[Federal Register Volume 61, Number 200 (Tuesday, October 15, 1996)]
[Rules and Regulations]
[Pages 53645-53677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25427]


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DEPARTMENT OF AGRICULTURE

Procurement and Property Management

48 CFR Parts 401 through 453

RIN 0599-AA00


Agriculture Acquisition Regulation; Revision

AGENCY: Procurement and Property Management, Agriculture.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture is publishing a revised 
Agriculture Acquisition Regulation (AGAR) as a final rule. We are 
revising the AGAR to reflect changes in acquisition law and regulations 
since the AGAR's last major revision in 1988, to update organizational 
references throughout the AGAR, and to streamline the AGAR as part of 
the President's Regulatory Reform Initiative.

EFFECTIVE DATE: This regulation is effective November 14, 1996.

FOR FURTHER INFORMATION CONTACT: Joseph J. Daragan, (202) 720-5729.

SUPPLEMENTARY INFORMATION:

I. Background
II. Analysis of comments
III. Procedural Requirements
    A. Executive Order Nos. 12866 and 12988.
    B. Regulatory Flexibility Act.
    C. Paperwork Reduction Act.
    D. Small Business Regulatory Enforcement Fairness Act.

I. Background

    The AGAR implements the Federal Acquisition Regulation (FAR) (48 
CFR Ch. 1) where further implementation is needed, and supplements the 
FAR when coverage is needed for subject matter not covered by the FAR. 
The AGAR is being revised as part of the National Performance Review 
(NPR) program to eliminate unnecessary regulations and improve those 
that remain in force.
    As an initial step in the NPR regulatory review initiative, the 
Department of Agriculture (USDA) identified parts of the AGAR which 
required updating or streamlining. USDA's review indicated that almost 
all parts required revision. Accordingly, USDA has reviewed and made 
revisions to substantially all parts of the AGAR. In an Advance Notice 
of Proposed Rulemaking (61 FR 7456, February 28, 1996), USDA sought 
comments and suggestions from the public concerning what changes should 
be made to the AGAR. In a Notice of Proposed Rulemaking (61 FR 37032, 
July 16, 1996), USDA announced that the proposed revision of the AGAR 
was available for public review and comment during a 60 day comment 
period. The proposed rule was made available in hard copy, as an 
electronic file, and as a file on the Internet. The Department of 
Agriculture received comments on the proposed rule from 4 Departmental 
agencies. No comments were received from individuals, private business 
concerns (large or small), state or local governments, or other Federal 
agencies. In this rulemaking document, the Department of Agriculture is 
finalizing the proposed revision to the AGAR, with changes made to 
reflect certain comments received as well as recent amendments to the 
FAR.

II. Analysis of Comments

    As noted, the Department of Agriculture has carefully considered 
the comments submitted in response to the Notice of Proposed Rulemaking 
and, as discussed below, is modifying a few portions of the rule as 
proposed in adopting it as final. The discussion below is focused on 
the major areas of comment regarding the proposed rule changes.
    One USDA agency commented that it was unclear why the public would 
need more than the FAR to understand USDA acquisition policy and 
procedures. We believe that an agency supplement to the FAR provides an 
accessible source of information about agency acquisition policies 
which may have an effect on businesses dealing with USDA. An agency 
supplement may also inform the public in general terms about which 
official or level of authority may control acquisition decisions within 
the agency. Furthermore, FAR subpart 1.3 requires that agency 
acquisition regulations be published in the Federal Register when they 
have a significant effect beyond the internal operating procedures of 
the agency or have a significant cost or administrative impact on 
contractors or offerors. The FAR also may require that FAR policies be 
implemented in accordance with agency regulations (see FAR 3.301), or 
may provide that agencies may deviate from FAR procedures if specified 
in agency acquisition regulations (see FAR 5.303(a)). USDA maintains 
the AGAR to provide implementing and supplementing regulations in 
accordance with these provisions of the FAR.
    One USDA agency commented that the AGAR, whenever possible, 
designate the contracting officer as the official responsible for 
making acquisition determinations and carrying out responsibilities 
outlined in the FAR and the AGAR. Where this is not possible, the 
agency commented that the head of the contracting activity (HCA) should 
be designated as the responsible official with authority to redelegate 
to any level. We do not disagree that authority to conduct acquisitions 
and to manage contracts should be delegated to the lowest appropriate 
level. We have sought to do this throughout the AGAR to the extent 
permitted by the FAR. In some cases, we have sought to delegate 
authority to an intermediate level between the contracting officer and 
the HCA, such as the chief of the contracting office. ``Chief of the 
contracting office'' is a term used in the FAR and in the current AGAR, 
and may be applied by contracting activities to a level of authority 
consistent with their organizational structure. Accordingly, while we 
have corrected some references to authority levels which were 
inconsistent or confusing, we

