposeful destructive 
testing, obsolescence, normal wear and tear, or manufacturing defects. 
Loss of Government property includes, but is not limited to--
    (1) Items that cannot be found after a reasonable search;
    (2) Theft;
    (3) Damage resulting in unexpected harm to property requiring repair 
to restore the item to usable condition; or
    (4) Destruction resulting from incidents that render the item 
useless for its intended purpose or beyond economical repair.
    Unit acquisition cost means--
    (1) For Government-furnished property, the dollar value assigned by 
the Government and identified in the contract; and
    (2) For Contractor-acquired property, the cost derived from the 
Contractor's records that reflect consistently applied, generally 
acceptable accounting principles.
    (b) Reporting loss of Government property. (1) The Contractor shall 
use the property loss function in the Government-Furnished Property 
(GFP) module of the Procurement Integrated Enterprise Environment (PIEE) 
for reporting loss of Government property. Reporting value shall be at 
unit acquisition cost. Current PIEE users can access the GFP module by 
logging into their account. New users may register for access and obtain 
training on the PIEE home page at https://piee.eb.mil/piee-landing.
    (2) Unless otherwise provided for in this contract, the requirements 
of paragraph (b)(1) of this clause do not apply to normal and reasonable 
inventory adjustments, i.e., losses of low-risk consumable material such 
as common hardware, as agreed to by the Contractor and the Government 
Property Administrator. Such losses are typically a product of normal 
process variation. The Contractor shall ensure that its property 
management system provides adequate management control measures, e.g., 
statistical process controls, as a means of managing such variation.
    (3) The Contractor shall report losses of Government property 
outside normal process variation, e.g., losses due to--

[[Page 651]]

    (i) Theft;
    (ii) Inadequate storage;
    (iii) Lack of physical security; or
    (iv) ``Acts of God.''
    (4) This reporting requirement does not change any liability 
provisions or other reporting requirements that may exist under this 
contract.

                             (End of clause)

[76 FR 6008, Feb. 2, 2011, as amended at 77 FR 23632, Apr. 20, 2012; 82 
FR 61481, Dec. 28, 2017; 85 FR 53683, Aug. 31, 2020; 86 FR 3839, Jan. 
15, 2021]



252.245-7003  Contractor Property Management System Administration.

    As prescribed in 245.107(5), insert the following clause:

     Contractor Property Management System Administration (APR 2012)

    (a) Definitions. As used in this clause--
    Acceptable property management system means a property system that 
complies with the system criteria in paragraph (c) of this clause.
    Property management system means the Contractor's system or systems 
for managing and controlling Government property.
    Significant deficiency means a shortcoming in the system that 
materially affects the ability of officials of the Department of Defense 
to rely upon information produced by the system that is needed for 
management purposes.
    (b) General. The Contractor shall establish and maintain an 
acceptable property management system. Failure to maintain an acceptable 
property management system, as defined in this clause, may result in 
disapproval of the system by the Contracting Officer and/or withholding 
of payments.
    (c) System criteria. The Contractor's property management system 
shall be in accordance with paragraph (f) of the contract clause at 
Federal Acquisition Regulation 52.245-1.
    (d) Significant deficiencies. (1) The Contracting Officer will 
provide an initial determination to the Contractor, in writing, of any 
significant deficiencies. The initial determination will describe the 
deficiency in sufficient detail to allow the Contractor to understand 
the deficiency.
    (2) The Contractor shall respond within 30 days to a written initial 
determination from the Contracting Officer that identifies significant 
deficiencies in the Contractor's property management system. If the 
Contractor disagrees with the initial determination, the Contractor 
shall state, in writing, its rationale for disagreeing.
    (3) The Contracting Officer will evaluate the Contractor's response 
and notify the Contractor, in writing, of the Contracting Officer's 
final determination concerning--
    (i) Remaining significant deficiencies;
    (ii) The adequacy of any proposed or completed corrective action; 
and
    (iii) System disapproval, if the Contracting Officer determines that 
one or more significant deficiencies remain.
    (e) If the Contractor receives the Contracting Officer's final 
determination of significant deficiencies, the Contractor shall, within 
45 days of receipt of the final determination, either correct the 
significant deficiencies or submit an acceptable corrective action plan 
showing milestones and actions to eliminate the significant 
deficiencies.
    (f) Withholding payments. If the Contracting Officer makes a final 
determination to disapprove the Contractor's property management system, 
and the contract includes the clause at 252.242-7005, Contractor 
Business Systems, the Contracting Officer will withhold payments in 
accordance with that clause.

                             (End of clause)

[76 FR 28878, May 18, 2011, as amended at 77 FR 11366, Feb. 24, 2012; 77 
FR 23632, Apr. 20, 2012; 85 FR 53683, Aug. 31, 2020]



252.245-7004  Reporting, Reutilization, and Disposal.

    As prescribed in 245.107(5), use the following clause:

            REPORTING, REUTILIZATION, AND DISPOSAL (DEC 2017)

    (a) Definitions. As used in this clause--
    (1) Demilitarization means the act of eliminating the functional 
capabilities and inherent military design features from DoD personal 
property. Methods and degree range from removal and destruction of 
critical features to total destruction by cutting, tearing, crushing, 
mangling, shredding, melting, burning, etc.
    (2) Export-controlled items means items subject to the Export 
Administration Regulations (EAR) (15 CFR parts 730-774) or the 
International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). 
The term includes--
    (i) Defense items, defined in the Arms Export Control Act, 22 U.S.C. 
2778(j)(4)(A), as defense articles, defense services, and related 
technical data, etc.; and
    (ii) Items, defined in the EAR as ``commodities,'' ``software,'' and 
``technology,'' terms that are also defined in the EAR, 15 CFR 772.1.
    (3) Ineligible transferees means individuals, entities, or 
countries--

[[Page 652]]

    (i) Excluded from Federal programs by the General Services 
Administration as identified in the System for Award Management 
Exclusions located at https://www.acquisition.gov;
    (ii) Delinquent on obligations to the U.S. Government under surplus 
sales contracts;
    (iii) Designated by the Department of Defense as ineligible, 
debarred, or suspended from defense contracts; or
    (iv) Subject to denial, debarment, or other sanctions under export 
control laws and related laws and regulations, and orders administered 
by the Department of State, the Department of Commerce, the Department 
of Homeland Security, or the Department of the Treasury.
    (4) Scrap means property that has no value except for its basic 
material content. For purposes of demilitarization, scrap is defined as 
recyclable waste and discarded materials derived from items that have 
been rendered useless beyond repair, rehabilitation, or restoration such 
that the item's original identity, utility, form, fit, and function have 
been destroyed. Items can be classified as scrap if processed by 
cutting, tearing, crushing, mangling, shredding, or melting. Intact or 
recognizable components and parts are not ``scrap.''
    (5) Serviceable or usable property means property with potential for 
reutilization or sale ``as is'' or with minor repairs or alterations.
    (b) Inventory disposal schedules. Unless disposition instructions 
are otherwise included in this contract, the Contractor shall complete 
SF 1428, Inventory Schedule B, within the Plant Clearance Automated 
Reutilization Screening System (PCARSS). Information on PCARSS can be 
obtained from the plant clearance officer and at http://www.dcma.mil/
WBT/PCARSS/
    (1) The SF 1428 shall contain the following:
    (i) If known, the applicable Federal Supply Code (FSC) for all 
items, except items in scrap condition.
    (ii) If known, the manufacturer name for all aircraft components 
under Federal Supply Group (FSG) 16 or 17 and FSCs 2620, 2810, 2915, 
2925, 2935, 2945, 2995, 4920, 5821, 5826, 5841, 6340, and 6615.
    (iii) The manufacturer name, make, model number, model year, and 
serial number for all aircraft under FSCs 1510 and 1520.
    (iv) Appropriate Federal Condition Codes. See Appendix 2 of DLM 
4000.25-2, Military Standard Transaction Reporting and Accounting 
Procedures (MILSTRAP) manual, edition in effect as of the date of this 
contract. Information on Federal Condition Codes can be obtained at 
http://www.dla.mil/HQ/InformationOperations/DLMS/elibrary/manuals/
MILSTRAP/.
    (2) If the schedules are acceptable, the plant clearance officer 
shall complete and send the Contractor a DD Form 1637, Notice of 
Acceptance of Inventory.
    (c) Proceeds from sales of surplus property. Unless otherwise 
provided in the contract, the proceeds of any sale, purchase, or 
retention shall be--
    (1) Forwarded to the Contracting Officer;
    (2) Credited to the Government as part of the settlement agreement;
    (3) Credited to the price or cost of the contract; or
    (4) Applied as otherwise directed by the Contracting Officer.
    (d) Demilitarization, mutilation, and destruction. If 
demilitarization, mutilation, or destruction of contractor inventory is 
required, the Contractor shall demilitarize, mutilate, or destroy 
contractor inventory, in accordance with the terms and conditions of the 
contract and consistent with Defense Demilitarization Manual, DoDM 
4160.28-M, edition in effect as of the date of this contract. The plant 
clearance officer may authorize the purchaser to demilitarize, mutilate, 
or destroy as a condition of sale provided the property is not 
inherently dangerous to public health and safety.
    (e) Classified Contractor inventory. The Contractor shall dispose of 
classified contractor inventory in accordance with applicable security 
guides and regulations or as directed by the Contracting Officer.
    (f) Inherently dangerous Contractor inventory. Contractor inventory 
dangerous to public health or safety shall not be disposed of unless 
rendered innocuous or until adequate safeguards are provided.
    (g) Contractor inventory located in foreign countries. Consistent 
with contract terms and conditions, property disposition shall be in 
accordance with foreign and U.S. laws and regulations, including laws 
and regulations involving export controls, host nation requirements, 
Final Governing Standards, and Government-to-Government agreements. The 
Contractor's responsibility to comply with all applicable laws and 
regulations regarding export-controlled items exists independent of, and 
is not established or limited by, the information provided by this 
clause.
    (h) Disposal of scrap. (1) Contractor with scrap procedures. (i) The 
Contractor shall include within its property management procedure, a 
process for the accountability and management of Government-owned scrap. 
The process shall, at a minimum, provide for the effective and efficient 
disposition of scrap, including sales to scrap dealers, so as to 
minimize costs, maximize sales proceeds, and, contain the necessary 
internal controls for mitigating the improper release of non-scrap 
property.
    (ii) The Contractor may commingle Government and contractor-owned 
scrap and provide routine disposal of scrap, with plant clearance 
officer concurrence, when determined to be effective and efficient.

[[Page 653]]

    (2) Scrap warranty. The plant clearance officer may require the 
Contractor to secure from scrap buyers a DD Form 1639, Scrap Warranty.
    (i) Sale of surplus Contractor inventory. (1) The Contractor shall 
conduct sales of contractor inventory (both useable property and scrap) 
in accordance with the requirements of this contract and plant clearance 
officer direction.
    (2) Any sales contracts or other documents transferring title shall 
include the following statement:
    ``The Purchaser certifies that the property covered by this contract 
will be used in (name of country). In the event of resale or export by 
the Purchaser of any of the property, the Purchaser agrees to obtain the 
appropriate U.S. and foreign export or re-export license approval.''
    (j) Restrictions on purchase or retention of Contractor inventory. 
(1) The Contractor may not knowingly sell the inventory to any person or 
that person's agent, employee, or household member if that person--
    (i) Is a civilian employee of the DoD or the U.S. Coast Guard;
    (ii) Is a member of the armed forces of the United States, including 
the U.S. Coast Guard; or
    (iii) Has any functional or supervisory responsibilities for or 
within the DoD's property disposal/disposition or plant clearance 
programs or for the disposal of contractor inventory.
    (2) The Contractor may conduct Internet-based sales, to include use 
of a third party.
    (3) If the Contractor wishes to bid on the sale, the Contractor or 
its employees shall submit bids to the plant clearance officer prior to 
soliciting bids from other prospective bidders.
    (4) The Contractor shall solicit a sufficient number of bidders to 
obtain adequate competition. Informal bid procedures shall be used, 
unless the plant clearance officer directs otherwise. The Contractor 
shall include in its invitation for bids, the sales terms and conditions 
provided by the plant clearance officer.
    (5) The Contractor shall solicit bids at least 15 calendar days 
before bid opening to allow adequate opportunity to inspect the property 
and prepare bids.
    (6) For large sales, the Contractor may use summary lists of items 
offered as bid sheets with detailed descriptions attached.
    (7) In addition to mailing or delivering notice of the proposed sale 
to prospective bidders, the Contractor may (when the results are 
expected to justify the additional expense) display a notice of the 
proposed sale in appropriate public places, e.g., publish a sales notice 
on the Internet in appropriate trade journals or magazines and local 
newspapers.
    (8) The plant clearance officer or representative will witness the 
bid opening. The Contractor shall submit, either electronically or 
manually, two copies of the bid abstract.
    (9) The following terms and conditions shall be included in sales 
contracts involving the demilitarization, mutilation, or destruction of 
property:
    (i) Demilitarization, mutilation, or destruction on Contractor or 
subcontractor premises. Item(s) __ require demilitarization, mutilation, 
or destruction by the Purchaser. Insert item number(s) and specific 
demilitarization, mutilation, or destruction requirements for item(s) 
shown in Defense Demilitarization Manual, DoDM 4160.28-M, edition in 
effect as of the date of this contract. Demilitarization shall be 
witnessed and verified by a Government representative using DRMS Form 
145 or equivalent.
    (ii) Demilitarization, mutilation, or destruction off Contractor or 
subcontractor premises.
    (A) Item(s) __ require demilitarization, mutilation, or destruction 
by the Purchaser. Insert item number(s) and specific demilitarization, 
mutilation, or destruction requirements for item(s) shown in Defense 
Demilitarization Manual, DoDM 4160.28-M, edition in effect as of the 
date of this contract. Demilitarization shall be witnessed and verified 
by a Government representative using DRMS Form 145 or equivalent.
    (B) Property requiring demilitarization shall not be removed, and 
title shall not pass to the Purchaser, until demilitarization has been 
accomplished and verified by a Government representative. 
Demilitarization will be accomplished as specified in the sales 
contract. Demilitarization shall be witnessed and verified by a 
Government representative using DRMS Form 145 or equivalent.
    (C) The Purchaser agrees to assume all costs incident to the 
demilitarization and to restore the working area to its present 
condition after removing the demilitarized property.
    (iii) Failure to demilitarize. If the Purchaser fails to 
demilitarize, mutilate, or destroy the property as specified in the 
contract, the Contractor may, upon giving 10 days written notice from 
date of mailing to the Purchaser--
    (A) Repossess, demilitarize, and return the property to the 
Purchaser, in which case the Purchaser hereby agrees to pay to the 
Contractor, prior to the return of the property, all costs incurred by 
the Contractor in repossessing, demilitarizing, and returning the 
property;
    (B) Repossess, demilitarize, and resell the property, and charge the 
defaulting Purchaser with all costs incurred by the Contractor. The 
Contractor shall deduct these costs from the purchase price and refund 
the balance of the purchase price, if any, to the Purchaser. In the 
event the costs exceed the

[[Page 654]]

purchase price, the defaulting Purchaser hereby agrees to pay these 
costs to the Contractor; or
    (C) Repossess and resell the property under similar terms and 
conditions. In the event this option is exercised, the Contractor shall 
charge the defaulting Purchaser with all costs incurred by the 
Contractor. The Contractor shall deduct these costs from the original 
purchase price and refund the balance of the purchase price, if any, to 
the defaulting Purchaser. Should the excess costs to the Contractor 
exceed the purchase price, the defaulting Purchaser hereby agrees to pay 
these costs to the Contractor.

                             (End of clause)

[76 FR 52143, Aug. 19, 2011, as amended at 77 FR 23632, Apr. 20, 2012; 
78 FR 28758, May 16, 2013; 78 FR 30232, May 22, 2013; 80 FR 15912, Mar. 
26, 2015; 81 FR 65563, Sept. 23, 2016; 82 FR 61481, Dec. 28, 2017]



252.246-7000  [Reserved]



252.246-7001  Warranty of data.

    Basic. As prescribed in 246.710(1) and (1)(i), use the following 
clause:

                   Warranty of Data--Basic (MAR 2014)

    (a) Definition--Technical data has the same meaning as given in the 
clause in this contract entitled, Rights in Technical Data and Computer 
Software.
    (b) Warranty. Notwithstanding inspection and acceptance by the 
Government of technical data furnished under this contract, and 
notwithstanding any provision of this contract concerning the 
conclusiveness of acceptance, the Contractor warrants that all technical 
data delivered under this contract will at the time of delivery conform 
with the specifications and all other requirements of this contract. The 
warranty period shall extend for three years after completion of the 
delivery of the line item of data (as identified in DD Form 1423, 
Contract Data Requirements List) of which the data forms a part; or any 
longer period specified in the contract.
    (c) Contractor notification. The Contractor agrees to notify the 
Contracting Officer in writing immediately of any breach of the above 
warranty which the Contractor discovers within the warranty period.
    (d) Remedies. The following remedies shall apply to all breaches of 
the warranty, whether the Contractor notifies the Contracting Officer in 
accordance with paragraph (c) of this clause or if the Government 
notifies the Contractor of the breach in writing within the warranty 
period:
    (1) Within a reasonable time after such notification, the 
Contracting Officer may--
    (i) By written notice, direct the Contractor to correct or replace 
at the Contractor's expense the nonconforming technical data promptly; 
or
    (ii) If the Contracting Officer determines that the Government no 
longer has a requirement for correction or replacement of the data, or 
that the data can be more reasonably corrected by the Government, inform 
the Contractor by written notice that the Government elects a price or 
fee adjustment instead of correction or replacement.
    (2) If the Contractor refuses or fails to comply with a direction 
under paragraph (d) (1)(i) of this clause, the Contracting Officer may, 
within a reasonable time of the refusal or failure--
    (i) By contract or otherwise, correct or replace the nonconforming 
technical data and charge the cost to the Contractor; or
    (ii) Elect a price or fee adjustment instead of correction or 
replacement.
    (3) The remedies in this clause represent the only way to enforce 
the Government's rights under this clause.
    (e) The provisions of this clause apply anew to that portion of any 
corrected or replaced technical data furnished to the Government under 
paragraph (d)(1)(i) of this clause.

                             (End of clause)

    Alternate I. As prescribed in 246.710(1) and (1)(ii), use the 
following clause, which uses a different paragraph (d)(3) than the basic 
clause:

                Warranty of Data--Alternate I (MAR 2014)

    (a) Definition. Technical data has the same meaning as given in the 
clause in this contract entitled ``Rights in Technical Data and Computer 
Software.''
    (b) Warranty. Notwithstanding inspection and acceptance by the 
Government of technical data furnished under this contract, and 
notwithstanding any provision of this contract concerning the 
conclusiveness of acceptance, the Contractor warrants that all technical 
data delivered under this contract will at the time of delivery conform 
with the specifications and all other requirements of this contract. The 
warranty period shall extend for three years after completion of the 
delivery of the line item of data (as identified in DD Form 1423, 
Contract Data Requirements List) of which the data forms a part; or any 
longer period specified in the contract.
    (c) Contractor Notification. The Contractor agrees to notify the 
Contracting Officer in writing immediately of any breach of the above 
warranty which the Contractor discovers within the warranty period.

[[Page 655]]

    (d) Remedies. The following remedies shall apply to all breaches of 
the warranty, whether the Contractor notifies the Contracting Officer in 
accordance with paragraph (c) of this clause or if the Government 
notifies the Contractor of the breach in writing within the warranty 
period:
    (1) Within a reasonable time after such notification, the 
Contracting Officer may--
    (i) By written notice, direct the Contractor to correct or replace 
at the Contractor's expense the nonconforming technical data promptly; 
or
    (ii) If the Contracting Officer determines that the Government no 
longer has a requirement for correction or replacement of the data, or 
that the data can be more reasonably corrected by the Government, inform 
the Contractor by written notice that the Government elects a price or 
fee adjustment instead of correction or replacement.
    (2) If the Contractor refuses or fails to comply with a direction 
under paragraph (d)(1)(i) of this clause, the Contracting Officer may, 
within a reasonable time of the refusal or failure--
    (i) By contract or otherwise, correct or replace the nonconforming 
technical data and charge the cost to the Contractor; or
    (ii) Elect a price or fee adjustment instead of correction or 
replacement.]
    (3) In addition to the remedies under paragraphs (d)(1) and (2) of 
this clause, the Contractor shall be liable to the Government for all 
damages to the Government as a result of the breach of warranty.
    (i) The additional liability under paragraph (d)(3) of this clause 
shall not exceed 75 percent of the target profit.
    (ii) If the breach of the warranty is with respect to the data 
supplied by an equipment subcontractor, the limit of the Contractor's 
liability shall be--
    (A) Ten percent of the total subcontract price in a firm-fixed-price 
subcontract;
    (B) Seventy-five percent of the total subcontract fee in a cost-
plus-fixed-fee or cost-plus-award-fee subcontract; or
    (C) Seventy-five percent of the total subcontract target profit or 
fee in a fixed-price-incentive or cost-plus-incentive subcontract.
    (iii) Damages due the Government under the provisions of this 
warranty are not an allowable cost.
    (iv) The additional liability in paragraph (d)(3) of this clause 
shall not apply--
    (A) With respect to the requirements for product drawings and 
associated lists, special inspection equipment (SIE) drawings and 
associated lists, special tooling drawings and associated lists, SIE 
operating instructions, SIE descriptive documentation, and SIE 
calibration procedures under MIL-T-31000, General Specification for 
Technical Data Packages, Amendment 1, or MIL-T-47500, General 
Specification for Technical Data Packages, Supp 1, or drawings and 
associated lists under level 2 or level 3 of MIL-D-1000A, Engineering 
and Associated Data Drawings, or DoD-D-1000B, Engineering and Associated 
Lists Drawings (Inactive for New Design) Amendment 4, Notice 1; or 
drawings and associated lists under category E or I of MIL-D-1000, 
Engineering and Associated Lists Drawings, provided that the data 
furnished by the Contractor was current, accurate at time of submission, 
and did not involve a significant omission of data necessary to comply 
with the requirements; or
    (B) To defects the Contractor discovers and gives written notice to 
the Government before the Government discovers the error.
    (e) The provisions of this clause apply anew to that portion of any 
corrected or replaced technical data furnished to the Government under 
paragraph (d)(1)(i) of this clause.

                             (End of clause)

    Alternate II. As prescribed in 246.710(1) and (1)(iii), use the 
following clause, which uses a different paragraph (d)(3) than the basic 
clause:

                Warranty of Data--Alternate II (MAR 2014)

    (a) Definition. Technical data has the same meaning as given in the 
clause in this contract entitled ``Rights in Technical Data and Computer 
Software.''
    (b) Warranty. Notwithstanding inspection and acceptance by the 
Government of technical data furnished under this contract, and 
notwithstanding any provision of this contract concerning the 
conclusiveness of acceptance, the Contractor warrants that all technical 
data delivered under this contract will at the time of delivery conform 
with the specifications and all other requirements of this contract. The 
warranty period shall extend for three years after completion of the 
delivery of the line item of data (as identified in DD Form 1423, 
Contract Data Requirements List) of which the data forms a part; or any 
longer period specified in the contract.
    (c) Contractor Notification. The Contractor agrees to notify the 
Contracting Officer in writing immediately of any breach of the above 
warranty which the Contractor discovers within the warranty period.
    (d) Remedies. The following remedies shall apply to all breaches of 
the warranty, whether the Contractor notifies the Contracting Officer in 
accordance with paragraph (c) of this clause or if the Government 
notifies the Contractor of the breach in writing within the warranty 
period:
    (1) Within a reasonable time after such notification, the 
Contracting Officer may--

[[Page 656]]

    (i) By written notice, direct the Contractor to correct or replace 
at the Contractor's expense the nonconforming technical data promptly; 
or
    (ii) If the Contracting Officer determines that the Government no 
longer has a requirement for correction or replacement of the data, or 
that the data can be more reasonably corrected by the Government, inform 
the Contractor by written notice that the Government elects a price or 
fee adjustment instead of correction or replacement.
    (2) If the Contractor refuses or fails to comply with a direction 
under paragraph (d)(1)(i) of this clause, the Contracting Officer may, 
within a reasonable time of the refusal or failure--
    (i) By contract or otherwise, correct or replace the nonconforming 
technical data and charge the cost to the Contractor; or
    (ii) Elect a price or fee adjustment instead of correction or 
replacement.
    (3) In addition to the remedies under paragraphs (d)(1) and (2) of 
this clause, the Contractor shall be liable to the Government for all 
damages to the Government as a result of the breach of the warranty.
    (i) The additional liability under paragraph (d)(3) of this clause 
shall not exceed ten percent of the total contract price.
    (ii) If the breach of the warranty is with respect to the data 
supplied by an equipment subcontractor, the limit of the Contractor's 
liability shall be--
    (A) Ten percent of the total subcontract price in a firm[-]fixed[-
]price subcontract;
    (B) Seventy-five percent of the total subcontract fee in a cost-
plus-fixed-fee or cost-plus-award-fee subcontract; or
    (C) Seventy-five percent of the total subcontract target profit or 
fee in a fixed-price-incentive or cost-plus-incentive subcontract.
    (iii) The additional liability specified in paragraph (d)(3) of this 
clause shall not apply--
    (A) With respect to the requirements for product drawings and 
associated lists, special inspection equipment (SIE) drawings and 
associated lists, special tooling drawings and associated lists, SIE 
operating instructions, SIE descriptive documentation, and SIE 
calibration procedures under MIL-T-31000, General Specification for 
Technical Data Packages, Amendment 1, or MIL-T-47500, General 
Specification for Technical Data Packages, Supp 1, or drawings and 
associated lists under level 2 or level 3 of MIL-D-1000A, Engineering 
and Associated Data Drawings, or DoD-D-1000B, Engineering and Associated 
Lists Drawings (Inactive for New Design) Amendment 4, Notice 1; or 
drawings and associated lists under category E or I of MIL-D-1000, 
Engineering and Associated Lists Drawings, provided that the data 
furnished by the Contractor was current, accurate at time of submission, 
and did not involve a significant omission of data necessary to comply 
with the requirements; or
    (B) To defects the Contractor discovers and gives written notice to 
the Government before the Government discovers the error.
    (e) The provisions of this clause apply anew to that portion of any 
corrected or replaced technical data furnished to the Government under 
paragraph (d)(1)(i) of this clause.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 79 FR 17449, Mar. 28, 2014; 
80 FR 36900, June 26, 2015]



252.246-7002  Warranty of construction (Germany).

    As prescribed in 246.710(2), use the following clause:

              Warranty of Construction (Germany) (JUN 1997)

    (a) In addition to any other representations in this contract, the 
Contractor warrants, except as provided in paragraph (j) of this clause, 
that the work performed under this contract conforms to the contract 
requirements and is free of any defect of equipment, material, or design 
furnished or workmanship performed by the Contractor or any 
subcontractor or supplier at any tier.
    (b) This warranty shall continue for the period(s) specified in 
Section 13, VOB, Part B, commencing from the date of final acceptance of 
the work under this contract. If the Government takes possession of any 
part of the work before final acceptance, this warranty shall continue 
for the period(s) specified in Section 13, VOB, Part B, from the date 
the Government takes possession.
    (c) The Contractor shall remedy, at the Contractor's expense, any 
failure to conform or any defect. In addition, the Contractor shall 
remedy, at the Contractor's expense, any damage to Government-owned or -
controlled real or personal property when that damage is the result of--
    (1) The Contractor's failure to conform to contract requirements; or
    (2) Any defect of equipment, material, or design furnished or 
workmanship performed.
    (d) The Contractor shall restore any work damaged in fulfilling the 
terms and conditions of this clause.
    (e) The Contracting Officer shall notify the Contractor, in writing, 
within a reasonable period of time after the discovery of any failure, 
defect, or damage.
    (f) If the Contractor fails to remedy any failure, defect, or damage 
within a reasonable period of time after receipt of notice,

[[Page 657]]

the Government shall have the right to replace, repair, or otherwise 
remedy the failure, defect, or damage at the Contractor's expense.
    (g) With respect to all warranties, express or implied, from 
subcontractors, manufacturers, or suppliers for work performed and 
materials furnished under this contract, the Contractor shall--
    (1) Obtain all warranties that would be given in normal commercial 
practice;
    (2) Require all warranties to be executed in writing, for the 
benefit of the Government, if directed by the Contracting Officer; and
    (3) Enforce all warranties for the benefit of the Government as 
directed by the Contracting Officer.
    (h) In the event the Contractor's warranty under paragraph (b) of 
this clause has expired, the Government may bring suit at its expense to 
enforce a subcontractor's, manufacturer's, or supplier's warranty.
    (i) Unless a defect is caused by the Contractor's negligence, or the 
negligence of a subcontractor or supplier at any tier, the Contractor 
shall not be liable for the repair of any defects of material or design 
furnished by the Government or for the repair of any damage resulting 
from any defeat in Government-furnished material or design.
    (j) This warranty shall not limit the Government's right under the 
Inspection clause of this contract, with respect to latent defects, 
gross mistakes, or fraud.

                             (End of clause)

[62 FR 34135, June 24, 1997; 62 FR 49306, Sept. 19, 1997; 79 FR 17450, 
Mar. 28, 2014]



252.246-7003  Notification of Potential Safety Issues.

    As prescribed in 246.370(a), use the following clause:

           Notification of Potential Safety Issues (JUN 2013)

    (a) Definitions. As used in this clause--
    Credible information means information that, considering its source 
and the surrounding circumstances, supports a reasonable belief that an 
event has occurred or will occur.
    Critical safety item means a part, subassembly, assembly, subsystem, 
installation equipment, or support equipment for a system that contains 
a characteristic, any failure, malfunction, or absence of which could 
have a safety impact.
    Safety impact means the occurrence of death, permanent total 
disability, permanent partial disability, or injury or occupational 
illness requiring hospitalization; loss of a weapon system; or property 
damage exceeding $1,000,000.
    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for the Contractor or another 
subcontractor under this contract.
    (b) The Contractor shall provide notification, in accordance with 
paragraph (c) of this clause, of--
    (1) All nonconformances for parts identified as critical safety 
items acquired by the Government under this contract; and
    (2) All nonconformances or deficiencies that may result in a safety 
impact for systems, or subsystems, assemblies, subassemblies, or parts 
integral to a system, acquired by or serviced for the Government under 
this contract.
    (c) The Contractor--
    (1) Shall notify the Administrative Contracting Officer (ACO) and 
the Procuring Contracting Officer (PCO) as soon as practicable, but not 
later than 72 hours, after discovering or acquiring credible information 
concerning nonconformances and deficiencies described in paragraph (b) 
of this clause; and
    (2) Shall provide a written notification to the ACO and the PCO 
within 5 working days that includes--
    (i) A summary of the defect or nonconformance;
    (ii) A chronology of pertinent events;
    (iii) The identification of potentially affected items to the extent 
known at the time of notification;
    (iv) A point of contact to coordinate problem analysis and 
resolution; and
    (v) Any other relevant information.
    (d) The Contractor--
    (1) Is responsible for the notification of potential safety issues 
occurring with regard to an item furnished by any subcontractor; and
    (2) Shall facilitate direct communication between the Government and 
the subcontractor as necessary.
    (e) Notification of safety issues under this clause shall be 
considered neither an admission of responsibility nor a release of 
liability for the defect or its consequences. This clause does not 
affect any right of the Government or the Contractor established 
elsewhere in this contract.
    (f)(1) The Contractor shall include the substance of this clause, 
including this paragraph (f), in subcontracts for--
    (i) Parts identified as critical safety items;
    (ii) Systems and subsystems, assemblies, and subassemblies integral 
to a system; or
    (iii) Repair, maintenance, logistics support, or overhaul services 
for systems and subsystems, assemblies, subassemblies, and parts 
integral to a system.
    (2) For those subcontracts, including subcontracts for commercial 
items, described in paragraph (f)(1) of this clause, the Contractor 
shall require the subcontractor to provide the notification required by 
paragraph (c) of this clause to--

[[Page 658]]

    (i) The Contractor or higher-tier subcontractor; and
    (ii) The ACO and the PCO, if the subcontractor is aware of the ACO 
and the PCO for the contract.

                             (End of clause)

[72 FR 2636, Jan. 22, 2007, as amended at 78 FR 37991, June 25, 2013; 83 
FR 66065, Dec. 21, 2018]



252.246-7004  Safety of Facilities, Infrastructure, and Equipment
for Military Operations.

    As prescribed in 246.270-4, use the following clause:

    Safety of Facilities, Infrastructure, and Equipment for Military 
                          Operations (OCT 2010)

    (a) Definition. Discipline Working Group, as used in this clause, 
means representatives from the DoD Components, as defined in MIL-STD-
3007F, who are responsible for the unification and maintenance of the 
Unified Facilities Criteria (UFC) documents for a particular discipline 
area.
    (b) The Contractor shall ensure, consistent with the requirements of 
the applicable inspection clause in this contract, that the facilities, 
infrastructure, and equipment acquired, constructed, installed, 
repaired, maintained, or operated under this contract comply with 
Unified Facilities Criteria (UFC) 1-200-01 for--
    (1) Fire protection;
    (2) Structural integrity;
    (3) Electrical systems;
    (4) Plumbing;
    (5) Water treatment;
    (6) Waste disposal; and
    (7) Telecommunications networks.
    (c) The Contractor may apply a standard equivalent to or more 
stringent than UFC 1-200-01 upon a written determination of the 
acceptability of the standard by the Contracting Officer with the 
concurrence of the relevant Discipline Working Group.

                             (End of clause)

[75 FR 66685, Oct. 29, 2010]



252.246-7005  Notice of Warranty Tracking of Serialized Items.

    As prescribed in 246.710(3)(i), use the following provision:

       Notice of Warranty Tracking of Serialized Items (MAR 2016)

    (a) Definitions. Duration, enterprise, enterprise identifier, fixed 
expiration, item type, serialized item, starting event, unique item 
identifier, usage, warranty administrator, warranty guarantor, and 
warranty tracking are defined in the clause at 252.246-7006, Warranty 
Tracking of Serialized Items.
    (b) Reporting of data for warranty tracking and administration. (1) 
The Offeror shall provide the information required by the attachment 
entitled ``Warranty Tracking Information'' on each contract line item 
number, subline item number, or exhibit line item number for warranted 
items with its offer. Information required in the warranty attachment 
for each warranted item shall include such information as duration, 
fixed expiration, item type, starting event, usage, warranty 
administrator enterprise identifier, and warranty guarantor enterprise 
identifier.
    (2) The successful offeror will be required to provide the following 
information no later than when the warranted items are presented for 
receipt and/or acceptance, in accordance with the clause at 252.246-
7006--
    (i) The unique item identifier for each warranted item required by 
the attachment entitled ``Warranty Tracking Information;'' and
    (ii) All information required by the attachment entitled ``Source of 
Repair Instructions'' for each warranted item.
    (3) For additional information on warranty attachments, see the 
``Warranty and Source of Repair'' training and ``Warranty and Source of 
Repair Tracking User Guide'' accessible on the Product Data Reporting 
and Evaluation Program (PDREP) Web site at https://
www.pdrep.csd.disa.mil/pdrep_files/other/wsr.htm.

                           (End of provision)

[76 FR 33170, June 8, 2011, as amended at 79 FR 17450, Mar. 28, 2014; 81 
FR 17043, Mar. 25, 2016]



252.246-7006  Warranty Tracking of Serialized Items.

    As prescribed in 246.710(3)(ii), use the following clause:

            Warranty Tracking of Serialized Items (MAR 2016)

    (a) Definitions. As used in this clause--
    Duration means the warranty period. This period may be a stated 
period of time, amount of usage, or the occurrence of a specified event, 
after formal acceptance of delivery, for the Government to assert a 
contractual right for the correction of defects.
    Enterprise means the entity (e.g., a manufacturer or vendor) 
responsible for granting the warranty and/or assigning unique item 
identifiers to serialized warranty items.
    Enterprise identifier means a code that is uniquely assigned to an 
enterprise by an issuing agency.

[[Page 659]]

    First use means the initial or first-time use of a product by the 
Government.
    Fixed expiration means the date the warranty expires and the 
Contractor's obligation to provide for a remedy or corrective action 
ends.
    Installation means the date a unit is inserted into a higher level 
assembly in order to make that assembly operational.
    Issuing agency means an organization responsible for assigning a 
globally unique identifier to an enterprise, as indicated in the 
Register of Issuing Agency Codes for International Standards 
Organization/International Electrotechnical Commission 15459, located at 
http://www.aimglobal.org/?Reg_Authority15459.
    Item type means a coded representation of the description of the 
item being warranted, consisting of the codes C--component procured 
separate from end item, S--subassembly procured separate from end item 
or subassembly, E--embedded in component, subassembly or end item 
parent, and P--parent end item.
    Starting event means the event or action that initiates the 
warranty, such as first use or upon installation.
    Serialized item means each item produced is assigned a serial number 
that is unique among all the collective tangible items produced by the 
enterprise, or each item of a particular part, lot, or batch number is 
assigned a unique serial number within that part, lot, or batch number 
assignment within the enterprise identifier. The enterprise is 
responsible for ensuring unique serialization within the enterprise 
identifier or within the part, lot, or batch numbers, and that serial 
numbers, once assigned, are never used again.
    Unique item identifier means a set of data elements marked on an 
item that is globally unique and unambiguous.
    Usage means the quantity and an associated unit of measure that 
specifies the amount of a characteristic subject to the contractor's 
obligation to provide for remedy or corrective action, such as a number 
of miles, hours, or cycles.
    Warranty administrator means the organization specified by the 
guarantor for managing the warranty.
    Warranty guarantor means the enterprise that provides the warranty 
under the terms and conditions of a contract.
    Warranty repair source means the organization specified by a 
warranty guarantor for receiving and managing warranty items that are 
returned by a customer.
    Warranty tracking means the ability to trace a warranted item from 
delivery through completion of the effectivity of the warranty.
    (b) Reporting of data for warranty tracking and administration. (1) 
The Contractor shall provide the information required by the attachment 
entitled ``Warranty Tracking Information'' on each contract line item 
number, subline item number, or exhibit line item number for warranted 
items no later than the time of award. Information required in the 
warranty attachment shall include such information as duration, fixed 
expiration, item type, starting event, usage, warranty administrator 
enterprise identifier, and warranty guarantor enterprise identifier.
    (2) The Contractor shall provide the following information no later 
than when the warranted items are presented for receipt and/or 
acceptance--
    (i) The unique item identifier for each warranted item required by 
the attachment entitled ``Warranty Tracking Information;'' and
    (ii) The warranty repair source information and instructions for 
each warranted item required by the attachment entitled ``Source of 
Repair Instructions.''
    (3) The Contractor shall submit the data for warranty tracking to 
the Contracting Officer with a copy to the requiring activity and the 
Contracting Officer Representative.
    (4) For additional information on warranty attachments, see the 
``Warranty and Source of Repair'' training and ``Warranty and Source of 
Repair Tracking User Guide'' accessible on the Product Data Reporting 
and Evaluation Program (PDREP) Web site at https://
www.pdrep.csd.disa.mil/pdrep_files/other/wsr.htm.
    (c) Reservation of rights. The terms of this clause shall not be 
construed to limit the Government's rights or remedies under any other 
contract clause.

                             (End of clause)

[76 FR 33170, June 8, 2011, as amended at 79 FR 17450, Mar. 28, 2014; 81 
FR 17044, Mar. 25, 2016]



252.246-7007  Contractor Counterfeit Electronic Part Detection 
and Avoidance System.

    As prescribed in 246.870-3(a), use the following clause:

 Contractor Counterfeit Electronic Part Detection and Avoidance System 
                               (AUG 2016)

    The following paragraphs (a) through (e) of this clause do not apply 
unless the Contractor is subject to the Cost Accounting Standards under 
41 U.S.C. chapter 15, as implemented in regulations found at 48 CFR 
9903.201-1.
    (a) Definitions. As used in this clause--
    Authorized aftermarket manufacturer means an organization that 
fabricates a part under a contract with, or with the express written

[[Page 660]]

authority of, the original component manufacturer based on the original 
component manufacturer's designs, formulas, and/or specifications.
    Authorized supplier means a supplier, distributor, or an aftermarket 
manufacturer with a contractual arrangement with, or the express written 
authority of, the original manufacturer or current design activity to 
buy, stock, repackage, sell, or distribute the part.
    Contract manufacturer means a company that produces goods under 
contract for another company under the label or brand name of that 
company.
    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.
    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).
    Obsolete electronic part means an electronic part that is no longer 
available from the original manufacturer or an authorized aftermarket 
manufacturer.
    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.
    Original manufacturer means the original component manufacturer, the 
original equipment manufacturer, or the contract manufacturer.
    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.
    (b) Acceptable counterfeit electronic part detection and avoidance 
system. The Contractor shall establish and maintain an acceptable 
counterfeit electronic part detection and avoidance system. Failure to 
maintain an acceptable counterfeit electronic part detection and 
avoidance system, as defined in this clause, may result in disapproval 
of the purchasing system by the Contracting Officer and/or withholding 
of payments and affect the allowability of costs of counterfeit 
electronic parts or suspect counterfeit electronic parts and the cost of 
rework or corrective action that may be required to remedy the use or 
inclusion of such parts (see DFARS 231.205-71).
    (c) System criteria. A counterfeit electronic part detection and 
avoidance system shall include risk-based policies and procedures that 
address, at a minimum, the following areas:
    (1) The training of personnel.
    (2) The inspection and testing of electronic parts, including 
criteria for acceptance and rejection. Tests and inspections shall be 
performed in accordance with accepted Government- and industry-
recognized techniques. Selection of tests and inspections shall be based 
on minimizing risk to the Government. Determination of risk shall be 
based on the assessed probability of receiving a counterfeit electronic 
part; the probability that the inspection or test selected will detect a 
counterfeit electronic part; and the potential negative consequences of 
a counterfeit electronic part being installed (e.g., human safety, 
mission success) where such consequences are made known to the 
Contractor.
    (3) Processes to abolish counterfeit parts proliferation.
    (4) Risk-based processes that enable tracking of electronic parts 
from the original manufacturer to product acceptance by the Government, 
whether the electronic parts are supplied as discrete electronic parts 
or are contained in assemblies, in accordance with paragraph (c) of the 
clause at 252.246-7008, Sources of Electronic Parts (also see paragraph 
(c)(2) of this clause).
    (5) Use of suppliers in accordance with the clause at 252.246-7008.
    (6) Reporting and quarantining of counterfeit electronic parts and 
suspect counterfeit electronic parts. Reporting is required to the 
Contracting Officer and to the Government-Industry Data Exchange Program 
(GIDEP) when the Contractor becomes aware of, or has reason to suspect 
that, any electronic part or end item, component, part, or assembly 
containing electronic parts purchased by the DoD, or purchased by a 
Contractor for delivery to, or on behalf of, the DoD, contains 
counterfeit electronic parts or suspect counterfeit electronic parts. 
Counterfeit electronic parts and suspect counterfeit electronic parts 
shall not be returned to the seller or otherwise returned to the supply 
chain until such time that the parts are determined to be authentic.

[[Page 661]]

    (7) Methodologies to identify suspect counterfeit parts and to 
rapidly determine if a suspect counterfeit part is, in fact, 
counterfeit.
    (8) Design, operation, and maintenance of systems to detect and 
avoid counterfeit electronic parts and suspect counterfeit electronic 
parts. The Contractor may elect to use current Government- or industry-
recognized standards to meet this requirement.
    (9) Flowdown of counterfeit detection and avoidance requirements, 
including applicable system criteria provided herein, to subcontractors 
at all levels in the supply chain that are responsible for buying or 
selling electronic parts or assemblies containing electronic parts, or 
for performing authentication testing.
    (10) Process for keeping continually informed of current 
counterfeiting information and trends, including detection and avoidance 
techniques contained in appropriate industry standards, and using such 
information and techniques for continuously upgrading internal 
processes.
    (11) Process for screening GIDEP reports and other credible sources 
of counterfeiting information to avoid the purchase or use of 
counterfeit electronic parts.
    (12) Control of obsolete electronic parts in order to maximize the 
availability and use of authentic, originally designed, and qualified 
electronic parts throughout the product's life cycle.
    (d) Government review and evaluation of the Contractor's policies 
and procedures will be accomplished as part of the evaluation of the 
Contractor's purchasing system in accordance with 252.244-7001, 
Contractor Purchasing System Administration--Basic, or Contractor 
Purchasing System Administration--Alternate I.
    (e) The Contractor shall include the substance of this clause, 
excluding the introductory text and including only paragraphs (a) 
through (e), in subcontracts, including subcontracts for commercial 
items, for electronic parts or assemblies containing electronic parts.

                             (End of clause)

[79 FR 26108, May 6, 2014, as amended at 81 FR 50649, Aug. 2, 2016]



252.246-7008  Sources of Electronic Parts.

    As prescribed in 246.870-3(b), use the following clause:

                 Sources of Electronic Parts (MAY 2018)

    (a) Definitions. As used in this clause--
    Authorized aftermarket manufacturer means an organization that 
fabricates a 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.
    Authorized supplier means a supplier, distributor, or an aftermarket 
manufacturer with a contractual arrangement with, or the express written 
authority of, the original manufacturer or current design activity to 
buy, stock, repackage, sell, or distribute the part.
    Contract manufacturer means a company that produces goods under 
contract for another company under the label or brand name of that 
company.
    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.
    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).
    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.
    Original manufacturer means the original component manufacturer, the 
original equipment manufacturer, or the contract manufacturer.
    (b) Selecting suppliers. In accordance with section 818(c)(3) of the 
National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-
81), as amended by section 817 of the National Defense Authorization Act 
for Fiscal Year 2015 (Pub. L. 113-291 and section 885 of the National 
Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92)), the 
Contractor shall--
    (1) First obtain electronic parts that are in production by the 
original manufacturer or an authorized aftermarket manufacturer or 
currently available in stock from--
    (i) The original manufacturers of the parts;
    (ii) Their authorized suppliers; or
    (iii) Suppliers that obtain such parts exclusively from the original 
manufacturers of the parts or their authorized suppliers;
    (2) If electronic parts are not available as provided in paragraph 
(b)(1) of this clause, obtain electronic parts that are not in 
production by the original manufacturer or an authorized aftermarket 
manufacturer, and that are not currently available in stock from a 
source listed in paragraph (b)(1) of this clause, from suppliers 
identified by the Contractor as contractor-approved suppliers, provided 
that--

[[Page 662]]

    (i) For identifying and approving such contractor-approved 
suppliers, the Contractor uses established counterfeit prevention 
industry standards and processes (including inspection, testing, and 
authentication), such as the DoD-adopted standards at https://
assist.dla.mil;
    (ii) The Contractor assumes responsibility for the authenticity of 
parts provided by such contractor-approved suppliers; and
    (iii) The Contractor's selection of such contractor-approved 
suppliers is subject to review, audit, and approval by the Government, 
generally in conjunction with a contractor purchasing system review or 
other surveillance of purchasing practices by the contract 
administration office, or if the Government obtains credible evidence 
that a contractor-approved supplier has provided counterfeit parts. The 
Contractor may proceed with the acquisition of electronic parts from a 
contractor-approved supplier unless otherwise notified by DoD; or
    (3)(i) Take the actions in paragraphs paragraph (b)(3)(ii) of this 
clause if the Contractor--
    (A) Obtains an electronic part from--
    (1) A source other than any of the sources identified in paragraph 
(b)(1) or (b)(2) of this clause, due to nonavailability from such 
sources; or
    (2) A subcontractor (other than the original manufacturer) that 
refuses to accept flowdown of this clause; or
    (B) Cannot confirm that an electronic part is new or previously 
unused and that it has not been comingled in supplier new production or 
stock with used, refurbished, reclaimed, or returned parts.
    (ii) If the contractor obtains an electronic part or cannot confirm 
an electronic part pursuant to paragraph (b)(3)(i) of this clause--
    (A) Promptly notify the Contracting Officer in writing. If such 
notification is required for an electronic part to be used in a 
designated lot of assemblies to be acquired under a single contract, the 
Contractor may submit one notification for the lot, providing 
identification of the assemblies containing the parts (e.g., serial 
numbers);
    (B) Be responsible for inspection, testing, and authentication, in 
accordance with existing applicable industry standards; and
    (C) Make documentation of inspection, testing, and authentication of 
such electronic parts available to the Government upon request.
    (c) Traceability. If the Contractor is not the original manufacturer 
of, or authorized supplier for, an electronic part, the Contractor 
shall--
    (1) Have risk-based processes (taking into consideration the 
consequences of failure of an electronic part) that enable tracking of 
electronic parts from the original manufacturer to product acceptance by 
the Government, whether the electronic part is supplied as a discrete 
electronic part or is contained in an assembly;
    (2) If the Contractor cannot establish this traceability from the 
original manufacturer for a specific electronic part, be responsible for 
inspection, testing, and authentication, in accordance with existing 
applicable industry standards; and
    (3)(i) Maintain documentation of traceability (paragraph (c)(1) of 
this clause) or the inspection, testing, and authentication required 
when traceability cannot be established (paragraph (c)(2) of this 
clause) in accordance with FAR subpart 4.7; and
    (ii) Make such documentation available to the Government upon 
request.
    (d) Government sources. Contractors and subcontractors are still 
required to comply with the requirements of paragraphs (b) and (c) of 
this clause, as applicable, if--
    (1) Authorized to purchase electronic parts from the Federal Supply 
Schedule;
    (2) Purchasing electronic parts from suppliers accredited by the 
Defense Microelectronics Activity; or
    (3) Requisitioning electronic parts from Government inventory/stock 
under the authority of 252.251-7000, Ordering from Government Supply 
Sources.
    (i) The cost of any required inspection, testing, and authentication 
of such parts may be charged as a direct cost.
    (ii) The Government is responsible for the authenticity of the 
requisitioned parts. If any such part is subsequently found to be 
counterfeit or suspect counterfeit, the Government will--
    (A) Promptly replace such part at no charge; and
    (B) Consider an adjustment in the contract schedule to the extent 
that replacement of the counterfeit or suspect counterfeit electronic 
parts caused a delay in performance.
    (e) Subcontracts. The Contractor shall include the substance of this 
clause, including this paragraph (e), in subcontracts, including 
subcontracts for commercial items, that are for electronic parts or 
assemblies containing electronic parts, unless the subcontractor is the 
original manufacturer.

                             (End of clause)

[81 FR 50649, Aug. 2, 2016, as amended at 81 FR 72738, Oct. 21, 2016; 82 
FR 61481, Dec. 28, 2017; 83 FR 19645, May 4, 2018]



252.247-7000  Hardship conditions.

    As prescribed in 247.270-4(a), use the following clause:

                     Hardship Conditions (AUG 2000)

    (a) If the Contractor finds unusual ship, dock, or cargo conditions 
associated with loading or unloading a particular cargo, that

[[Page 663]]

will work a hardship on the Contractor if loaded or unloaded at the 
basic commodity rates, the Contractor shall--
    (1) Notify the Contracting Officer before performing the work, if 
feasible, but no later than the vessel sailing time; and
    (2) Submit any associated request for price adjustment to the 
Contracting Officer within 10 working days of the vessel sailing time.
    (b) Unusual conditions include, but are not limited to, 
inaccessibility of place of stowage to the ship's cargo gear, side port 
operations, and small quantities of cargo in any one hatch.
    (c) The Contracting Officer will investigate the conditions promptly 
after receiving the notice. If the Contracting Officer finds that the 
conditions are unusual and do materially affect the cost of loading or 
unloading, the Contracting Officer will authorize payment at the 
applicable man-hour rates set forth in the schedule of rates of this 
contract.

                             (End of clause)

[65 FR 50147, Aug. 17, 2000, as amended at 75 FR 51418, Aug. 20, 2010]



252.247-7001  [Reserved]



252.247-7002  Revision of prices.

    As prescribed in 247.270-4(b), use the following clause:

                      Revision of Prices (DEC 1991)

    (a) Definition. Wage adjustment, as used in this clause, means a 
change in the wages, salaries, or other terms or conditions of 
employment which--
    (1) Substantially affects the cost of performing this contract;
    (2) Is generally applicable to the port where work under this 
contract is performed; and
    (3) Applies to operations by the Contractor on non-Government work 
as well as to work under this contract.
    (b) General. The prices fixed in this contract are based on wages 
and working conditions established by collective bargaining agreements, 
and on other conditions in effect on the date of this contract. The 
Contracting Officer and the Contractor may agree to increase or decrease 
such prices in accordance with this clause.
    (c) Demand for negotiation. (1) At any time, subject to the 
limitations specified in this clause, either the Contracting Officer or 
the Contractor may deliver to the other a written demand that the 
parties negotiate to revise the prices under this contract.
    (2) No such demand shall be made before 90 days after the date of 
this contract, and thereafter neither party shall make a demand having 
an effective date within 90 days of the effective date of any prior 
demand. However, this limitation does not apply to a wage adjustment 
during the 90 day period.
    (3) Each demand shall specify a date (the same as or subsequent to 
the date of the delivery of the demand) as to when the revised prices 
shall be effective. This date is the effective date of the price 
revision.
    (i) If the Contractor makes a demand under this clause, the demand 
shall briefly state the basis of the demand and include the statements 
and data referred to in paragraph (d) of this clause.
    (ii) If the demand is made by the Contracting Officer, the 
Contractor shall furnish the statements and data within 30 days of the 
delivery of the demand.
    (d) Submission of data. At the times specified in paragraphs 
(c)(3)(i) and (ii) of this clause, the Contractor shall submit--
    (1) A new estimate and breakdown of the unit cost and the proposed 
prices for the services the Contractor will perform under this contract 
after the effective date of the price revision, itemized to be 
consistent with the original negotiations of the contract;
    (2) An explanation of the difference between the original (or last 
preceding) estimate and the new estimate;
    (3) Such relevant operating data, cost records, overhead absorption 
reports, and accounting statements as may be of assistance in 
determining the accuracy and reliability of the new estimate;
    (4) A statement of the actual costs of performance under this 
contract to the extent that they are available at the time of the 
negotiation of the revision of prices under this clause; and
    (5) Any other relevant data usually furnished in the case of 
negotiations of prices under a new contract. The Government may examine 
and audit the Contractor's accounts, records, and books as the 
Contracting Officer considers necessary.
    (e) Negotiations. (1) Upon the filing of the statements and data 
required by paragraph (d) of this clause, the Contractor and the 
Contracting Officer shall negotiate promptly in good faith to agree upon 
prices for services the Contractor will perform on and after the 
effective date of the price revision.
    (2) If the prices in this contract were established by competitive 
negotiation, they shall not be revised upward unless justified by 
changes in conditions occurring after the contract was awarded.
    (3) The agreement reached after each negotiation will be 
incorporated into the contract by supplemental agreement.
    (f) Disagreements. If, within 30 days after the date on which 
statements and data are required pursuant to paragraph (c) of this 
clause, the Contracting Officer and the Contractor fail to agree to 
revised prices, the

[[Page 664]]

failure to agree shall be resolved in accordance with the Disputes 
clause of this contract. The prices fixed by the Contracting Officer 
will remain in effect for the balance of the contract, and the 
Contractor shall continue performance.
    (g) Retroactive changes in wages or working conditions. (1) In the 
event of a retroactive wage adjustment, the Contractor or the 
Contracting Officer may request an equitable adjustment in the prices in 
this contract.
    (2) The Contractor shall request a price adjustment within 30 days 
of any retroactive wage adjustment. The Contractor shall support its 
request with--
    (i) An estimate of the changes in cost resulting from the 
retroactive wage adjustment;
    (ii) Complete information upon which the estimate is based; and
    (iii) A certified copy of the collective bargaining agreement, 
arbitration award, or other document evidencing the retroactive wage 
adjustment.
    (3) Subject to the limitation in paragraph (g)(2) of this clause as 
to the time of making a request, completion or termination of this 
contract shall not affect the Contractor's right under paragraph (g) of 
this clause.
    (4) In case of disagreement concerning any question of fact, 
including whether any adjustment should be made, or the amount of such 
adjustment, the disagreement will be resolved in accordance with the 
Disputes clause of this contract.
    (5) The Contractor shall notify the Contracting Officer in writing 
of any request by or on behalf of the employees of the Contractor which 
may result in a retroactive wage adjustment. The notice shall be given 
within 20 days after the request, or if the request occurs before 
contract execution, at the time of execution.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 65 FR 50147, Aug. 17, 2000; 
75 FR 51418, Aug. 20, 2010; 84 FR 30953, June 28, 2019]



252.247-7003  Pass-Through of Motor Carrier Fuel Surcharge Adjustment
To The Cost Bearer.

    As prescribed in 247.207, use the following clause:

  Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost 
                            Bearer (JUN 2013)

    (a) This clause implements section 884 of the National Defense 
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417).
    (b) Unless an exception is authorized by the Contracting Officer, 
the Contractor shall pass through any motor carrier fuel-related 
surcharge adjustments to the person, corporation, or entity that 
directly bears the cost of fuel for shipment(s) transported under this 
contract.
    (c) The Contractor shall insert the substance of this clause, 
including this paragraph (c), in all subcontracts, including 
subcontracts for commercial items, with motor carriers, brokers, or 
freight forwarders.

                             (End of clause)

[75 FR 59105, Sept. 27, 2010, as amended at 78 FR 37991, June 25, 2013]



252.247-7004--252.247-7006  [Reserved]



252.247-7007  Liability and insurance.

    As prescribed in 247.270-4(c), use the following clause:

                   Liability and Insurance (DEC 1991)

    (a) The Contractor shall be--
    (1) Liable to the Government for loss or damage to property, real 
and personal, owned by the Government or for which the Government is 
liable;
    (2) Responsible for, and hold the Government harmless from, loss of 
or damage to property not included in paragraph (a)(1); and
    (3) Responsible for, and hold the Government harmless from, bodily 
injury and death of persons, resulting either in whole or in part from 
the negligence or fault of the Contractor, its officers, agents, or 
employees in the performance of work under this contract.
    (b) For the purpose of this clause, all cargo loaded or unloaded 
under this contract is agreed to be property owned by the Government or 
property for which the Government is liable.
    (1) The amount of the loss or damage as determined by the 
Contracting Officer will be withheld from payments otherwise due the 
Contractor.
    (2) Determination of liability and responsibility by the Contracting 
Officer will constitute questions of fact within the meaning of the 
Disputes clause of this contract.
    (c) The general liability and responsibility of the Contractor under 
this clause are subject only to the following specific limitations. The 
Contractor is not responsible to the Government for, and does not agree 
to hold the Government harmless from, loss or damage to property or 
bodily injury to or death of persons if--
    (1) The unseaworthiness of the vessel, or failure or defect of the 
gear or equipment furnished by the Government, contributed jointly with 
the fault or negligence of the Contractor in causing such damage, 
injury, or death; and
    (i) The Contractor, his officers, agents, and employees, by the 
exercise of due diligence, could not have discovered such

[[Page 665]]

unseaworthiness or defect of gear or equipment; or
    (ii) Through the exercise of due diligence could not otherwise have 
avoided such damage, injury, or death.
    (2) The damage, injury, or death resulted solely from an act or 
omission of the Government or its employees, or resulted solely from 
proper compliance by officers, agents, or employees of the Contractor 
with specific directions of the Contracting Officer.
    (d) The Contractor shall at its own expense acquire and maintain 
insurance during the term of this contract, as follows--
    (1) Standard workmen's compensation and employer's liability 
insurance and longshoremen's and harbor workers' compensation insurance, 
or such of these as may be proper under applicable state or Federal 
statutes.
    (i) The Contractor may, with the prior approval of the Contracting 
Officer, be a self-insurer against the risk of this paragraph (d)(1).
    (ii) This approval will be given upon receipt of satisfactory 
evidence that the Contractor has qualified as a self-insurer under 
applicable provision of law.
    (2) Bodily injury liability insurance in an amount of not less than 
$300,000 on account of any one occurrence.
    (3) Property damage liability insurance (which shall include any and 
all property, whether or not in the care, custody, or control of the 
Contractor) in an amount of not less than $300,000 for any one 
occurrence.
    (e) Each policy shall provide, by appropriate endorsement or 
otherwise, that cancellation or material change in the policy shall not 
be effective until after a 30 day written notice is furnished the 
Contracting Officer.
    (f) The Contractor shall furnish the Contracting Officer with 
satisfactory evidence of the insurance required in paragraph (d) before 
performance of any work under this contract.
    (g) The Contractor shall, at its own cost and expense, defend any 
suits, demands, claims, or actions, in which the United States might be 
named as a co-defendant of the Contractor, resulting from the 
Contractor's performance of work under this contract. This requirement 
is without regard to whether such suit, demand, claim, or action was the 
result of the Contractor's negligence. The Government shall have the 
right to appear in such suit, participate in defense, and take such 
actions as may be necessary to protect the interest of the United 
States.
    (h) It is expressly agreed that the provisions in paragraphs (d) 
through (g) of this clause shall not in any manner limit the liability 
or extend the liability of the Contractor as provided in paragraphs (a) 
through (c) of this clause.
    (i) The Contractor shall--
    (1) Equitably reimburse the Government if the Contractor is 
indemnified, reimbursed, or relieved of any loss or damage to Government 
property;
    (2) Do nothing to prevent the Government's right to recover against 
third parties for any such loss or damage; and
    (3) Furnish the Government, upon the request of the Contracting 
Officer, at the Government's expense, all reasonable assistance and 
cooperation in obtaining recovery, including the prosecution of suit and 
the execution of instruments of assignment in favor of the Government.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 65 FR 50148, Aug. 17, 2000; 
75 FR 51418, Aug. 20, 2010; 83 FR 42789, Aug. 24, 2018; 83 FR 49180, 
49182, Sept. 28, 2018; 84 FR 30953, June 28, 2019]



252.247-7008--252.247-7013  [Reserved]



252.247-7014  Demurrage.

    As prescribed in 247.271-3(c), use the following clause:

                          Demurrage (DEC 1991)

    The Contractor shall be liable for all demurrage, detention, or 
other charges as a result of its failure to load or unload trucks, 
freight cars, freight terminals, vessel piers, or warehouses within the 
free time allowed under applicable rules and tariffs.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 75 FR 51419, Aug. 20, 2010; 
84 FR 25195, May 31, 2019; 84 FR 30952, June 28, 2019]



252.247-7015  [Reserved]



252.247-7016  Contractor liability for loss or damage.

    As prescribed in 247.271-3(d), use the following clause:

           Contractor Liability for Loss or Damage (DEC 1991)

    (a) Definitions. As used in this clause--
    Article means any shipping piece or package and its contents.
    Schedule means the level of service for which specific types of 
traffic apply as described in DoD 4500.34-R, Personal Property Traffic 
Management Regulation.
    (b) For shipments picked up under Schedule I, Outbound Services, or 
delivered under Schedule II, Inbound Services--
    (1) If notified within one year after delivery that the owner has 
discovered loss or

[[Page 666]]

damage to the owner's property, the Contractor agrees to indemnify the 
Government for loss or damage to the property which arises from any 
cause while it is in the Contractor's possession. The Contractor's 
liability is--
    (i) Non-negligent damage. For any cause, other than the Contractor's 
negligence, indemnification shall be at a rate not to exceed sixty cents 
per pound per article.
    (ii) Negligent damage. When loss or damage is caused by the 
negligence of the Contractor, the liability is for the full cost of 
satisfactory repair or for the current replacement value of the article.
    (2) The Contractor shall make prompt payment to the owner of the 
property for any loss or damage for which the Contractor is liable.
    (3) In the absence of evidence or supporting documentation which 
places liability on a carrier or another contractor, the destination 
contractor shall be presumed to be liable for the loss or damage, if 
timely notified.
    (c) For shipments picked up or delivered under Schedule III, Intra-
City and Intra-Area--
    (1) If notified of loss or damage within 75 days following delivery, 
the Contractor agrees to indemnify the Government for loss or damage to 
the owner's property.
    (2) The Contractor's liability shall be for the full cost of 
satisfactory repair, or for the current replacement value of the article 
less depreciation, up to a maximum liability of $1.25 per pound times 
the net weight of the shipment.
    (3) The Contractor has full salvage rights to damaged items which 
are not repairable and for which the Government has received 
compensation at replacement value.

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 75 FR 51419, Aug. 20, 2010; 
84 FR 25195, May 31, 2019; 84 FR 30952, June 28, 2019]



252.247-7017--252.247-7021  [Reserved]



252.247-7022  Representation of extent of transportation by sea.

    As prescribed in 247.574(a), use the following provision:

      Representation of Extent of Transportation By Sea (JUN 2019)

    (a) The Offeror shall indicate by checking the appropriate blank in 
paragraph (b) of this provision whether transportation of supplies by 
sea is anticipated under the resultant contract. The term supplies is 
defined in the Transportation of Supplies by Sea clause of this 
solicitation.
    (b) Representation. The Offeror represents that it--

____ Does anticipate that supplies will be transported by sea in the 
          performance of any contract or subcontract resulting from this 
          solicitation.
____ Does not anticipate that supplies will be transported by sea in the 
          performance of any contract or subcontract resulting from this 
          solicitation.
    (c) Any contract resulting from this solicitation will include the 
Transportation of Supplies by Sea clause.

                           (End of provision)

[56 FR 67222, Dec. 30, 1991, as amended at 57 FR 42633, Sept. 15, 1992; 
72 FR 49206, Aug. 28, 2007; 84 FR 30952, June 28, 2019]



252.247-7023  Transportation of supplies by sea.

    Basic. As prescribed in 247.574(b) and (b)(1), use the following 
clause:

           Transportation of Supplies by Sea--Basic (FEB 2019)

    (a) Definitions. As used in this clause--
    Components means articles, materials, and supplies incorporated 
directly into end products at any level of manufacture, fabrication, or 
assembly by the Contractor or any subcontractor.
    Department of Defense (DoD) means the Army, Navy, Air Force, Marine 
Corps, and defense agencies.
    Foreign-flag vessel means any vessel that is not a U.S.-flag vessel.
    Ocean transportation means any transportation aboard a ship, vessel, 
boat, barge, or ferry through international waters.
    Subcontractor means a supplier, materialman, distributor, or vendor 
at any level below the prime contractor whose contractual obligation to 
perform results from, or is conditioned upon, award of the prime 
contract and who is performing any part of the work or other requirement 
of the prime contract.
    Supplies means all property, except land and interests in land, that 
is clearly identifiable for eventual use by or owned by the DoD at the 
time of transportation by sea. (i) An item is clearly identifiable for 
eventual use by the DoD if, for example, the contract documentation 
contains a reference to a DoD contract number or a military destination.
    (ii) Supplies includes (but is not limited to) public works; 
buildings and facilities; ships; floating equipment and vessels of every 
character, type, and description, with parts, subassemblies, 
accessories, and equipment; machine tools; material; equipment; stores 
of all kinds; end items; construction materials; and components of the 
foregoing.

[[Page 667]]

    U.S.-flag vessel means a vessel of the United States or belonging to 
the United States, including any vessel registered or having national 
status under the laws of the United States.
    (b)(1) The Contractor shall use U.S.-flag vessels when transporting 
any supplies by sea under this contract.
    (2) A subcontractor transporting supplies by sea under this contract 
shall use U.S.-flag vessels if--
    (i) This contract is a construction contract; or
    (ii) The supplies being transported are--
    (A) Noncommercial items; or
    (B) Commercial items that--
    (1) The Contractor is reselling or distributing to the Government 
without adding value (generally, the Contractor does not add value to 
items that it contracts for f.o.b. destination shipment);
    (2) Are shipped in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations; or
    (3) Are commissary or exchange cargoes transported outside of the 
Defense Transportation System in accordance with 10 U.S.C. 2643.
    (c) The Contractor and its subcontractors may request that the 
Contracting Officer authorize shipment in foreign-flag vessels, or 
designate available U.S.-flag vessels, if the Contractor or a 
subcontractor believes that--
    (1) U.S.-flag vessels are not available for timely shipment;
    (2) The freight charges are inordinately excessive or unreasonable; 
or
    (3) Freight charges are higher than charges to private persons for 
transportation of like goods.
    (d) The Contractor must submit any request for use of foreign-flag 
vessels in writing to the Contracting Officer at least 45 days prior to 
the sailing date necessary to meet its delivery schedules. The 
Contracting Officer will process requests submitted after such date(s) 
as expeditiously as possible, but the Contracting Officer's failure to 
grant approvals to meet the shipper's sailing date will not of itself 
constitute a compensable delay under this or any other clause of this 
contract. Requests shall contain at a minimum--
    (1) Type, weight, and cube of cargo;
    (2) Required shipping date;
    (3) Special handling and discharge requirements;
    (4) Loading and discharge points;
    (5) Name of shipper and consignee;
    (6) Prime contract number; and
    (7) A documented description of efforts made to secure U.S.-flag 
vessels, including points of contact (with names and telephone numbers) 
with at least two U.S.-flag carriers contacted. Copies of telephone 
notes, telegraphic and facsimile message or letters will be sufficient 
for this purpose.
    (e) The Contractor shall, within 30 days after each shipment covered 
by this clause, provide the Contracting Officer and the Maritime 
Administration, Office of Cargo Preference, U.S. Department of 
Transportation, 400 Seventh Street SW., Washington, DC 20590, one copy 
of the rated on board vessel operating carrier's ocean bill of lading, 
which shall contain the following information:
    (1) Prime contract number;
    (2) Name of vessel;
    (3) Vessel flag of registry;
    (4) Date of loading;
    (5) Port of loading;
    (6) Port of final discharge;
    (7) Description of commodity;
    (8) Gross weight in pounds and cubic feet if available;
    (9) Total ocean freight in U.S. dollars; and
    (10) Name of the steamship company.
    (f) If this contract exceeds the simplified acquisition threshold, 
the Contractor shall provide with its final invoice under this contract 
a representation that to the best of its knowledge and belief--
    (1) No ocean transportation was used in the performance of this 
contract;
    (2) Ocean transportation was used and only U.S.-flag vessels were 
used for all ocean shipments under the contract;
    (3) Ocean transportation was used, and the Contractor had the 
written consent of the Contracting Officer for all foreign-flag ocean 
transportation; or
    (4) Ocean transportation was used and some or all of the shipments 
were made on foreign-flag vessels without the written consent of the 
Contracting Officer. The Contractor shall describe these shipments in 
the following format:

----------------------------------------------------------------------------------------------------------------
                                           Item Description       Contract Line Items            Quantity
----------------------------------------------------------------------------------------------------------------
Total................................
----------------------------------------------------------------------------------------------------------------

    (g) If this contract exceeds the simplified acquisition threshold 
and the final invoice does not include the required representation, the 
Government will reject and return it to the Contractor as an improper 
invoice for the purposes of the Prompt Payment clause of this contract. 
In the event there has been unauthorized use of foreign-flag vessels in 
the performance of this contract, the Contracting Officer is entitled to 
equitably adjust the contract, based on the unauthorized use.
    (h) If the Contractor has indicated by the response to the 
solicitation provision, Representation of Extent of Transportation by 
Sea, that it did not anticipate transporting by sea any supplies; 
however, after the award of this contract, the Contractor learns that

[[Page 668]]

supplies will be transported by sea, the Contractor--
    (1) Shall notify the Contracting Officer of that fact; and
    (2) Hereby agrees to comply with all the terms and conditions of 
this clause.
    (i) In the award of subcontracts for the types of supplies described 
in paragraph (b)(2) of this clause, including subcontracts for 
commercial items, the Contractor shall flow down the requirements of 
this clause as follows:
    (1) The Contractor shall insert the substance of this clause, 
including this paragraph (i), in subcontracts that exceed the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation.
    (2) The Contractor shall insert the substance of paragraphs (a) 
through (e) of this clause, and this paragraph (i), in subcontracts that 
are at or below the simplified acquisition threshold in part 2 of the 
Federal Acquisition Regulation.

                             (End of clause)

    Alternate I. As prescribed in 247.574(b) and (b)(2), use the 
following clause, which uses a different paragraph (b) than the basic 
clause:

        Transportation of Supplies by Sea--Alternate I (FEB 2019)

    (a) Definitions. As used in this clause--
    Components means articles, materials, and supplies incorporated 
directly into end products at any level of manufacture, fabrication, or 
assembly by the Contractor or any subcontractor.
    Department of Defense (DoD) means the Army, Navy, Air Force, Marine 
Corps, and defense agencies.
    Foreign-flag vessel means any vessel that is not a U.S.-flag vessel.
    Ocean transportation means any transportation aboard a ship, vessel, 
boat, barge, or ferry through international waters.
    Subcontractor means a supplier, materialman, distributor, or vendor 
at any level below the prime contractor whose contractual obligation to 
perform results from, or is conditioned upon, award of the prime 
contract and who is performing any part of the work or other requirement 
of the prime contract.
    Supplies means all property, except land and interests in land, that 
is clearly identifiable for eventual use by or owned by the DoD at the 
time of transportation by sea.
    (i) An item is clearly identifiable for eventual use by the DoD if, 
for example, the contract documentation contains a reference to a DoD 
contract number or a military destination.
    (ii) Supplies includes (but is not limited to) public works; 
buildings and facilities; ships; floating equipment and vessels of every 
character, type, and description, with parts, subassemblies, 
accessories, and equipment; machine tools; material; equipment; stores 
of all kinds; end items; construction materials; and components of the 
foregoing.
    U.S.-flag vessel means a vessel of the United States or belonging to 
the United States, including any vessel registered or having national 
status under the laws of the United States.
    (b)(1) The Contractor shall use U.S.-flag vessels when transporting 
any supplies by sea under this contract.
    (2) A subcontractor transporting supplies by sea under this contract 
shall use U.S.-flag vessels if the supplies being transported are--
    (i) Noncommercial items; or
    (ii) Commercial items that--
    (A) The Contractor is reselling or distributing to the Government 
without adding value (generally, the Contractor does not add value to 
items that it subcontracts for f.o.b. destination shipment);
    (B) Are shipped in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations (Note: This contract requires shipment of 
commercial items in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations); or
    (C) Are commissary or exchange cargoes transported outside of the 
Defense Transportation System in accordance with 10 U.S.C. 2643.
    (c) The Contractor and its subcontractors may request that the 
Contracting Officer authorize shipment in foreign-flag vessels, or 
designate available U.S.-flag vessels, if the Contractor or a 
subcontractor believes that--
    (1) U.S.-flag vessels are not available for timely shipment;
    (2) The freight charges are inordinately excessive or unreasonable; 
or
    (3) Freight charges are higher than charges to private persons for 
transportation of like goods.
    (d) The Contractor must submit any request for use of foreign-flag 
vessels in writing to the Contracting Officer at least 45 days prior to 
the sailing date necessary to meet its delivery schedules. The 
Contracting Officer will process requests submitted after such date(s) 
as expeditiously as possible, but the Contracting Officer's failure to 
grant approvals to meet the shipper's sailing date will not of itself 
constitute a compensable delay under this or any other clause of this 
contract. Requests shall contain at a minimum--
    (1) Type, weight, and cube of cargo;
    (2) Required shipping date;

[[Page 669]]

    (3) Special handling and discharge requirements;
    (4) Loading and discharge points;
    (5) Name of shipper and consignee;
    (6) Prime contract number; and
    (7) A documented description of efforts made to secure U.S.-flag 
vessels, including points of contact (with names and telephone numbers) 
with at least two U.S.-flag carriers contacted. Copies of telephone 
notes, telegraphic and facsimile message or letters will be sufficient 
for this purpose.
    (e) The Contractor shall, within 30 days after each shipment covered 
by this clause, provide the Contracting Officer and the Maritime 
Administration, Office of Cargo Preference, U.S. Department of 
Transportation, 400 Seventh Street SW., Washington, DC 20590, one copy 
of the rated on board vessel operating carrier's ocean bill of lading, 
which shall contain the following information:
    (1) Prime contract number;
    (2) Name of vessel;
    (3) Vessel flag of registry;
    (4) Date of loading;
    (5) Port of loading;
    (6) Port of final discharge;
    (7) Description of commodity;
    (8) Gross weight in pounds and cubic feet if available;
    (9) Total ocean freight in U.S. dollars; and
    (10) Name of steamship company.
    (f) If this contract exceeds the simplified acquisition threshold, 
the Contractor shall provide with its final invoice under this contract 
a representation that to the best of its knowledge and belief--
    (1) No ocean transportation was used in the performance of this 
contract;
    (2) Ocean transportation was used and only U.S.-flag vessels were 
used for all ocean shipments under the contract;
    (3) Ocean transportation was used, and the Contractor had the 
written consent of the Contracting Officer for all foreign-flag ocean 
transportation; or
    (4) Ocean transportation was used and some or all of the shipments 
were made on foreign-flag vessels without the written consent of the 
Contracting Officer. The Contractor shall describe these shipments in 
the following format:

----------------------------------------------------------------------------------------------------------------
                                           Item description       Contract line items            Quantity
----------------------------------------------------------------------------------------------------------------
 
    TOTAL............................
----------------------------------------------------------------------------------------------------------------

    (g) If this contract exceeds the simplified acquisition threshold 
and the final invoice does not include the required representation, the 
Government will reject and return it to the Contractor as an improper 
invoice for the purposes of the Prompt Payment clause of this contract. 
In the event there has been unauthorized use of foreign-flag vessels in 
the performance of this contract, the Contracting Officer is entitled to 
equitably adjust the contract, based on the unauthorized use.
    (h) If the Contractor has indicated by the response to the 
solicitation provision, Representation of Extent of Transportation by 
Sea, that it did not anticipate transporting by sea any supplies; 
however, after the award of this contract, the Contractor learns that 
supplies will be transported by sea, the Contractor--
    (1) Shall notify the Contracting Officer of that fact; and
    (2) Hereby agrees to comply with all the terms and conditions of 
this clause.
    (i) In the award of subcontracts for the types of supplies described 
in paragraph (b)(2) of this clause, including subcontracts for 
commercial items, the Contractor shall flow down the requirements of 
this clause as follows:
    (1) The Contractor shall insert the substance of this clause, 
including this paragraph (i), in subcontracts that exceed the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation.
    (2) The Contractor shall insert the substance of paragraphs (a) 
through (e) of this clause, and this paragraph (i), in subcontracts that 
are at or below the simplified acquisition threshold in part 2 of the 
Federal Acquisition Regulation.

    Alternate II. As prescribed in 247.574(b) and (b)(3), use the 
following clause, which uses a different paragraph (b) than the basic 
clause:

       Transportation of Supplies by Sea--Alternate II (FEB 2019)

    (a) Definitions. As used in this clause--
    Components means articles, materials, and supplies incorporated 
directly into end products at any level of manufacture, fabrication, or 
assembly by the Contractor or any subcontractor.
    Department of Defense (DoD) means the Army, Navy, Air Force, Marine 
Corps, and defense agencies.
    Foreign-flag vessel means any vessel that is not a U.S.-flag vessel.
    Ocean transportation means any transportation aboard a ship, vessel, 
boat, barge, or ferry through international waters.
    Subcontractor means a supplier, materialman, distributor, or vendor 
at any

[[Page 670]]

level below the prime contractor whose contractual obligation to perform 
results from, or is conditioned upon, award of the prime contract and 
who is performing any part of the work or other requirement of the prime 
contract.
    Supplies means all property, except land and interests in land, that 
is clearly identifiable for eventual use by or owned by the DoD at the 
time of transportation by sea.
    (i) An item is clearly identifiable for eventual use by the DoD if, 
for example, the contract documentation contains a reference to a DoD 
contract number or a military destination.
    (ii) Supplies includes (but is not limited to) public works; 
buildings and facilities; ships; floating equipment and vessels of every 
character, type, and description, with parts, subassemblies, 
accessories, and equipment; machine tools; material; equipment; stores 
of all kinds; end items; construction materials; and components of the 
foregoing.
    U.S.-flag vessel means a vessel of the United States or belonging to 
the United States, including any vessel registered or having national 
status under the laws of the United States.
    (b)(1) The Contractor shall use U.S.-flag vessels when transporting 
any supplies by sea under this contract.
    (2) A subcontractor transporting supplies by sea under this contract 
shall use U.S.-flag vessels if the supplies being transported are--
    (i) Noncommercial items; or
    (ii) Commercial items that--
    (A) The Contractor is reselling or distributing to the Government 
without adding value (generally, the Contractor does not add value to 
items that it subcontracts for f.o.b. destination shipment);
    (B) Are shipped in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations; or
    (C) Are commissary or exchange cargoes transported outside of the 
Defense Transportation System in accordance with 10 U.S.C. 2643 (Note: 
This contract requires transportation of commissary or exchange cargoes 
outside of the Defense Transportation System in accordance with 10 
U.S.C. 2643).
    (c) The Contractor and its subcontractors may request that the 
Contracting Officer authorize shipment in foreign-flag vessels, or 
designate available U.S.-flag vessels, if the Contractor or a 
subcontractor believes that--
    (1) U.S.-flag vessels are not available for timely shipment;
    (2) The freight charges are inordinately excessive or unreasonable; 
or
    (3) Freight charges are higher than charges to private persons for 
transportation of like goods.
    (d) The Contractor must submit any request for use of foreign-flag 
vessels in writing to the Contracting Officer at least 45 days prior to 
the sailing date necessary to meet its delivery schedules. The 
Contracting Officer will process requests submitted after such date(s) 
as expeditiously as possible, but the Contracting Officer's failure to 
grant approvals to meet the shipper's sailing date will not of itself 
constitute a compensable delay under this or any other clause of this 
contract. Requests shall contain at a minimum--
    (1) Type, weight, and cube of cargo;
    (2) Required shipping date;
    (3) Special handling and discharge requirements;
    (4) Loading and discharge points;
    (5) Name of shipper and consignee;
    (6) Prime contract number; and
    (7) A documented description of efforts made to secure U.S.-flag 
vessels, including points of contact (with names and telephone numbers) 
with at least two U.S.-flag carriers contacted. Copies of telephone 
notes, telegraphic and facsimile message or letters will be sufficient 
for this purpose.
    (e) The Contractor shall, within 30 days after each shipment covered 
by this clause, provide the Contracting Officer and the Maritime 
Administration, Office of Cargo Preference, U.S. Department of 
Transportation, 400 Seventh Street SW., Washington, DC 20590, one copy 
of the rated on board vessel operating carrier's ocean bill of lading, 
which shall contain the following information:
    (1) Prime contract number;
    (2) Name of vessel;
    (3) Vessel flag of registry;
    (4) Date of loading;
    (5) Port of loading;
    (6) Port of final discharge;
    (7) Description of commodity;
    (8) Gross weight in pounds and cubic feet if available;
    (9) Total ocean freight in U.S. dollars; and
    (10) Name of steamship company.
    (f) If this contract exceeds the simplified acquisition threshold, 
the Contractor shall provide with its final invoice under this contract 
a representation that to the best of its knowledge and belief--
    (1) No ocean transportation was used in the performance of this 
contract;
    (2) Ocean transportation was used and only U.S.-flag vessels were 
used for all ocean shipments under the contract;
    (3) Ocean transportation was used, and the Contractor had the 
written consent of the Contracting Officer for all foreign-flag ocean 
transportation; or
    (4) Ocean transportation was used and some or all of the shipments 
were made on

[[Page 671]]

foreign-flag vessels without the written consent of the Contracting 
Officer. The Contractor shall describe these shipments in the following 
format:

----------------------------------------------------------------------------------------------------------------
                                           Item description       Contract line items            Quantity
----------------------------------------------------------------------------------------------------------------
 
    TOTAL............................
----------------------------------------------------------------------------------------------------------------

    (g) If this contract exceeds the simplified acquisition threshold 
and the final invoice does not include the required representation, the 
Government will reject and return it to the Contractor as an improper 
invoice for the purposes of the Prompt Payment clause of this contract. 
In the event there has been unauthorized use of foreign-flag vessels in 
the performance of this contract, the Contracting Officer is entitled to 
equitably adjust the contract, based on the unauthorized use.
    (h) If the Contractor has indicated by the response to the 
solicitation provision, Representation of Extent of Transportation by 
Sea, that it did not anticipate transporting by sea any supplies, but 
the contractor learns after the award of the contract that supplies will 
be transported by sea, the Contractor shall notify the Contracting 
Officer of that fact.
    (i) In the award of subcontracts for the types of supplies described 
in paragraph (b)(2) of this clause, including subcontracts for 
commercial items, the Contractor shall flow down the requirements of 
this clause as follows:
    (1) The Contractor shall insert the substance of this clause, 
including this paragraph (i), in subcontracts that exceed the simplified 
acquisition threshold in part 2 of the Federal Acquisition Regulation.
    (2) The Contractor shall insert the substance of paragraphs (a) 
through (e) of this clause, and this paragraph (i), in subcontracts that 
are at or below the simplified acquisition threshold in part 2 of the 
Federal Acquisition Regulation.