[[Page 53646]]

otherwise have not adopted this comment.
    Two agencies commented concerning proposed AGAR 419.201-71(d), 
which requires small business coordinators (OSDBU coordinators) to 
ensure that purchases ``under the simplified acquisition threshold'' 
are reserved for small business concerns. Both agencies noted that this 
paragraph is inconsistent with the FAR, which establishes a small 
business reserve for purchases between the $2,500 micropurchase 
threshold and the simplified acquisition threshold. We have corrected 
AGAR 419.201-71(d) to conform to the FAR.
    One agency commented that AGAR 433.103, Protests to the Agency, did 
not imply that protests should be filed with the HCA, and recommended 
that protests be filed with the contracting officer. AGAR 433.103 
establishes USDA's procedure for agency protests. It designates the HCA 
as an alternate forum for resolution of agency protests. Contractors 
may file protests either with the contracting officer or the HCA. 
Accordingly, we have not adopted this comment. However, the comment did 
suggest one potential ambiguity in this section. To clarify the protest 
procedure, we have added a requirement that the protester provide a 
copy of the protest to the contracting officer if the protest is filed 
with the HCA.
    The following additional changes have been made to the rule. These 
changes were made either to incorporate agency suggestions or to 
reflect changes in the FAR.:
    (a) AGAR 401.602-3(b) is amended to delegate ratification authority 
to the Chief of the Contracting Office.
    (b) AGAR 403.408, Evaluation of the SF 119, has been removed to 
reflect an amendment to the FAR.
    (c) AGAR subpart 406.5 has been amended to designate the Chief, 
Procurement Policy Division, Procurement and Property Management, as 
Departmental Competition Advocate.
    (d) AGAR part 413 has been revised to reflect an amendment to the 
FAR.
    (e) AGAR 416.404-2 has been amended to provide that the head of the 
contracting activity may designate a fee determination official for 
award fee contracts.
    (f) AGAR 416.505 has been added to designate the Chief, Procurement 
Policy Division, Procurement and Property Management, as Departmental 
Delivery/Task Order Ombudsman.
    (g) AGAR subpart 422.70, Compliance with the Immigration and 
Nationality Act, has been removed because the issue is now addressed in 
FAR subpart 9.4.
    (h) AGAR 425.102(b) and 425.202(b), concerning Buy American Act 
nonavailability determinations, have been removed because they 
duplicate material in the FAR.
    (i) AGAR 425.7, Restrictions on Certain Foreign Purchases, has been 
removed to reflect an amendment to the FAR.
    (j) AGAR 436.203 has been amended to clarify when construction cost 
estimates may be disclosed by the contracting officer.
    (k) AGAR 449.111 has been amended to allow contracting activities 
to establish procedures for review of termination settlements

III. Procedural Requirements

A. Executive Order Nos. 12866 and 12988

    A work plan was prepared for this regulation and submitted to the 
Office of Management and Budget pursuant to Executive Order No. 12866. 
The proposed rule has been determined to be not significant for the 
purposes of Executive Order No. 12866. Therefore, the proposed rule has 
not been reviewed by the Office of Management and Budget. This rule has 
been reviewed in accordance with Executive Order No. 12988.