[56 FR 36479, July 31, 1991, as amended at 60 FR 61602, Nov. 30, 1995; 
65 FR 14401, Mar. 16, 2000; 67 FR 38022, May 31, 2002; 72 FR 49206, Aug. 
28, 2007; 77 FR 76938, Dec. 31, 2012; 78 FR 37991, June 25, 2013; 79 FR 
22039, Apr. 21, 2014; 80 FR 36900, June 26, 2015; 84 FR 4371, Feb. 15, 
2019]



252.247-7024  [Reserved]



252.247-7025  Reflagging or repair work.

    As prescribed in 247.574(c), use the following clause:

                  Reflagging or Repair Work (JUN 2005)

    (a) Definition. Reflagging or repair work, as used in this clause, 
means work performed on a vessel--
    (1) To enable the vessel to meet applicable standards to become a 
vessel of the United States; or
    (2) To convert the vessel to a more useful military configuration.
    (b) Requirement. Unless the Secretary of Defense waives this 
requirement, reflagging or repair work shall be performed in the United 
States or its outlying areas, if the reflagging or repair work is 
performed--
    (1) On a vessel for which the Contractor submitted an offer in 
response to the solicitation for this contract; and
    (2) Prior to acceptance of the vessel by the Government.

                             (End of clause)

[60 FR 29503, June 5, 1995, as amended at 70 FR 35548, June 21, 2005; 72 
FR 49206, Aug. 28, 2007; 84 FR 4371, Feb. 15, 2019]



252.247-7026  Evaluation Preference for Use of Domestic Shipyards--
Applicable to Acquisition of Carriage by Vessel for DoD Cargo in the 
Coastwise or Noncontiguous Trade.
          

    As prescribed in 247.574(d), use the following provision:

   Evaluation Preference For Use of Domestic Shipyards--Applicable To 
  Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise or 
                     Noncontiguous Trade (NOV 2008)

    (a) Definitions. As used in this provision--
    Covered vessel means a vessel--
    (1) Owned, operated, or controlled by the offeror; and
    (2) Qualified to engage in the carriage of cargo in the coastwise or 
noncontiguous trade under Section 27 of the Merchant Marine Act, 1920 
(46 U.S.C. 12101, 12132, and 55102), commonly referred to as ``Jones 
Act''; 46 U.S.C. 12102, 12112, and 12119; and Section 2 of the Shipping 
Act, 1916 (46 U.S.C. 50501).
    Foreign shipyard means a shipyard that is not a U.S. shipyard.
    Overhaul, repair, and maintenance work means work requiring a 
shipyard period greater than or equal to 5 calendar days.

[[Page 672]]

    Shipyard means a facility capable of performing overhaul, repair, 
and maintenance work on covered vessels.
    U.S. shipyard means a shipyard that is located in any State of the 
United States or in Guam.
    (b) This solicitation includes an evaluation criterion that 
considers the extent to which the offeror has had overhaul, repair, and 
maintenance work for covered vessels performed in U.S. shipyards.
    (c) The offeror shall provide the following information with its 
offer, addressing all covered vessels for which overhaul, repair, and 
maintenance work has been performed during the period covering the 
current calendar year, up to the date of proposal submission, and the 
preceding four calendar years:
    (1) Name of vessel.
    (2) Description and cost of qualifying shipyard work performed in 
U.S. shipyards.
    (3) Description and cost of qualifying shipyard work performed in 
foreign shipyards and whether--
    (i) Such work was performed as emergency repairs in foreign 
shipyards due to accident, emergency, Act of God, or an infirmity to the 
vessel, and safety considerations warranted taking the vessel to a 
foreign shipyard; or
    (ii) Such work was paid for or reimbursed by the U.S. Government.
    (4) Names of shipyards that performed the work.
    (5) Inclusive dates of work performed.
    (d) Offerors are responsible for submitting accurate information. 
The Contracting Officer--
    (1) Will use the information to evaluate offers in accordance with 
the criteria specified in the solicitation; and
    (2) Reserves the right to request supporting documentation if 
determined necessary in the proposal evaluation process.
    (e) The Department of Defense will provide the information submitted 
in response to this provision to the congressional defense committees, 
as required by Section 1017 of Public Law 109-364.

                           (End of provision)

[72 FR 49206, Aug. 28, 2007, as amended at 73 FR 70912, Nov. 24, 2008; 
84 FR 4371, Feb. 15, 2019]



252.247-7027  Riding gang member requirements.

    As prescribed in 247.574(e), use the following clause:

               Riding Gang Member Requirements (MAY 2018)

    (a) Definition. Riding gang member, as used in this clause, has the 
same definition as ``riding gang member'' in title 46 U.S.C. 2101.
    (b) Requirements relating to riding gang members. Notwithstanding 46 
U.S.C. 8106, the Contractor shall ensure each riding gang member holds a 
valid U.S. Merchant Mariner's Document issued under 46 U.S.C. chapter 
73, or a transportation security card issued under section 70105 of such 
title.
    (c) Exemption. (1) An individual is exempt from the requirements of 
paragraph (b) of this clause and shall not be treated as a riding gang 
member for the purposes of section 8106 of title 46, if that individual 
is on a vessel for purposes other than engaging in the operation or 
maintenance of the vessel and is--
    (i) One of the personnel who accompanies, supervises, guards, or 
maintains unit equipment aboard a ship, commonly referred to as 
supercargo personnel;
    (ii) One of the force protection personnel of the vessel;
    (iii) A specialized repair technician; or
    (iv) An individual who is otherwise required by the Secretary of 
Defense or designee to be aboard the vessel.
    (2) Any individual who is exempt under paragraph (c)(1) of this 
clause must pass a DoD background check before going aboard the vessel.
    (i) The Contractor shall--
    (A) Render all necessary assistance to U.S. Armed Forces personnel 
with respect to the identification and screening of exempted 
individuals. This will require, at a minimum, the Contractor to submit 
the name and other biographical information necessary to the Government 
official specified in the contract for the purposes of conducting a 
background check; and
    (B) Deny access or immediately remove any individual(s) from the 
vessel deemed unsuitable for any reason by the Government agency 
conducting the background checks. The Contractor agrees to replace any 
such individual promptly and require such replacements to fully comply 
with all screening requirements.
    (ii) The head of the contracting activity may waive this requirement 
if the individual possesses a valid U.S. Merchant Mariner's Document 
issued under 46 U.S.C. chapter 73, or a transportation security card 
issued under section 70105 of such title.
    (3) An individual exempted under paragraph (c)(1) of this clause is 
not treated as a riding gang member and shall not be counted as an 
individual in addition to the crew for the purposes of 46 U.S.C. 3304.

[[Page 673]]

                             (End of clause)

[75 FR 65439, Oct. 25, 2010, as amended at 76 FR 61281, Oct. 4, 2011; 83 
FR 24892, May 30, 2018; 84 FR 4371, Feb. 15, 2019]



252.247-7028  Application for U.S. Government Shipping Documentation
/Instructions.

    As prescribed in 247.207, use the following clause:

Application for U.S. Government Shipping Documentation/Instructions (JUN 
                                  2012)

    (a) Except as provided in paragraph (b) of this clause, the 
Contractor shall request bills of lading by submitting a DD Form 1659, 
Application for U.S. Government Shipping Documentation/Instructions, to 
the--
    (1) Transportation Officer, if named in the contract schedule; or
    (2) Contract administration office.
    (b) If an automated system is available for shipment requests, use 
service/agency systems (e.g., Navy's Global Freight Management-
Electronic Transportation Acquisition (GFM-ETA) and Financial Air 
Clearance Transportation System (FACTS) Shipment Processing Module, Air 
Force's Cargo Movement Operations System, DCMA's Shipment Instruction 
Request (SIR) E-tool, and DLA's Distribution Standard System Vendor 
Shipment Module in lieu of DD Form 1659.

                             (End of clause)

[77 FR 39141, June 29, 2012]



252.249-7000  Special termination costs.

    As prescribed in 249.501-70, use the following clause:

                  Special Termination Costs (DEC 1991)

    (a) Definition. Special termination costs, as used in this clause, 
means only costs in the following categories as defined in part 31 of 
the Federal Acquisition Regulation (FAR)--
    (1) Severance pay, as provided in FAR 31.205-6(g);
    (2) Reasonable costs continuing after termination, as provided in 
FAR 31.205-42(b);
    (3) Settlement of expenses, as provided in FAR 31.205-42(g);
    (4) Costs of return of field service personnel from sites, as 
provided in FAR 31.205-35 and FAR 31.205-46(c); and
    (5) Costs in paragraphs (a) (1), (2), (3), and (4) of this clause to 
which subcontractors may be entitled in the event of termination.
    (b) Notwithstanding the Limitation of Cost/Limitation of Funds 
clause of this contract, the Contractor shall not include in its 
estimate of costs incurred or to be incurred, any amount for special 
termination costs to which the Contractor may be entitled in the event 
this contract is terminated for the convenience of the Government.
    (c) The Contractor agrees to perform this contract in such a manner 
that the Contractor's claim for special termination costs will not 
exceed $____. The Government shall have no obligation to pay the 
Contractor any amount for the special termination costs in excess of 
this amount.
    (d) In the event of termination for the convenience of the 
Government, this clause shall not be construed as affecting the 
allowability of special termination costs in any manner other than 
limiting the maximum amount of the costs payable by the Government.
    (e) This clause shall remain in full force and effect until this 
contract is fully funded.

                             (End of clause)



252.249-7001  [Reserved]



252.249-7002  Notification of Anticipated Contract Termination 
or Reduction.

    As prescribed in 249.7004, use the following clause:

Notification of Anticipated Contract Termination or Reduction (JUN 2020)

    (a) Definition. As used in this clause--
    Major defense program means a program that is carried out to produce 
or acquire a major system (as defined in 10 U.S.C. 2302(5)).
    (b) Scope. This clause implements section 1372 of the National 
Defense Authorization Act for Fiscal Year 1994 (Pub. L. 103-160) and 
section 824 of the National Defense Authorization Act for Fiscal Year 
1997 (Pub. L. 104-201), which are intended to help establish benefit 
eligibility under the Workforce Innovation and Opportunity Act (29 
U.S.C. chapter 32) for employees of DoD contractors and subcontractors 
adversely affected by contract terminations or substantial reductions 
under major defense programs.
    (c) Notice to employees and state and local officials. (1) Within 2 
weeks after the Contracting Officer notifies the Contractor that 
contract funding will be terminated or substantially reduced, the 
Contractor shall provide notice of such anticipated termination or 
reduction to--
    (i) Each employee representative of the Contractor's employees whose 
work is directly related to the defense contract; or
    (ii) If there is no such representative, each such employee;
    (iii) The State or entity designated by the State to carry out rapid 
response activities described in the Workforce Innovation and 
Opportunity Act (29 U.S.C. 3174(a)(2)(A)(i)); and

[[Page 674]]

    (iv) The chief elected official of the unit of general local 
government within which the adverse effect may occur.
    (2) The notice provided an employee under paragraph (c)(1) of this 
clause shall have the same effect as a notice of termination to the 
employee for the purposes of determining whether such employee is 
eligible for training, adjustment assistance, and employment services 
under the Workforce Innovation and Opportunity Act (29 U.S.C. Chapter 
32).
    (d) Notice to subcontractors. Not later than 60 days after the 
Contractor receives the Contracting Officer's notice of the anticipated 
termination or reduction, the Contractor shall--
    (1) Provide notice of the anticipated termination or reduction to 
each first-tier subcontractor with a subcontract that equals or exceeds 
the threshold specified in Defense Federal Acquisition Regulation 
Supplement (DFARS) 249.7003(c)(1) at the time of the notice; and
    (2) Require that each such subcontractor--
    (i) Provide notice to each of its subcontractors with a subcontract 
that equals or exceeds the threshold specified in DFARS 
249.7003(c)(2)(i) at the time of the notice; and
    (ii) Impose a similar notice and flowdown requirement to 
subcontractors with subcontracts that equal or exceed the threshold 
specified in DFARS 249.7003(c)(2)(ii) at the time of the notice.

                             (End of clause)

[61 FR 64637, Dec. 6, 1996, as amended at 71 FR 75893, Dec. 19, 2006; 75 
FR 45074, Aug. 2, 2010; 80 FR 36905, June 26, 2015; 84 FR 25188, May 31, 
2019; 85 FR 34536, June 5, 2020]



252.251-7000  Ordering from Government supply sources.

    As prescribed in 251.107, use the following clause:

           Ordering From Government Supply Sources (AUG 2012)

    (a) When placing orders under Federal Supply Schedules, Personal 
Property Rehabilitation Price Schedules, or Enterprise Software 
Agreements, the Contractor shall follow the terms of the applicable 
schedule or agreement and authorization. Include in each order:
    (1) A copy of the authorization (unless a copy was previously 
furnished to the Federal Supply Schedule, Personal Property 
Rehabilitation Price Schedule, or Enterprise Software Agreement 
contractor).
    (2) The following statement: Any price reductions negotiated as part 
of an Enterprise Software Agreement issued under a Federal Supply 
Schedule contract shall control. In the event of any other 
inconsistencies between an Enterprise Software Agreement, established as 
a Federal Supply Schedule blanket purchase agreement, and the Federal 
Supply Schedule contract, the latter shall govern.
    (3) The completed address(es) to which the Contractor's mail, 
freight, and billing documents are to be directed.
    (b) When placing orders under nonmandatory schedule contracts and 
requirements contracts, issued by the General Services Administration 
(GSA) Office of Information Resources Management, for automated data 
processing equipment, software and maintenance, communications equipment 
and supplies, and teleprocessing services, the Contractor shall follow 
the terms of the applicable contract and the procedures in paragraph (a) 
of this clause.
    (c) When placing orders for Government stock on a reimbursable 
basis, the Contractor shall--
    (1) Comply with the requirements of the Contracting Officer's 
authorization, using FEDSTRIP or MILSTRIP procedures, as appropriate;
    (2) Use only the GSA Form 1948-A, Retail Services Shopping Plate, 
when ordering from GSA Self-Service Stores;
    (3) Order only those items required in the performance of Government 
contracts; and
    (4) Pay invoices from Government supply sources promptly. For 
purchases made from DoD supply sources, this means within 30 days of the 
date of a proper invoice. The Contractor shall annotate each invoice 
with the date of receipt. For purposes of computing interest for late 
Contractor payments, the Government's invoice is deemed to be a demand 
for payment in accordance with the Interest clause of this contract. The 
Contractor's failure to pay may also result in the DoD supply source 
refusing to honor the requisition (see DFARS 251.102(f)) or in the 
Contracting Officer terminating the Contractor's authorization to use 
DoD supply sources. In the event the Contracting Officer decides to 
terminate the authorization due to the Contractor's failure to pay in a 
timely manner, the Contracting Officer shall provide the Contractor with 
prompt written notice of the intent to terminate the authorization and 
the basis for such action. The Contractor shall have 10 days after 
receipt of the Government's notice in which to provide additional 
information as to why the authorization should not be terminated. The 
termination shall not provide the Contractor with an excusable delay for 
failure to perform or complete the contract in accordance with the terms 
of the contract, and the Contractor shall be solely responsible for any 
increased costs.
    (d) When placing orders for Government stock on a non-reimbursable 
basis, the Contractor shall--
    (1) Comply with the requirements of the Contracting Officer's 
authorization; and

[[Page 675]]

    (2) When using electronic transactions to submit requisitions on a 
non-reimbursable basis only, place orders by authorizing contract number 
using the Defense Logistics Management System (DLMS) Supplement to 
Federal Implementation Convention 511R, Requisition; and acknowledge 
receipts by authorizing contract number using the DLMS Supplement 527R, 
Receipt, Inquiry, Response and Material Receipt Acknowledgement.
    (e) Only the Contractor may request authorization for subcontractor 
use of Government supply sources. The Contracting Officer will not grant 
authorizations for subcontractor use without approval of the Contractor.
    (f) Government invoices shall be submitted to the Contractor's 
billing address, and Contractor payments shall be sent to the Government 
remittance address specified below:

Contractor's Billing Address (include point of contact and telephone 
number):

Government Remittance Address (include point of contact and telephone 
number):

                             (End of clause)

[56 FR 36479, July 31, 1991, as amended at 60 FR 29503, June 5, 1995; 67 
FR 65512, Oct. 25, 2002; 69 FR 67858, Nov. 22, 2004; 77 FR 52258, Aug. 
29, 2012]



252.251-7001  Use of Interagency Fleet Management System (IFMS) 
vehicles and related services.

    As prescribed in 251.205, use the following clause:

 Use of Interagency Fleet Management System (IFMS) Vehicles and Related 
                           Services (DEC 1991)

    (a) The Contractor, if authorized use of IFMS vehicles, shall submit 
requests for five or fewer vehicles and related services in writing to 
the appropriate General Services Administration (GSA) Regional Customer 
Service Bureau, Attention: Motor Equipment Activity. Submit requests for 
more than five vehicles to GSA headquarters: General Services 
Administration, FTM, Washington, DC 20406. Include the following in each 
request:
    (1) Two copies of the agency authorization to obtain vehicles and 
related services from GSA.
    (2) The number of vehicles and related services required and the 
period of use.
    (3) A list of the Contractor's employees authorized to request 
vehicles and related services.
    (4) A list of the makes, models, and serial numbers of Contractor-
owned or leased equipment authorized to be serviced.
    (5) Billing instructions and address.
    (b) The Contractor should make requests for any unusual quantities 
of vehicles as far in advance as possible.
    (c) The Contractor shall establish and enforce suitable penalties 
for employees who use or authorize the use of Government vehicles for 
other than performance of Government contracts.
    (d) The Contractor shall assume, without the right of reimbursement 
from the Government, the cost or expense of any use of IFMS vehicles and 
services not related to the performance of the contract.
    (e) Only the Contractor may request authorization for subcontractor 
use of IFMS vehicles. The Contracting Officer will not grant 
authorization for subcontractor use without approval of the Contractor.

                             (End of clause)



PART 253_FORMS--Table of Contents



                   Subpart 253.2_Prescription of Forms

Sec.
253.208 Required sources of supplies and services.
253.208-1 DD Form 448, Military Interdepartmental Purchase Request.
253.208-2 DD Form 448-2, Acceptance of MIPR.
253.209 Contractor qualifications.
253.209-1 Responsible prospective contractors.
253.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165, 1449, 
          and OF's 336, 347, and 348).
253.213-70 Completion of DD Form 1155, Order for Supplies or Services.
253.215 Contracting by negotiation.
253.215-70 DD Form 1547, Record of Weighted Guidelines Application.

                   Subpart 253.3_Illustration of Forms

253.303 Agency forms.

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

    Source: 56 FR 36554, July 31, 1991, unless otherwise noted.



                   Subpart 253.2_Prescription of Forms



253.208  Required sources of supplies and services.



253.208-1  DD Form 448, Military Interdepartmental Purchase Request.

    Follow the procedures at PGI 253.208-1 for use of DD Form 448.

[71 FR 39005, July 11, 2006]

[[Page 676]]



253.208-2  DD Form 448-2, Acceptance of MIPR.

    Follow the procedures at PGI 253.208-2 for use of DD Form 448-2.

[71 FR 39005, July 11, 2006]



253.209  Contractor qualifications.



253.209-1  Responsible prospective contractors.

    (a) SF 1403, Preaward Survey of Prospective Contractor (General). 
(i) The factors in Section III, Block 19, generally mean--
    (A) Technical capability. An assessment of the prospective 
contractor's key management personnel to determine if they have the 
basic technical knowledge, experience, and understanding of the 
requirements necessary to produce the required product or provide the 
required service.
    (B) Production capability. An evaluation of the prospective 
contractor's ability to plan, control, and integrate manpower, 
facilities, and other resources necessary for successful contract 
completion. This includes--
    (1) An assessment of the prospective contractor's possession of, or 
the ability to acquire, the necessary facilities, material, equipment, 
and labor; and
    (2) A determination that the prospective contractor's system 
provides for timely placement of orders and for vendor follow-up and 
control.
    (C) Quality assurance capability. An assessment of the prospective 
contractor's capability to meet the quality assurance requirements of 
the proposed contract. It may involve an evaluation of the prospective 
contractor's quality assurance system, personnel, facilities, and 
equipment.
    (D) Financial capability. A determination that the prospective 
contractor has or can get adequate financial resources to obtain needed 
facilities, equipment, materials, etc.
    (E) Accounting system and related internal controls. An assessment 
by the auditor of the adequacy of the prospective contractor's 
accounting system and related internal controls as defined in 242.7501, 
Definition. Normally, a contracting officer will request an accounting 
system review when soliciting and awarding cost-reimbursement or 
incentive type contracts, or contracts which provide for progress 
payments based on costs or on a percentage or stage of completion.
    (ii) The factors in section III, Block 20, generally mean--
    (A) Government property control. An assessment of the prospective 
contractor's capability to manage and control Government property.
    (B) Transportation. An assessment of the prospective contractor's 
capability to follow the laws and regulations applicable to the movement 
of Government material, or overweight, oversized, hazardous cargo, etc.
    (C) Packaging. An assessment of the prospective contractor's ability 
to meet all contractual packaging requirements including preservation, 
unit pack, packing, marking, and unitizing for shipment.
    (D) Security clearance. A determination that the prospective 
contractor's facility security clearance is adequate and current. (When 
checked, the surveying activity will refer this factor to the Defense 
Security Service (DSS)).
    (E) Plant safety. An assessment of the prospective contractor's 
ability to meet the safety requirements in the solicitation.
    (F) Environmental/energy consideration. An evaluation of the 
prospective contractor's ability to meet specific environmental and 
energy requirements in the solicitation.
    (G) Flight operations and flight safety. An evaluation of the 
prospective contractor's ability to meet flight operation and flight 
safety requirements on solicitations involving the overhaul and repair 
of aircraft.
    (H) Other. If the contracting officer wants an assessment of other 
than major factors A-E and other factors A-G, check this factor. Explain 
the desired information in the Remarks sections.

[56 FR 36554, July 31, 1991, as amended at 60 FR 29504, June 5, 1995; 64 
FR 51077, Sept. 21, 1999]



253.213  Simplified acquisition procedures 
(SF's 18, 30, 44, 1165, 1449, and OF's 336, 347, and 348).

    (f) DoD uses the DD Form 1155, Order for Supplies or Services, 
instead of OF

[[Page 677]]

347; and OF 336, Continuation Sheet, instead of OF 348. Follow the 
procedures at PGI 253.213(f) for use of forms.

[71 FR 3413, Jan. 23, 2006]



253.213-70  Completion of DD Form 1155, Order for Supplies or Services.

    Follow the procedures at PGI 253.213-70 for completion of DD Form 
1155.

[71 FR 3413, Jan. 23, 2006]



253.215  Contracting by negotiation.



253.215-70  DD Form 1547, Record of Weighted Guidelines Application.

    Follow the procedures at PGI 253.215-70 for completing DD Form 1547.

[71 FR 69495, Dec. 1, 2006]



                   Subpart 253.3_Illustration of Forms



253.303  Agency forms.

    DoD forms are available at https://www.esd.whs.mil/Directives/
forms/.

[86 FR 27278, May 20, 2021]

[[Page 678]]



              SUBCHAPTER I_AGENCY SUPPLEMENTARY REGULATIONS



                        PARTS 254	299 [RESERVED]



 Sec. Appendix A to Chapter 2--Armed Services Board of Contract Appeals

Pt.
Part 1--Charter
Part 2--Rules

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

                Armed Services Board of Contract Appeals

Approved 1 May 1962
Revised 1 May 1969
Revised 1 September 1973
Revised 1 July 1979
Revised 14 May 2007
Revised 9 April 2018
Revised 23 May 2019

                             Part 1--Charter

    1. There is created the Armed Services Board of Contract Appeals 
which is hereby designated as the authorized representative of the 
Secretary of Defense, the Secretary of the Army, the Secretary of the 
Navy, and the Secretary of the Air Force, in hearing, considering and 
determining appeals by contractors from decisions of contracting 
officers or their authorized representatives or other authorities on 
disputed questions. These appeals may be taken (a) pursuant to the 
Contract Disputes Act of 1978 (41 U.S.C. Sections 7101-7109), (b) 
pursuant to the provisions of contracts requiring the decision by the 
Secretary of Defense or by a Secretary of a Military Department or their 
duly authorized representative, or (c) pursuant to the provisions of any 
directive whereby the Secretary of Defense or the Secretary of a 
Military Department or their authorized representative has granted a 
right of appeal not contained in the contract on any matter consistent 
with the contract appeals procedure. The Board may determine contract 
disputes for other departments and agencies by agreement as permitted by 
law. The Board shall operate under general policies established or 
approved by the Under Secretary of Defense responsible for acquisition 
and may perform other duties as directed not inconsistent with the 
Contract Disputes Act of 1978. The Board shall decide the matters before 
it independently.
    2. Membership of the Board shall consist of attorneys at law who 
have been qualified in the manner prescribed by the Contract Disputes 
Act of 1978. Appointment of Board members shall be made by the Secretary 
of Defense. Members of the Board are hereby designated Administrative 
Judges. There shall be designated from among the appointed Judges of the 
Board a Chairman and two or more Vice Chairmen. Designation of the 
Chairman and Vice Chairmen shall be made by the Secretary of Defense, of 
nominees from Judges of the Board recommended by the Under Secretary of 
Defense responsible for acquisition, in coordination with the General 
Counsel of the Department of Defense, and the Assistant Secretaries of 
the Military Departments responsible for acquisition. When there is a 
vacancy, the incumbent is unavailable, or for appropriate Board 
administrative reasons, the Under Secretary of Defense responsible for 
acquisition or the Chairman may designate a Judge of the Board to serve 
as an Acting Chairman or Acting Vice Chairman.
    3. The Chairman of the Board shall be responsible for establishing 
appropriate divisions of the Board to provide for the most effective and 
expeditious handling of appeals. The Chairman shall have authority to 
establish procedures for the issuance of Board decisions. The Chairman 
may refer an appeal of unusual difficulty, significant precedential 
importance, or serious dispute within the normal decision process for 
decision by a Senior Deciding Group established by the Chairman which 
shall have the authority to overturn prior Board precedent.
    4. It shall be the duty and obligation of the Judges of the Armed 
Services Board of Contract Appeals to decide appeals on the record of 
the appeal to the best of their knowledge and ability in accordance with 
applicable contract provisions and in accordance with law and regulation 
pertinent thereto.
    5. Any Judge of the Board or any examiner, designated by the 
Chairman, shall be authorized to hold hearings, examine witnesses, and 
receive evidence and argument. A Judge of the Board shall have authority 
to administer oaths and issue subpoenas as specified in the Contract 
Disputes Act of 1978. In cases of contumacy or refusal to obey a 
subpoena, the Chairman may request orders of the court in the manner 
prescribed in the Contract Disputes Act of 1978.
    6. The Board shall have all powers necessary and incident to the 
proper performance of its duties. The Board has the authority to issue 
methods of procedure and rules and regulations for its conduct and for 
the preparation and presentation of appeals and issuance of opinions.
    7. The Chairman shall be responsible for the internal organization 
of the Board and for its administration. The Chairman shall provide 
within approved ceilings for the staffing of the Board with non-Judge 
personnel, including hearing examiners, as may

[[Page 679]]

be required for the performance of the functions of the Board. The 
Chairman shall appoint a Recorder of the Board. All personnel shall be 
responsible to and shall function under the direction, supervision and 
control of the Chairman.
    8. The Board will be serviced by the Department of the Army for 
administrative support as required for its operations. Administrative 
support will include budgeting, funding, fiscal control, manpower 
control and utilization, personnel administration, security 
administration, supplies, and other administrative services. The 
Departments of the Army, Navy, Air Force and the Office of the Secretary 
of Defense will participate in financing the Board's operations on an 
equal basis and to the extent determined by the Under Secretary of 
Defense (Comptroller). The cost of processing appeals for departments 
and agencies other than those in the Department of Defense will be 
reimbursed.
    9. Within 30 days following the close of a fiscal year, the Chairman 
shall forward a report of the Board's transactions and proceedings for 
the preceding fiscal year to the Under Secretary of Defense responsible 
for acquisition, the General Counsel of the Department of Defense, and 
the Assistant Secretaries of the Military Departments responsible for 
acquisition.
    10. The Board shall have a seal bearing the following inscription: 
``Armed Services Board of Contract Appeals.'' This seal shall be affixed 
to all authentications of copies of records and to such other 
instruments as the Board may determine.
    11. This revised charter is effective upon the date of the signature 
of the Secretary of Defense.

    Approved:

                (signed) Kenneth J. Krieg (14 May 2007),

Under Secretary of Defense (Acquisition, Technology and Logistics).

                     (signed) William J. Haynes II,

General Counsel of the Department of Defense.

                     (signed) Claude M. Bolton, Jr.,

Assistant Secretary of the Army (Acquisition, Logistics, & Technology).

                       (signed) Delores M. Etter,

Assistant Secretary of the Navy (Research, Development & Acquisition).

                         (signed) Sue C. Peyton,

Assistant Secretary of the Air Force (Acquisition).

                              Part 2--Rules

Approved 15 July 1963
Revised 1 May 1969
Revised 1 September 1973
Revised 30 June 1980
Revised 11 May 2011
Revised 21 July 2014

                                 Preface

                 I. Jurisdiction for Considering Appeals

    The Armed Services Board of Contract Appeals (referred to herein as 
the Board) has jurisdiction to decide any appeal from a final decision 
of a contracting officer, pursuant to the Contract Disputes Act, 41 
U.S.C. 7101-7109, or its Charter, 48 CFR Chap. 2, App. A, Pt. 1, 
relative to a contract made by the Department of Defense, the Department 
of the Army, the Department of the Navy, the Department of the Air 
Force, the National Aeronautics and Space Administration or any other 
department or agency, as permitted by law.

               II. Location and Organization of the Board

    (a) The Board's address is Skyline Six, Room 703, 5109 Leesburg 
Pike, Falls Church, VA 22041-3208; telephone 703-681-8500 (general), 
703-681-8502 (Recorder). The Board's facsimile number is 703-681-8535. 
The Board's Recorder's email address is [email protected]. The 
Board's Web site address is http://www.asbca.mil.
    (b) The Board consists of a Chairman, two or more Vice Chairmen, and 
other Members, all of whom are attorneys at law duly licensed by a 
state, commonwealth, territory, or the District of Columbia. Board 
Members are designated Administrative Judges.
    (c) There are a number of divisions of the Board, established by the 
Chairman in such manner as to provide for the most effective and 
expeditious handling of appeals. The Chairman and a Vice Chairman act as 
members of each division. Hearings may be held by an Administrative 
Judge or by a duly authorized examiner. Except for appeals processed 
under the expedited or accelerated procedure (see Rules 12.2(c) and 
12.3(c)), the decision of a majority of a division constitutes the 
decision of the Board, unless the Chairman refers the appeal to the 
Board's Senior Deciding Group (consisting of the Chairman, Vice 
Chairmen, all division heads, and the Judge who drafted the decision), 
in which event a decision of a majority of that group constitutes the 
decision of the Board. Appeals referred to the Senior Deciding Group are 
those of unusual difficulty or significant precedential importance, or 
that have occasioned serious dispute within the normal division decision 
process.
    (d) The Board will to the fullest extent practicable provide 
informal, expeditious, and inexpensive resolution of disputes.

[[Page 680]]

                            Table of Contents

          Rules of the Armed Services Board of Contract Appeals

Rule 1 Appeals
Rule 2 Filing Documents
Rule 3 Service Upon Other Parties
Rule 4 Preparation, Content, Organization, Forwarding, and Status of 
Appeal File
Rule 5 Time, Computation, and Extensions
Rule 6 Pleadings
Rule 7 Motions
Rule 8 Discovery
Rule 9 Pre-Hearing or Pre-Submission Conference
Rule 10 Hearings
Rule 11 Submission Without a Hearing
Rule 12 Optional Small Claims (Expedited) and Accelerated Procedures
Rule 13 Settling the Record in Appeals with a Hearing
Rule 14 Briefs
Rule 15 Representation
Rule 16 Sanctions
Rule 17 Dismissal or Default for Failure to Prosecute or Defend
Rule 18 Suspensions; Dismissal without Prejudice
Rule 19 Decisions
Rule 20 Motion for Reconsideration
Rule 21 Remand from Court
Rule 22 Subpoenas
Rule 23 Ex Parte Communications
Rule 24 Effective Date

                                Addendums

Addendum I: Equal Access to Justice Act Procedures
Addendum II: Alternative Methods of Dispute Resolution

                                  Rules

                             Rule 1. Appeals

    (a) Taking an Appeal--For appeals subject to the Contract Disputes 
Act, notice of an appeal shall be in writing and mailed or otherwise 
furnished to the Board within 90 days from the date of receipt of a 
contracting officer's decision. The appellant (contractor) should also 
furnish a copy of the notice of appeal to the contracting officer. For 
appeals not subject to the Contract Disputes Act, the contractor should 
refer to the Disputes clause in its contract for the time period in 
which it must file a notice of appeal.
    (1) Where the contractor has submitted a claim of $100,000 or less 
to the contracting officer and has requested a written decision within 
60 days from receipt of the request, and the contracting officer has not 
provided a decision within that period, or where such a contractor 
request has not been made and the contracting officer has not issued a 
decision within a reasonable time, the contractor may file a notice of 
appeal as provided in paragraph (a) of this Rule, citing the failure of 
the contracting officer to issue a decision.
    (2) Where the contractor has submitted a properly certified claim 
over $100,000 to the contracting officer or has submitted a claim that 
involves no monetary amount, and the contracting officer, within 60 days 
of receipt of the claim, fails to issue a decision or fails to provide 
the contractor with a reasonable date by which a decision will be 
issued, and the contracting officer has failed to issue a decision 
within a reasonable time, the contractor may file a notice of appeal as 
provided in paragraph (a) of this Rule, citing the failure of the 
contracting officer to issue a decision.
    (3) A reasonable time shall be determined by taking into account 
such factors as the size and complexity of the claim and the adequacy of 
the information provided by the contractor to support the claim.
    (4) Where an appeal is before the Board pursuant to paragraph (a)(1) 
or (a)(2) of this Rule, the Board may, at its option, stay further 
proceedings pending issuance of a final decision by the contracting 
officer within such period of time as is determined by the Board.
    (5) In lieu of filing a notice of appeal under paragraph (a)(1) or 
(a)(2) of this Rule, the contractor may petition the Board to direct the 
contracting officer to issue a decision in a specified period of time as 
determined by the Board.
    (b) Contents of Notice of Appeal--A notice of appeal shall indicate 
that an appeal is being taken and should identify the contract by 
number, the department and/or agency involved in the dispute, the 
decision from which the appeal is taken, and the amount in dispute, if 
any. A copy of the contracting officer's final decision, if any, should 
be attached to the notice of appeal. The notice of appeal should be 
signed by the appellant or by the appellant's duly authorized 
representative or attorney. The complaint referred to in Rule 6 may be 
filed with the notice of appeal, or the appellant may designate the 
notice of appeal as a complaint, if it otherwise fulfills the 
requirements of a complaint.
    (c) Docketing of Appeal--When a notice of appeal has been received 
by the Board, it will be docketed. The Board will provide a written 
notice of docketing to the appellant and to the Government.

                        Rule 2. Filing Documents

    (a) Documents may be filed with the Board by the following methods:
    (1) Governmental Postal Service--Documents may be filed via a 
governmental postal service. Filing occurs when the document, properly 
addressed and with sufficient postage, is transferred into the custody 
of the postal service. Contact the Recorder before submitting classified 
documents.

[[Page 681]]

    (2) Courier--Documents may be filed via courier. Filing occurs when 
the document is delivered to the Board. Contact the Recorder before 
submitting classified documents.
    (3) Electronic Mail--Documents, except appeal files submitted 
pursuant to Rule 4, hearing exhibits, classified documents, and 
documents submitted in camera or under a protective order, may be filed 
via electronic mail (email). Email attachments should be in PDF format 
and the attachments may not exceed 10 megabytes total. The transmittal 
email should include the ASBCA docket number(s), if applicable, and the 
name of the appellant in the ``Subject:'' line. Filing occurs upon 
receipt by the Board's email server. When a document is successfully 
filed via email, the document should not also be submitted by any other 
means, unless so directed by the Board. Submit emails to: 
[email protected].
    (4) Facsimile Transmission--Documents, except appeal files submitted 
pursuant to Rule 4, hearing exhibits, classified documents, and 
documents submitted in camera or under a protective order, may be filed 
via facsimile (fax) machine. Due to equipment constraints, transmissions 
over 10 pages should not be made absent Board permission. Filing occurs 
upon receipt by the Board. When a document is successfully filed via 
fax, the document should not also be submitted by any other means, 
unless so directed by the Board.
    (b) Copies to Opposing Party--The party filing any document with the 
Board will send a copy to the opposing party unless the Board directs 
otherwise, noting on the document filed with the Board that a copy has 
been so furnished.

                   Rule 3. Service Upon Other Parties

    Documents may be served personally or by mail, addressed to the 
party upon whom service is to be made, unless the parties have agreed to 
an alternate means of service. Subpoenas shall be served as provided in 
Rule 22.

 Rule 4. Preparation, Content, Organization, Forwarding, and Status of 
                               Appeal File

    (a) Duties of the Government--Within 30 days of notice that an 
appeal has been filed, the Government shall transmit to the Board and 
the appellant an appeal file consisting of the documents the Government 
considers relevant to the appeal, including:
    (1) The decision from which the appeal is taken;
    (2) The contract, including pertinent specifications, amendments, 
plans, and drawings;
    (3) All correspondence between the parties relevant to the appeal, 
including any claim in response to which the decision was issued.
    The Government's appeal file may be supplemented at such times as 
are fair and reasonable and as ordered by the Board.
    (b) Duties of the Appellant--Within 30 days after receipt of a copy 
of the Government's appeal file, the appellant shall transmit to the 
Board and the Government any documents not contained therein that the 
appellant considers relevant to the appeal. Appellant's appeal file may 
be supplemented at such times as are fair and reasonable and as ordered 
by the Board.
    (c) Organization of Appeal File--Documents in the appeal file may be 
originals or legible copies, and shall be arranged in chronological 
order where practicable, tabbed with sequential numbers, and indexed to 
identify the contents of the file. Any document without internal page 
numbers shall have page numbers added. All documents must be in English 
or include an English translation. Documents shall be submitted in 3-
ring binders, with spines not wider than 3 inches wide, with labels 
identifying the name of the appeal, ASBCA number and tab numbers 
contained in each volume, on the front and spine of each volume. Each 
volume shall contain an index of the documents contained in the entire 
Rule 4 submission.
    (d) Status of Documents in Appeal File--Documents contained in the 
appeal file are considered, without further action by the parties, as 
part of the record upon which the Board will render its decision. 
However, a party may object, for reasons stated, to the admissibility of 
a particular document reasonably in advance of hearing or, if there is 
no hearing, of settling the record, or in any case as ordered by the 
Board. If such objection is made, the Board will constructively remove 
the document from the appeal file and permit the party offering the 
document to move its admission as evidence in accordance with Rules 10, 
11, and 13.

                Rule 5. Time, Computation, and Extensions

    (a) Where practicable, actions should be taken in less time than the 
time allowed. Where appropriate and justified, however, extensions of 
time will be granted. All requests for extensions of time should be in 
writing and indicate that the other party was contacted to seek its 
concurrence.
    (b) In computing any period of time, the day of the event from which 
the designated period of time begins to run will not be included, but 
the last day of the period will be included unless it is a Saturday, 
Sunday, or a Federal holiday, in which event the period will run to the 
next business day.

                            Rule 6. Pleadings

    (a) Appellant--Within 30 days after receipt of notice of docketing 
of the appeal, the appellant shall file with the Board a complaint 
setting forth simple, concise, and direct statements of each of its 
claims. The complaint shall also set forth the basis, with appropriate 
reference to contract provisions, of

[[Page 682]]

each claim and the dollar amount claimed, if any. This pleading shall 
fulfill the generally recognized requirements of a complaint, although 
no particular form is required. Should the complaint not be timely 
received, the appellant's claim and notice of appeal may be deemed to 
set forth its complaint if, in the opinion of the Board, the issues 
before the Board are sufficiently defined, and the parties will be 
notified.
    (b) Government--Within 30 days from receipt of the complaint, or the 
aforesaid notice from the Board, the Government shall file with the 
Board an answer thereto. The answer shall admit or deny the allegations 
of the complaint and shall set forth simple, concise, and direct 
statements of the Government's defenses to each claim asserted by the 
appellant, including any affirmative defenses. Should the answer not be 
timely received, the Board may enter a general denial on behalf of the 
Government, and the parties will be notified.
    (c) Foreign Law--A party who intends to raise an issue concerning 
the law of a foreign country shall give notice in its pleadings or other 
reasonable written notice. The Board, in determining foreign law, may 
consider any relevant material or source, including testimony, whether 
or not submitted by a party or admissible under Rules 10, 11, or 13. The 
determination of foreign law shall be treated as a ruling on a question 
of law.
    (d) Further Pleadings--The Board upon its own initiative or upon 
motion may order a party to make a more definite statement of the 
complaint or answer, or to reply to an answer. The Board may permit 
either party to amend its pleading upon conditions fair to both parties. 
When issues within the proper scope of the appeal, but not raised by the 
pleadings, are tried by express or implied consent of the parties, or by 
permission of the Board, they shall be treated in all respects as if 
they had been raised therein. In such instances, motions to amend the 
pleadings to conform to the proof may be entered, but are not required. 
If evidence is objected to at a hearing on the ground that it is not 
within the issues raised by the pleadings, it may be admitted within the 
proper scope of the appeal, provided however, that the objecting party 
may be granted an opportunity to meet such evidence.

                             Rule 7. Motions

    (a) Motions Generally--The Board may entertain and rule upon motions 
and may defer ruling as appropriate. The Board will rule on motions so 
as to secure, to the fullest extent practicable, the informal, 
expeditious, and inexpensive resolution of appeals. All motions should 
be filed as separate documents with an appropriate heading describing 
the motion. Oral argument on motions is subject to the discretion of the 
Board.
    (b) Jurisdictional Motions--Any motion addressed to the jurisdiction 
of the Board should be promptly filed. An evidentiary hearing to address 
disputed jurisdictional facts will be afforded on application of either 
party or by order of the Board. The Board may defer its decision on the 
motion pending hearing on the merits. The Board may at any time and on 
its own initiative raise the issue of its jurisdiction, and shall do so 
by an appropriate order, affording the parties an opportunity to be 
heard thereon.
    (c) Summary Judgment Motions--
    (1) To facilitate disposition of such a motion, the parties should 
adhere to the following procedures. Where the parties agree that 
disposition by summary judgment or partial summary judgment is 
appropriate, they may file a stipulation of all material facts necessary 
for the Board to rule on the motion. Otherwise, the moving party should 
file with its motion a ``Statement of Undisputed Material Facts,'' 
setting forth the claimed undisputed material facts in separate, 
numbered paragraphs. The non-moving party should file a ``Statement of 
Genuine Issues of Material Fact,'' responding to each numbered paragraph 
proposed, demonstrating, where appropriate, the existence of material 
facts in dispute and if appropriate propose additional facts. The moving 
party and the non-moving party should submit a memorandum of law 
supporting or opposing summary judgment.
    (2) In deciding motions for summary judgment, the Board looks to 
Rule 56 of the Federal Rules of Civil Procedure for guidance. The 
parties should explicitly state and support by specific evidence all 
facts and legal arguments necessary to sustain a party's position. Each 
party should cite to the record and attach any additional evidence upon 
which it relies (e.g., affidavits, declarations, excerpts from 
depositions, answers to interrogatories, admissions). The Board may 
accept a fact properly proposed and supported by one party as 
undisputed, unless the opposing party properly responds and establishes 
that it is in dispute.
    (d) Response to Motions--A non-moving party has 30 days from receipt 
of a motion to file its response, unless a different period is ordered 
by the Board. A moving party has 30 days from receipt of a non-moving 
party's response to file a reply, unless a different period is ordered 
by the Board.

                            Rule 8. Discovery

    (a) General Policy and Protective Orders--The parties are encouraged 
to engage in voluntary discovery procedures. Within 45 days after the 
pleadings have been filed, the parties must confer concerning each 
party's discovery needs, including the scheduling of discovery and the 
production of electronically stored information. Absent stipulation or a 
Board order, no discovery may be served

[[Page 683]]

prior to this conference. Any motion pertaining to a discovery dispute 
shall include a statement that the movant has in good faith attempted to 
resolve the discovery dispute without involvement of the Board. In 
connection with any discovery procedure, the Board may issue orders to 
protect a party or person from annoyance, embarrassment, or undue burden 
or expense. Those orders may include limitations on the scope, method, 
time, and place for discovery, and provisions for governing the 
disclosure of information or documents. Any discovery under this Rule 
shall be subject to the provisions of Rule 16 with respect to sanctions.
    (b) Depositions--When Permitted--Subject to paragraph (a) of this 
Rule, a party may take, or the Board may upon motion order the taking 
of, testimony of any person by deposition upon oral examination or 
written interrogatories before any officer authorized to administer 
oaths at the place of examination, for use as evidence or for purpose of 
discovery. The Board expects the parties to make persons under their 
control available for deposition. The motion for an order shall specify 
whether the purpose of the deposition is discovery or for use as 
evidence.
    (1) Depositions--Orders--The time, place, and manner of taking 
depositions shall be as mutually agreed by the parties, or failing such 
agreement, governed by order of the Board.
    (2) Depositions--Use as Evidence--No testimony taken by deposition 
shall be considered as part of the evidence in the hearing of an appeal 
until such testimony is offered and received in evidence at such 
hearing. It will not ordinarily be received in evidence if the deponent 
can testify at the hearing. The deposition may be used to contradict or 
impeach the testimony of the deponent given at a hearing. In cases 
submitted on the record, the Board may receive depositions to supplement 
the record.
    (3) Depositions--Expenses--Each party shall bear its own expenses 
associated with the taking of any deposition, absent an agreement by the 
parties or a Board order to the contrary.
    (4) Depositions--Subpoenas--Where appropriate, a party may request 
the issuance of a subpoena under the provisions of Rule 22.
    (c) Interrogatories, Requests for Admissions, Requests for 
Production--Subject to paragraph (a) of this Rule, a party may serve, or 
the Board may upon motion order:
    (1) Written interrogatories to be answered separately in writing, 
signed under oath and answered or objected to within 45 days after 
service;
    (2) A request for the admission of specified facts and/or of the 
authenticity of any documents, to be answered or objected to within 45 
days after service, the factual statements and/or the authenticity of 
the documents to be deemed admitted upon failure of a party to respond 
to the request; and
    (3) A request for the production, inspection, and copying of any 
documents, electronic or otherwise, or objects, not privileged, which 
reasonably may lead to the discovery of admissible evidence, to be 
answered or objected to within 45 days after service. The Board may 
allow a shorter or longer time.

            Rule 9. Pre-Hearing or Pre-Submission Conference

    The Board may, upon its own initiative, or upon the request of 
either party, arrange a conference or order the parties to appear before 
an Administrative Judge or examiner for a conference to address any 
issue related to the prosecution of the appeal.

                            Rule 10. Hearings

    (a) Where and When Held--Hearings will be held at such times and 
places determined by the Board to best serve the interests of the 
parties and the Board.
    (b) Unexcused Absence--The unexcused absence of a party at the time 
and place set for hearing will not be occasion for delay. In the event 
of such absence, the hearing will proceed and the evidentiary record 
will consist solely of the evidence of record at the conclusion of the 
hearing, except as ordered otherwise by the Board.
    (c) Nature of Hearings--Hearings shall be as informal as may be 
reasonable and appropriate under the circumstances. The parties may 
offer such evidence as they deem appropriate and as would be admissible 
under the Federal Rules of Evidence or in the sound discretion of the 
presiding Administrative Judge or examiner. The Federal Rules of 
Evidence are not binding on the Board but may guide the Board's rulings. 
The parties may stipulate the testimony that would be given by a witness 
if the witness were present. The Board may require evidence in addition 
to that offered by the parties.
    (d) Examination of Witnesses--Witnesses will be examined orally 
under oath or affirmation, unless the presiding Administrative Judge or 
examiner shall otherwise order. If the testimony of a witness is not 
given under oath or affirmation, the Board may advise the witness that 
his or her testimony may be subject to any provision of law imposing 
penalties for knowingly making false representations in connection with 
claims.
    (e) Interpreters--In appropriate cases, the Board may order that an 
interpreter be used. An interpreter must be qualified and must be placed 
under oath or affirmation to give a complete and true translation.
    (f) Transcripts--Testimony and argument at hearings will be reported 
verbatim, unless the Board otherwise orders. The Board will

[[Page 684]]

contract for a reporter. No other recordings of the proceedings will be 
made.

                  Rule 11. Submission Without a Hearing

    (a) Either party may elect to waive a hearing and to submit its case 
upon the record. Submission of a case without hearing does not relieve 
the parties from the necessity of proving the facts supporting their 
allegations or defenses. Affidavits, declarations, depositions, 
admissions, answers to interrogatories, and stipulations may be employed 
in addition to the Rule 4 file if moved and accepted into evidence. Such 
submissions may be supplemented by briefs. The Board may designate, with 
notice to the parties, any document to be made part of the record.
    (b) As appropriate, the Board may also rely on pleadings, prehearing 
conference memoranda, orders, briefs, stipulations and other documents 
contained in the Board's file.
    (c) Except as the Board may otherwise order, no evidence will be 
received after notification by the Board that the record is closed.
    (d) The weight to be given to any evidence will rest within the 
discretion of the Board. The Board may require either party, with 
appropriate notice to the other party, to submit additional evidence on 
any matter relevant to the appeal.
    (e) The record will at all reasonable times be available for 
inspection by the parties at the offices of the Board.

  Rule 12. Optional Small Claims (Expedited) and Accelerated Procedures

   12.1 Elections To Utilize Small Claims (Expedited) and Accelerated 
                               Procedures

    (a) In appeals where the amount in dispute is $50,000 or less, or in 
the case of a small business concern (as defined in the Small Business 
Act and regulations under that Act), $150,000 or less, the appellant may 
elect to have the appeal processed under a Small Claims (Expedited) 
procedure requiring decision of the appeal, whenever possible, within 
120 days after the Board receives written notice of the appellant's 
election to utilize this procedure. The details of this procedure appear 
in section 12.2 of this Rule. An appellant may elect the Accelerated 
procedure rather than the Small Claims (Expedited) procedure for any 
appeal where the amount in dispute is $50,000 or less.
    (b) In appeals where the amount in dispute is $100,000 or less, the 
appellant may elect to have the appeal processed under an Accelerated 
procedure requiring decision of the appeal, whenever possible, within 
180 days after the Board receives written notice of the appellant's 
election to utilize this procedure. The details of this procedure appear 
in section 12.3 of this Rule.
    (c) The appellant's election of either the Small Claims (Expedited) 
procedure or the Accelerated procedure shall be made by written notice 
within 60 days after receipt of notice of docketing, unless such period 
is extended by the Board for good cause. The election, once made, may 
not be changed or withdrawn except with permission of the Board and for 
good cause.
    (d) The 45-day conference required by Rule 8(a) does not apply to 
Rule 12 appeals.

                 12.2 Small Claims (Expedited) Procedure

    (a) In appeals proceeding under the Small Claims (Expedited) 
procedure, the following time periods shall apply:
    (1) Within 10 days from the Government's receipt of the appellant's 
notice of election of the Small Claims (Expedited) procedure, the 
Government shall send the Board a copy of the contract, the contracting 
officer's final decision, and the appellant's claim letter or letters, 
if any. Any other documents required under Rule 4 shall be submitted in 
accordance with times specified in that Rule unless the Board otherwise 
directs.
    (2) Within 15 days after the Board has acknowledged receipt of the 
appellant's notice of election, the assigned Administrative Judge should 
take the following actions, if feasible, in a pre-hearing conference:
    (i) Identify and simplify the issues;
    (ii) Establish a simplified procedure, including discovery, 
appropriate to the particular appeal involved;
    (iii) Determine whether either party elects a hearing, and if so, 
fix a time and place therefor; and
    (iv) Establish an expedited schedule for the timely resolution of 
the appeal.
    (b) Pleadings, discovery, and other prehearing activity will be 
allowed only as consistent with the requirement to conduct a hearing, or 
if no hearing is elected, to close the record on a date that will allow 
the timely issuance of the decision. The Board may shorten time periods 
prescribed or allowed under these Rules as necessary to enable the Board 
to decide the appeal within the 120-day period.
    (c) Written decisions by the Board in appeals processed under the 
Small Claims (Expedited) procedure will be short and will contain only 
summary findings of fact and conclusions. Decisions will be rendered for 
the Board by a single Administrative Judge. If there has been a hearing, 
the Administrative Judge presiding at the hearing may at the conclusion 
of the hearing and after entertaining such oral argument as deemed 
appropriate, render on the record oral summary findings of fact, 
conclusions, and a decision of the appeal. Whenever such an oral 
decision is rendered, the Board will subsequently furnish the parties an 
authenticated copy of such oral decision for record and payment purposes 
and to establish the starting date for the period for filing a motion 
for reconsideration under Rule 20.

[[Page 685]]

    (d) A decision under Rule 12.2 shall have no value as precedent, and 
in the absence of fraud, shall be final and conclusive and may not be 
appealed or set aside.

                       12.3 Accelerated Procedure

    (a) In appeals proceeding under the Accelerated procedure, the 
parties are encouraged, to the extent possible consistent with adequate 
presentation of their factual and legal positions, to waive pleadings, 
discovery, and briefs. The Board may shorten time periods prescribed or 
allowed under these Rules as necessary to enable the Board to decide the 
appeal within the 180-day period.
    (b) Within 30 days after the Board has acknowledged receipt of the 
appellant's notice of election, the assigned Administrative Judge should 
take the following actions, if feasible, in a pre-hearing conference:
    (1) Identify and simplify the issues;
    (2) Establish a simplified procedure, including discovery, 
appropriate to the particular appeal involved;
    (3) Determine whether either party elects a hearing, and if so, fix 
a time and place therefor; and
    (4) Establish an accelerated schedule for the timely resolution of 
the appeal.
    (c) Written decisions by the Board in appeals processed under the 
Accelerated procedure will normally be short and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Administrative Judge with the concurrence of a Vice 
Chairman, or by a majority among these two and the Chairman in case of 
disagreement.

           12.4 Motions for Reconsideration in Rule 12 Appeals

    Motions for reconsideration of appeals decided under either the 
Small Claims (Expedited) procedure or the Accelerated procedure need not 
be decided within the original 120-day or 180-day limit, but all such 
motions will be processed and decided promptly so as to be consistent 
with the intent of this Rule.

         Rule 13. Settling the Record in Appeals With a Hearing

    (a) The record upon which the Board's decision will be rendered 
consists of the documents admitted under Rule 4, the documents admitted 
into evidence as hearing exhibits, together with the hearing transcript. 
The Board may designate with notice to the parties, any document to be 
made part of the record.
    (b) As appropriate, the Board may also rely on pleadings, pre-
hearing conference memoranda, orders, briefs, stipulations, and other 
documents contained in the Board's file.
    (c) Except as the Board may otherwise order, no evidence will be 
received after completion of an oral hearing.
    (d) The weight to be given to any evidence will rest within the 
discretion of the Board. The Board may require either party, with 
appropriate notice to the other party, to submit additional evidence on 
any matter relevant to the appeal.
    (e) The record will at all reasonable times be available for 
inspection by the parties at the offices of the Board.

                             Rule 14. Briefs

    (a) Pre-Hearing Briefs--The Board may require the parties to submit 
pre-hearing briefs. If the Board does not require pre-hearing briefs, 
either party may, upon appropriate and sufficient notice to the other 
party, furnish a pre-hearing brief to the Board.
    (b) Post-Hearing Briefs--Post-hearing briefs may be submitted upon 
such terms as may be directed by the presiding Administrative Judge or 
examiner at the conclusion of the hearing.

                         Rule 15. Representation

    (a) An individual appellant may represent his or her interests 
before the Board; a corporation may be represented by one of its 
officers; and a partnership or joint venture by one of its members; or 
any of these by an attorney at law duly licensed in any state, 
commonwealth, territory, the District of Columbia, or in a foreign 
country. Anyone representing an appellant shall file a written notice of 
appearance with the Board.
    (b) The Government shall be represented by counsel. Counsel for the 
Government shall file a written notice of appearance with the Board.

                           Rule 16. Sanctions

    If any party fails to obey an order issued by the Board, the Board 
may impose such sanctions as it considers necessary to the just and 
expeditious conduct of the appeal.

    Rule 17. Dismissal or Default for Failure to Prosecute or Defend

    Whenever the record discloses the failure of either party to file 
documents required by these Rules, respond to notices or correspondence 
from the Board, comply with orders of the Board, or otherwise indicates 
an intention not to continue the prosecution or defense of an appeal, 
the Board may, in the case of a default by the appellant, issue an order 
to show cause why the appeal should not be dismissed with prejudice for 
failure to prosecute. In the case of a default by the Government, the 
Board may issue an order to show cause why the Board should not act 
thereon pursuant to Rule 16. If good cause is not shown, the Board may 
take appropriate action.

[[Page 686]]

            Rule 18. Suspensions; Dismissal Without Prejudice

    (a) The Board may suspend the proceedings by agreement of the 
parties for settlement discussions, or for good cause shown.
    (b) In certain cases, appeals docketed before the Board are required 
to be placed in a suspense status and the Board is unable to proceed 
with disposition thereof for reasons not within the control of the 
Board. Where the suspension has continued, or may continue, for an 
inordinate length of time, the Board may dismiss such appeals from its 
docket for a period of time without prejudice to their restoration. 
Unless either party or the Board moves to reinstate the appeal within 
the time period set forth in the dismissal order, or if no time period 
is set forth, within one year from the date of the dismissal order, the 
dismissal shall be deemed to be with prejudice.

                           Rule 19. Decisions

    (a) Decisions of the Board will be made in writing and authenticated 
copies of the decision will be sent simultaneously to both parties. All 
orders and decisions, except those as may be required by law to be held 
confidential, will be available to the public. Decisions of the Board 
will be made solely upon the record.
    (b) Any monetary award shall be promptly paid.
    (c) In awards that may be paid from the Judgment Fund, 31 U.S.C. 
1304, the Recorder will forward the required forms to each party with 
the decision. If the parties do not contemplate an appeal or motion for 
reconsideration, they will execute the forms indicating that no judicial 
review will be sought. The Government agency will forward the required 
forms with a copy of the decision to the Department of the Treasury for 
certification of payment.
    (d) When the parties settle an appeal in favor of the appellant, 
they may file with the Board a stipulation setting forth the amount of 
the settlement due to the appellant. By joint motion, the parties may 
request that the Board issue a decision in the nature of a consent 
judgment, awarding the stipulated amount to the appellant. These 
decisions will be processed in accordance with paragraph (c) of this 
Rule.
    (e) After a decision has become final the Board may, upon request of 
a party and after notice to the other party, grant the withdrawal of 
original exhibits, or any part thereof. The Board may require the 
substitution of true copies of exhibits or any part thereof as a 
condition of granting permission for such withdrawal.

                   Rule 20. Motion for Reconsideration

    A motion for reconsideration may be filed by either party. It shall 
set forth specifically the grounds relied upon to grant the motion. The 
motion must be filed within 30 days from the date of the receipt of a 
copy of the decision of the Board by the party filing the motion. An 
opposing party must file any cross-motion for reconsideration within 30 
days from its receipt of the motion for reconsideration. Extensions in 
the period to file a motion will not be granted. Extensions to file a 
memorandum in support of a timely-filed motion may be granted.

                       Rule 21. Remand from Court

    Whenever any Court remands an appeal to the Board for further 
proceedings, each of the parties shall, within 30 days of receipt of 
such remand, submit a report to the Board recommending procedures to be 
followed so as to comply with the Court's remand. The Board will 
consider the reports and enter an order governing the remanded appeal.

                           Rule 22. Subpoenas

    (a) Voluntary Cooperation--Each party is expected:
    (1) To cooperate and make available witnesses and evidence under its 
control as requested by the other party without issuance of a subpoena, 
and
    (2) To secure voluntary attendance of desired third-party witnesses 
and production of desired third-party books, records, documents, or 
tangible things whenever possible.
    (b) General--Upon written request of either party, or on his or her 
own initiative, an Administrative Judge may issue a subpoena requiring:
    (1) Testimony at a deposition--The deposing of a witness in the city 
or county where the witness resides or is employed or transacts business 
in person, or at another location convenient for the witness that is 
specifically determined by the Board;
    (2) Testimony at a hearing--The attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (3) Production of books and records--The production by the witness 
at the deposition or hearing of books and records (including 
electronically stored information and other tangible things) designated 
in the subpoena.
    (c) Request for Subpoena--
    (1) A request for subpoena shall normally be filed at least:
    (i) 15 days before a scheduled deposition where the attendance of a 
witness at a deposition is sought; or
    (ii) 30 days before a scheduled hearing where the attendance of a 
witness at a hearing is sought.
    (2) The Board may honor a request for subpoena not made within the 
time limitations set forth in paragraph (c)(1) of this Rule.
    (3) A request for a subpoena shall state the reasonable scope and 
general relevance to the case of the testimony and of any books

[[Page 687]]

and records sought. The Board may require resubmission of a request that 
does not provide this information.
    (d) Requests to Quash or Modify--Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the Board may quash or modify the subpoena if it is unreasonable or 
oppressive or for other good cause shown, or require the person in whose 
behalf the subpoena was issued to advance the reasonable cost of 
producing subpoenaed books and papers. Where circumstances require, the 
Board may act upon such a request at any time after a copy of the 
request has been served upon the opposing party.
    (e) Form of Subpoena--
    (1) Every subpoena shall state the name of the Board and the caption 
of the appeal, and shall command each person to whom it is directed to 
attend and give testimony, and if appropriate, to produce specified 
books and records at a time and place therein specified. In issuing a 
subpoena to a requesting party, the Administrative Judge will sign the 
subpoena, enter the name of the witness and may otherwise leave it 
blank. The party to whom the subpoena is issued shall complete the 
subpoena before service.
    (2) Where the witness is located in a foreign country, a letter 
rogatory may be issued and served under the circumstances and in the 
manner provided in 28 U.S.C. 1781.
    (f) Service--
    (1) The party requesting issuance of a subpoena shall arrange for 
service.
    (2) A subpoena requiring the attendance of a witness at a deposition 
or hearing may be served in any state, commonwealth, territory, or the 
District of Columbia. A subpoena may be served by a United States 
marshal or deputy marshal, or by any other person who is not a party and 
not less than 18 years of age. Service of a subpoena upon a person named 
therein shall be made by personally delivering a copy to that person and 
tendering the fees for one day's attendance and the mileage provided by 
28 U.S.C. 1821 or other applicable law. However, where the subpoena is 
issued on behalf of the Government, payment need not be tendered in 
advance of attendance.
    (3) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and of 
the officer who serves the subpoena. The failure to make payment of such 
charges on demand may be deemed by the Board as a sufficient ground for 
striking such evidence as the Board deems appropriate.
    (g) Contumacy or Refusal to Obey a Subpoena--In case of contumacy or 
refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a United States District 
Court, the Board may apply to the Court through the Attorney General of 
the United States for an order requiring the person to appear before the 
Board to give testimony or produce evidence or both. Any failure of any 
such person to obey the order of the Court may be punished by the Court 
as a contempt thereof.

                    Rule 23. Ex Parte Communications

    No member of the Board or of the Board's staff shall entertain, nor 
shall any person directly or indirectly involved in an appeal, submit to 
the Board or the Board's staff, ex parte, any evidence, explanation, 
analysis, or advice, whether written or oral, regarding any matter at 
issue in an appeal. This Rule does not apply to consultation among Board 
members or its staff or to ex parte communications concerning the 
Board's administrative functions or procedures.

                         Rule 24. Effective Date

    These rules and addendums are applicable to appeals processed under 
the Contract Disputes Act (CDA), 41 U.S.C. 7101-7109, and other appeals 
to the extent consistent with law. They apply to all appeals filed on or 
after the date of final publication in the Federal Register, and to 
those appeals filed before that date, unless that application is 
inequitable or unfair.

                               ADDENDUM I

                 EQUAL ACCESS TO JUSTICE ACT PROCEDURES

    (a) Definitions--
    For the purpose of these procedures:
    (1) ``Equal Access to Justice Act,'' or ``EAJA,'' means 5 U.S.C. 
504, as amended;
    (2) ``Board'' means the Armed Services Board of Contract Appeals; 
and
    (3) ``Contract Disputes Act'' means the Contract Disputes Act, 41 
U.S.C. 7101-7109 (CDA).
    (b) Scope of procedures--These procedures are intended to assist the 
parties in the processing of EAJA applications for award of fees and 
other expenses incurred in connection with appeals pursuant to the CDA.
    (c) Eligibility of applicants--
    (1) To be eligible for an EAJA award, an applicant must be a party 
appellant that has prevailed in a CDA appeal before the Board and must 
be one of the following:
    (i) An individual with a net worth which did not exceed $2,000,000 
at the time the appeal was filed; or
    (ii) Any owner of an unincorporated business, or any partnership, 
corporation, association, unit of local Government, or organization, the 
net worth of which does not exceed $7,000,000 and which does not have 
more than 500 employees; except:
    (A) Certain charitable organizations or cooperative associations; 
and

[[Page 688]]

    (B) For the purposes of 5 U.S.C. 504(a)(4), a small entity as 
defined in 5 U.S.C. 601, need not comply with any net worth requirement 
(see 5 U.S.C. 504(b)(1)(B)).
    (2) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
underlying CDA appeal was filed with the Board.
    (d) Standards of awards--A prevailing eligible applicant shall 
receive an award of fees and expenses incurred in connection with a CDA 
appeal, unless the position of the Government over which the applicant 
prevailed was substantially justified, or if special circumstances make 
the award unjust.
    (e) Allowable fees and other expenses--
    (1) Fees and other expenses must be reasonable. Awards will be based 
upon the prevailing market rates, subject to paragraph (e)(2) of this 
section, for the kind and quality of services furnished by attorneys, 
agents, and expert witnesses.
    (2) No award for the fee of an attorney or agent may exceed $125 per 
hour. No expert witness shall be compensated at a rate in excess of the 
highest rate of compensation for expert witnesses paid by the agency 
involved.
    (3) The reasonable cost of any study, analysis, engineering report, 
test, or project, prepared on behalf of a party may be awarded, to the 
extent that the study or other matter was necessary in connection with 
the appeal and the charge for the service does not exceed the prevailing 
rate for similar services.
    (f) Time for filing of applications--An application may be filed 
after an appellant has prevailed in the CDA appeal within 30 days after 
the Board's disposition of the appeal has become final.
    (g) Application contents--
    (1) An EAJA application shall comply with each of the following:
    (i) Show that the applicant is a prevailing party;
    (ii) Show that the applicant is eligible to receive an award;
    (iii) Allege that the position of the government was not 
substantially justified; and
    (iv) Show the amount of fees and other expenses sought, including an 
itemized statement thereof.
    (2) An original and one copy of the application and exhibits should 
be filed with the Board. The applicant will forward one copy to the 
Government.
    (3) When a compliant application has been timely filed, the Board, 
in order to obtain more detailed information, may require 
supplementation of the application.
    (h) Net worth exhibit--Each applicant for which a determination of 
net worth is required under the EAJA should provide with its application 
a detailed net worth exhibit showing the net worth of the applicant when 
the CDA appeal was filed. The exhibit may be in any form convenient to 
the applicant that provides full disclosure of assets, liabilities, and 
net worth.
    (i) Fees and other expenses exhibit--The application should be 
accompanied by a detailed fees and other expenses exhibit fully 
documenting the fees and other expenses, including the cost of any 
study, analysis, engineering report, test, or project, for which an 
award is sought. The date and a description of all services rendered or 
costs incurred should be indicated. A separate itemized statement should 
be submitted for each professional firm or individual whose services are 
covered by the application showing the hours spent in connection with 
the CDA appeal by each individual, a description of the particular 
services performed by specific date, the rate at which each fee has been 
computed, any expenses for which reimbursement is sought, the total 
amount claimed, and the total amount paid or payable by the applicant or 
by any other person or entity for the services provided. The Board may 
require the applicant to provide vouchers, receipts, or other 
substantiation for any expenses sought.
    (j) Answer to application--
    (1) Within 30 days after receipt by the Government of an 
application, the Government may file an answer. Unless the Government 
requests an extension of time for filing or files a statement of intent 
to negotiate under paragraph (2) below, failure to file an answer within 
the 30-day period may be treated by the Board at its discretion as a 
general denial to the application on behalf of the Government.
    (2) If the Government and the applicant believe that the matters 
raised in the application can be resolved by mutual agreement, they may 
jointly file a statement of intent to negotiate a settlement. Filing of 
this statement will extend the time for filing an answer for an 
additional 30 days. Further extensions may be requested by the parties.
    (3) The answer will explain in detail any objections to the award 
requested and identify the facts relied upon in support of the 
Government's position.
    (4) An original and one copy of the answer should be filed with the 
Board. The Government will forward one copy to the applicant.
    (k) Reply--Within 15 days after receipt of an answer, the applicant 
may file a reply. An original and one copy of the reply will be filed 
with the Board. The applicant will forward one copy to the Government.
    (l) Award proceedings--
    (1) The Board may enter an order prescribing the procedure to be 
followed or take such other action as may be deemed appropriate under 
the EAJA. Further proceedings will be held only when necessary for full 
and fair resolution of the issues arising from the application.

[[Page 689]]

    (2) A request that the Board order further proceedings under this 
paragraph will describe the disputed issues, explain why the additional 
proceedings are deemed necessary to resolve the issues and specifically 
identify any information sought and its relationship to the disputed 
issues.
    (m) Evidence--
    (1) Decisions on the merits--When a CDA appeal is decided on the 
merits, other than by a consent judgment, the record relating to whether 
the Government's position under the EAJA was substantially justified 
will be limited to the record in the CDA appeal. Evidence relevant to 
other issues in the award proceeding may be submitted.
    (2) Other dispositions--When a CDA appeal is settled, or decided by 
a consent judgment, either party in proceedings under the EAJA may, for 
good cause shown, supplement the record established in the CDA appeal 
with affidavits and other supporting evidence relating to whether the 
position of the agency was substantially justified or other issues in 
the award proceeding.
    (n) Decision--Decisions under the EAJA will be rendered by the 
Administrative Judge or a majority of the judges who would have 
participated in a motion for reconsideration of the underlying CDA 
appeal. The decision of the Board will include written findings and 
conclusions and the basis therefor. The Board's decision on an 
application for fees and other expenses under the EAJA will be the final 
administrative decision regarding the EAJA application.
    (o) Motions for reconsideration--Either party may file a motion for 
reconsideration. Motions for reconsideration must be filed within 30 
days of receipt of the Board's EAJA decision. Extensions in the period 
to file a motion will not be granted. Extensions to file a memorandum in 
support of a timely filed motion may be granted.
    (p) Payment of Awards--The Board's EAJA awards will be paid directly 
by the contracting agency over which the applicant prevailed in the 
underlying CDA appeal.

                               ADDENDUM II

                Alternative Methods of Dispute Resolution

    1. The Contract Disputes Act (CDA), 41 U.S.C. 7105(g)(1), states 
that boards of contract appeals ``shall . . . to the fullest extent 
practicable provide informal, expeditious, and inexpensive resolution of 
disputes.'' Resolution of a dispute at the earliest stage feasible, by 
the fastest and least expensive method possible, benefits both parties. 
To that end, the parties are encouraged to consider Alternative Dispute 
Resolution (ADR) procedures for pre-claim and pre-final decision 
matters, as well as appeals pending before the Board. The Board may also 
conduct ADRs for any Federal agency. However, if the matter is not 
pending before the Board under its CDA jurisdiction, any settlement may 
not be paid out of the Judgment Fund.
    2. The ADR methods described in this Addendum are intended to 
suggest techniques that have worked in the past. Any appropriate method 
that brings the parties together in settlement, or partial settlement, 
of their disputes is a good method. The ADR methods listed are not 
intended to preclude the parties' use of other ADR techniques that do 
not require the Board's participation, such as settlement negotiations, 
fact-finding conferences or procedures, mediation, or minitrials not 
involving use of the Board's personnel. Any method, or combination of 
methods, including one that will result in a binding decision, may be 
selected by the parties without regard to the dollar amount in dispute.
    3. The parties must jointly request ADR procedures at the Board. The 
request must be approved by the Board. The Board may also schedule a 
conference to explore the desirability and selection of an ADR method 
and related procedures. If an ADR involving the Board's participation is 
requested and approved by the Board, a Neutral will be appointed. If an 
Administrative Judge has already been assigned to an appeal, the same 
judge will normally be assigned to be the Neutral in an ADR. If an 
Administrative Judge has not yet been assigned to the appeal, or if the 
subject of the ADR is a matter pending before the contracting officer 
prior to any appeal, the Board will appoint an Administrative Judge to 
be the Neutral. In such instances, as well as situations in which the 
parties prefer that an assigned Administrative Judge not be appointed to 
serve as the Neutral, the parties may submit a list of at least three 
preferred Administrative Judges and the Board will endeavor to 
accommodate their preferences.
    4. To facilitate full, frank and open discussion and presentations, 
any Neutral who has participated in a non-binding ADR procedure that has 
failed to resolve the underlying dispute will be recused from further 
participation in the matter unless the parties expressly agree otherwise 
in writing and the Board concurs. Further, the recused Neutral will not 
discuss the merits of the dispute or substantive matters involved in the 
ADR proceedings with other Board personnel.
    5. Written material prepared specifically for use in an ADR 
proceeding, oral presentations made at an ADR proceeding, and all 
discussions in connection with such proceedings between the parties and 
the Neutral are confidential and, unless otherwise specifically agreed 
by the parties, inadmissible as evidence in any pending or future Board 
proceeding involving the parties or matter in

[[Page 690]]

dispute. However, evidence otherwise admissible before the Board is not 
rendered inadmissible because of its use in the ADR proceeding.
    6. The ADR method and the procedures and requirements implementing 
the ADR method will be prescribed by the written agreement of the 
parties and approved by the Board. ADR methods can be used successfully 
at any stage of the litigation.
    7. The following are examples of ADR methods commonly used at the 
Board:
    (a) Nonbinding--
    Mediations: A Neutral is an Administrative Judge who will not 
normally hear or have any formal or informal decision-making authority 
in the matter and who is appointed for the purpose of facilitating 
settlement. In many circumstances, settlement can be fostered by a 
frank, in-depth discussion of the strengths and weaknesses of each 
party's position with the Neutral. The agenda for meetings with the 
Neutral will be flexible to accommodate the requirements of the case. To 
further the settlement effort, the Neutral may meet with the parties 
either jointly or individually. A Neutral's recommendations are not 
binding on the parties. When this method is selected, the ADR agreement 
must contain a provision in which the parties and counsel agree not to 
subpoena the Neutral in any legal action or administrative proceeding of 
any kind to produce any notes or documents related to the ADR proceeding 
or to testify concerning any such notes or documents or concerning his/
her thoughts or impressions.
    (b) Binding--
    Summary Proceeding With Binding Decision: A summary proceeding with 
binding decision is a procedure whereby the resolution of the appeal is 
expedited and the parties try their appeal informally before an 
Administrative Judge. A binding ``bench'' decision may be issued upon 
conclusion of the proceeding, or a binding summary written decision will 
be issued by the judge no later than ten days following the later of 
conclusion of the proceeding or receipt of a transcript. The parties 
must agree in the ADR agreement that all decisions, rulings, and orders 
by the Board under this method shall be final, conclusive, not 
appealable, and may not be set aside, except for fraud. All such 
decisions, rulings, and orders will have no precedential value. Pre-
hearing, hearing, and post-hearing procedures and rules applicable to 
appeals generally will be modified or eliminated to expedite resolution 
of the appeal.
    (c) Other Agreed Methods--
    The parties and the Board may agree upon other informal methods, 
binding or nonbinding that are structured and tailored to suit the 
requirements of the individual case.
    8. The above-listed ADR procedures are intended to shorten and 
simplify the Board's more formalized procedures. Generally, if the 
parties resolve their dispute by agreement, they benefit in terms of 
cost and time savings and maintenance or restoration of amicable 
relations. The Board will not view the parties' participation in ADR 
proceedings as a sign of weakness. Any method adopted for dispute 
resolution depends upon both parties having a firm, good faith 
commitment to resolve their differences. Absent such intention, the best 
structured dispute resolution procedure is unlikely to be successful.

[56 FR 36572, July 31, 1991, as amended at 58 FR 37868, July 14, 1993; 
65 FR 39707, June 27, 2000; 75 FR 14095, Mar. 24, 2010; 76 FR 27275, May 
11, 2011; 76 FR 76321, Dec. 7, 2011; 79 FR 42216, July 21, 2014; 84 FR 
48509, Sept. 13, 2019]



               Sec. Appendixes B-E to Chapter 2 [Reserved]



 Sec. Appendix F to Chapter 2--Material Inspection and Receiving Report

Part 1--Introduction
Sec.
    F-101 General.
    F-102 Applicability.
    F-103 Use.
    F-104 Application.
Part 2--Contract Quality Assurance On Shipments Between Contractors
    F-201 Procedures.
Part 3--Preparation of the Wide Area Workflow Receiving Report (WAWF RR)
    F-301 Preparation instructions.
    F-302 Mode/method of shipment codes.
    F-303 Consolidated shipments.
    F-304 Correction instructions.
    F-305 Invoice instructions.
    F-306 Packing list instructions.
    F-307 Receiving instructions.
Part 4--Preparation of the DD Form 250 and DD Form 250C
    F-401 Preparation instructions.
    F-402 Mode/method of shipment codes.
    F-403 Consolidated shipments.
    F-404 Multiple consignee instructions.
    F-405 Correction instructions.
    F-406 Invoice instructions.
    F-407 Packing list instructions.
    F-408 Receiving instructions.
Part 5--Distribution of Wide Area Workflow Receiving Report (WAWF RR), 
          DD Form 250 and DD Form 250C
    F-501 Distribution of WAWF RR.
    F-502 Distribution of DD Form 250 and DD Form 250C.
Part 6--Preparation of the DD Form 250-1 (Loading Report)
    F-601 Instructions.
Part 7--Preparation of the DD Form 250-1 (Discharge Report)
    F-701 Instructions.
Part 8--Distribution of the DD Form 250-1
    F-801 Distribution.F-802 Corrected DD Form 250-1.

[[Page 691]]

    F-802 Corrected DD Form 250-1.