B. Review Under the Regulatory Flexibility Act

    The proposed rule was reviewed under the Regulatory Flexibility 
Act, 5 U.S.C. 601-611, which requires preparation of a regulatory 
flexibility analysis for any rule which is likely to have significant 
economic impact on a substantial number of small entities. The AGAR is 
issued to implement or supplement the FAR, and does not materially add 
to the impact of the FAR regulations it implements or supplements. USDA 
certifies that this proposed rule will not have a significant economic 
effect on a substantial number of small entities, and, therefore, no 
regulatory flexibility analysis has been prepared. However, comments 
from small entities concerning the impact of the proposed rule were 
solicited in the Notice of Proposed Rulemaking which announced the 
availability of the proposed rule for comment (61 FR 37032, July 16, 
1996). No comments from small entities were received.

C. Paperwork Reduction Act

    Information collection and recordkeeping required by the AGAR have 
been approved by the OMB. OMB control numbers 0505-0010, 0505-0011, 
0505-0013, 0505-0014, 0505-0015, and 0505-0016 apply to the AGAR. No 
additional information collection or recordkeeping requirements are 
imposed on the public by this final rule. Accordingly no OMB clearance 
is required by section 350(h) of the Paperwork Reduction Act, 44 U.S.C. 
3501, et. seq., or OMB's implementing regulation at 5 CFR Part 1320.

D. Small Business Regulatory Enforcement Fairness Act

    This final rule has been submitted to each House of Congress and 
the Comptroller General in accordance with the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801, et seq.

List of Subjects in 48 CFR Parts 401 Through 453

    Government contracts, Government procurement.

    For the reasons set out in the preamble, 48 CFR chapter 4 (parts 
401 through 453) is revised as set forth below:
W.R. Ashworth,
Director, Procurement and Property Management.

Agriculture Acquisition Regulation

SUBCHAPTER A--GENERAL

Part 401--Agriculture Acquisition Regulation System
Part 402--Definitions of Words and Terms
Part 403--Improper Business Practices and Personal Conflicts of 
Interest
Part 404--Administrative Matters

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

Part 405--Publicizing Contract Actions
Part 406--Competition Requirements
Part 407--Acquisition Planning
Part 408--Required Sources of Supplies and Services
Part 409--Contractor Qualifications
Part 410--[Reserved]
Part 411--Describing Agency Needs
Part 412--Acquisition of Commercial Items

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

Part 413--Simplified Acquisition Procedures
Part 414--Sealed Bidding
Part 415--Contracting by Negotiation
Part 416--Types of Contracts
Part 417--Special Contracting Methods
Part 418--[Reserved]

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

Part 419--Small Business Programs
Part 420--[Reserved]
Part 421--[Reserved]
Part 422--Application of Labor Laws to Government Acquisitions
Part 423--Environment, Conservation, Occupational Safety, and Drug-
Free Workplace
Part 424--Protection of Privacy and Freedom of Information
Part 425--Foreign Acquisition
Part 426--[Reserved]

[[Page 53647]]

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

Part 427--Patents, Data, and Copyrights
Part 428--Bonds and Insurance
Part 429--[Reserved]
Part 430--Cost Accounting Standards Administration
Part 431--Contract Cost Principles and Procedures
Part 432--Contract Financing
Part 433--Protests, Disputes and Appeals

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

Part 434--Major System Acquisition
Part 435--Research and Development Contracting
Part 436--Construction and Architect-Engineer Contracts
Part 437--Service Contracting
Part 438--[Reserved]
Part 439--[Reserved]
Part 440--[Reserved]
Part 441--Acquisition of Utility Services

SUBCHAPTER G--CONTRACT MANAGEMENT

Part 442--Contract Administration
Part 443--[Reserved]
Part 444--[Reserved]
Part 445--Government Property
Part 446--Quality Assurance
Part 447--Transportation
Part 448--[Reserved]
Part 449--Termination of Contracts
Part 450--Extraordinary Contractual Actions
Part 451--[Reserved]

SUBCHAPTER H--CLAUSES AND FORMS

Part 452--Solicitation Provisions and Contract Clauses
Part 453--Forms

SUBCHAPTER A--GENERAL

PART 401--AGRICULTURE ACQUISITION REGULATION SYSTEM

Sec.
401.000  Scope of part.