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

                           Part 1_Introduction

F-101 General.
    (a) This appendix contains procedures and instructions for the use, 
preparation, and distribution of the Wide Area WorkFlow (WAWF) Receiving 
Report (RR), WAWF Reparable Receiving Report (WAWF RRR) , the WAWF 
Energy RR, and commercial shipping/packing lists used to document 
Government contract quality assurance. The WAWF RR is the electronic 
equivalent of the DD Form 250, Material Inspection and Receiving Report 
(MIRR). The WAWF Energy RR is the electronic equivalent of the DD Form 
250 for overland shipments and DD Form 250-1, Tanker/Barge Material 
Inspection and Receiving Report, for waterborne shipments. The WAWF RRR 
is the electronic equivalent of the DD Form 250 for repair, maintenance, 
or overhaul of Government-furnished property.
    (b) The use of the DD Form 250 series documents is on an exception 
basis (see DFARS 232.7002(a)) because use of the WAWF RR is now required 
by most DoD contracts. WAWF provides for electronic preparation and 
documentation of acceptance of supplies and services, and electronic 
invoicing. In addition WAWF allows the printing of a RR that can be used 
as a packing list or when a signed copy is required.
F-102 Applicability.
    (a) DFARS 252.232-7003, Electronic Submission of Payment Requests 
and Receiving Reports, requires payment requests and receiving reports 
using WAWF in nearly all cases.
    (b) When DoD provides quality assurance or acceptance services for 
non-DoD activities, prepare a MIRR using the instructions in this 
appendix, unless otherwise specified in the contract.
F-103 Use.
    (a) The WAWF RR, WAWF RRR and the DD Form 250 are multipurpose 
reports used--
    (1) To provide evidence of Government contract quality assurance at 
origin or destination;
    (2) To provide evidence of acceptance at origin, destination, or 
other;
    (3) For packing lists;
    (4) For receiving;
    (5) For shipping;
    (6) As a contractor invoice (the WAWF RR, WAWF RRR or DD Form 250 
alone cannot be used as an invoice, however the option exists to create 
an invoice from the Receiving Report or a Combo (Invoice and Receiving 
Report) both of which minimize data entry); and
    (7) As commercial invoice support.
    (b) Do not use the WAWF RR, WAWF RRR or the DD Form 250 for 
shipments--
    (1) By subcontractors, unless the subcontractor is shipping directly 
to the Government; or
    (2) Of contract inventory. The WAWF Property Transfer document 
should be used for this type of shipment. Training for the preparation 
of this document type is available at https://wawftraining.eb.mil, under 
the Property Transfer and Receipt section.
    (c) The contractor prepares the WAWF RR, WAWF RRR or the DD Form 
250, except for entries that an authorized Government representative is 
required to complete. When using a paper DD Form 250, the contractor 
shall furnish sufficient copies of the completed form, as directed by 
the Government representative.
    (d) Use the WAWF Energy RR or the DD Form 250-1:
    (1) For bulk movements of petroleum products by tanker or barge to 
cover--
    (i) Origin or destination acceptance of cargo; or
    (ii) Shipment or receipt of Government owned products.
    (2) To send quality data to the point of acceptance in the case of 
origin inspection on FOB destination deliveries or preinspection at 
product source. Annotate the forms with the words ``INSPECTED FOR 
QUALITY ONLY.''
    (e) In addition to the above uses, the WAWF RR and WAWF RRR provide 
additional functionality, not provided by the paper DD Form 250 that 
complies with the following requirements:
    (1) Item Unique Identification (IUID), when the clause at DFARS 
252.211-7003, Item Unique Identification and Valuation is used in the 
contract, reporting of IUID data is required. WAWF captures the IUID 
data and forwards the data to the IUID registry after acceptance. WAWF 
shall be used to report Unique Item Identifiers (UIIs) at the line item 
level, unless an exception to WAWF applies, and can also be used to 
report UIIs embedded at the line item level.
    (2) Radio Frequency Identification (RFID), when the clause at DFARS 
252.211-7006, Radio Frequency Identification, is used in the contract, 
WAWF will capture the RFID information and forward the data to the 
receiving location. Using WAWF is the only way a contractor can comply 
with the clause to furnish RFID data via an Advance Shipping Notice 
(ASN). The RFID information may be added at time of submission, or via 
the WAWF Pack Later functionality after acceptance.
    (3) Reporting of Government-furnished property, when the clause at 
DFARS 252.211-7007, Reporting of Government-Furnished Property, is used 
in the contract, use of the WAWF RRR will capture the shipment of 
Government-furnished property items after

[[Page 692]]

acceptance of repair services and forward the data to the IUID registry. 
WAWF is the only way a contractor can report the transfer of Government-
furnished property items in the IUID registry.
F-104 Application.
    (a) WAWF RR and DD Form 250. (1) Use the WAWF RR or DD Form 250 for 
delivery of contract line, subline, exhibit line, or exhibit subline 
items. Do not use the WAWF RR or DD Form 250 for those exhibit line or 
exhibit subline items on a DD Form 1423, Contract Data Requirements 
List, which indicate no DD Form 250 is required.
    (2) If the shipped to, marked for, shipped from, mode of shipment, 
contract quality assurance and acceptance data are the same for more 
than one shipment made on the same day under the same contract, 
contractors may prepare one WAWF RR or DD Form 250 to cover all such 
shipments.
    (3) If the volume of the shipment precludes the use of a single car, 
truck, or other vehicle, prepare a separate WAWF RR or DD Form 250 for 
the contents of each vehicle.
    (4) When a shipment is consigned to an Air Force activity and the 
shipment includes items of more than one Federal supply class (FSC) or 
material management code (MMC), prepare a separate WAWF RR or DD Form 
250 for items of each of the FSCs or MMCs in the shipment. However, the 
cognizant Government representative may authorize a single WAWF RR or DD 
Form 250, listing each of the FSCs or MMCs included in the shipment on a 
separate continuation sheet. The MMC appears as a suffix to the national 
stock number applicable to the item.
    (5) Consolidation of Petroleum Shipments on a Single WAWF RR or DD 
Form 250.
    (i) Contiguous United States. Contractors may consolidate multiple 
car or truck load shipments of petroleum made on the same day, to the 
same destination, against the same contract line item, on one WAWF RR or 
DD Form 250. To permit verification of motor deliveries, assign each 
load a load number which can be identified to the shipment number in 
Block 2 of the DD Form 250. Include a shipping document (commercial or 
Government) with each individual load showing as a minimum--
    (A) The shipper;
    (B) Shipping point;
    (C) Consignee;
    (D) Contract and line item number;
    (E) Product identification;
    (F) Gross gallons (bulk only);
    (G) Loading temperature (bulk only);
    (H) American Petroleum Institute gravity (bulk only);
    (I) Identification of carrier's equipment;
    (J) Serial number of all seals applied; and
    (K) Signature of supplier's representative.

When acceptance is at destination, the receiving activity retains the 
shipping document(s) to verify the entries on the consignee copy of the 
DD Form 250 forwarded by the contractor (reference F-401, Table 1) 
before signing Block 21b.
    (ii) Overseas. The same criteria as for contiguous United States 
applies, except the consolidation period may be extended, if acceptable 
to the receiving activity, shipping activity, Government finance office, 
and the authorized Government representative having cognizance at the 
contractor's facility. In addition, the contractor may include more than 
one contract line item in each WAWF RR or DD Form 250 if the shipped to, 
marked for, shipped from, mode of shipment, contract quality assurance, 
and acceptance data are the same for all line items.
    (6) Consolidation of Coal Shipments on a Single WAWF RR or DD 250. 
Contractors may consolidate multiple railcar or truck shipments of coal 
made on the same day, to the same destination, against the same contract 
line items, on one WAWF RR or DD 250. To permit verification of truck 
deliveries, assign each load a load number which can be identified to 
the shipment number in Block 2 of the DD Form 250 and the analytical 
test report. Include a commercial shipping document with each individual 
truck load showing as a minimum--
    (i) The shipper;
    (ii) The name or names;
    (iii) Location and shipping point of the mine or mines from which 
the coal originates;
    (iv) The contract number;
    (v) The exact size of the coal shipped; and
    (vi) A certified weighmaster's certification of weight for the 
truckload.

    Include a waybill with each rail shipment showing the identical 
information. To permit verification of rail deliveries, identify each 
railcar number comprising the shipment to the shipment number in Block 2 
of the DD Form 250 and the analytical test report. When acceptance is at 
destination, the receiving activity must retain the shipping document(s) 
to verify the entries on the consignee copy of the DD Form 250.
    (b) WAWF RRR or DD Form 250. Use as in paragraph (a) of this section 
for delivery of services for repair, overhaul, or maintenance.
    (c) WAWF Energy RR or the DD Form 250-1. (1) Use a separate form for 
each tanker or barge cargo loaded.
    (2) The contractor may report more than one barge in the same tow on 
a single form if on the same contract and consigned to the same 
destination.
    (3) When liftings involve more than one contract, prepare separate 
forms to cover the portion of cargo loaded on each contract.
    (4) Prepare a separate form for each product or grade of product 
loaded.

[[Page 693]]

    (5) Use a separate document for each tanker or barge cargo and each 
grade of product discharged.
    (6) For discharge, the contractor may report more than one barge in 
the same tow on a single form if from the same loading source.

   Part 2_Contract Quality Assurance on Shipments Between Contractors

F-201 Procedures
    Follow the procedures at PGI F-201 for evidence of required 
Government contract quality assurance at a subcontractor's facility.

  Part 3_Preparation of the Wide Area Workflow (WAWF) Receiving Report 
                     (WAWF RRR), and WAWF Energy RR

F-301 Preparation instructions.
    (a) General. (1) Preparation instructions and training for the WAWF 
RR are available at https://wawftraining.eb.mil. The instructions on 
preparing a WAWF RR are part of the Vendor Training section.
    (2) Prime contractors can direct subcontractors to prepare and 
submit documents in WAWF by giving their subcontractors access to WAWF 
via the creation of a Commercial and Government Entity (CAGE) extension 
to the prime CAGE.
    (3) If the contract is in Electronic Data Access (EDA) (DoD's 
contract repository), then the WAWF system will automatically populate 
all available and applicable contract data.
    (i) When source acceptance is required, WAWF will populate the 
``Inspect By'' with the ``Admin by'' Department of Defense Activity 
Address Code (DoDAAC). The vendor shall change the DoDAAC if Government 
Source Inspection (GSI) is performed at other than the ``Admin By.''
    (ii) Any fields that have been pre-filled may be changed.
    (iii) WAWF will also verify that CAGE codes are valid and active in 
the System for Award Management (SAM), and that DoDAACs and Military 
Assistance Program Address Codes (MAPACs) are valid in Defense Automatic 
Addressing System (DAAS).
    (4) WAWF will populate the address information for CAGE codes, 
DODAACs, and MAPACs from SAM and DAAS. These sites are the DoD 
definitive sources for address information. Any fields that have been 
pre-filled may be changed or additional information added.
    (5) Do not include classified information in WAWF.
    (b) Completion instructions. (1) Contract no/delivery order no.
    (i) For stand-alone contracts, enter the 13-position alpha-numeric 
basic Procurement Instrument Identifier (PIID) of the contract. For task 
and delivery orders numbered in accordance with FAR 4.1603 and DFARS 
204.1603, enter the 13-character order number. The contract or agreement 
number under which the order was placed may be omitted from the WAWF RR. 
Alternatively, the contractor may choose to enter the contract number on 
the WAWF RR in addition to the 13-character order number. If the order 
has only a four-position alpha-numeric call or order serial number, 
enter both the 13-position basic contract PIID and the four-position 
order number.
    (ii) Except as indicated in paragraph (b)(1)(iii) of this appendix, 
do not enter supplementary numbers used in conjunction with basic PIIDs 
to identify--
    (A) Modifications of contracts and agreements;
    (B) Modifications to calls or orders; or
    (C) Document numbers representing contracts written between 
contractors.
    (iii) When shipping instructions are furnished and shipment is made 
before receipt of the confirming contract modification (SF 30, Amendment 
of Solicitation/Modification of Contract), enter a comment in the Misc. 
Info Tab to this effect. This will appear in the Comments section of the 
printed WAWF RR.
    (2) Shipment No.
    (i) The shipment number format requires first three data positions 
to be alpha, fourth position alpha-numeric and last three positions 
numeric, e.g., DFAR001 or DAR0001. Any document used as a packing list 
must include the shipment number information.
    (A) The prime contractor shall control and assign the shipment 
number prefix. The shipment number shall consist of three alphabetic 
characters for each ``Shipped From'' address. The shipment number prefix 
shall be different for each ``Shipped From'' address and shall remain 
constant throughout the life of the contract. The prime contractor may 
assign separate prefixes when shipments are made from different 
locations within a facility identified by one ``Shipped From'' address.
    (B) Number the first shipment 0001 for shipments made under the 
contract or contract and order number from each ``Shipped From'' 
address, or shipping location within the ``Shipped From'' address. 
Consecutively number all subsequent shipments with the identical 
shipment number prefix. While shipments should be created sequentially 
they can be released and accepted out of sequence.
    (1) Use alpha-numeric serial numbers when more than 9,999 numbers 
are required. Serially assign alpha-numeric numbers with the alpha in 
the first position (the letters I and O shall not be used) followed by 
the three-position numeric serial number. Use the following alpha-
numeric sequence:

A000 through A999 (10,000 through 10,999)
B000 through B999 (11,000 through 11,999)

[[Page 694]]

Z000 through Z999 (34,000 through 34,999)

    (2) When this series is completely used, the shipment number prefix 
will have to be changed when the series is completely used. WAWF will 
not allow duplicate shipment numbers to be created against a contract or 
contract and delivery order.
    (ii) Reassign the shipment number of the initial shipment where a 
``Replacement Shipment'' is involved (see paragraph (b)(16)(iv)(F) of 
this appendix).
    (iii) The prime contractor shall control deliveries and on the final 
shipment of the contract shall end the shipment number with a ``Z.'' 
Where the final shipment is from other than the prime contractor's 
plant, the prime contractor may elect either to--
    (A) Direct the subcontractor making the final shipment to end that 
shipment number with a ``Z''; or
    (B) Upon determination that all subcontractors have completed their 
shipments, to correct the DD Form 250 (see F-304) covering the final 
shipment made from the prime contractor's plant by addition of a ``Z'' 
to that shipment number.
    (iv) Contractors follow the procedures in F-305 to use commercial 
invoices.
    (3) Date shipped. Enter the date the shipment is released to the 
carrier or the date the services are completed. If the shipment will be 
released after the date of contract quality assurance and/or acceptance, 
enter the estimated date of release. When the date is estimated, enter 
an ``E'' or select an ``E'' from the drop down menu in the ``Estimated'' 
block after the date. Do not delay submission of the WAWF RR for lack of 
entry of the actual shipping date. Correction of the WAWF RR is not 
required to show the actual shipping date (see F-303). Once the document 
is submitted the shipment date cannot be changed.
    (4) B/L TCN. When applicable, enter--
    (i) The commercial or Government bill of lading number after ``B/
L;'' WAWF provides the capability to separately and correctly identify 
the Government Bill of Lading (GBL) from a Commercial Bill of Lading 
(CBL). An authorized user will select whether the entered bill of lading 
number is either a GBL number or a CBL number.
    (ii) The transportation control number must be a 17 alpha/numeric 
digit min/max field, and WAWF provides the capability to enter two 
secondary transportation tracking numbers.
    (5) Line haul mode. Select the Line Haul Mode of Shipment code from 
a drop down menu in WAWF.
    (6) Inspection and acceptance point. Enter an ``S'' for Origin or 
``D'' for Destination. In addition to ``S'' and ``D,'' WAWF allows 
acceptance at Other (O). For purposes of conforming to contract, ``O'' 
is equivalent to ``D''. In WAWF, destination acceptance is performed by 
the ``Ship to'' DODAAC organization and ``Other'' permits the acceptance 
of destination documents at a location other than the ``Ship to.'' The 
goods or services will be shipped to one location and the paperwork will 
be routed to another location for the actual acceptance.
    (7) Prime contractor/code. Enter the prime CAGE code to which the 
contract was awarded.
    (8) Administered by/code. Enter the DoDAAC code of the contract 
administration office cited in the contract.
    (9) Shipped from/code.
    (i) Enter the CAGE or DoDAAC code of the ``Shipped From'' location. 
If it is the same as the CAGE code leave blank.
    (ii) For performance of services line items which do not require 
delivery of items upon completion of services, enter the code of the 
location at which the services were performed. As mentioned in (i) 
above, if identical to the prime CAGE code leave blank.
    (10) FOB. Enter an ``S'' for Origin or ``D'' for Destination as 
specified in the contract. Enter an alphabetic ``O'' if the ``FOB'' 
point cited in the contract is other than origin or destination.
    (11) Payment will be made by/code. Enter the DoDAAC code of the 
payment office cited in the contract.
    (12) Shipped to/code. Enter the DoDAAC, MAPAC, or CAGE code from the 
contract or shipping instructions.
    (13) Marked for/code. Enter the code from the contract or shipping 
instructions. Only valid DoDAACs, MAPACs, or CAGE codes can be entered. 
Vendors should use the WAWF ``Mark for Rep'' and ``Mark for Secondary'' 
fields for textual marking information specified in the contract. Enter 
the three-character project code when provided in the contract or 
shipping instructions.
    (14) Item No. Enter the item number used in the contract. Use a 
valid 4 or 6 character line item number under the Uniform Contract Line 
Item Numbering System (see 204.71). Line item numbers with 6 characters 
with numbers in the final two positions are not deliverable or billable.
    (15) Stock/part number/description.
    (i) Enter the following for each line item:
    (A) The national stock number (NSN) or noncatalog number. If the 
contract contains NSNs as well as other identification (e.g., part 
numbers) the contractor should place the NSN information in the Stock 
Part Number field and the remaining numbers in the line item description 
field. The data entered in the NSN field must reflect the NSN of the 
material item being shipped and should be a valid NSN, 13 positions in 
length. In the ``Type'' drop-down field, select the corresponding type 
for the data entered. If no National Stock Number (NSN) or other valid 
``Type'' is available, the word ``NONE'' may be entered for the Stock/
Part Number, with a corresponding ``Type'' of any value

[[Page 695]]

other than NSN selected from the drop-down box.
    (B) In the description field, if required by the contract for 
control purposes, enter: The make, model, serial number, lot, batch, 
hazard indicator, or similar description.
    (C) The Military Standard Requisitioning and Issue Procedures 
(MILSTRIP) must be placed on the MILSTRIP Tab, not in the line item 
description field. Enter the MILSTRIP data for each CLIN when MILSTRIP 
data is identified in the contract.
    (ii) For service line items, select SV for ``SERVICE'' in the type 
field followed by as short a description as is possible in the 
description field. Some examples of service line items are maintenance, 
repair, alteration, rehabilitation, engineering, research, development, 
training, and testing.
    (A) For WAWF RRRs, the ``Ship To'' code is the DoDAAC, MAPAC, or 
CAGE code from the contract or shipping instructions.
    (B) For service line items not using a WAWF RRR, the ``Ship To'' 
code and the ``Unit'' shall be filled out. The ``Ship To'' code is the 
destination Service Acceptor Code for WAWF. If source inspected and 
accepted, enter the service performance location as the ``Ship To'' 
code.
    (iii) For all contracts administered by the Defense Contract 
Management Agency, with the exception of fast pay procedures, enter the 
gross weight of the shipment.
    (iv) In the description field enter the following as appropriate 
(entries may be extended through Block 20).
    (A) Enter in capital letters any special handling instructions/
limits for material environmental control, such as temperature, 
humidity, aging, freezing, shock, etc.
    (B) When a shipment is chargeable to Navy appropriation 17X4911, 
enter the appropriation, bureau control number (BCN), and authorization 
accounting activity (AAA) number (e.g., 17X4911-14003-104).
    (C) When the Navy transaction type code (TC), ``2T'' or ``7T'' is 
included in the appropriation data, enter ``TC 2T'' or ``TC 7T.''
    (D) When an NSN is required by but not cited in a contract and has 
not been furnished by the Government, the contractor may make shipment 
without the NSN at the direction of the contracting officer. Enter the 
authority for such shipment.
    (E) When Government furnished property (GFP) is included with or 
incorporated into the line item, enter the letters ``GFP.''
    (F) On shipments of Government furnished aeronautical equipment 
(GFAE) under Air Force contracts, enter the assignment AERNO control 
number, e.g., ``AERNO 60-6354.''
    (G) For items shipped with missing components, enter and complete 
the following:

``Item(s) shipped short of the following component(s): NSN or comparable 
identification ____, Quantity ____, Estimated Value ____, Authority 
____''
    (H) When shipment is made of components which were short on a prior 
shipment, enter and complete the following:
    ``These components were listed as shortages on shipment number ____, 
date shipped ____''
    (I) When shipments involve drums, cylinders, reels, containers, 
skids, etc., designated as returnable under contract provisions, enter 
and complete the following:
    ``Return to ____, Quantity ____, Item ____, Ownership (Government/
contractor).''
    (J) Enter the total number of shipping containers, the type of 
containers, and the container number(s) assigned for the shipment.
    (K) On foreign military sales (FMS) shipments, enter the special 
markings, and FMS case identifier from the contract. Also enter the 
gross weight.
    (L) When test/evaluation results are a condition of acceptance and 
are not available prior to shipment, the following note shall be entered 
if the shipment is approved by the contracting officer:
    ``Note: Acceptance and payment are contingent upon receipt of 
approved test/evaluation results.''
    The contracting officer will advise--
    (1) The consignee of the results (approval/disapproval); and
    (2) The contractor to withhold invoicing pending attachment of the 
approved test/evaluation results.
    (M) For clothing and textile contracts containing a bailment clause, 
enter the words ``GFP UNIT VALUE.''
    (N) When the initial unit incorporating an approved value 
engineering change proposal (VECP) is shipped, enter the following 
statement:

This is the initial unit delivered which incorporates VECP No. ____, 
Contract Modification No. ____, dated ____
    (16) Quantity shipped/received.
    (i) Enter the quantity shipped, using the unit of measure in the 
contract for payment. When a second unit of measure is used for purposes 
other than payment, enter the appropriate quantity in the description 
field.
    (ii) On the final shipment of a line item of a contract containing a 
clause permitting a variation of quantity and an underrun condition 
exists, the prime contractor shall choose the Ship Advice Code ``Z''. 
Where the final shipment is from other than the prime contractor's plant 
and an underrun condition exists, the prime contractor may elect to 
direct the subcontractor making the final shipment to choose the Ship 
Advice Code ``Z'';
    (iii) When the Government is performing destination acceptance the 
acceptor should enter actual quantity received in apparent

[[Page 696]]

good condition in the ``Qty. Accepted'' field of the Acceptor Line Item 
Tab.
    (17) Unit of measure. Enter the abbreviation of the unit measure as 
indicated in the contract for payment. Where a second unit of measure is 
indicated in the contract for purposes other than payment or used for 
shipping purposes, enter the second unit of measure in the description 
field. Authorized abbreviations are listed in MIL-STD-129, Marking for 
Shipping and Storage and in the WAWF Unit of Measure Table Link. For 
example, LB for pound, SH for sheet.
    (18) Unit price. When using the WAWF RRR, the unit price is the 
price of the repair, overhaul, or maintenance service from the contract.
    (i) The contractor may, at its option, enter unit prices on the WAWF 
RR, except when the contract has IUID requirements and the receiving 
report is being processed in WAWF, the unit price must represent the 
acquisition cost that will be recorded in the IUID registry. Therefore, 
in such cases, the unit price is required. See DFARS 252.211-7003, Item 
Unique Identification and Valuation).
    (ii) The contractor shall enter unit prices for each item of 
property fabricated or acquired for the Government and delivered to a 
contractor as Government furnished property (GFP). Get the unit price 
from Section B of the contract. If the unit price is not available, use 
an estimate. The estimated price should be the contractor's estimate of 
what the items cost the Government. When the price is estimated, enter 
``Estimated Unit Price'' in the description field. When delivering GFP 
via WAWF to another contractor, WAWF will initiate a property transfer 
if the vendor who is initiating the WAWF RR is also registered as a 
vendor property shipper in WAWF and the vendor receiving the property is 
also a vendor property receiver in WAWF.
    (iii) For clothing and textile contracts containing a bailment 
clause, enter the cited Government furnished property unit value as 
``GFP UNIT VALUE'' in the description field.
    (iv) For all copies of DD Forms 250 for FMS shipments, enter actual 
prices, if available. If actual prices are not available, use estimated 
prices. When the price is estimated, enter an ``E'' after the price.
    (19) Amount. WAWF will calculate and populate the amount by 
multiplying the unit price times the quantity.
    (20) Contract Quality Assurance (CQA).
    (i) The words ``conform to contract'' contained in the text above 
the signature block in the WAWF RR Header Tab relate to quality and to 
the quantity of the items on the report. Enter notes taking exception in 
Misc. Info Tab comment field or on attached supporting documents with an 
appropriate block cross-reference.
    (ii) When a shipment is authorized under an alternative release 
procedure, contractors will execute the alternative release procedure in 
WAWF by including the appropriate indicator in the electronic 
transaction rather than through inclusion or attachment of the text of 
the certificate. The alternative release procedure only provides for 
release of shipment; Government acceptance must still be indicated by a 
Government official's signature on the WAWF RR.
    (iii) When contract terms provide for use of Certificate of 
Conformance and shipment is made under these terms, contractors will 
execute Certificates in WAWF by including the appropriate indicator in 
the electronic transaction rather than through inclusion or attachment 
of the text of the certificate. Government acceptance must still be 
indicated by a Government official's signature on the WAWF RR.
    (iv) Origin.
    (A) The authorized Government representative must:--
    (1) Place an ``X'' in the appropriate CQA and/or acceptance box(es) 
to show origin CQA and/or acceptance; and
    (2) Sign and date.
    WAWF will enter the typed, stamped, or printed name, title, email 
address, and commercial telephone number.
    (B) When fast pay procedures apply, the contractor or subcontractor 
shall select ``FAST PAY'' when creating the WAWF RR. When CQA is 
required, the authorized Government representative shall execute the 
block as required by paragraph (A).
    (v) Destination. When CQA and acceptance or acceptance is at 
destination, the authorized Government representative must--
    (A) Place an ``X'' in the appropriate box(es); and
    (B) Sign and date.
    WAWF will enter the typed, stamped, or printed name, title, email 
address, and commercial telephone number.
    (21) Contractor use only. MISC. INFO. Self explanatory.
F-302 Mode/method of shipment codes.

------------------------------------------------------------------------
            Code                              Description
------------------------------------------------------------------------
A                             Motor, truckload.
B                             Motor, less than truckload.
C                             Van (unpacked, uncrated personal or
                               Government property).
D                             Driveaway, truckaway, towaway.
E                             Bus.
F                             Air Mobility Command (Channel and Special
                               Assignment Airlift Mission).
G                             Surface parcel post.
H                             Air parcel post.
I                             Government trucks, for shipment outside
                               local delivery area.
J                             Air, small package carrier.
K                             Rail, carload.\1\
L                             Rail, less than carload.\1\
M                             Surface, freight forwarder.
N                             LOGAIR.

[[Page 697]]

 
O                             Organic military air (including aircraft
                               of foreign governments).
P                             Through Government Bill of Lading (TGBL).
Q                             Commercial air freight (includes regular
                               and expedited service provided by major
                               airlines; charters and air taxis).
R                             European Distribution System or Pacific
                               Distribution System.
S                             Scheduled Truck Service (STS) (applies to
                               contract carriage, guaranteed traffic
                               routings and/or scheduled service).
T                             Air freight forwarder.
U                             QUICKTRANS.
V                             SEAVAN.
W                             Water, river, lake, coastal (commercial).
X                             Bearer, walk-thru (customer pickup of
                               material).
Y                             Military Intratheater Airlift Service.
Z                             Military Sealift Command (MSC) (controlled
                               contract or arranged space).
2                             Government watercraft, barge, lighter.
3                             Roll-on Roll-off (RORO) service.
4                             Armed Forces Courier Service (ARFCOS).
5                             Surface, small package carrier.
6                             Military official mail (MOM).
7                             Express mail.
8                             Pipeline.
9                             Local delivery by Government or commercial
                               truck (includes on base transfers;
                               deliveries between air, water, or motor
                               terminals; and adjacent activities).
                               Local delivery areas are identified in
                               commercial carriers' tariffs which are
                               filed and approved by regulatory
                               authorities.
------------------------------------------------------------------------
\1\ Includes trailer/container-on-flat-car (excluding SEAVAN).

F-303 Consolidated shipments.
    When individual shipments are held at the contractor's plant for 
authorized transportation consolidation to a single bill of lading, the 
contractor may prepare the WAWF RR or WAWF RRR at the time of CQA or 
acceptance prior to the time of actual shipment.
F-304 Correction instructions.
    Functionality for correcting a WAWF RR or WAWF RRR is available for 
Defense Contract Management Agency administered contracts paid using the 
Mechanization of Contract Administration Services system with source 
acceptance. Preparation instructions and training for corrections is 
available at https://wawftraining.eb.mil. The instructions are part of 
the Vendor Training section.
F-305 Invoice Instructions
    Contractors shall submit payment requests and receiving reports in 
accordance with paragraph (b) of the clause at DFARS 252.232-7003 unless 
one of the exceptions in paragraph (d) of that clause applies.
F-306 Packing List Instructions
    (a) Contractors may use a WAWF processed RR or the WAWF RRR, as a 
packing list. WAWF provides an option to print the RR or RRR. 
Contractors can print a RR or RRR from a system other than WAWF if a 
signed copy is required. In such cases, the contractor shall print the 
WAWF RR or RRR only after a signature is applied by the Government 
inspector or authorized acceptor in WAWF. Copies printed from the 
contractor's system shall be annotated with ``\\original signed in 
WAWF\\'' in lieu of the inspector or acceptor's signature. Ensure a copy 
is visible on the outside and one is placed inside the package.
    (b) If the contract requires Government source inspection and 
acceptance at origin, the contractor shall ensure that its packaging 
documentation includes a RR or RRR that documents inspection, 
acceptance, or both by the Government inspector or authorized acceptor. 
A paper DD Form 250 may be used in lieu of WAWF generated RRs or RRRs 
when one of the exceptions in paragraph (d) of the clause at DFARS 
252.232-7003 applies.
F-307 Receiving instructions.
    If CQA and acceptance or acceptance of supplies is required upon 
arrival at destination, see F-301(b)(20)(v) for instructions.

         Part 4_Preparation of the DD Form 250 and DD Form 250C

F-401 Preparation instructions.
    (a) General. (1) Dates must use nine spaces consisting of the four 
digits of the year, three-position alphabetic month abbreviation, and 
two digits for the day. For example, 2000AUG07, 2000SEP24.
    (2) Addresses must consist of the name, street address/P.O. box, 
city, state, and ZIP code.
    (3) Enter to the right of and on the same line as the word ``Code'' 
in Blocks 9 through 12 and in Block 14--
    (i) The Commercial and Government Entity Handbook (H4/H8) code;
    (ii) The DoD activity address code (DoDAAC) as it appears in the DoD 
Activity Address Directory (DoDAAD), DoD 4000.25-6-M; or
    (iii) The Military Assistance Program Address Directory (MAPAD) 
code.
    (4) Enter the DoDAAC, CAGE (H4/H8), or MAPAD code in Block 13.
    (5) The data entered in the blocks at the top of the DD Form 250c 
must be identical to the comparable entries in Blocks 1, 2, 3, and 6 of 
the DD Form 250.
    (6) Enter overflow data from the DD Form 250 in Block 16 or in the 
body of the DD Form 250c with an appropriate cross-reference. Do not 
number or distribute additional DD Form 250c sheets, solely for 
continuation of Block 23 data as part of the MIRR.
    (7) Do not include classified information in the MIRR. MIRRs must 
not be classified.
    (b) Completion instructions. (1) Block 1--Procurement instrument 
identification (Contract) NO. See paragraph F-301(b)(1).
    (2) Block 2--Shipment no. See F-301(b)(2), Shipment no. When the 
series is completely

[[Page 698]]

used, change the shipment number prefix and start with 0001.
    (3) Block 3--Date shipped. Enter the date the shipment is released 
to the carrier or the date the services are completed. If the shipment 
will be released after the date of CQA and/or acceptance, enter the 
estimated date of release. When the date is estimated, enter an ``E'' 
after the date. Do not delay distribution of the MIRR for entry of the 
actual shipping date. Reissuance of the MIRR is not required to show the 
actual shipping date (see F-403).
    (4) Block 4--B/L TCN. When applicable, enter--
    (i) The commercial or Government bill of lading number after ``B/
L;''
    (ii) The transportation control number after ``TCN'' (when a TCN is 
assigned for each line item on the DD Form 250 under Block 16 
instructions, insert ``See Block 16''); and
    (iii) The initial (line haul) mode of shipment code in the lower 
right corner of the block (see F-402).
    (5) Block 5--Discount terms.
    (i) The contractor may enter the discount in terms of percentages on 
all copies of the MIRR.
    (ii) Use the procedures in F-406 when the MIRR is used as an 
invoice.
    (6) Block 6--Invoice no./date.
    (i) The contractor may enter the invoice number and actual or 
estimated date of invoice submission on all copies of the MIRR. When the 
date is estimated, enter an ``E'' after the date. Do not correct MIRRs 
other than invoice copies to reflect the actual date of invoice 
submission.
    (ii) Use the procedures in F-406 when the MIRR is used as an 
invoice.
    (7) Block 7--Page/of. Consecutively number the pages of the MIRR. On 
each page enter the total number of pages of the MIRR.
    (8) Block 8--Acceptance point. Enter an ``S'' for Origin or ``D'' 
for destination.
    (9) Block 9--Prime contractor/code. Enter the code and address.
    (10) Block 10--Administered by/code. Enter the code and address of 
the contract administration office cited in the contract.
    (11) Block 11--Shipped from/code/fob.
    (i) Enter the code and address of the ``Shipped From'' location. If 
identical to Block 9, enter ``See Block 9.''
    (ii) For performance of services line items which do not require 
delivery of items upon completion of services, enter the code and 
address of the location at which the services were performed. If the DD 
Form 250 covers performance at multiple locations, or if identical to 
Block 9, enter ``See Block 9.''
    (iii) Enter on the same line and to the right of ``FOB'' an ``S'' 
for Origin or ``D'' for Destination as specified in the contract. Enter 
an alphabetic ``O'' if the ``FOB'' point cited in the contract is other 
than origin or destination.
    (iv) For destination or origin acceptance shipments involving 
discount terms, enter ``DISCOUNT EXPEDITE'' in at least one-half inch 
outline-type style letters across Blocks 11 and 12. Do not obliterate 
other information in these blocks.
    (12) Block 12--Payment will be made by/code. Enter the code and 
address of the payment office cited in the contract.
    (13) Block 13--Shipped to/code. Enter the code and address from the 
contract or shipping instructions.
    (14) Block 14--Marked for/code. Enter the code and address from the 
contract or shipping instructions. When three-character project codes 
are provided in the contract or shipping instructions, enter the code in 
the body of the block, prefixed by ``Proj''; do not enter in the Code 
block.
    (15) Block 15--Item No. See paragraph F-301(b)(14) with the 
exception to F301(b)(2)(B)2 that line item numbers not in accordance 
with the Uniform Contract Line Item Numbering System may be entered 
without regard to positioning.
    (16) Block 16--Stock/part No./description.
    (i) Use single or double spacing between line items when there are 
less than four line items. Use double spacing when there are four or 
more line items. Enter the following for each line item:
    (A) The national stock number (NSN) or noncatalog number. Where 
applicable, include a prefix or suffix. If a number is not provided, or 
it is necessary to supplement the number, include other identification 
such as the manufacturer's name or Federal supply code (as published in 
Cataloging Handbook H4-1), and the part number. Show additional part 
numbers in parentheses or slashes. Show the descriptive noun of the item 
nomenclature and if provided, the Government assigned management/
material control code. The contractor may use the following technique in 
the case of equal kind supply items. The first entry shall be the 
description without regard to kind. For example, ``Shoe-Low Quarter-
Black,'' ``Resistor,'' ``Vacuum Tube,'' etc. Below this description, 
enter the contract line item number in Block 15 and Stock/Part number 
followed by the size or type in Block 16.
    (B) On the next printing line, if required by the contract for 
control purposes, enter: The make, model, serial number, lot, batch, 
hazard indicator, or similar description.
    (C) On the next printing lines enter--
    (1) The MIPR number prefixed by ``MIPR'' or the MILSTRIP requisition 
number(s) when provided in the contract; or
    (2) Shipping instructions followed on the same line (when more than 
one requisition is entered) by the unit for payment and the quantity 
shipped against each requisition.
    Example:


[[Page 699]]


V04696-185-750XY19059A--EA 5
N0018801776038XY3211BA--EA 200
AT650803050051AAT6391J--EA 1000

    (D) When a TCN is assigned for each line item, enter on the next 
line the transportation control number prefixed by ``TCN.''
    (ii) For service line items, enter the word ``SERVICE'' followed by 
as short a description as is possible in no more than 20 additional 
characters. Some examples of service line items are maintenance, repair, 
alteration, rehabilitation, engineering, research, development, 
training, and testing. Do not complete Blocks 4, 13, and 14 when there 
is no shipment of material.
    (iii) For all contracts administered by the Defense Contract 
Management Agency, with the exception of fast pay procedures, enter and 
complete the following:
Gross Shipping Wt.
____________
State weight in pounds only.
    (iv) Starting with the next line, enter the following as appropriate 
(entries may be extended through Block 20). When entries apply to more 
than one line item in the MIRR, enter them only once after the last line 
item entry. Reference applicable line item numbers.
    (A) Enter in capital letters any special handling instructions/
limits for material environmental control, such as temperature, 
humidity, aging, freezing, shock, etc.
    (B) When a shipment is chargeable to Navy appropriation 17X4911, 
enter the appropriation, bureau control number (BCN), and authorization 
accounting activity (AAA) number (e.g., 17X4911-14003-104).
    (C) When the Navy transaction type code (TC), ``2T'' or ``7T'' is 
included in the appropriation data, enter ``TC 2T'' or ``TC 7T.''
    (D) When an NSN is required by but not cited in a contract and has 
not been furnished by the Government, the contractor may make shipment 
without the NSN at the direction of the contracting officer. Enter the 
authority for such shipment.
    (E) When Government furnished property (GFP) is included with or 
incorporated into the line item, enter the letters ``GFP.''
    (F) When shipment consists of replacements for supplies previously 
furnished, enter in capital letters ``REPLACEMENT SHIPMENT.'' (See F-
401, Block 17, for replacement indicators.)
    (G) On shipments of Government furnished aeronautical equipment 
(GFAE) under Air Force contracts, enter the assignment AERNO control 
number, e.g., ``AERNO 60-6354.''
    (H) For items shipped with missing components, enter and complete 
the following:

``Item(s) shipped short of the following component(s):
NSN or comparable identification ____, Quantity ____, Estimated Value 
____, Authority ____''
(I) When shipment is made of components which were short on a prior 
shipment, enter and complete the following:

``These components were listed as shortages on shipment number ____, 
date shipped ____''
    (J) When shipments involve drums, cylinders, reels, containers, 
skids, etc., designated as returnable under contract provisions, enter 
and complete the following:

``Return to ____, Quantity ____, Item ____, Ownership (Government/
contractor).''
    (K) Enter the total number of shipping containers, the type of 
containers, and the container number(s) assigned for the shipment.
    (L) On foreign military sales (FMS) shipments, enter the special 
markings, and FMS case identifier from the contract. Also enter the 
gross weight.
    (M) When test/evaluation results are a condition of acceptance and 
are not available prior to shipment, the following note shall be entered 
if the shipment is approved by the contracting officer:

    ``Note: Acceptance and payment are contingent upon receipt of 
approved test/evaluation results.''
    The contracting officer will advise--
    (1) The consignee of the results (approval/disapproval); and
    (2) The contractor to withhold invoicing pending attachment of the 
approved test/evaluation results.
    (N) The copy of the DD Form 250 required to support payment for 
destination acceptance (top copy of those with shipment) or ARP origin 
acceptance shall be identified as follows: enter ``PAYMENT COPY'' in 
approximately one-half inch outline type style letters with ``FORWARD TO 
BLOCK 12 ADDRESS'' in approximately one-quarter inch letters immediately 
below. Do not obliterate any other entries.
    (O) For clothing and textile contracts containing a bailment clause, 
enter the words ``GFP UNIT VALUE.''
    (P) When the initial unit incorporating an approved value 
engineering change proposal (VECP) is shipped, enter the following 
statement:

This is the initial unit delivered which incorporates VECP No. ____, 
Contract Modification No. ____, dated ____
    (17) Block 17--Quantity shipped/received.
    (i) Enter the quantity shipped, using the unit of measure in the 
contract for payment. When a second unit of measure is used for purposes 
other than payment, enter the appropriate quantity directly below in 
parentheses.

[[Page 700]]

    (ii) On the final shipment of a line item of a contract containing a 
clause permitting a variation of quantity and an underrun condition 
exists, the prime contractor shall enter a ``Z'' below the last digit of 
the quantity. Where the final shipment is from other than the prime 
contractor's plant and an underrun condition exists, the prime 
contractor may elect either to--
    (A) Direct the subcontractor making the final shipment to enter a 
``Z'' below the quantity; or
    (B) Upon determination that all subcontractors have completed their 
shipments, correct the DD Form 250 (see F-405) coving the final shipment 
of the line item from the prime contractor's plant by addition of a 
``Z'' below the quantity. Do not use the ``Z'' on deliveries which equal 
or exceed the contract line item quantity.
    (iii) For replacement shipments, enter ``A'' below the last digit of 
the quantity, to designate first replacement, ``B'' for second 
replacement, etc. Do not use the final shipment indicator ``Z'' on 
underrun deliveries when a final line item shipment is replaced.

                              17. QUANTITY
 
 
 

SHIP/REC'D

1000

(10)

 Z
    (iv) If the quantity received is the same quantity shipped and all 
items are in apparent good condition, enter by a check mark. If 
different, enter actual quantity received in apparent good condition 
below quantity shipped and circle. The receiving activity will annotate 
the DD Form 250 stating the reason for the difference.
    (18) Block 18--Unit. Enter the abbreviation of the unit measure as 
indicated in the contract for payment. Where a second unit of measure is 
indicated in the contract for purposes other than payment or used for 
shipping purposes, enter the second unit of measure directly below in 
parentheses. Authorized abbreviations are listed in MIL-STD-129, Marking 
for Shipping and Storage. For example, LB for pound, SH for sheet.

                                18. UNIT
 
LB
 
(SH)
 

    (19) Block 19--Unit price. The contractor may, at its option, enter 
unit prices on all MIRR copies, except as a minimum:
    (i) The contractor shall enter unit prices on all MIRR copies for 
each item of property fabricated or acquired for the Government and 
delivered to a contractor as Government furnished property (GFP). Get 
the unit price from Section B of the contract. If the unit price is not 
available, use an estimate. The estimated price should be the 
contractor's estimate of what the items will cost the Government. When 
the price is estimated, enter an ``E'' after the unit price.
    (ii) Use the procedures in F-406 when the MIRR is used as an 
invoice.
    (iii) For clothing and textile contracts containing a bailment 
clause, enter the cited Government furnished property unit value 
opposite ``GFP UNIT VALUE'' entry in Block 16.
    (iv) Price all copies of DD Forms 250 for FMS shipments with actual 
prices, if available. If actual price are not available, use estimated 
prices. When the price is estimated, enter an ``E'' after the price.
    (20) Block 20--AMOUNT. Enter the extended amount when the unit price 
is entered in Block 19.
    (21) Block 21--Contract quality assurance (CQA).
    (i) The words ``conform to contract'' contained in the printed 
statements in Blocks 21a and 21b relate to quality and to the quantity 
of the items on the report. Do not modify the statements. Enter notes 
taking exception in Block 16 or on attached supporting documents with an 
appropriate block cross-reference.
    (ii) When a shipment is authorized under alternative release 
procedure, attach or include the appropriate contractor signed 
certificate on the top copy of the DD Form 250 copies distributed to the 
payment office or attach or include the appropriate contractor 
certificate on the contract administration office copy when contract 
administration (Block 10 of the DD Form 250) is performed by the Defense 
Contract Management Agency.
    (iii) When contract terms provide for use of Certificate of 
Conformance and shipment is made under these terms, the contractor shall 
enter in capital letters ``CERTIFICATE OF CONFORMANCE'' in Block 21a on 
the next line following the CQA and acceptance statements. Attach or 
include the appropriate contractor signed certificate on the top copy of 
the DD Form 250 copies distributed to the payment office or attach or 
include the appropriate certificate on the contract administration 
office copy when contract administration (Block 10 of the DD Form 250) 
is performed by the Defense Contract Management Agency. In addition, 
attach a copy of the signed certificate to, or enter on, copies of the 
MIRR sent with shipment.
    (iv) Origin.
    (A) The authorized Government representative must--
    (1) Place an ``X'' in the appropriate CQA and/or acceptance box(es) 
to show origin CQA and/or acceptance. When the contract requires CQA at 
destination in addition to origin CQA, enter an asterisk at the end of 
the statement and an explanatory note in Block 16;
    (2) Sign and date;

[[Page 701]]

    (3) Enter the typed, stamped, or printed name, title, mailing 
address, and commercial telephone number.
    (B) When alternative release procedures apply--
    (1) The contractor or subcontractor shall complete the entries 
required under paragraph (A) and enter in capital letters ``ALTERNATIVE 
RELEASE PROCEDURE'' on the next line following the printed CQA/
acceptance statement.
    (2) When acceptance is at origin and contract administration is 
performed by an office other than the Defense Contract Management 
Agency, the contractor shall furnish the four payment office copies of 
the MIRR to the authorized Government representative for dating and 
signing of one copy and forwarding of all copies to the payment office.
    (3) When acceptance is at origin and contract administration is 
performed by the Defense Contract Management Agency, furnish the 
contract administration office copy of the MIRR to the authorized 
Government representative for dating and signing and forwarding to the 
contract administration office (see F-501, Table 1).
    (C) When fast pay procedures apply, the contractor or subcontractor 
shall enter in capital letters ``FAST PAY'' on the next line following 
the printed CQA/acceptance statement. When CQA is required, the 
authorized Government representative shall execute the block as required 
by paragraph (A).
    (D) When Certificate of Conformance procedures apply, inspection or 
inspection and acceptance are at source, and the contractor's 
Certificate of Conformance is required, the contractor shall enter in 
capital letters ``CERTIFICATE OF CONFORMANCE'' as required by paragraph 
(b)(21)(iii) of this appendix.
    (1) For contracts administered by an office other than the Defense 
Contract Management Agency, furnish the four payment office copies of 
the MIRR to the authorized Government representative for dating and 
signing of one copy, and forwarding of all copies to the payment office.
    (2) For contracts administered by the Defense Contract Management 
Agency, furnish the contract administration office copy of the MIRR to 
the authorized Government representative for dating and signing and 
forwarding to the contract administration office (see F-401, Table 1).
    (3) When acceptance is at destination, no entry shall be made other 
than ``CERTIFICATE OF CONFORMANCE.''
    (v) Destination.
    (A) When acceptance at origin is indicated in Block 21a, make no 
entries in Block 21b.
    (B) When CQA and acceptance or acceptance is at destination, the 
authorized Government representative must--
    (1) Place an ``X'' in the appropriate box(es);
    (2) Sign and date; and
    (3) Enter typed, stamped, or printed name, title, mailing address, 
and commercial telephone number.
    (C) When ``ALTERNATIVE RELEASE PROCEDURE'' is entered in Block 21a 
and acceptance is at destination, the authorized Government 
representative must complete the entries required by paragraph 
(b)(21)(v)(B) of this appendix.
    (D) Forward the executed payment copy or MILSCAP format identifier 
PKN or PKP to the payment office cited in Block 12 within four work days 
(five days when MILSCAP Format is used) after delivery and acceptance of 
the shipment by the receiving activity. Forward one executed copy of the 
final DD Form 250 to the contract administration office cited in Block 
10 for implementing contract closeout procedures.
    (E) When ``FAST PAY'' is entered in Block 21a, make no entries in 
this block.
    (22) Block 22--Receiver's use. The authorized representative of the 
receiving activity (Government or contractor) must use this block to 
show receipt, quantity, and condition. The authorized representative 
must--
    (i) Enter the date the supplies arrived. For example, when off-
loading or in-checking occurs subsequent to the day of arrival of the 
carrier at the installation, the date of the carrier's arrival is the 
date received for purposes of this block;
    (ii) Sign; and
    (iii) Enter typed, stamped, or printed name, title, mailing address, 
and commercial telephone number.
    (23) Block 23--Contractor use only. Self explanatory.
F-402 Mode/method of shipment codes.
    See paragraph F-302.
F-403 Consolidated shipments.
    When individual shipments are held at the contractor's plant for 
authorized transportation consolidation to a single bill of lading, the 
contractor may prepare the DD Forms 250 at the time of CQA or acceptance 
prior to the time of actual shipment (see Block 3).
F-404 Multiple consignee instructions.
    The contractor may prepare one MIRR when the identical line item(s) 
of a contract are to be shipped to more than one consignee, with the 
same or varying quantities, and the shipment requires origin acceptance. 
Prepare the MIRR using the procedures in this appendix with the 
following changes:
    (a) Blocks 2, 4, 13, and, if applicable, 14--Enter ``See Attached 
Distribution List.''
    (b) Block 15--The contractor may group item numbers for identical 
stock/part number and description.

[[Page 702]]

    (c) Block 17--Enter the ``total'' quantity shipped by line item or, 
if applicable, grouped identical line items.
    (d) Use the DD Form 250c to list each individual ``Shipped To'' and 
``Marked For'' with--
    (1) Code(s) and complete shipping address and a sequential shipment 
number for each;
    (2) Line item number(s);
    (3) Quantity;
    (4) MIPR number(s), preceded by ``MIPR,'' or the MILSTRIP 
requisition number, and quantity for each when provided in the contract 
or shipping instructions; and
    (5) If applicable, bill of lading number, TCN, and mode of shipment 
code.
    (e) The contractor may omit those distribution list pages of the DD 
Form 250c that are not applicable to the consignee. Provide a complete 
MIRR for all other distribution.
F-405 Correction instructions.
    Make a new revised MIRR or correct the original when, because of 
errors or omissions, it is necessary to correct the MIRR after 
distribution has been made. Use data identical to that of the original 
MIRR. Do not correct MIRRs for Blocks 19 and 20 entries. Make the 
corrections as follows--
    (a) Circle the error and place the corrected information in the same 
block; if space is limited, enter the corrected information in Block 16 
referencing the error page and block. Enter omissions in Block 16 
referencing omission page and block. For example--

 
            2. SHIPMENT NO.                        17. QUANTITY
 
                                         SHIP/REC'D
 
(AAA0001)..............................  ...............................
 
                                         19
 
        See Block 16...................  (17)
 
        __________.....................  __________
------------------------------------------------------------------------
 
 
 16. STOCK/PART NO. DESCRIPTION
 
CORRECTIONS:
 
Refer Block 2: Change shipment No. AAA001 to AAA0010 on all pages of the
  MIRR.
 
Refer Blocks 15, 16, 17, and 18, page 2: Delete in entirety Line Item
  No. 0006. This item was not shipped.

    (b) When corrections have been made to entries for line items (Block 
15) or quantity (Block 17), enter the words ``CORRECTIONS HAVE BEEN 
VERIFIED'' on page 1. The authorized Government representative will date 
and sign immediately below the statement. This verification statement 
and signature are not required for other corrections.
    (c) Clearly mark the pages of the MIRR requiring correction with the 
words ``CORRECTED COPY.'' Avoid obliterating any other entries. Where 
corrections are made only on continuation sheets, also mark page number 
1 with the words ``CORRECTED COPY.''
    (d) Page 1 and only those continuation pages marked ``CORRECTED 
COPY'' shall be distributed to the initial distribution. A complete MIRR 
with corrections shall be distributed to new addressee(s) created by 
error corrections.
F-406 Invoice instructions.
    (a) Contractors shall submit payment requests and receiving reports 
in electronic form, unless an exception in DFARS 232.7002 applies. 
Contractor submission of the material inspection and receiving 
information required by this appendix by using the WAWF electronic form 
(see paragraph (b) of the clause at DFARS 252.232-7003) fulfills the 
requirement for an MIRR.
    (b) If the contracting officer authorizes the contractor to submit 
an invoice in paper form, the Government encourages, but does not 
require, the contractor to use the MIRR as an invoice, in lieu of a 
commercial form. If commercial forms are used, identify the related MIRR 
shipment number(s) on the form. If using the MIRR as an invoice, prepare 
the MIRR and forward the required number of copies to the payment office 
as follows:
    (1) Complete Blocks 5, 6, 19, and 20. Block 6 shall contain the 
invoice number and date. Column 20 shall be totaled.
    (2) Mark in letters approximately one inch high, first copy: 
``ORIGINAL INVOICE,'' for all invoice submissions; and three copies: 
``INVOICE COPY,'' when the payment office requires four copies. 
Questions regarding the appropriate number of copies (i.e., one or four) 
should be directed to the applicable payment office.
    (3) Forward the appropriate number of copies to the payment office 
(Block 12 address), except when acceptance is at destination and a Navy 
finance office will make payment, forward to destination.
    (4) Separate the copies of the MIRR used as an invoice from the 
copies of the MIRR used as a receiving report.

[[Page 703]]

F-407 Packing list instructions.
    Contractors may use copies of the MIRR as a packing list. The 
packing list copies are in addition to the copies of the MIRR required 
for standard distribution (see F-501). Mark them ``PACKING LIST.''
F-408 Receiving instructions.
    When the MIRR is used for receiving purposes, local directives shall 
prescribe procedures. If CQA and acceptance or acceptance of supplies is 
required upon arrival at destination, see F-401(b)(21)(v) for 
instructions.

PART 5_Distribution of Wide Area Workflow Receiving Report (WAWF RR), DD 
                        Form 250 and DD Form 250C

F-501 Distribution of WAWF RR.
    Use of the WAWF electronic form satisfies the distribution 
requirements of this section, except for the copies required to 
accompany shipment.
F-502 Distribution of DD Form 250 and DD Form 250C.
    (a) The contractor is responsible for distributing the DD Form 250, 
Material Inspection and Receiving Report (MIRR) including mailing and 
payment of postage.
    (b) Contractors shall distribute MIRRs using the instructions in 
Tables 1 and 2.
    (c) Contractors shall distribute MIRRs on non-DoD contracts using 
this appendix as amended by the contract.
    (d) Contractors shall make distribution promptly, but no later than 
the close of business of the work day following--
    (1) Signing of the DD Form 250 (Block 21a) by the authorized 
Government representative; or
    (2) Shipment when authorized under terms of alternative release, 
certificate of conformance, or fast pay procedures; or
    (3) Shipment when CQA and acceptance are to be performed at 
destination.
    (e) Do not send the consignee copies (via mail) on overseas 
shipments to port of embarkation (POE). Send them to consignee at APO/
FPO address.
    (f) Copies of the MIRR forwarded to a location for more than one 
recipient shall clearly identify each recipient.

 Material Inspection and Receiving Report Table 1--Standard Distribution
------------------------------------------------------------------------
                                                             Number of
                  Standard distribution                       copies
------------------------------------------------------------------------
With Shipment *.........................................               2
Consignee (via mail)....................................               1
    (For Navy procurement, include unit price.)
    (For foreign military sales, consignee copies are
     not required.)
Contract Administration Office (CAO)....................               1
    (Forward direct to address in Block 10 except when
     addressee is a Defense Contract Management Agency
     (DCMA) office and a certificate of conformance or
     the alternative release procedures (see F-301,
     Block 21) is involved, and acceptance is at origin;
     then, forward through the authorized Government
     representative.)
Purchasing Office.......................................               1
Payment Office **.......................................               2
    (Forward direct to address in Block 12 except--
        (i) When address in Block 10 is a DCMA office
         and payment office in Block 12 is the Defense
         Finance and Accounting Service, Columbus
         Center, do not make distribution to the Block
         12 addressee;
        (ii) When address in Block 12 is the Defense
         Finance and Accounting Service, Columbus Center/
         Albuquerque Office (DFAS-CO/ALQ), Kirtland AFB,
         NM, attach only one copy to the required number
         of copies of the contractor's invoice;
        (iii) When acceptance is at destination and a
         Navy finance office will make payment, forward
         to destination; and
        (iv) When a certificate of conformance or the
         alternative release procedures (see F-301,
         Block 21) are involved and acceptance is at
         origin, forward the copies through the
         authorized Government representative.)
ADP Point for CAO (applicable to Air Force only)........               1
    (When DFAS-CO/ALQ is the payment office in Block 12,
     send one copy to DFAS-CO/ALQ immediately after
     signature. If submission of delivery data is made
     electronically, distribution of this hard copy need
     not be made to DFAS-CO/ALQ.)
CAO of Contractor Receiving GFP.........................               1
    (For items fabricated or acquired for the Government
     and shipped to a contractor as Government furnished
     property, send one copy directly to the CAO
     cognizant of the receiving contractor, ATTN:
     Property Administrator (see DoD 4105.59-H).)
------------------------------------------------------------------------
* Attach as follows:


------------------------------------------------------------------------
            Type of shipment                         Location
------------------------------------------------------------------------
Carload or truckload...................  Affix to the shipment where it
                                          will be readily visible and
                                          available upon receipt.

[[Page 704]]

 
Less than carload or truckload.........  Affix to container number one
                                          or container truckload bearing
                                          lowest number.
Mail, including parcel post............  Attach to outside or include in
                                          the package. Include a copy in
                                          each additional package of
                                          multi-package shipments.
Pipeline, tank car, or railroad cars     Forward with consignee copies.
 for coal movements.
------------------------------------------------------------------------
** Payment by Defense Finance and Accounting Service, Columbus Center
  will be based on the source acceptance copies of DD Forms 250
  forwarded to the contract administration office.


 Material Inspection and Receiving Report Table 2--Special Distribution
------------------------------------------------------------------------
          As required                   Address         Number of copies
------------------------------------------------------------------------
Each: Navy Status Control       Address specified in                 * 1
 Activity, Army, Air Force,      contract.
 DLA Inventory Control Manager.
Quality Assurance               Address specified by                   1
 Representative.                 the assigned quality
                                 assurance
                                 representative.
Transportation Office issuing   CAO address unless                     1
 GBL (attach to GBL memorandum   otherwise specified
 copy).                          in the contract.
Purchasing Office other than    Address specified in                   1
 office issuing contract.        the contract.
Foreign Military Sales          Address specified in                   8
 Representative.                 the contract.
Military Assistance Advisory    U.S. Military Advisory                 1
 Group (Grant Aid shipments).    Group, Military
                                 Attache, Mission, or
                                 other designated
                                 agency address as
                                 specified in the
                                 contract.
Army Foreign Military Sales...  Commander, U.S. Army                   1
                                 Security Assistance
                                 Command, ATTN: AMSAC-
                                 OL, 54 ``M'' Avenue,
                                 Suite 1, New
                                 Cumberland, PA 17070-
                                 5096.
Air Force On shipments of new   HQ Air Force Materiel                  1
 production of aircraft and      Command, LGX-AVDO,
 missiles, class 1410            Area A, Building 262,
 missiles, 1510 aircraft         Room N142, 4375
 (fixed wing, all types), 1520   Chidlaw Road, Wright-
 aircraft (rotary wing), 1540    Patterson AFB, OH
 gliders, 1550 target drones.    45433-5006.
When above items are delivered  DCMA..................                 1
 to aircraft modification
 centers.
Foreign Military Sales/         National Defence                       1
 Military Assistance Program     Headquarters, Ottawa,
 (Grant Aid) shipments to        Ontario Canada, K1A
 Canada.                         OK4 ATTN: DPSUPS3.
Other than Canada.............  Address in the                         1
                                 contract.
When consignee is an Air        Consignee address                      3
 National Guard Activity.        (Block 13), ATTN:
                                 Property Officer.
             Navy
Navy Foreign Military Sales...  Naval Inventory                        2
                                 Control Point Deputy
                                 Commander for
                                 International
                                 Programs (NAVICP Code
                                 P761), 700 Robbins
                                 Avenue, Philadelphia,
                                 PA 19111-5095.
When typed code (TC) 2T or 7T   Naval Inventory                        2
 is shown in Block 16, or when   Control Point (Code
 shipment is consigned to        0142) for aviation
 another contractor's plant      type material, 700
 for a Government                Robbins Avenue,
 representative or when Block    Philadelphia, PA
 16 indicates shipment           19111-5098 and.
 includes GFP.                  Naval Inventory
                                 Control Point (Code
                                 0143) for all other
                                 material 5450
                                 Carlisle Pike, PO Box
                                 2020, Mechanicsburg,
                                 PA 17055-0788.
Bulk Petroleum Shipments......  Cognizant Defense Fuel                 1
                                 Region (see Table 4).
------------------------------------------------------------------------
* Each addressee.

        Part 6_Preparation of the DD Form 250	1 (Loading Report)

    F-601 Instructions.
    Prepare the DD Form 250-1 using the following instructions when 
applied to a tanker or barge cargo lifting. If space is limited, use 
abbreviations. The block numbers correspond to those on the form.
    (a) Block 1--Tanker/barge. Line out ``TANKER'' or ``BARGE'' as 
appropriate and place an ``X'' to indicate loading report.
    (b) Block 2--Inspection office. Enter the name and location of the 
Government office conducting the inspection.
    (c) Block 3--Report No. Number each form consecutively, starting 
with number 1, to correspond to the number of shipments made against the 
contract. If shipment is made from more than one location against the 
same contract, use this numbering system at each location.
    (d) Block 4--Agency placing order on shipper, city, state and/or 
local address (loading). Enter the applicable Government activity.
    (e) Block 5--Department. Enter military department owning product 
being shipped.
    (f) Block 6--Prime contract or P.O. No. Enter the contract or 
purchase order number.
    (g) Block 7--Name of prime contractor, city, state and/or local 
address (loading).

[[Page 705]]

Enter the name and address of the contractor as shown in the contract.
    (h) Block 8--Storage contract. Enter storage contract number if 
applicable.
    (i) Block 9--Terminal or refinery shipped from, city, state and/or 
local address. Enter the name and location of the contractor facility 
from which shipment is made. Also enter delivery point in this space as 
either ``FOB Origin'' or ``FOB Destination.''
    (j) Block 10--Order No. on supplier. Enter number of the delivery 
order, purchase order, subcontract or suborder placed on the supplier.
    (k) Block 11--Shipped to: (receiving activity, city, state and/or 
local address). Enter the name and geographical address of the consignee 
as shown on the shipping order.
    (l) Block 12--B/L number. If applicable, enter the initials and 
number of the bill of lading. If a commercial bill of lading is later 
authorized to be converted to a Government bill of lading, show ``Com. 
B/L to GB/L.''
    (m) Block 13--Reqn. or request No. Enter number and date from the 
shipping instructions.
    (n) Block 14--Cargo No. Enter the cargo number furnished by the 
ordering office.
    (o) Block 15--Vessel. Enter the name of tanker or barge.
    (p) Block 16--Draft arrival. Enter the vessel's draft on arrival.
    (q) Block 17--Draft sailing. Enter the vessel's draft on completion 
of loading.
    (r) Block 18--Previous two cargoes. Enter the type of product 
constituting previous two cargoes.
    (s) Block 19--Prior inspection. Leave blank.
    (t) Block 20--Condition of shore pipeline. Enter condition of line 
(full or empty) before and after loading.
    (u) Block 21--Appropriation (loading). Enter the appropriation 
number shown on the contract, purchase order or distribution plan. If 
the shipment is made from departmentally owned stock, show ``Army, Navy, 
or Air Force (as appropriate) owned stock.''
    (v) Block 22--Contract item no. Enter the contract item number 
applicable to the shipment.
    (w) Block 23--Product. Enter the product nomenclature and grade as 
shown in the contract or specification, the stock or class number, and 
the NATO symbol.
    (x) Block 24--Specifications. Enter the specification and amendment 
number shown in the contract.
    (y) Block 25--Statement of quantity. Enter in the ``LOADED'' column, 
the net barrels, net gallons, and long tons for the cargo loaded. NOTE: 
If more than \1/2\ of 1 percent difference exists between the ship and 
shore quantity figures, the contractor shall immediately investigate to 
determine the cause of the difference. If necessary, prepare corrected 
documents; otherwise, put a statement in Block 28 as to the probable or 
actual cause of the difference.
    (z) Block 26--Statement of quality.
    (1) Under the heading ``TESTS'' list all inspection acceptance tests 
of the specification and any other quality requirements of the contract.
    (2) Under the heading ``SPECIFICATION LIMITS'' list the limits or 
requirements as stated in the specification or contract directly 
opposite each entry in the ``TESTS'' column. List waivers to technical 
requirements.
    (3) Under the heading ``TEST RESULTS'' list the test results 
applicable to the storage tank or tanks from which the cargo was lifted. 
If more than one storage tank is involved, list the tests applicable to 
each tank in separate columns headed by the tank number, the date the 
product in the tank was approved, and the quantity loaded from the tank. 
Each column shall also list such product characteristics as amount and 
type of corrosion inhibitor, etc.
    (aa) Block 27--Time statement. Line out ``DISCHARGE'' and 
``DISCHARGING.'' Complete all applicable entries of the time statement 
using local time. Take these dates and times from either the vessel or 
shore facility log. The Government representative shall ensure that the 
logs are in agreement on those entries used. If the vessel and shore 
facility logs are not in agreement, the Government representative will 
explain the reasons in Block 28--REMARKS. Do not enter the date and time 
the vessel left berth on documents placed aboard the vessel. The date 
and time shall appear on all other copies. Express all dates in sequence 
of day, month, and year with the month spelled out or abbreviated (e.g., 
10 Sept. 67). The term FINISHED BALLAST DISCHARGE is meant to include 
all times needed to complete deballasting and mopping/drying of ship's 
tanks. The inspection of ship's tanks for loading is normally performed 
immediately upon completion of drying tanks.
    (bb) Block 28--Remarks. Use this space for reporting:
    (1) All delays, their cause and responsible party (vessel, shore 
facility, Government representative, or other).
    (2) Details of loading abnormalities such as product losses due to 
overflow, leaks, delivery of product from low level in shore tanks, etc.
    (3) In the case of multiple consignees, enter each consignee, the 
amount consigned to each, and if applicable, the storage contract 
numbers appearing on the delivery order.
    (4) When product title is vested in the U.S. Government, insert in 
capital letters ``U.S. GOVERNMENT OWNED CARGO.'' If title to the product 
remains with the contractor and inspection is performed at source with 
acceptance at destination, insert in capital letters ``CONTRACTOR OWNED 
CARGO.''

[[Page 706]]

    (5) Seal numbers and location of seals. If space is not adequate, 
place this information on the ullage report or an attached supplemental 
sheet.
    (cc) Block 29--Company or receiving terminal. Line out ``OR 
RECEIVING TERMINAL'' and get the signature of the supplier's 
representative.
    (dd) Block 30--Certification by government representative. Line out 
``discharged.'' The Government representative shall date and sign the 
form to certify inspection and acceptance, as applicable, by the 
Government. The name of the individual signing this certification, as 
well as the names applied in Blocks 29 and 31, shall be typed or hand 
lettered. The signature in Block 30 must agree with the typed or 
lettered name to be acceptable to the paying office.
    (ee) Block 31--Certification by master or agent. Obtain the 
signature of the master of the vessel or its agent.

       Part 7_Preparation of the DD Form 250	1 (Discharge Report)

F-701 Instructions.
    Prepare the DD Form 250-1 using the following instructions when 
applied to a tanker or barge discharge. If space is limited, use 
abbreviations. The block numbers correspond to those on the form.
    (a) Block 1--Tanker/barge. Line out ``TANKER'' or ``BARGE'' as 
applicable and place an ``X'' to enter discharge report.
    (b) Block 2--Inspection office. Enter Government activity performing 
inspection on the cargo received.
    (c) Block 3--Report No. Leave blank.
    (d) Block 4--Agency placing order on shipper, city, state and/or 
local address (loading). Enter Government agency shown on loading 
report.
    (e) Block 5--Department. Enter Department owning product being 
received.
    (f) Block 6--Prime contract or P.O. No. Enter the contract or 
purchase order number shown on the loading report.
    (g) Block 7--Name of prime contractor, city, state and/or local 
address (loading). Enter the name and location of contractor who loaded 
the cargo.
    (h) Block 8--Storage contract. Enter the number of the contract 
under which material is placed in commercial storage where applicable.
    (i) Block 9--Terminal or refinery shipped from, city, state and/or 
local address. Enter source of cargo.
    (j) Block 10--Order No. on supplier. Make same entry appearing on 
loading report.
    (k) Block 11--Shipped to: (RECEIVING ACTIVITY, CITY, STATE AND/OR 
LOCAL ADDRESS). Enter receiving activity's name and location.
    (l) Block 12--B/L number. Enter as appears on loading report.
    (m) Block 13--Reqn. or request No. Leave blank.
    (n) Block 14--Cargo No. Enter cargo number shown on loading report.
    (o) Block 15--Vessel. Enter name of tanker or barge discharging 
cargo.
    (p) Block 16--Draft arrival. Enter draft of vessel upon arrival at 
dock.
    (q) Block 17--Draft sailing. Enter draft of vessel after 
discharging.
    (r) Block 18--Previous two cargoes. Leave blank.
    (s) Block 19--Prior inspection. Enter the name and location of the 
Government office which inspected the cargo loading.
    (t) Block 20--Condition of shore pipeline. Enter condition of line 
(full or empty) before and after discharging.
    (u) Block 21--Appropriation (loading). Leave blank.
    (v) Block 22--Contract item No. Enter the item number shown on the 
loading report.
    (w) Block 23--Product. Enter information appearing in Block 23 of 
the loading report.
    (x) Block 24--Specifications. Enter information appearing in Block 
24 of the loading report.
    (y) Block 25--Statement of quantity. Enter applicable data in proper 
columns.
    (1) Take ``LOADED'' figures from the loading report.
    (2) Determine quantities discharged from shore tank gauges at 
destination.
    (3) If a grade of product is discharged at more than one point, 
calculate the loss or gain for that product by the final discharge 
point.
    Report amounts previously discharged on discharge reports prepared 
by the previous discharge points. Transmit volume figures by routine 
message to the final discharge point in advance of mailed documents to 
expedite the loss or gain calculation and provide proration data when 
more than one department is involved.
    (4) The loss or gain percentage shall be entered in the ``PERCENT'' 
column followed by ``LOSS'' or ``GAIN,'' as applicable.
    (5) On destination acceptance shipments, accomplish the 
``DISCHARGED'' column only, unless instructed to the contrary.
    (z) Block 26--Statement of quality.
    (1) Under the heading ``TESTS'' enter the verification tests 
performed on the cargo preparatory to discharge.
    (2) Under ``SPECIFICATION LIMITS'' enter the limits, including 
authorized departures (if any) appearing on the loading report, for the 
tests performed.
    (3) Enter the results of tests performed under the heading ``TEST 
RESULTS.''
    (aa) Block 27--Time statement. Line out ``LOAD'' and ``LOADING.'' 
Complete all applicable entries of the time statement using local time. 
Take the dates and times from either the vessel or shore facility log. 
The Government representative shall ensure that

[[Page 707]]

these logs are in agreement with entries used. If the vessel and shore 
facility logs are not in agreement, the Government representative will 
explain the reason(s) in Block 28--REMARKS. Do not enter the date and 
time the vessel left berth on documents placed aboard the vessel. The 
date and time shall appear on all other copies. Express all dates in 
sequence of day, month, and year with the month spelled out or 
abbreviated (e.g., 10 Sept. 67).
    (bb) Block 28--Remarks. Use this space for reporting important facts 
such as:
    (1) Delays, their cause, and responsible party (vessel, shore 
facility, Government representative, or others).
    (2) Abnormal individual losses contributing to the total loss. Enter 
the cause of such losses as well as actual or estimated volumes 
involved. Such losses shall include, but not be restricted to, product 
remaining aboard (enter tanks in which contained), spillages, line 
breaks, etc. Note where gravity group change of receiving tank contents 
results in a fictitious loss or gain. Note irregularities observed on 
comparing vessel ullages obtained at loading point with those at the 
discharge point if they indicate an abnormal transportation loss or 
contamination.
    (cc) Block 29--Company or receiving terminal. Line out ``COMPANY 
OR.'' Secure the signature of a representative of the receiving 
terminal.
    (dd) Block 30--Certification by government representative. Line out 
``loaded.'' The Government representative shall date and sign the form 
to certify inspection and acceptance, as applicable, by the Government. 
The name of the individual signing the certification as well as the 
names applied in Blocks 29 and 31 shall be typed or hand lettered on the 
master or all copies of the form. The signature in Block 30 must agree 
with the typed or lettered name to be acceptable to the paying office.
    (ee) Block 31--Certification by master or agent. Obtain the 
signature of the master of the vessel or the vessel's agent.

                Part 8_Distribution of the DD Form 250	1

F-801 Distribution.
    Follow the procedures at PGI F-801 for distribution of DD Form 250-
1.
F-802 Corrected DD Form 250-1.
    Follow the procedures at PGI F-802 when corrections to DD Form 250-1 
are needed.

[76 FR 58136, Sept. 20, 2011, as amended at 78 FR 28758, May 16, 2013; 
78 FR 76073, Dec. 16, 2013; 80 FR 29983, May 26, 2015; 81 FR 9786, Feb. 
26, 2016; 81 FR 59516, Aug. 30, 2016; 84 FR 48511, Sept. 13, 2019]



                 Sec. Appendix G to Chapter 2 [Reserved]



    Sec. Appendix H to Chapter 2--Debarment and Suspension Procedures

Sec.
H-100 Scope.
H-101 Notification.
H-102 Nature of proceeding.
H-103 Presentation of matters in opposition.
H-104 Fact-finding.
H-105 Timing requirements.
H-106 Subsequent to fact-finding.

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
H-100 Scope.
    This appendix provides uniform debarment and suspension procedures 
to be followed by all debarring and suspending officials.
H-101 Notification.
    Contractors will be notified of the proposed debarment or suspension 
in accordance with FAR 9.406-3 or 9.407-3. A copy of the record which 
formed the basis for the decision by the debarring and suspending 
official will be made available to the contractor. If there is a reason 
to withhold from the contractor any portion of the record, the 
contractor will be informed of what is withheld and the reasons for such 
withholding.
H-102 Nature of proceeding.
    There are two distinct proceedings which may be involved in the 
suspension or debarment process. The first is the presentation of 
matters in opposition to the suspension or proposed debarment by the 
contractor.
    The second is fact-finding which occurs only in cases in which the 
contractor's presentation of matters in opposition raises a genuine 
dispute over one or more material facts. In a suspension action based 
upon an indictment or in a proposed debarment action based upon a 
conviction or civil judgment, there will be no fact-filling proceeding 
concerning the matters alleged in the indictment, or the facts 
underlying the convictions or civil judgment. However, to the extent 
that the proposed action stems from the contractor's affiliation with an 
individual or firm indicted or convicted, or the subject of a civil 
judgment, fact-finding is permitted if a genuine dispute of fact is 
raised as to the question of affiliation as defined in FAR 9.403.
H-103 Presentation of matters in opposition.
    (a) In accordance with FAR 9.406-3(c) and 9.407-3(c), matters in 
opposition may be presented in person, in writing, or through a 
representative. Matters in opposition may be presented through any 
combination of the

[[Page 708]]

foregoing methods, but if a contractor desires to present matters in 
person or through a representative, any written material should be 
delivered at least 5 working days in advance of the presentation. 
Usually, all matters in opposition are presented in a single proceeding. 
A contractor who becomes aware of a pending indictment or allegations of 
wrongdoing that the contractor believes may lead to suspension or 
debarment action may contact the debarring and suspending official or 
designee to provide information as to the contractor's present 
responsibility.
    (b) An in-person presentation is an informal meeting, nonadversarial 
in nature. The debarring and suspending official and/or other agency 
representatives may ask questions of the contractor or its 
representative making the presentation. The contractor may select the 
individuals who will attend the meeting on the contractor's behalf; 
individual respondents or principals of a business firm respondent may 
attend and speak for themselves.
    (c) In accordance with FAR 9.406-3(c) and 9.407-3(c), the contractor 
may submit matters in opposition within 30 days from receipt of the 
notice of suspension or proposed debarment.
    (d) The opportunity to present matters in opposition to debarment 
includes the opportunity to present matters concerning the duration of 
the debarment.
H-104 Fact-finding.
    (a) The debarring and suspending official will determine whether the 
contractor's presentation has raised a genuine dispute of material 
fact(s). If the debarring and suspending official has decided against 
debarment or continued suspension, or the provisions of FAR 9.4 preclude 
fact-finding, no fact-finding will be conducted. If the debarring and 
suspending official has determined a genuine dispute of material fact(s) 
exists, a designated fact-finder will conduct the fact-finding 
proceeding. The proceeding before the fact-finder will be limited to a 
finding of the facts in dispute as determined by the debarring and 
suspending official.
    (b) The designated fact-finder will establish the date for a fact-
finding proceeding, normally to be held within 45 working days of the 
contractor's presentation of matters in opposition. An official record 
will be made of the fact-finding proceeding.
    (c) The Government's representative and the contractor will have an 
opportunity to present evidence relevant to the facts at issues. The 
contractor may appear in person or through a representative in the fact-
finding proceeding.
    (d) Neither the Federal Rules of Evidence nor the Federal Rules of 
Civil Procedure govern fact-finding. Hearsay evidence may be presented 
and will be given appropriate weight by the fact-finder.
    (e) Witnesses may testify in person. Witnesses will be reminded of 
the official nature of the proceeding and that any false testimony given 
is subject to criminal prosecution. Witnesses are subject to cross-
examination.
H-105 Timing requirements.
    All timing requirements set forth in these procedures may be 
extended by the debarring and suspending official for good cause.
H-106 Subsequent to fact-finding.
    (a) Written findings of fact will be prepared by the fact-finder as 
mandated by FAR 9.406-3(d)(2)(i) and 9.407-3(d)(2)(i).
    (b) The fact-finder will determine the disputed fact(s) by a 
preponderance of the evidence. A copy of the findings of fact will be 
provided to the debarring and suspending official, the Government's 
representative, and the contractor.
    (c) The debarring and suspending official will determine whether to 
continue the suspension or to debar the contractor based upon the entire 
administrative record, including the findings of fact.
    (d) Prompt written notice of the debarring and suspending official's 
decision will be sent to the contractor and any affiliates involved, in 
compliance with FAR 9.406-3(e) and 9.407-3(d)(4).

[59 FR 27700, May 27, 1994]



 Sec. Appendix I to Chapter 2--Policy and Procedures for the DoD Pilot 
                  Mentor-Prot[eacute]g[eacute] Program

I-100 Purpose.
    (a) This Appendix I to 48 CFR chapter 2 implements the Pilot Mentor-
Prot[eacute]g[eacute] Program (hereafter referred to as the ``Program'') 
established under section 831 of Public Law 101-510, the National 
Defense Authorization Act for Fiscal Year 1991 (10 U.S.C. 2302 note), as 
amended through November 25, 2015. The purpose of the Program is to 
provide incentives to major DoD contractors to furnish eligible small 
business concerns with assistance designed to--
    (1) Enhance the capabilities of eligible small business concerns to 
perform as subcontractors and suppliers under DoD contracts and other 
contracts and subcontracts; and
    (2) Increase the participation of such business concerns as 
subcontractors and suppliers under DoD contracts, other Federal 
Government contracts, and commercial contracts.
    (b) Under the Program, eligible companies approved as mentor firms 
will enter into mentor-prot[eacute]g[eacute] agreements with eligible

[[Page 709]]

prot[eacute]g[eacute] firms to provide appropriate developmental 
assistance to enhance the capabilities of the prot[eacute]g[eacute] 
firms to perform as subcontractors and suppliers. DoD may provide the 
mentor firm with either cost reimbursement or credit against applicable 
subcontracting goals established under contracts with DoD or other 
Federal agencies.
    (c) DoD will measure the overall success of the Program by the 
extent to which the Program results in--
    (1) An increase in the dollar value of contract and subcontract 
awards to prot[eacute]g[eacute] firms (under DoD contracts, contracts 
awarded by other Federal agencies, and commercial contracts) from the 
date of their entry into the Program until 2 years after the conclusion 
of the agreement;
    (2) An increase in the number and dollar value of subcontracts 
awarded to a prot[eacute]g[eacute] firm (or former prot[eacute]g[eacute] 
firm) by its mentor firm (or former mentor firm);
    (3) An increase in the employment level of prot[eacute]g[eacute] 
firms from the date of entry into the Program until 2 years after the 
completion of the agreement.
    (d) This policy sets forth the procedures for participation in the 
Program applicable to companies that are interested in receiving--
    (1) Reimbursement through a separate contract line item in a DoD 
contract or a separate contract with DoD; or
    (2) Credit toward applicable subcontracting goals for costs incurred 
under the Program.
I-101 Definitions.
I-101.1 Affiliation.
    With respect to a relationship between a mentor firm and a 
prot[eacute]g[eacute] firm, a relationship described under 13 CFR 
121.103.
I-101.2 Minority institution of higher education.
    An institution of higher education with a student body that reflects 
the composition specified in section 312(b)(3), (4), and (5) of the 
Higher Education Act of 1965 (20 U.S.C. 1058(b)(3), (4), and (5)).
I-101.3 Nontraditional defense contractor.
    An entity that is not currently performing and has not performed any 
contract or subcontract for DoD that is subject to full coverage under 
the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and 
the regulations implementing such section, for at least the 1-year 
period preceding the solicitation of sources by DoD for the procurement 
(10 U.S.C. 2302(9)).
I-101.4 Eligible entity employing the severely disabled.
    A business entity operated on a for-profit or nonprofit basis that--
    (a) Uses rehabilitative engineering to provide employment 
opportunities for severely disabled individuals and integrates severely 
disabled individuals into its workforce;
    (b) Employs severely disabled individuals at a rate that averages 
not less than 20 percent of its total workforce;
    (c) Employs each severely disabled individual in its workforce 
generally on the basis of 40 hours per week; and
    (d) Pays not less than the minimum wage prescribed pursuant to 
section 6 of the Fair Labor Standards Act (29 U.S.C. 206) to those 
employees who are severely disabled individuals.
I-101.5 Severely disabled individual.
    An individual who is blind or severely disabled as defined in 41 
U.S.C. 8501.
I-101.6 Women-owned small business.
    A small business concern owned and controlled by women as defined in 
section 8(d)(3)(D) of the Small Business Act (15 U.S.C. 637(d)(3)(D)).
I-101.7 Service-disabled veteran-owned small business.
    A small business concern owned and controlled by service-disabled 
veterans as defined in section 8(d)(3) of the Small Business Act (15 
U.S.C. 637(d)(3)).
I-102 Participant eligibility.
    (a) To be eligible to participate as a mentor, an entity must--
    (1) Be eligible for the award of Federal contracts;
    (2) Demonstrate that it--
    (i) Is qualified to provide assistance that will contribute to the 
purpose of the Program;
    (ii) Is of good financial health and character; and
    (iii) Is not on a Federal list of debarred or suspended contractors; 
and
    (3) Be capable of imparting value to a prot[eacute]g[eacute] firm 
because of experience gained as a DoD contractor or through knowledge of 
general business operations and Government contracting, as demonstrated 
by evidence that such entity--
    (i) Received DoD contracts and subcontracts equal to or greater than 
$100 million during the previous fiscal year;
    (ii) Is an other-than-small business, unless a waiver to the small 
business exception has been obtained from the Director, Small Business 
Programs (SBP), OUSD(A&S);
    (iii) Is a prime contractor to DoD with an active subcontracting 
plan; or
    (iv) Has graduated from the 8(a) Business Development Program and 
provides documentation of its ability to serve as a mentor.
    (b) To be eligible to participate as a prot[eacute]g[eacute], an 
entity must be--
    (1) A small business concern;
    (2) Eligible for the award of Federal contracts;

[[Page 710]]

    (3) Less than half the Small Business Administration (SBA) size 
standard for its primary North American Industry Classification System 
(NAICS) code;
    (4) Not owned or managed by individuals or entities that directly or 
indirectly have stock options or convertible securities in the mentor 
firm; and
    (5) At least one of the following:
    (i) A qualified HUBZone small business concern.
    (ii) A women-owned small business concern.
    (iii) A service-disabled veteran-owned small business concern.
    (iv) An entity owned and controlled by an Indian tribe.
    (v) An entity owned and controlled by a Native Hawaiian 
organization.
    (vi) An entity owned and controlled by socially and economically 
disadvantaged individuals.
    (vii) A qualified organization employing severely disabled 
individuals.
    (viii) A nontraditional defense contractor.
    (ix) An entity that currently provides goods or services in the 
private sector that are critical to enhancing the capabilities of the 
defense supplier base and fulfilling key DoD needs.
    (c) Mentor firms may rely in good faith on a written representation 
that the entity meets the requirements of paragraph (b) of this section, 
except that a mentor firm is required to confirm a 
prot[eacute]g[eacute]'s status as a HUBZone small business concern (see 
FAR 19.703(d)).
    (d) If at any time the SBA (or DoD in the case of entities employing 
severely disabled individuals) determines that a prot[eacute]g[eacute] 
is ineligible, assistance that the mentor firm furnishes to the 
prot[eacute]g[eacute] after the date of the determination may not be 
considered assistance furnished under the Program.
    (e) A mentor firm may not enter into an agreement with a 
prot[eacute]g[eacute] firm if SBA has made a determination of 
affiliation. If SBA has not made such a determination and if the DoD 
Office of Small Business Programs (OSBP) has reason to believe, based on 
SBA's regulations regarding affiliation, that the mentor firm is 
affiliated with the prot[eacute]g[eacute] firm, then DoD OSBP will 
request a determination regarding affiliation from SBA.
    (f) A company may not be approved for participation in the Program 
as a mentor firm if, at the time of requesting participation in the 
Program, it is currently debarred or suspended from contracting with the 
Federal Government pursuant to FAR subpart 9.4.
    (g) If the mentor firm is suspended or debarred while performing 
under an approved mentor-prot[eacute]g[eacute] agreement, the mentor 
firm--
    (1) May continue to provide assistance to its prot[eacute]g[eacute] 
firms pursuant to approved mentor-prot[eacute]g[eacute] agreements 
entered into prior to the imposition of such suspension or debarment;
    (2) May not be reimbursed or take credit for any costs of providing 
developmental assistance to its prot[eacute]g[eacute] firm, incurred 
more than 30 days after the imposition of such suspension or debarment; 
and
    (3) Must promptly give notice of its suspension or debarment to its 
prot[eacute]g[eacute] firm and the cognizant Component Director, SBP.
I-103 Program duration.
    (a) New mentor-prot[eacute]g[eacute] agreements may be submitted and 
approved through September 30, 2018.
    (b) Mentors incurring costs prior to September 30, 2021, pursuant to 
an approved mentor-prot[eacute]g[eacute] agreement may be eligible for--
    (1) Credit toward the attainment of its applicable subcontracting 
goals for unreimbursed costs incurred in providing developmental 
assistance to its prot[eacute]g[eacute] firm(s);
    (2) Reimbursement pursuant to the execution of a separately priced 
contract line item added to a DoD contract; or
    (3) Reimbursement pursuant to entering into a separate DoD contract 
upon determination by the cognizant Component Director, SBP, that 
unusual circumstances justify using a separate contract.
I-104 Selection of prot[eacute]g[eacute] firms.
    (a) Mentor firms will be solely responsible for selecting 
prot[eacute]g[eacute] firms that qualify under I-102(b). Mentor firms 
are encouraged to identify and select concerns that have not previously 
received significant prime contract awards from DoD or any other Federal 
agency.
    (b) The selection of prot[eacute]g[eacute] firms by mentor firms may 
not be protested, except as in paragraph (c) of this section.
    (c) In the event of a protest regarding the size or disadvantaged 
status of an entity selected to be a prot[eacute]g[eacute] firm, the 
mentor firm must refer the protest to the SBA to resolve in accordance 
with 13 CFR part 121 (with respect to size) or 13 CFR part 124 (with 
respect to disadvantaged status).
    (d) For purposes of the Small Business Act, no determination of 
affiliation or control (either direct or indirect) may be found between 
a prot[eacute]g[eacute] firm and its mentor firm on the basis that the 
mentor firm has agreed to furnish (or has furnished) to its 
prot[eacute]g[eacute] firm, pursuant to a mentor-prot[eacute]g[eacute] 
agreement, any form of developmental assistance described in I-106(d).
    (e) A prot[eacute]g[eacute] firm may not be a party to more than one 
DoD mentor-prot[eacute]g[eacute] agreement at a time, and may only 
participate in the Program during the 5-year period beginning on the 
date the prot[eacute]g[eacute] firm enters into its first mentor-
prot[eacute]g[eacute] agreement.

[[Page 711]]

I-105 Mentor approval process.
    (a) An entity seeking to participate as a mentor must apply to the 
cognizant Component Director, SBP, to establish its initial eligibility 
as a mentor. This application may accompany its initial mentor-
prot[eacute]g[eacute] agreement.
    (b) The application must provide the following information:
    (1) A statement that the entity meets the requirements in I-102(a), 
specifying the criteria in I-102(a)(3) under which the entity is 
applying.
    (2) A summary of the entity's historical and recent activities and 
accomplishments under its small and disadvantaged business utilization 
program.
    (3) The total dollar amount of DoD contracts and subcontracts that 
the entity received during the 2 preceding fiscal years. (Show prime 
contracts and subcontracts separately per year.)
    (4) The total dollar amount of all other Federal agency contracts 
and subcontracts that the entity received during the 2 preceding fiscal 
years. (Show prime contracts and subcontracts separately per year.)
    (5) The total dollar amount of subcontracts that the entity awarded 
under DoD contracts during the 2 preceding fiscal years.
    (6) The total dollar amount of subcontracts that the entity awarded 
under all other Federal agency contracts during the 2 preceding fiscal 
years.
    (7) The total dollar amount and percentage of subcontracts that the 
entity awarded to firms qualifying under I-102(b)(5)(ii) through (viii) 
during the 2 preceding fiscal years. (Show DoD subcontract awards 
separately.) If the entity was required to submit a Summary Subcontract 
Report (SSR) in the Electronic Subcontracting Reporting System, the 
request must include copies of the final reports for the 2 preceding 
fiscal years.
    (8) Information on the company's ability to provide developmental 
assistance to eligible prot[eacute]g[eacute]s.
    (c) A template of the mentor application is available at: http://
www.acq.osd.mil/osbp/sb/programs/mpp/resources.shtml.
    (d) Companies that apply for participation and are not approved will 
be provided the reasons and an opportunity to submit additional 
information for reconsideration.
I-106 Development of mentor-prot[eacute]g[eacute] agreements.
    (a) Prospective mentors and their prot[eacute]g[eacute]s may choose 
to execute letters of intent prior to negotiation of mentor-
prot[eacute]g[eacute] agreements.
    (b) The agreements should be structured after completion of a 
preliminary assessment of the developmental needs of the 
prot[eacute]g[eacute] firm and mutual agreement regarding the 
developmental assistance to be provided to address those needs and 
enhance the prot[eacute]g[eacute]'s ability to perform successfully 
under contracts or subcontracts.
    (c) A mentor firm may not require a prot[eacute]g[eacute] firm to 
enter into a mentor-prot[eacute]g[eacute] agreement as a condition for 
award of a contract by the mentor firm, including a subcontract under a 
DoD contract awarded to the mentor firm.
    (d) The mentor-prot[eacute]g[eacute] agreement may provide for the 
mentor firm to furnish any or all of the following types of 
developmental assistance:
    (1) Assistance by mentor firm personnel in--
    (i) General business management, including organizational 
management, financial management, and personnel management, marketing, 
and overall business planning;
    (ii) Engineering and technical matters such as production inventory 
control and quality assurance; and
    (iii) Any other assistance designed to develop the capabilities of 
the prot[eacute]g[eacute] firm under the developmental program described 
in I-107(g).
    (2) Award of subcontracts to the prot[eacute]g[eacute] firmunder DoD 
contracts or other contracts on a noncompetitive basis.
    (3) Payment of progress payments for the performance of subcontracts 
by a prot[eacute]g[eacute] firm in amounts as provided for in the 
subcontract; but in no event may any such progress payment exceed 100 
percent of the costs incurred by the prot[eacute]g[eacute] firm for the 
performance of the subcontract. Provision of progress payments by a 
mentor firm to a prot[eacute]g[eacute] firm at a rate other than the 
customary rate for the firm must be implemented in accordance with FAR 
32.504(c).
    (4) Advance payments under such subcontracts. The mentor firm must 
administer advance payments in accordance with FAR Subpart 32.4.
    (5) Loans.
    (6) Assistance that the mentor firm obtains for the 
prot[eacute]g[eacute] firm from one or more of the following:
    (i) Small Business Development Centers established pursuant to 
section 21 of the Small Business Act (15 U.S.C. 648).
    (ii) Entities providing procurement technical assistance pursuant to 
10 U.S.C. Chapter 142 (Procurement Technical Assistance Centers).
    (iii) Historically Black colleges and universities.
    (iv) Minority institutions of higher education.
    (v) Women's business centers described in section 29 of the Small 
Business Act (15 U.S.C. 656).
    (e) Pursuant to FAR 31.109, approved mentor firms seeking either 
reimbursement or credit are strongly encouraged to enter into an advance 
agreement with the contracting officer responsible for determining final 
indirect cost rates under FAR 42.705. The purpose

[[Page 712]]

of the advance agreement is to establish the accounting treatment of the 
costs of the developmental assistance pursuant to the mentor-
prot[eacute]g[eacute] agreement prior to the incurring of any costs by 
the mentor firm. An advance agreement is an attempt by both the 
Government and the mentor firm to avoid possible subsequent dispute 
based on questions related to reasonableness, allocability, or 
allowability of the costs of developmental assistance under the Program. 
Absent an advance agreement, mentor firms are advised to establish the 
accounting treatment of such costs and to address the need for any 
changes to their cost accounting practices that may result from the 
implementation of a mentor-prot[eacute]g[eacute] agreement, prior to 
incurring any costs, and irrespective of whether costs will be 
reimbursed or credited.
    (f) Developmental assistance provided under an approved mentor-
prot[eacute]g[eacute] agreement is distinct from, and must not 
duplicate, any effort that is the normal and expected product of the 
award and administration of the mentor firm's subcontracts. Costs 
associated with the latter must be accumulated and charged in accordance 
with the contractor's approved accounting practices; they are not 
considered developmental assistance costs eligible for either credit or 
reimbursement under the Program.
I-107 Elements of a mentor-prot[eacute]g[eacute] agreement.
    Each mentor-prot[eacute]g[eacute] agreement shall contain--
    (a) The name, address, e-mail address, and telephone number of the 
mentor and prot[eacute]g[eacute] points of contact;
    (b) The NAICS code(s) that represent the contemplated supplies or 
services to be provided by the prot[eacute]g[eacute] firm to the mentor 
firm and a statement that, at the time the agreement is submitted for 
approval, the prot[eacute]g[eacute] firm does not exceed the size 
standard in I-102(b)(3);
    (c) A statement that the prot[eacute]g[eacute] firm is eligible to 
participate in accordance with I-102(b);
    (d) A statement that the mentor is eligible to participate in 
accordance with I-102(a);
    (e) Assurances that--
    (1) The mentor firm does not share, directly or indirectly, with the 
prot[eacute]g[eacute] firm ownership or management of the 
prot[eacute]g[eacute] firm;
    (2) The mentor firm does not have an agreement, at the time the 
mentor firm enters into a mentor-prot[eacute]g[eacute] agreement, to 
merge with the prot[eacute]g[eacute] firm;
    (3) The owners and managers of the mentor firm are not the parent, 
child, spouse, sibling, aunt, uncle, niece, nephew, grandparent, 
grandchild, or first cousin of an owner or manager of the 
prot[eacute]g[eacute] firm;
    (4) The mentor firm has not, during the 2-year period before 
entering into a mentor-prot[eacute]g[eacute] agreement, employed any 
officer, director, principal stock holder, managing member, or key 
employee of the prot[eacute]g[eacute] firm;
    (5) The mentor firm has not engaged in a joint venture with the 
prot[eacute]g[eacute] firm during the 2-year period before entering into 
a mentor-prot[eacute]g[eacute] agreement, unless such joint venture was 
approved by SBA prior to making any offer on a contract;
    (6) The mentor firm is not, directly or indirectly, the primary 
party providing contracts to the prot[eacute]g[eacute] firm, as measured 
by the dollar value of the contracts; and
    (7) The SBA has not made a determination of affiliation or control;
    (f) A preliminary assessment of the developmental needs of the 
prot[eacute]g[eacute] firm;
    (g) A developmental program for the prot[eacute]g[eacute] firm 
including--
    (1) The type of assistance the mentor will provide to the 
prot[eacute]g[eacute] and how that assistance will--
    (i) Increase the prot[eacute]g[eacute]'s ability to participate in 
DoD, Federal, and/or commercial contracts and subcontracts; and
    (ii) Increase small business subcontracting opportunities in 
industry categories where eligible prot[eacute]g[eacute]s or other small 
business firms are not dominant in the company's vendor base;
    (2) Factors to assess the prot[eacute]g[eacute] firm's developmental 
progress under the Program, including specific milestones for providing 
each element of the identified assistance;
    (3) A description of the quantitative and qualitative benefits to 
DoD from the agreement, if applicable; and
    (4) Goals for additional awards for which the prot[eacute]g[eacute] 
firm can compete outside the Program;
    (h) The assistance the mentor will provide to the 
prot[eacute]g[eacute] firm in understanding Federal contract 
regulations, including the FAR and DFARS, after award of a subcontract 
under the Program, if applicable;
    (i) An estimate of the dollar value and type of subcontracts that 
the mentor firm will award to the prot[eacute]g[eacute] firm, and the 
period of time over which the subcontracts will be awarded;
    (j) A statement from the prot[eacute]g[eacute] firm indicating its 
commitment to comply with the requirements for reporting and for review 
of the agreement during the duration of the agreement and for 2 years 
thereafter;
    (k) A program participation term for the agreement that does not 
exceed 3 years. Requests for an extension of the agreement for a period 
not to exceed an additional 2 years are subject to the approval of the 
cognizant Component Director, SBP. The justification must detail the 
unusual circumstances that warrant a term in excess of 3 years;
    (l) Procedures for the mentor firm to notify the 
prot[eacute]g[eacute] firm in writing at least 30 days in advance of the 
mentor firm's intent

[[Page 713]]

to voluntarily withdraw its participation in the Program. A mentor firm 
may voluntarily terminate its mentor-prot[eacute]g[eacute] agreement(s) 
only if it no longer wants to be a participant in the Program as a 
mentor firm. Otherwise, a mentor firm must terminate a mentor-
prot[eacute]g[eacute] agreement for cause;
    (m) Procedures for the mentor firm to terminate the mentor-
prot[eacute]g[eacute] agreement for cause which provide that--
    (1) The mentor firm must furnish the prot[eacute]g[eacute] firm a 
written notice of the proposed termination, stating the specific reasons 
for such action, at least 30 days in advance of the effective date of 
such proposed termination;
    (2) The prot[eacute]g[eacute] firm must have 30 days to respond to 
such notice of proposed termination, and may rebut any findings believed 
to be erroneous and offer a remedial program;
    (3) Upon prompt consideration of the prot[eacute]g[eacute] firm's 
response, the mentor firm must either withdraw the notice of proposed 
termination and continue the prot[eacute]g[eacute] firm's participation, 
or issue the notice of termination; and
    (4) The decision of the mentor firm regarding termination for cause, 
conforming with the requirements of this section, will be final and is 
not reviewable by DoD;
    (n) Procedures for a prot[eacute]g[eacute] firm to notify the mentor 
firm in writing at least 30 days in advance of the prot[eacute]g[eacute] 
firm's intent to voluntarily terminate the mentor-prot[eacute]g[eacute] 
agreement;
    (o) Additional terms and conditions as may be agreed upon by both 
parties; and
    (p) Signatures and dates for both parties to the mentor-
prot[eacute]g[eacute] agreement.
I-108 Submission and approval of mentor-prot[eacute]g[eacute] 
agreements.
    (a) Upon solicitation or as determined by the cognizant DoD 
component, mentors will submit--
    (1) A mentor application pursuant to I-105, if the mentor has not 
been previously approved to participate;
    (2) A signed mentor-prot[eacute]g[eacute] agreement pursuant to I-
107;
    (3) A statement as to whether the mentor is seeking credit or 
reimbursement of costs incurred;
    (4) The estimated cost of the technical assistance to be provided, 
broken out per year;
    (5) A justification if program participation term is greater than 3 
years (Term of agreements may not exceed 5 years); and
    (6) For reimbursable agreements, a specific justification for 
developmental costs in excess of $1,000,000 per year.
    (b) When seeking reimbursement of costs, cognizant DoD components 
may require additional information.
    (c) The mentor-prot[eacute]g[eacute] agreement must be approved by 
the cognizant Component Director, SBP, prior to incurring costs eligible 
for credit.
    (d) The cognizant DoD component will execute a contract modification 
or a separate contract, if justified pursuant to I-103(b)(3), prior to 
the mentor's incurring costs eligible for reimbursement.
    (e) Credit agreements that are not associated with an existing DoD 
program and/or component will be submitted for approval to Director, 
SBP, Defense Contract Management Agency (DCMA), via the mentor's 
cognizant administrative contracting officer.
    (f) A prospective mentor that has identified Program funds to be 
made available from a DoD program manager must provide the information 
in paragraph (a) of this section through the program manager to the 
cognizant Component Director, SBP, with a letter signed by the program 
manager indicating the amount of funding that has been identified for 
the developmental assistance program.
I-109 Reimbursable agreements.
    The following program provisions apply to all reimbursable mentor-
prot[eacute]g[eacute] agreements:
    (a) Assistance provided in the form of progress payments to a 
prot[eacute]g[eacute] firm in excess of the customary progress payment 
rate for the firm will be reimbursed only if implemented in accordance 
with FAR 32.504(c).
    (b) Assistance provided in the form of advance payments will be 
reimbursed only if the payments have been provided to a 
prot[eacute]g[eacute] firm under subcontract terms and conditions 
similar to those in the clause at FAR 52.232-12, Advance Payments. 
Reimbursement of any advance payments will be made pursuant to the 
inclusion of the clause at DFARS 252.232-7005, Reimbursement of 
Subcontractor Advance Payments--DoD Pilot Mentor-Prot[eacute]g[eacute] 
Program, in appropriate contracts. In requesting reimbursement, the 
mentor firm agrees that the risk of any financial loss due to the 
failure or inability of a prot[eacute]g[eacute] firm to repay any 
unliquidated advance payments will be the sole responsibility of the 
mentor firm.
    (c) The primary forms of developmental assistance authorized for 
reimbursement under the Program are identified in I-106(d). On a case-
by-case basis, Component Directors, SBP, at their discretion, may 
approve additional incidental expenses for reimbursement, provided these 
expenses do not exceed 10 percent of the total estimated cost of the 
agreement.
    (d) The total amount reimbursed to a mentor firm for costs of 
assistance furnished to a prot[eacute]g[eacute] firm in a fiscal year 
may not exceed $1,000,000 unless the cognizant Component Director, SBP, 
determines in writing that unusual circumstances justify reimbursement 
at a higher amount. Request for authority to reimburse in excess of 
$1,000,000 must detail the unusual circumstances and

[[Page 714]]

must be endorsed and submitted by the program manager to the cognizant 
Component Director, SBP.
    (e) DoD may not reimburse any fee to the mentor firm for services 
provided to the prot[eacute]g[eacute] firm pursuant to I-106(d)(6) or 
for business development expenses incurred by the mentor firm under a 
contract awarded to the mentor firm while participating in a joint 
venture with the prot[eacute]g[eacute] firm.
    (f) Developmental assistance costs that are incurred pursuant to an 
approved reimbursable mentor-prot[eacute]g[eacute] agreement, and have 
been charged to, but not reimbursed through, a separate contract, or 
through a separately priced contract line item added to a DoD contract, 
will not be otherwise reimbursed, as either a direct or indirect cost, 
under any other DoD contract, irrespective of whether the costs have 
been recognized for credit against applicable subcontracting goals.
I-110 Credit agreements.
I-110.1 Program provisions applicable to credit agreements.
    (a) Developmental assistance costs incurred by a mentor firm for 
providing assistance to a prot[eacute]g[eacute] firm pursuant to an 
approved credit mentor-prot[eacute]g[eacute] agreement may be credited 
as if the costs were incurred under a subcontract award to that 
prot[eacute]g[eacute], for the purpose of determining the performance of 
the mentor firm in attaining an applicable subcontracting goal 
established under any contract containing a subcontracting plan pursuant 
to the clause at FAR 52.219-9, Small Business Subcontracting Plan, or 
the provisions of the DoD Test Program for Negotiation of Comprehensive 
Small Business Subcontracting Plans . Unreimbursed developmental 
assistance costs incurred for a prot[eacute]g[eacute] firm that is an 
eligible entity employing severely disabled individuals may be credited 
toward the mentor firm's small disadvantaged business subcontracting 
goal, even if the prot[eacute]g[eacute] firm is not a small 
disadvantaged business concern.
    (b) Costs that have been reimbursed through inclusion in indirect 
expense pools may also be credited as subcontract awards for determining 
the performance of the mentor firm in attaining an applicable 
subcontracting goal established under any contract containing a 
subcontracting plan. However, costs that have not been reimbursed 
because they are not reasonable, allocable, or allowable will not be 
recognized for crediting purposes.
    (c) Other costs that are not eligible for reimbursement pursuant to 
I-106(d) may be recognized for credit only if requested, identified, and 
incorporated in an approved mentor-prot[eacute]g[eacute] agreement.
    (d) The amount of credit a mentor firm may receive for any such 
unreimbursed developmental assistance costs must be equal to--
    (1) Four times the total amount of such costs attributable to 
assistance provided by small business development centers, historically 
Black colleges and universities, minority institutions, and procurement 
technical assistance centers.
    (2) Three times the total amount of such costs attributable to 
assistance furnished by the mentor's employees.
    (3) Two times the total amount of other such costs incurred by the 
mentor in carrying out the developmental assistance program.
I-110.2 Credit adjustments.
    (a) Adjustments may be made to the amount of credit claimed if the 
Director, SBP, OUSD(A&S), determines that--
    (1) A mentor firm's performance in the attainment of its 
subcontracting goals through actual subcontract awards declined from the 
prior fiscal year without justifiable cause; and
    (2) Imposition of such a limitation on credit appears to be 
warranted to prevent abuse of this incentive for the mentor firm's 
participation in the Program.
    (b) The mentor firm must be afforded the opportunity to explain the 
decline in small business subcontract awards before imposition of any 
such limitation on credit. In making the final decision to impose a 
limitation on credit, the Director, SBP, OUSD(A&S), must consider--
    (1) The mentor firm's overall small business participation rates (in 
terms of percentages of subcontract awards and dollars awarded) as 
compared to the participation rates existing during the 2 fiscal years 
prior to the firm's admission to the Program;
    (2) The mentor firm's aggregate prime contract awards during the 
prior 2 fiscal years and the total amount of subcontract awards under 
such contracts; and
    (3) Such other information the mentor firm may wish to submit.
    (c) The decision of the Director, SBP, OUSD(A&S), regarding the 
imposition of a limitation on credit will be final.
I-111 Agreement terminations.
    (a) Mentors and/or prot[eacute]g[eacute]s must send a copy of any 
termination notices to the cognizant Component Director, SBP, that 
approved the agreement, and the DCMA administrative contracting officer 
responsible for conducting the annual review pursuant to I-113.
    (b) For reimbursable agreements, mentors must also send copies of 
any termination to the program manager and to the contracting officer.
    (c) Termination of a mentor-prot[eacute]g[eacute] agreement will not 
impair the obligations of the

[[Page 715]]

mentor firm to perform pursuant to its contractual obligations under 
Government contracts and subcontracts.
    (d) Termination of all or part of the mentor-prot[eacute]g[eacute] 
agreement will not impair the obligations of the prot[eacute]g[eacute] 
firm to perform pursuant to its contractual obligations under any 
contract awarded to the prot[eacute]g[eacute] firm by the mentor firm.
    (e) Mentors and prot[eacute]g[eacute]s will follow provisions of the 
mentor-prot[eacute]g[eacute] agreement developed in compliance with I-
107(l) through (n).
I-112 Reporting requirements.
I-112.1 Reporting requirements applicable to Individual Subcontract 
Reports (ISR), Summary Subcontract Reports (SSR) and Standard Forms 294.
    (a) Amounts credited toward applicable subcontracting goal(s) for 
unreimbursed costs under the Program must be separately identified on 
the appropriate ISR, SSR or SF 294 reports from the amounts credited 
toward the goal(s) resulting from the award of actual subcontracts to 
prot[eacute]g[eacute] firms. The combination of the two must equal the 
mentor firm's overall accomplishment toward the applicable goal(s).
    (b) A mentor firm may receive credit toward the attainment of an 
applicable subcontracting goal for each subcontract awarded by the 
mentor firm to an entity that qualifies as a prot[eacute]g[eacute] firm 
pursuant to I-102(b).
I-112.2 Program Specific Reporting Requirements
    (a) Mentors must report on the progress made under active mentor-
prot[eacute]g[eacute] agreements semiannually for the periods ending 
March 31st and September 30th throughout the Program participation term 
of the agreement. The September 30th report must address the entire 
fiscal year.
    (1) Reports are due 30 days after the close of each reporting 
period.
    (2) Each report must include the following data on performance under 
the mentor-prot[eacute]g[eacute] agreement:
    (i) Dollars obligated (for reimbursable agreements).
    (ii) Expenditures.
    (iii) Dollars credited, if any, toward applicable subcontracting 
goals as a result of developmental assistance provided to the 
prot[eacute]g[eacute] and a copy of the ISR or SF 294 and/or SSR for 
each contract where developmental assistance was credited.
    (iv) Any new awards of subcontracts on a competitive or 
noncompetitive basis to the prot[eacute]g[eacute] firm under DoD 
contracts or other contracts, including the value of such subcontracts.
    (v) All technical or management assistance provided by mentor firm 
personnel for the purposes described in I-106(d).
    (vi) Any extensions, increases in the scope of work, or additional 
payments not previously reported for prior awards of subcontracts on a 
competitive or noncompetitive basis to the prot[eacute]g[eacute] firm 
under DoD contracts or other contracts, including the value of such 
subcontracts.
    (vii) The amount of any payment of progress payments or advance 
payments made to the prot[eacute]g[eacute] firm for performance under 
any subcontract made under the Program.
    (viii) Any loans made by the mentor firm to the 
prot[eacute]g[eacute] firm.
    (ix) All Federal contracts awarded to the mentor firm and the 
prot[eacute]g[eacute] firm as a joint venture, designating whether the 
award was a restricted competition or a full and open competition.
    (x) Any assistance obtained by the mentor firm for the 
prot[eacute]g[eacute] firm from the entities listed at I-106(d)(6).
    (xi) Whether there have been any changes to the terms of the mentor-
prot[eacute]g[eacute] agreement.
    (xii) A narrative describing the following:
    (A) The success assistance provided under I-106(d) has had in 
addressing the developmental needs of the prot[eacute]g[eacute] firm.
    (B) The impact on DoD contracts.
    (C) Any problems encountered.
    (D) Any milestones achieved in the prot[eacute]g[eacute] firm's 
developmental program.
    (E) Impact of the agreement in terms of capabilities enhanced, 
certifications received, and technology transferred.
    (3) In accordance with section 861, paragraph (b)(2), of the 
National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-
92), the reporting requirements specified in paragraphs (a)(2)(iv) 
through (a)(2)(xii)(C) of this section apply retroactively to mentor-
prot[eacute]g[eacute] agreements that were in effect on November 25, 
2015. Mentors must submit reports as described in paragraph (a) of this 
section.
    (4) A recommended reporting format and guidance for its submission 
are available at: http://www.acq.osd.mil/osbp/sb/programs/mpp/
resources.shtml.
    (b) The prot[eacute]g[eacute] must provide data, annually by October 
31st, on the progress made during the prior fiscal year by the 
prot[eacute]g[eacute] in employment, revenues, and participation in DoD 
contracts during--
    (1) Each fiscal year of the Program participation term; and
    (2) Each of the 2 fiscal years following the expiration of the 
Program participation term.
    (c) The prot[eacute]g[eacute] report required by paragraph (b) of 
this section may be provided as part of the mentor report for the period 
ending September 30th required by paragraph (a) of this section.
    (d) Progress reports must be submitted--

[[Page 716]]

    (1) For credit agreements, to the cognizant Component Director, SBP, 
that approved the agreement, and the mentor's cognizant DCMA 
administrative contracting officer; and
    (2) For reimbursable agreements, to the cognizant Component 
Director, SBP, the contracting officer, the DCMA administrative 
contracting officer, and the program manager.
I-113 Performance reviews.
    (a) DCMA will conduct annual performance reviews of the progress and 
accomplishments realized under approved mentor-prot[eacute]g[eacute] 
agreements. These reviews must verify data provided on the semiannual 
reports and must provide information as to--
    (1) Whether all costs reimbursed to the mentor firm under the 
agreement were reasonably incurred to furnish assistance to the 
prot[eacute]g[eacute] in accordance with the mentor-
prot[eacute]g[eacute] agreement and applicable regulations and 
procedures; and
    (2) Whether the mentor and prot[eacute]g[eacute] accurately reported 
progress made by the prot[eacute]g[eacute] in employment, revenues, and 
participation in DoD contracts during the Program participation term and 
for 2 fiscal years following the expiration of the Program participation 
term.
    (b) A checklist for annual performance reviews is available at 
http://www.acq.osd.mil/osbp/mentor_prot[eacute]g[eacute]/.

[69 FR 74996, Dec. 15, 2004, as amended at 70 FR 29645, May 24, 2005; 73 
FR 46814, Aug. 12, 2008; 75 FR 65441, Oct. 25, 2010; 76 FR 58138, Sept. 
20, 2011; 76 FR 71468, Nov. 18, 2011; 77 FR 11367, Feb. 24, 2012; 83 FR 
12683, Mar. 23, 2018; 83 FR 54678, Oct. 31, 2018]

[[Page 717]]



                              FINDING AIDS





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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.


  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 719]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2021)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 720]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 721]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 722]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Parts 10100--10199)
       CII  U.S. Office of Special Counsel (Parts 10200--10299)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)

[[Page 723]]

        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  [Reserved]
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 724]]

         L  Rural Business-Cooperative Service, and Rural 
                Utilities Service, Department of Agriculture 
                (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Agricultural Marketing Service (Fair Trade Practices 
                Program), Department of Agriculture (Parts 200--
                299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  [Reserved]
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)

[[Page 725]]

        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, Department of the 
                Treasury (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)

[[Page 726]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
        XV  Office of the Under-Secretary for Economic Affairs, 
                Department of Commerce (Parts 1500--1599)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

[[Page 727]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Agency for Global Media (Parts 500--599)
       VII  U.S. International Development Finance Corporation 
                (Parts 700--799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 728]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799) 
                [Reserved]
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]

[[Page 729]]

        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--799)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)

[[Page 730]]

        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance

[[Page 731]]

         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Great Lakes St. Lawrence Seaway Development 
                Corporation, Department of Transportation (Parts 
                400--499)

[[Page 732]]

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)

[[Page 733]]

       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)
        IX  Federal Permitting Improvement Steering Council (Part 
                1900)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 734]]

       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Federal Acquision Supply Chain Security
       201  Federal Acquisition Security Council (Part 201)
            Subtitle E [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 735]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

[[Page 736]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)

[[Page 737]]

        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 738]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 739]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2021)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 740]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Affairs, Office of the Under-          15, XV
       Secretary for
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I

[[Page 741]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Office of the Under-Secretary   15, XV
     for
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
     States
[[Page 742]]

Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Permitting Improvement Steering Council   40, IX
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 743]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes St. Lawrence Seaway Development       33, IV
     Corporation
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
   Secretary
[[Page 744]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Environmental Enforcement, Bureau    30, II
       of
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Federal Acquisition Regulation                  48, 29

[[Page 745]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II

[[Page 746]]

National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Science and Technology Policy, Office of, and     32, XXIV; 47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
   Office of
[[Page 747]]

State, Department of                              2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Great Lakes St. Lawrence Seaway Development     33, IV
       Corporation
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X; 5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
U.S. Office of Special Counsel                    5, CII
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 749]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2016 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2016

48 CFR
                                                                   81 FR
                                                                    Page
Chapter 2
202.101 Amended.............................................42557, 50647
    Regulation at 80 FR 51742 confirmed; amended...................72998
203.1003 (c) added.................................................73005
204.270-2 Introductory text redesignated as (b); new (b) amended; 
        (c) added..................................................72738
204.1601--204.1671 (Subpart 204.16) Added...........................9785
204.7000--204.7007 (Subpart 204.70) Removed.........................9786
204.7300--204.7304 (Subpart 204.73) Regulation at 80 FR 51742 
        confirmed..................................................72998
204.7300 Regulation at 80 FR 51742 confirmed; (a) amended..........72998
204.7301 Regulation at 80 FR 51742 confirmed; amended..............72998
204.7302 Regulation at 80 FR 51742 confirmed; (a), (b) and (d) 
        revised; (c) and (e) amended...............................72998
204.7303 Regulation at 80 FR 51742 confirmed.......................72998
204.7304 Regulation at 80 FR 51743 confirmed.......................72998
    (a), (b) and (c) amended.......................................72999
204.7400--204.7403 (Subpart 204.74) Regulation at 79 FR 11339 
        confirmed..................................................28727
204.7401 Revised...................................................28727
204.7402 (c) and (d) added.........................................28728
204.7403 Revised...................................................28728
207.302 (Subpart 207.3) Added......................................36473
209.505-4 (b) redesignated as (b)(i); new (b)(i) amended; (b)(ii) 
        added......................................................28728
    (b)(ii) amended................................................36473
210.002 (e)(iii) added.............................................65563
211.170 Removed....................................................17049
211.275-2 (a)(2) introductory text amended.........................36473
212.102 (a)(ii) added..............................................65563
212.301 (f)(vii)(A) revised........................................17046
    Regulation at 79 FR 11340 confirmed............................28727
    Regulation at 80 FR 51743 confirmed............................72998
    (f)(ii)(E) and (G) amended.....................................28728
    (f)(xvi)(A) and (B) amended....................................28730
    (f)(xix)(C) added..............................................50647
212.7100 Amended; interim..........................................42559
    Regulation at 81 FR 42559 confirmed............................78013
212.7101 Revised; interim..........................................42559
    Regulation at 81 FR 42559 confirmed............................78013
212.7102-1 Introductory text amended; (a) removed; (b) through (e) 
        redesignated as new (a) through (d); new (b) and new 
        (c)(2) amended; interim....................................42559

[[Page 750]]

    Regulation at 81 FR 42559 confirmed............................78013
212.7103 Amended; interim..........................................42559
    Regulation at 81 FR 42559 confirmed; revised...................78013
213.201 Added......................................................53045
213.7001 (a)(1), (2) and (b) amended...............................65563
215.300 Revised....................................................28730
215.408 (3)(ii)(A)(1)(i) amended............................28730, 36473
216.104 Added......................................................28730
216.301-3 Added....................................................65564
216.306 (c) introductory text added................................65564
216.405-2-71 (b) amended...........................................42560
217.170 (b) revised................................................28731
217.172 (h)(7) removed; (h)(8) redesignated as new (h)(7); (c), 
        (e)(1), (2), (h) introductory text, (2) introductory text, 
        (i) through (vii), (3) through (6) and new (7) 
        introductory text amended; (e)(3), (4) and (5) added.......28731
217.202 (2) revised................................................17045
218 Authority citation revised.....................................53045
218.201 (3) amended................................................53045
219.708 (b)(1)(A) revised..........................................17046
219.811-3 (2) revised..............................................17046
225.003 Amended.............................................50651, 93840
225.302-6 Introductory text amended................................42560
225.872-1 (a) amended..............................................50651
    (a) amended....................................................93840
225.872-6 Revised..................................................59510
225.901 (3) amended................................................28732
225.1100 Amended...................................................17048
225.1101 (2)(i)(C) revised; (2)(i)(D) and (E) redesignated as 
        (2)(i)(E) and (F); new (2)(i)(D) added.....................17048
225.7002-2 (o) added...............................................42562
225.7003-2 (a) and (b) redesignated as (1) and (2); introductory 
        text designated as new (a); (1) through (6) in new (1) 
        redesignated as (i) through (vi); new (b) added............28730
225.7016 Removed...................................................17049
227.7100 Regulation at 79 FR 11340 confirmed.......................28727
227.7103-6 Regulation at 79 FR 11340 confirmed.....................28727
227.7103-13 Heading, (c)(2)(i) and (ii) revised; (c)(1) amended....65566
227.7200 Regulation at 79 FR 11340 confirmed.......................28727
227.7203-6 Regulation at 79 FR 11340 confirmed.....................28727
227.7203-13 Heading amended; (d) removed; (e), (f) and (g) 
        redesignated as new (d), (e) and (f).......................65566
231.205-18 (c)(iii)(C) revised; (c)(iv) and (v) redesignated as 
        (c)(v) and (vi); new (c)(iv) added.........................78011
231.205-71 Revised.................................................59515
232.104 Added......................................................93842
232.905 Added.......................................................9786
234.005-1 (1) introductory text and (2) amended....................17045
236.215 Added......................................................65564
236.271 Revised....................................................65565
237.102 (b) added..................................................36473
237.102-75 Revised.................................................36473
237.102-77 Heading and introductory text amended...................36473
237.174 Regulation at 79 FR 11340 confirmed........................28727
239 Regulation at 80 FR 51743 confirmed............................72998
239.7401 Alphabetical paragraph designations removed; amended......28733
239.7402 (d) added.................................................28733
239.7600--239.7603 (Subpart 239.76) Regulation at 80 FR 51743 
        confirmed..................................................72998
239.7601 Amended...................................................72999
239.7602-1 (c)(3) and (6) removed; (c)(4) and (5) redesignated as 
        new (c)(3) and (4); (a), (c) introductory text, (1), (2), 
        new (3) and new (4) amended; (b) revised...................72999
239.7602-2 (a) amended.............................................72999
241.103 (2) and (3) redesignated as (3) and (4); new (2) added.....28734
242.302 (a)(S-76) added............................................50648
242.771-3 (d) introductory text amended............................78011
242.7202 (a) introductory text amended.............................36473
243.172 Amended.....................................................9786
245.102 (4)(i) amended.............................................36473
245.402-70 Revised.................................................50652
246.701 Heading revised; introductory text added; amended..........17043
246.710 (3) revised................................................17043
246.710-70 Revised.................................................17043
246.870 Heading revised............................................50648

[[Page 751]]

246.870-0 Redesignated from 246.870-1; (a) revised.................50648
246.870-1 Redesignated as 246.870-0; added.........................50648
246.870-2 Revised..................................................50648
    (a)(2) introductory text amended...............................72738
246.870-3 Heading revised; (a), (1), (2), (3) and (b) redesignated 
        as (a)(1), (i), (ii), (iii) and (2); new (a)(1), (iii) and 
        (2) amended; new (b) added.................................50649
247.301 Amended....................................................78012
247.301-71 Amended.................................................78012
252.203-7004 Clause amended........................................73006
252.204-7000 Clause amended........................................72999
252.204-7008 Regulations at 80 FR 51744 and 81473 confirmed........72998
    Clause amended.................................................72999
252.204-7009 Regulations at 80 FR 51745 and 81474 confirmed........72998
    Clause amended.................................................73000
252.204-7012 Regulations at 80 FR 51745 and 81474 confirmed........72998
    Clause amended.................................................73000
252.204-7013 Regulation at 79 FR 11340 confirmed...................28727
    Heading revised; clause amended................................28728
252.204-7014 Regulation at 79 FR 11340 confirmed...................28727
    Clause amended.................................................28729
252.204-7015 Regulation at 79 FR 11341 confirmed...................28727
    Heading and introductory text revised; clause amended..........28729
252.211-7003 Clause amended........................................17043
252.211-7006 Clause amended........................................36474
252.212-7002 Clause; interim.......................................42559
    Regulation at 81 FR 42559 confirmed............................78013
252.219-7000 Clause amended........................................65563
252.219-7003 Introductory text and Alternate I revised; clause 
        amended....................................................17046
252.219-7010 Revised...............................................17047
252.225-7001 Clause and Alternate I amended........................50651
    Clause and Alternate I amended.................................93840
252.225-7002 Clause amended........................................50651
    Clause amended.................................................93841
252.225-7012 Clause amended........................................50651
    Clause amended.................................................93841
252.225-7013 Clause amended........................................28732
252.225-7017 Clause amended..........................42563, 50651, 65568
    Clause amended.................................................93841
252.225-7021 Clause and Alternate II amended.........42563, 50651, 65568
    Alternate II amended...........................................50652
    Clause and Alternate II amended................................93841
252.225-7036 Clause and Alternates I through V amended.............50651
    Clause and Alternates I through V amended......................93841
252.225-7039 Clause amended........................................42559
    Regulation at 81 FR 42559 confirmed............................78013
252.225-7045 Clause, Alternate I, Alternate II and Alternate III 
        amended.............................................42564, 65568
252.227-7013 Regulation at 79 FR 11341 confirmed...................28727
252.227-7014 Regulation at 79 FR 11341 confirmed...................28727
252.227-7015 Regulation at 79 FR 11341 confirmed...................28727
252.227-7018 Regulation at 79 FR 11341 confirmed...................28727
252.227-7019 Clause amended........................................65566
252.227-7037 Clause amended........................................65567
252.239-7009 Regulation at 80 FR 51747 confirmed...................72998
252.239-7010 Regulation at 80 FR 51747 confirmed...................72998
    Clause amended.................................................73001
252.245-7004 Clause amended........................................65563
252.246-7005 Introductory text and clause amended..................17043
252.246-7006 Introductory text and clause amended..................17044
252.246-7007 Introductory text and clause amended..................50649
252.246-7008 Added.................................................50649
    Clause amended.................................................72738
Chapter 2 Appendix F amended.................................9786, 59516

                                  2017

48 CFR
                                                                   82 FR
                                                                    Page
Chapter 2
204.7304 (b) amended...............................................61480
211.275-2 (a)(1) introductory text amended.........................61480
212.301 (f)(ii)(B) amended.........................................61480
217.7001 (b) amended...............................................61480
217.7002 (b) amended...............................................61480
217.7003 (a) amended...............................................61480

[[Page 752]]

217.7506 Amended...................................................61480
217.7601 (b) amended...............................................61480
218.271 (d) amended................................................61480
219.705-4 Revised..................................................61480
219.705-6 Added....................................................61480
222.406-9 (c)(3) amended...........................................61480
225.003 (10) amended...............................................61484
225.870-4 (c)(3) revised...........................................61480
225.872-1 (a) amended..............................................61484
225.1101 (6) introductory text, (10)(i) introductory text, and (A) 
        through (F) amended........................................61482
225.7017-3 (b) amended.............................................61483
225.7017-4 (a)(1) and (b)(1) amended...............................61483
225.7501 (a)(2)(i) amended.........................................61481
225.7503 (a), (b) introductory text, and (1) through (4) amended 
                                                                   61483
227.7103-10 (a)(1) amended.........................................61481
237.102-75 Amended.................................................61481
239.7001 Amended...................................................61481
242.1105 (1)(i) amended............................................61481
242.7301 (b) amended...............................................61481
242.7503 (a) and (b) amended.......................................61481
243.204-70-3 (b) amended...........................................61481
245.103-73 Redesignated as 245.103-74; new 245.103-73 added........61481
245.103-74 Redesignated from 245-103-73............................61481
252.211-7006 Clause amended........................................61481
252.225-7001 Clause and Alternate I amended........................61484
252.225-7002 Clause amended........................................61484
252.225-7012 Clause amended........................................61484
252.225-7017 Clause amended.................................61483, 61484
252.225-7018 Clause amended........................................61483
252.225-7021 Clause and Alternate II amended.......................61484
252.225-7036 Clause and Alternate I through V amended..............61484
252.245-7002 Clause amended........................................61481
252.245-7004 Clause amended........................................61481
252.246-7008 Clause amended........................................61481
252.247-7020 Introductory text amended.............................61481

                                  2018

48 CFR
                                                                   83 FR
                                                                    Page
Chapter 2
Chapter 2 Appendix I amended.......................................54678
    Appendix F amended.............................................66065
201.101 Added......................................................19641
202.101 Amended................................4442, 15995, 24896, 30828
204.1105 Removed...................................................24895
204.1202 (2)(iv) removed; (2)(v) through (xiv) redesignated as new 
        (2)(iv) through (xiii).....................................24888
    (2)(ix) revised; interim.......................................66071
204.7109 Revised...................................................24887
207.170 Removed....................................................15996
207.170-1 Removed..................................................15996
207.170-2 Removed..................................................15996
207.170-3 Removed..................................................15996
208.404 (a)(iv) amended............................................30825
210.001 (a) revised................................................15996
211.002-70 Removed.................................................54677
211.274-2 (b)(1) revised...........................................24889
211.275-2 (a)(2) introductory text amended.........................12681
211.500 Added......................................................15998
212.001 Added.......................................................4442
212.102 (a)(ii) redesignated as (a)(i)(D); new (a)(i)(D) revised; 
        (a)(i) heading, new (ii), and (iii) added...................4442
212.209 Added.......................................................4442
212.301 (f)(vi)(E) added............................................4443
    (f)(vii)(D) added..............................................16002
    (f)(xix)(C) amended............................................19645
    (f)(ii)(C) removed; (f)(ii)(D) through (G) redesignated as 
(f)(ii)(C) through (F).............................................24887
    (f)(viii) removed; (f)(ix) through (xx) redesignated as new 
(f)(viii) through (xix)............................................24888
    (f)(vi)(A), (B), (D), (E), (1), and (2) amended................30825
    (f)(ix)(J) and (K) revised.....................................62499
    (f)(xviii)(A) amended..........................................66063
    (f)(ix)(D) through (AA), (BB), and (CC) redesignated as 
(f)(ix)(E) through (BB), new (f)(ix)(CC), and (DD); new 
(f)(ix)(CC) amended; new (f)(ix)(D) and new (EE) added; interim....66071
212.7000--212.7001 (Subpart 212.70) Added...........................4443
213.106-2 (b)(i)(A), (B), and (C) amended..........................12681
213.7001 (a)(1), (2), introductory text, and (b) redesignated as 
        (a)(1)(i), (ii), (1), and (2); new (b) added...............16002
214.201-6 Amended..................................................30825
215.305 (a)(2) redesignated as (a)(2)(A); (a)(2)(B) added..........15998
215.371-4 (a)(2) revised...........................................24889
215.401 Added.......................................................4443

[[Page 753]]

215.402 Existing text redesignated as (a)(ii); (a)(i) added.........4443
215.403-1 (c)(3)(C) added...........................................4444
    (b) revised....................................................30828
215.404-1 (1), (2), and (i) through (iv) redesignated as (a)(i), 
        (ii), and (A) through (D); (a) heading and (b) added........4444
215.404-71-2 (e)(2)(iii) added.....................................30586
215.404-71-3 (b) introductory text, (1), (2), (3), and (d)(2) 
        revised....................................................30586
215.407 Added......................................................19647
215.407-1 Added....................................................19647
215.408 (3)(i)(A) introductory text, (1) introductory text, (2), 
        and (ii)(A) introductory text amended; (3)(i)(B) revised; 
        (6) and (7) added...........................................4444
    (1) removed; (2) through (7) redesignated as new (1) through 
(6); new (2)(i)(A)(2), new (ii)(A)(2), and new (3)(i) amended......30825
    (7) added......................................................30828
216.406 (e)(2) removed; (e)(1) redesignated as (e).................49181
216.504 (c) heading and (1) heading added; (c)(1)(ii)(D) revised 
                                                                   65560
216.506 (d) removed................................................30588
    (S-70) amended.................................................30825
216.601 (d)(i)(A)(3) revised.......................................24890
217.208-70 (b)(1) amended..........................................62503
217.502-1 Revised..................................................62502
217.7404-6 (b) and (c) amended.....................................30586
218.201 (2) amended; (7) through (10) redesignated as (9) through 
        (12); new (7) and new (8) added............................24890
218.202 Revised....................................................24890
218.204 Added......................................................24890
218.270 Removed; new section redesignated from 218.271; new 
        introductory text and new (a) revised......................24890
218.271 Redesignated as 218.270; new section redesignated from 
        218.272; new section amended...............................24890
218.272 Redesignated as 218.271....................................24890
219.201 (c)(11)(A) amended.........................................15996
219.270 Added......................................................16002
219.270-1 Added....................................................16002
219.270-2 Added....................................................16002
219.270-3 Added....................................................16002
219.702 Redesignated as 219.702-70.................................15998
219.702-70 Redesignated from 219.702; new section revised..........15998
219.708 (b)(1)(B) and (2) revised; (c)(1) amended..................15999
219.7100 Amended...................................................12683
    Amended........................................................54678
219.7102 (a) revised; (b) removed; (c) and (d) redesignated as (b) 
        and (c); new (c)(2) amended................................12683
219.7103-2 (e)(3) amended..........................................12683
219.7104 (b) and (d) amended.......................................12683
222 Technical correction...........................................26846
222.1771 Removed...................................................24888
222.7101--222.7102 (Subpart 222.71) Removed........................24894
225.003 Amended; interim...........................................66071
225.374 Amended....................................................24890
225.770 Revised; interim...........................................66071
225.770-1 Revised; interim.........................................66072
225.770-2 Revised; interim.........................................66072
225.770-3 Introductory text amended; interim.......................66072
225.770-4 Revised; interim.........................................66072
225.770-5 (b)(1) amended; interim..................................66072
225.772 Revised; interim...........................................66072
225.772-1 Revised; interim.........................................66072
225.772-2 Revised; interim.........................................66072
225.772-3 (a) and (b) redesignated as new (b) and (c); new (b) 
        introductory text amended; new (a) added; interim..........66073
225.772-4 (a) introductory text revised; (a)(1) amended; interim 
                                                                   66073
225.772-5 Revised; interim.........................................66073
225.870-4 (c)(3) amended...........................................30825
225.872-1 (a) amended; CFR correction..............................18454
225.1103 (4) revised; interim......................................66073
225.7002-2 (a) revised.............................................65562
225.7002-3 (a) amended.............................................65562
225.7004-1 Amended.................................................65562
225.7004-3 (a), (b), and (c) amended...............................65562
225.7005 Removed...................................................24891
225.7005-1 Removed.................................................24891
225.7005-2 Removed.................................................24891
225.7005-3 Removed.................................................24891
225.7006-1 Amended.................................................65562
225.7006-3 Revised.................................................65562
225.7006-4 (a)(2) and (b)(2) revised...............................65562
225.7017-1 Amended.................................................62499
225.7017-2 Revised.................................................62500
225.7017-3 Revised.................................................62500

[[Page 754]]

225.7017-4 Removed; redesignated from 225.7017-5; new (a)(1) 
        revised....................................................62500
225.7017-5 Redesignated as new 225.7017-4..........................62500
225.7303-2 (a)(3) revised..........................................30828
225.7700 (e) added.................................................16004
225.7705 Added.....................................................16004
225.7705-1 Added...................................................16004
225.7705-2 Added...................................................16004
225.7705-3 Added...................................................16004
228.170 Removed....................................................54680
231.205-18 (c)(iii)(C)(2) and (3) amended; (c)(iii)(C)(4) removed 
                                                                   42788
232.7001 Revised...................................................66063
232.7002 Revised...................................................66063
232.7003 Revised...................................................66063
232.7004 Revised...................................................66063
234.7002 (a)(1)(i)(B), (b)(1) introductory text, and (c)(1) 
        introductory text amended; (a)(1)(ii) removed; (a)(1)(iii) 
        redesignated as new (a)(1)(ii); (b)(2), (c)(1)(ii), and 
        (d) revised.................................................4445
236.609-70 Heading amended; (a) removed; (b) introductory text 
        redesignated as introductory text..........................54681
237 Technical correction....................................17762, 26846
237.7202 (a) removed; (b) redesignated as undesignated text........16005
237.7401 (d) removed...............................................24894
237.7700--237.7702 (Subpart 237.77) Added..........................16002
239.101 Revised.....................................................4445
239.7301 Amended...................................................15995
242.002 (b)(i)(C) revised; (S-70)(ii) and (iii) amended............12681
242.1502 (Subpart 242.15) Added....................................15999
243.204-70-6 (b) and (c) amended...................................30587
245.103-74 Amended.................................................12681
246.370 Removed; new section redesignated from 246.371; new (b) 
        amended....................................................66064
246.371 Redesignated as 246.370....................................66064
246.471 (b)(1), (2), and (3) redesignated as new (b)(2), new (3) 
        and (4); new (b)(3) amended; new (b)(1) added..............66064
246.870-0 Amended..................................................19645
246.870-2 (a)(1)(ii)(C) revised....................................19645
247.270-4 (f) removed; (g) redesignated as new (f).................42789
    (e) removed; (f) redesignated as new (e).......................49180
    (d) removed; (e) redesignated as new (d).......................49182
247.271-3 (p) removed..............................................30588
    (n) removed; (o) redesignated as new (n).......................49179
252 Technical correction...........................................26846
252.204-7004 Removed...............................................24895
252.204-7007 Clause amended; interim...............................66073
252.204-7011 Removed...............................................24887
252.211-7000 Clause amended........................................54677
252.211-7006 Clause amended........................................12681
252.213-7000 Heading revised; clause amended.......................12681
252.215-7000 Removed...............................................30825
252.215-7002 Introductory text amended.............................30825
252.215-7003 Introductory text amended.............................30825
252.215-7004 Introductory text amended.............................30825
252.215-7008 Introductory text amended.............................30825
252.215-7009 Introductory text amended.............................30825
252.215-7010 Added..................................................4445
    Introductory text and clause amended...........................30825
252.215-7011 Added..................................................4447
    Introductory text amended......................................30825
252.215-7012 Added..................................................4447
    Introductory text amended......................................30825
252.215-7013 Added..................................................4447
    Introductory text amended......................................30825
252.215-7014 Added.................................................30829
252.216-7004 Introductory text amended.............................49181
252.216-7005 Removed...............................................49181
252.216-7010 Removed...............................................30588
252.217-7001 Clause amended........................................62503
252.219-7003 Heading revised; clause and Alternate I amended.......15999
    Clause and Alternate I amended.................................65564
252.219-7004 Revised...............................................15999
252.219-7009 Clause amended........................................54682
252.219-7012 Added.................................................16003
252.222-7001 Removed...............................................24894
252.222-7007 Removed...............................................24888
252.225-7007 Revised; interim......................................66073
252.225-7017 Clause amended........................................62500
252.225-7018 Clause amended........................................62501
252.225-7021 Amended; CFR correction...............................18454

[[Page 755]]

252.225-7037 Clause amended........................................65562
252.225-7038 Clause amended........................................65562
252.225-7049 Clause amended.........................................4448
    Revised; interim...............................................66073
252.225-7050 Clause amended.........................................4448
    Clause amended; interim........................................66074
252.225-7051 Added; interim........................................66074
252.228-7004 Removed...............................................54680
252.232-7003 Clause amended........................................66064
252.232-7006 Clause amended........................................66064
252.232-7009 Clause amended........................................24896
252.236-7009 Removed...............................................54681
252.236-7011 Clause amended........................................54681
252.246-7000 Removed...............................................66065
252.246-7003 Introductory text amended.............................66065
252.246-7008 Clause amended........................................19645
252.247-7004 Removed...............................................49182
252.247-7005 Removed...............................................49180
252.247-7006 Removed...............................................42789
252.247-7007 Introductory text amended.............................42789
    Introductory text amended...............................49180, 49182
252.247-7020 Removed...............................................49179
252.247-7027 Clause amended........................................24892
Chapter 2 Appendix I amended.......................................12683

                                  2019

48 CFR
                                                                   84 FR
                                                                    Page
Chapter 2
Chapter 2 Appendix A amended.................................4361, 48509
    Appendix F amended.............................................48511
201.109 (a) redesignated as (a)(ii); new (a)(i) added..............25187
202.101 Amended....................................................12137
    Amended........................................................65307
203.1003 (b) amended...............................................39202
204 Heading revised................................................48510
204.270-1 (a) amended..............................................48510
204.404-70 (c) removed.............................................12139
204.802 (a) amended................................................48510
204.804 (1) and (2) amended; (3) added.............................18155
204.1202 Regulation at 83 FR 66071 confirmed.......................25190
    Introductory text added; (1) revised...........................30947
    (2)(i) through (xiii) redesignated as (2)(ii) through (xix); 
new (2)(i) added; interim..........................................72236
    (2)(xii), (xiii), and (xiv) redesignated as (2)(xiii), (xiv), 
and (xv); new (xii) added..........................................72559
204.1670 Amended...................................................48510
204.2100--204.2105 (Subpart 204.21) Added; interim.................72236
204.7001 (Subpart 204.70) Added....................................72563
204.7200--204.7203 (Subpart 204.72) Added...........................4363
204.7403 Heading amended; (a) removed; (b) and (c) redesignated as 
        new (a) and (b)............................................58332
206.102 (Subpart 206.1) Added.......................................4365
206.302-1 (c) and (S-70) added.....................................25192
207.106 (S-70)(1) amended; (S-70)(2)(ii), (iii), and (iv) 
        redesignated as (S-70)(2)(iii), (iv), and (v); new (S-
        70)(2)(ii) and (S-72)(5) added.............................58333
208.405 Existing text redesignated as (1); (2) and (3) added.......50788
209.105-1 (2) revised..............................................48508
209.403 Amended....................................................18155
209.505-4 (b)(ii) revised..........................................58332
209.571-1 Amended..................................................25187
211.104 Added......................................................25192
211.107 Revised.....................................................4368
211.170 Added......................................................25192
211.201 Revised.....................................................4368
211.204 Revised....................................................25193
212.203 Added......................................................50788
212.272 Added......................................................39204
212.301 (f)(ii)(A) through (F) redesignated as (f)(ii)(B) through 
        (G); new (f)(ii)(A) added...................................4363
    (f)(xv)(C) and (D) amended......................................4369
    (f)(xix)(D) removed; (f)(xix)(E) through (H) redesignated as 
(f)(xix)(D) through (G); new (f)(xix)(D) through (G) amended........4371
    (f)(ix)(FF) added..............................................18158
    Regulation at 83 FR 66071 confirmed............................25190
    (f)(v) revised.................................................48508
    (f)(ii) heading revised; (f)(ii)(B) added......................48510
    (f)(ii)(E) removed; (f)(ii)(F) and (G) redesignated as new 
(f)(ii)(E) and (F); new (f)(ii)(E) and (F) amended.................58332
    (f)(ii)(H), (I), and (J) added; interim........................72237
    (f)(vii)(A)(3) added; (x) designated as (x)(A); (x)(B) added 
                                                                   72559
213.106-1 Revised..................................................50788
213.106-2 (b)(i)(A) amended........................................48508

[[Page 756]]

213.106-2-70 Amended...............................................48508
213.201 (j) added; interim.........................................72237
213.501 (a) redesignated as (a)(i); (a)(ii) added..................25192
215.101-2 Heading added............................................50788
215.101-2-70 Added.................................................50788
215.304 (c)(vi) added..............................................58333
    (c)(vii) added.................................................72560
215.371-3 Revised..................................................30949
215.371-4 (a)(4) revised............................................4365
215.404-1 (h) added................................................72563
215.404-71-2 (e)(2)(iii) amended...................................39205
215.404-71-3 (d)(2)(i) revised.....................................39205
215.406-2 Added....................................................25194
215.407-4 Existing text designated as (a); new (a) heading and (b) 
        added......................................................65309
215.408 (3) revised; (5) introductory text and (7) introductory 
        text amended...............................................30949
    (8) added......................................................65309
215.503 Amended.....................................................4369
215.506 (e) amended.................................................4369
216.102 Existing text designated as (2); (1) and (3) added.........65307
216.104-70 Amended.................................................65307
216.301-3 Existing text designated as (1); (2) added...............65307
216.401 (d) added..................................................65307
216.402-2 Designated as (1); (2) added.............................58333
216.504 Revised....................................................12139
216.505 (1) and (2) removed; (a), (b) heading and (1) added........50789
216.505-70 Heading revised; undesignated text designated as (a); 
        (b) added..................................................48510
217.202 (1)(i) and (ii) added......................................65307
217.7401 Amended...................................................39206
217.7402 (a)(1) removed; (a)(2), (3), and (4) redesignated as 
        (a)(1), (2), and (3); new (a)(1) and new (2) amended; (b) 
        revised....................................................39206
    (b) amended....................................................48510
217.7404 Revised...................................................39206
217.7404-3 (a)(1) revised..........................................39206
217.7404-5 (b) introductory text amended...........................39206
217.7404-6 (a) revised; (b) amended................................39206
217.7801 (Subpart 217.78) Added....................................50789
218.170 (k) amended................................................48505
219.402 Added......................................................72562
219.502-1 Revised...........................................18161, 72563
219.502-2 (a)(iii) amended.........................................18161
219.708 (b)(1)(A) introductory text amended; (b)(1)(A)(3) added....72560
219.811-3 Amended..................................................58336
225.003 Regulation at 83 FR 66071 confirmed........................25190
225.770 Regulation at 83 FR 66071 confirmed........................25190
225.770-1 Regulation at 83 FR 66072 confirmed......................25190
225.770-2 Regulation at 83 FR 66072 confirmed......................25190
225.770-3 Regulation at 83 FR 66072 confirmed......................25190
225.770-4 Regulation at 83 FR 66072 confirmed......................25190
225.770-5 Regulation at 83 FR 66072 confirmed......................25190
225.772 Regulation at 83 FR 66072 confirmed........................25190
225.772-1 Regulation at 83 FR 66072 confirmed......................25190
225.772-2 Regulation at 83 FR 66072 confirmed......................25190
225.772-3 Regulation at 83 FR 66073 confirmed......................25190
225.772-4 Regulation at 83 FR 66073 confirmed......................25190
225.772-5 Regulation at 83 FR 66073 confirmed......................25190
225.1101 (6) introductory text, (10)(i) introductory text, and (A) 
        through (F) amended........................................72246
225.1103 Regulation at 83 FR 66073 confirmed.......................25190
225.7001 Revised...................................................72243
225.7003-1 (a) and (c) removed; section amended....................72243
225.7003-3 (b)(5) introductory text revised; (b)(5)(ii) 
        introductory text, (A), (B) introductory text, (c)(2), (d) 
        introductory text, (1), (2) introductory text, and (ii) 
        amended....................................................72244
225.7003-4 Removed.................................................65311
225.7017-3 (b) amended.............................................72247
225.7018 Added.....................................................18158
225.7018-1 Added...................................................18158
    Amended........................................................72244
225.7018-2 Added...................................................18158
    (b)(1) and (2) redesignated as (b)(i) and (ii); (b) 
introductory text redesignated as new (b)(1); (c) redesignated as 
new (b)(2); new (c) added..........................................72244
225.7018-3 Added...................................................18158

[[Page 757]]

    (c)(1) introductory text, (2), and (d) revised; (c)(1)(ii) 
amended............................................................72244
225.7018-4 Added...................................................18158
    (a)(1) revised; (a)(3) removed; (a)(4) redesignated as new 
(a)(3); new (a)(3) amended.........................................72244
225.7018-5 Added...................................................18158
225.7301-1 Added...................................................65307
225.7301-2 Added...................................................65307
225.7503 (a), (b) introductory text, and (1) through (4) amended 
                                                                   72247
225.7703-4 (f)(1), (2), (4), and (5) amended.......................12140
226.7200--226.7203 (Subpart 226.72) Added..........................72560
228.370 (d) revised................................................65312
233.171 Added......................................................25194
234.004 (3) added..................................................58334
    (2)(i)(A), (C) introductory text, and (ii)(A)(2) amended; 
(2)(ii) introductory text and (A) introductory text revised; 
(2)(iii) and (iv) added............................................65307
234.005-1 (2) removed; (1), (i), (ii), and (iii) redesignated as 
        introductory text, (1), new (2), and (3); introductory 
        text and new (2) amended; new (3) revised...................4365
234.005-2 Added....................................................50789
235.006 (b)(i) and (ii) redesignated as (b)(ii) and (iii); new 
        (b)(ii)(B) introductory text, (iii)(A)(3) introductory 
        text, (i), (ii), and (B) introductory text amended; (b)(i) 
        added......................................................65308
235.006-71 Introductory text redesignated as (b); (a) added.........4366
235.016 Added.......................................................4366
236.303-1 (Subpart 236.3) Added.....................................4373
237.102 (b) revised................................................39204
237.102-70 (c) removed; (d) redesignated as new (c); new (c)(1) 
        introductory text revised; new (c)(2) amended..............65311
237.172 Undesignated text designated as (a); (b) added.............48510
237.270 (a)(2) redesignated as (a)(3): new (a)(2) added............50789
237.7003 (a) removed; (b) and (c) redesignated as new (a) and new 
        (b)........................................................48505
239.7102-2 (a) revised.............................................58337
239.7300 Revised....................................................4369
239.7301 Amended....................................................4369
239.7302 Introductory text amended..................................4370
239.7303 (b)(1) and (2) amended.....................................4370
239.7304 (a), (b) introductory text, and (c)(2)(ii) amended.........4370
239.7411 (a) introductory text and (1) through (5) amended; (a)(6) 
        removed....................................................48497
    (a)(3) removed; (a)(4) and (5) redesignated as new (a)(3) and 
(4)................................................................48498
    (c) revised....................................................58338
244.201-1 Existing text designated as (S-70); (a) added............12141
244.302 Added......................................................72249
245.107 (6) removed; (1) through (5) redesignated as (2) through 
        (6); new (1) added.........................................18162
247.270-4 Revised..................................................30953
247.271-3 (g) removed; (h) through (n) redesignated as new (g) 
        through (m)................................................25195
    (a), (b), (d), (e), (g), (j), (k), and (l) removed; (c), (f), 
(h), (i), and (m) redesignated as (a) through (e)..................30951
247.305-70 Removed.................................................48507
247.574 (c) removed; (d), (e), and (f) redesignated as new (c), 
        (d), and (e)................................................4371
249.109-70 Added...................................................30953
252.203-7003 Clause amended........................................39203
252.203-7004 Clause amended.................................25187, 39203
252.204-7004 Added..................................................4364
252.204-7005 Removed...............................................12139
252.204-7007 Clause amended.................................12140, 30947
    Regulation at 83 FR 66073 confirmed............................25190
    Clause amended..........................................72237, 72560
252.204-7012 Clause amended........................................72563
252.204-7013 Removed...............................................58332
252.204-7014 Introductory text amended.............................58332
252.204-7015 Introductory text amended.............................58332
252.204-7016 Added; interim........................................72237
252.204-7017 Added; interim........................................72237
252.204-7018 Added; interim........................................72237
252.204-7050 Regulation at 83 FR 66074 confirmed...................25190
252.204-7051 Regulation at 83 FR 66074 confirmed...................25190
252.209-7004 Clause amended........................................25187
252.209-7009 Clause amended........................................25187

[[Page 758]]

252.211-7001 Removed...............................................25194
252.211-7006 Clause amended........................................72563
252.213-7000 Clause amended........................................48508
252.215-7008 Clause amended........................................30950
    Regulation at 84 FR 30950 corrected in part....................33858
252.215-7010 Clause and Alternate I amended........................30950
    Regulation at 84 FR 30950 corrected in part....................33858
252.215-7015 Added.................................................65309
252.216-7006 Clause amended........................................48511
252.219-7003 Clause amended.................................25187, 72560
252.219-7004 Heading revised; clause amended.......................25188
252.219-7010 Heading amended; clause amended.......................58336
252.225-7004 Clause amended........................................25188
252.225-7007 Regulation at 83 FR 66073 confirmed...................25190
252.225-7009 Clause amended........................................72244
252.225-7017 Clause amended.................................39208, 72247
252.225-7018 Clause amended........................................72247
252.225-7021 Clause and Alternate II amended.......................39208
    Clause and Alternate II amended................................48501
252.225-7035 Clause amended........................................12140
252.225-7045 Clause, Alternate I, Alternate II, and Alternate III 
        amended....................................................39208
252.225-7052 Added.................................................18159
    Clause amended.................................................72245
252.226-7001 Clause amended........................................12142
252.226-7002 Added.................................................72561
252.227-7001 Clause amended........................................48500
252.227-7002 Clause amended........................................48503
252.227-7009 Clause amended........................................48504
252.227-7049 Regulation at 83 FR 66073 confirmed...................25190
252.228-7005 Heading and clause amended............................65312
252.235-7011 Clause amended........................................72563
252.237-7002 Removed...............................................48505
252.237-7003 Introductory text amended.............................48505
252.237-7004 Introductory text amended.............................48505
252.237-7005 Introductory text amended.............................48505
252.237-7006 Introductory text amended.............................48505
252.237-7007 Introductory text amended.............................48505
252.237-7008 Introductory text amended.............................48506
252.237-7009 Introductory text amended.............................48506
252.237-7011 Introductory text amended.............................48506
252.239-7000 Clause amended........................................58337
252.239-7004 Revised...............................................48499
252.239-7005 Removed...............................................48499
252.239-7007 Revised...............................................48497
252.239-7008 Removed...............................................48498
252.239-7013 Revised...............................................58338
252.239-7014 Removed...............................................58339
252.239-7015 Removed...............................................58339
252.239-7017 Clause amended.........................................4370
252.239-7018 Clause amended.........................................4370
252.247-7001 Removed...............................................30953
252.247-7002 Introductory text amended.............................30953
252.247-7007 Introductory text amended.............................30953
252.247-7008 Removed...............................................30951
252.247-7009 Removed...............................................30952
252.247-7010 Removed...............................................30952
252.247-7011 Removed...............................................30952
252.247-7012 Removed...............................................25195
252.247-7013 Introductory text amended.............................25195
    Removed........................................................30952
252.247-7014 Introductory text amended......................25195, 30952
252.247-7016 Introductory text amended......................25195, 30952
252.247-7017 Introductory text amended.............................25195
    Removed........................................................30952
252.247-7018 Introductory text amended.............................25195
    Removed........................................................30952
252.247-7019 Introductory text amended.............................25195
    Removed........................................................30952
252.247-7021 Removed...............................................48507
252.247-7022 Clause amended........................................30952
252.247-7023 Clause, Alternate I, and Alternate II amended..........4371
252.247-7024 Removed................................................4371
252.247-7025 Introductory text amended..............................4371
252.247-7026 Introductory text amended..............................4371
252.247-7027 Introductory text amended..............................4371
252.249-7002 Clause amended........................................25188

[[Page 759]]

                                  2020

48 CFR
                                                                   85 FR
                                                                    Page
Chapter 2
201.603-2 (1)(iii) and (2)(iii) revised............................34528
202.101 Amended......................................19681, 19687, 53681
203.1004 (b)(2)(ii) amended........................................61504
204 Technical correction...........................................65733
204.1202 Heading revised; (2)(xv) redesignated as (2)(xvi); new 
        (2)(xv) added..............................................19687
    (2)(iii) removed; (2)(iv) through (xvi) redesignated as new 
(2)(iii) through (xv)..............................................74611
204.7104-1 (b)(3)(iii) amended; (b)(3)(iv) revised.................19692
204.7109 Revised...................................................19692
204.7302 (a) revised; eff. 11-30-20; interim.......................61519
204.7303 Revised; eff. 11-30-20; interim...........................61519
204.7304 Heading revised; (d) and (e) added; eff. 11-30-20; 
        interim....................................................61519
204.7500--204.7503 (Subpart 204.75) Added; eff. 11-30-20; interim 
                                                                   61519
204.7500 Added; eff. 11-30-20; interim.............................61519
204.7501 Added; eff. 11-30-20; interim.............................61519
204.7502 Added; eff. 11-30-20; interim.............................61519
204.7503 Added; eff. 11-30-20; interim.............................61519
205.303 Amended; interim...........................................61504
205.470 Amended; interim...........................................61504
206.303-1 Added....................................................34529
206.303-2 (b)(i) redesignated as (b)(ii); new (b)(i)and (d) added 
                                                                   34529
206.304 (a)(S-71) added............................................34529
208.002 Revised....................................................34530
209.470 Removed....................................................74611
209.470-1--209.470-4 Removed.......................................74611
210.001 (a)(i) and (ii) redesignated as (a)(i)(A) and (B); (a) 
        introductory text, new (a)(i)(A), and (B) amended; new 
        (a)(ii) added..............................................34531
211.272 Removed....................................................60918
211.273 Removed....................................................60917
211.273-1 Removed..................................................60917
211.273-2 Removed..................................................60917
211.273-3 Removed..................................................60917
211.273-4 Removed..................................................60917
211.503 (b) amended................................................61504
212 Technical correction...........................................65733
212.001 Amended....................................................19688
212.102 (a)(iii) revised...........................................60921
212.209 (a) revised................................................34531
212.271 Amended....................................................61504
212.301 (f)(ii)(K), (L), and (M) added; eff. 11-30-20; interim.....61520
    (f)(ix)(FF) revised; interim...................................61501
    (f)(xiii)(G) added.............................................19697
    (f)(xii) removed; (f)(xiii) through (xix) redesignated as 
(f)(xii) through (xviii)...........................................74612
215.403-1 (c)(3)(A) amended; (c)(3)(B) removed; (c)(3)(C) 
        redesignated as new (c)(3)(B); (c)(4)(B) revised...........34532
    (c)(4)(B) amended..............................................61504
215.403-3 (c) added................................................34532
216.504 (c)(1)(ii)(D)(3)(i) added..................................60922
216.506 (a) removed................................................53682
217 Technical correction...........................................65733
217.170 (d)(1)(iv) and (5) introductory text amended...............61504
217.171 (d) amended................................................61504
217.172 (c), (d), (f)(1), and (2) amended..........................61504
217.207 (c) revised; eff. 11-30-20; interim........................61520
218.201 (1) amended................................................34528
219.5 Heading revised..............................................53683
219.303 Removed....................................................53683
219.502-2 Revised..................................................53683
    (1) amended....................................................61504
219.502-8 Redesignated as 219.505; new section redesignated from 
        219.505....................................................53683
219.505 Redesignated as 219.502-8; new section redesignated from 
        219.502-8..................................................53683
219.808 Heading amended............................................53683
219.808-1 (a) added................................................34530
225.7002-2 (b)(2) revised; interim.................................61501
225.7003-3 (b)(5)(i) revised; interim..............................61502

[[Page 760]]

225.7008 (b) removed; (a)(2) and (3) redesignated as new (b) and 
        (c); (a) introductory text and (1)(i) through (iv) 
        redesignated as undesignated introductory text and (a)(1) 
        through (4); new (a)(1) introductory text amended; new 
        (a)(1)(A) and (B) redesignated as (a)(1)(i) and (ii); new 
        (a)(4)(A) and (B) redesignated as (a)(4)(i) and (ii); new 
        (b)(i) through (v) redesignated as (b)(1) through (5); new 
        (b)(2), new (3), and new (c) revised.......................34534
225.7010-1 Introductory text amended...............................34534
225.7010-3 Revised.................................................34534
225.7018 Heading revised; interim..................................61502
225.7018-1 Amended; interim........................................61502
225.7018-2 (c) redesignated as (d); new (c) added; interim.........61502
225.7018-3 (c)(1)(ii), (2), (d) introductory text, and (1) 
        amended; interim...........................................61502
225.7018-4 (a)(2) revised; (a)(3)(ii) amended; interim.............61502
225.7018-5 Amended; interim........................................61502
225.7201 Revised...................................................61504
225.7204 (a) and (b) amended.......................................61504
225.7703-2 (b)(2)(i) and (ii) introductory text amended............61504
228.102-1 Introductory text and (1) amended........................61504
229.402-1 Removed..................................................19698
229.402-70 (k) and (l) removed.....................................74612
232.009 Added......................................................19697
232-009-1 Added....................................................19697
232.009-2 Added....................................................19697
232.412-70 (b) removed; (c) redesignated as new (b) and amended....19699
232.903 Revised....................................................19697
232.1001 (a) revised...............................................19688
232.1003-70 Revised................................................19688
232.1004 (b) revised...............................................19688
232.1005-70 Heading revised; introductory text redesignated as 
        (a); new (a) and (b) redesignated as (a)(1) and (2); new 
        (b) and (c) added..........................................19688
234.7001 Revised...................................................34532
234.7002 (d) introductory text revised; (d)(5) added...............34532
236.303-1 (a)(4)(i) introductory text and (ii) amended.............61504
237.170-2 (a)(1) and (2) amended...................................61504
244.402 (a) amended; (S-70) added..................................60921
246.402 Introductory text amended..................................61504
249 Authority citation revised.....................................34535
249.7003 (a), (b) introductory text, and (1) amended; (c) revised 
                                                                   34535
249.7004 Added.....................................................34536
250.102-1 (b) amended..............................................61504
250.102-1-70 (b)(1) amended........................................61504
251 Authority citation revised.....................................53684
251.101 Added......................................................53684
252 Technical correction...........................................65733
252.204-7002 Revised...............................................19692
252.204-7006 Introductory text amended.............................19692
252.204-7007 Clause amended........................................19688
    Clause amended.................................................74611
252.204-7019 Added; eff. 11-30-20; interim.........................61520
252.204-7020 Added; eff. 11-30-20; interim.........................61520
252.204-7021 Added; eff. 11-30-20; interim.........................61520
252.209-7003 Removed...............................................74611
252.209-7005 Removed...............................................74611
252.211-7004 Removed...............................................60918
252.211-7005 Removed...............................................60917
252.216-7006 Removed...............................................53682
252.225-7003 Clause amended........................................61504
252.225-7004 Clause amended........................................61504
252.225-7013 Clause amended.................................19681, 34536
252.225-7052 Heading revised; clause amended.......................61502
252.229-7000 Removed...............................................19698
252.229-7001 Clause amended........................................19699
252.229-7014 Removed...............................................74612
252.229-7015 Removed...............................................74612
252.232-7000 Clause amended........................................19700
252.232-7001 Removed...............................................19700
252.232-7005 Introductory text amended.............................19700
252.232-7012 Clause amended........................................19688
252.232-7013 Clause amended........................................19689
252.232-7015 Added.................................................19691
252.232-7016 Added.................................................19691
252.232-7017 Added.................................................19697
252.244-7000 Clause amended........................................60921
    Clause correctly amended.......................................65734
252.245-7000 Introductory text amended.............................53683
252.245-7001 Introductory text amended.............................53683
252.245-7002 Introductory text amended.............................53683

[[Page 761]]

252.245-7003 Introductory text amended.............................53683
252.249-7002 Introductory text and clause amended..................34536

                                  2021

  (Regulations published from January 1, 2021, through October 1, 2021)

48 CFR
                                                                   86 FR
                                                                    Page
Chapter 2
204.804 (4) added..................................................27277
204.804-70 Added...................................................27277
204.1202 Regulation at 84 FR 72236 confirmed........................3835
204.1700--204.1705 (Subpart 204.17) Added..........................36236
204.2100--204.204.2105 (Subpart 204.21) Regulation at 84 FR 72236 
        confirmed...................................................3835
207.106 Duplicative (S-70)(2)(ii) removed..........................27277
212.301 (f)(ii)(H) through (M) redesignated as (f)(ii)(G) through 
        (L).........................................................3836
212.301 (f)(ii)(M) added...........................................27277
212.301 (f)(ii)(N) added...........................................36236
212.301 (f)(ix)(GG) and (HH) added.................................48338
213.201 Regulation at 84 FR 72237 confirmed.........................3835
    (4) revised....................................................27277
215.404-71-3 (c) table revised.....................................27278
223.7301 Revised...................................................27280
223.7302 Removed...................................................27280
225.772-1 Amended..................................................53883
225.872-7 Amended...................................................3836
225.7019 Added.....................................................48338
225.7019-1 Added...................................................48338
225.7019-2 Added...................................................48338
225.7019-3 Added...................................................48338
225.7019-4 Added...................................................48338
225.7301-1 Removed.................................................48340
239.7411 (a)(3) removed; (a)(4) redesignated as new (a)(3)..........3837
242.202 (e)(1)(A) revised..........................................27278
245.102 (4)(i) amended; (5) revised.................................3839
252.204-7007 Regulation at 84 FR 72237 confirmed....................3835
    Clause amended.................................................27278
252.204-7016 Regulation at 84 FR 72237 confirmed....................3835
252.204-7017 Regulation at 84 FR 72237 confirmed....................3835
    Clause amended.................................................27278
252.204-7018 Regulation at 84 FR 72237 confirmed....................3835
    Clause amended..................................................3835
252.204-7022 Added.................................................27277
252.204-7023 Added.................................................36236
252.225-7050 Clause amended........................................53883
252.225-7051 Clause amended........................................53883
252.225-7053 Added.................................................48339
252.225-7054 Added.................................................48339
252.235-7003 Heading revised.......................................27278
252.239-7006 Removed................................................3837
252.244-7000 Clause amended.........................................3836
252.245-7002 Clause amended.........................................3839
253.303 Revised....................................................27278


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