Subpart 401.1--Purpose, Authority, Issuance

401.101  Purpose.
401.103  Authority.
401.104  Applicability.
401.105  Issuance.
401.105-1  Publication and code arrangement.
401.105-2  Arrangement of regulations.
401.105-3  Copies.
401.106  OMB approval under the Paperwork Reduction Act.

Subpart 401.2--Administration

401.201  Maintenance of the FAR.
401.201-1  The two councils.

Subpart 401.3--Agency Acquisition Regulations

401.301  Policy.
401.304  Agency control and compliance procedures.
401.370  Exclusions.
401.371  AGAR Advisories.
401.372  Departmental directives.

Subpart 401.4--Deviations From the FAR and AGAR

401.402  Policy.
401.403  Individual deviations.
401.404  Class deviations.

Subpart 401.6--Contracting Authority and Responsibilities

401.601  General.
401.602  Contracting officers.
401.602-3  Ratification of unauthorized commitments.
401.603  Selection, appointment, and termination of appointment.
401.603-1  General.

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


401.000  Scope of part.

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

Subpart 401.1--Purpose, Authority, Issuance


401.101  Purpose.

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


401.103  Authority.

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


401.104  Applicability.

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


401.105  Issuance.


401.105-1  Publication and code arrangement.

    (a) The AGAR is codified in the Code of Federal Regulations (CFR) 
as Chapter 4 of Title 48, Federal Acquisition Regulations System, to 
implement and supplement Chapter 1 which constitutes the FAR. Parts 400 
through 499 have been assigned to USDA by the Office of the Federal 
Register.
    (b) The AGAR and its subsequent changes are published in:
    (1) Daily issues of the Federal Register,
    (2) Cumulative form in the CFR, and
    (3) Loose-leaf form for distribution within USDA.
    (c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 
553, provides an exception from the standard public rulemaking 
procedures to the extent that the rule involves a matter relating to 
agency management or personnel or to public property, loans, grants, 
benefits, or contracts. OFPP Policy Letter 83-2 requires rulemaking for 
substantive acquisition rules but allows discretion in the matter for 
other than significant issues meeting the stated criteria. The AGAR has 
been promulgated and may be revised from time to time in accordance 
with the rulemaking procedures of the Administrative Procedure Act and 
OFPP Policy Letter 83-2.


401.105-2  Arrangement of regulations.

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


401.105-3  Copies.

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


401.106  OMB approval under the Paperwork Reduction Act.

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

------------------------------------------------------------------------
                                                             OMB Control
                        AGAR segment                             No.    
------------------------------------------------------------------------
411.170....................................................    0505-0014
415.4......................................................    0505-0013
436.575....................................................    0505-0011
437.110....................................................    0505-0015
437.270....................................................    0505-0016
452.211-1..................................................    0505-0014
452.215-71.................................................    0505-0013
452.236-75.................................................    0505-0011
452.237-74.................................................    0505-0015
452.237-76.................................................    0505-0016
------------------------------------------------------------------------


[[Page 53648]]

Subpart 401.2--Administration


401.201  Maintenance of the FAR.


401.201-1  The two councils.

    (a) USDA's representative on the Civilian Agency Acquisition 
Council is designated by the SPE.
    (b) The Procurement Policy Division will coordinate proposed FAR 
revisions with interested contracting activities.

Subpart 401.3--Agency Acquisition Regulations


401.301  Policy.

    (a) The SPE, subject to the authorities in 401.103 and FAR 1.301, 
may issue and publish Departmental regulations, that together with the 
FAR, constitute Department-wide policies, procedures, solicitation 
provisions, and contract clauses governing the contracting process or 
otherwise controlling the relationship between USDA (including any of 
its contracting activities) and contractors or prospective contractors.
    (b) Each designated head of a contracting activity (HCA) is 
authorized to issue or authorize the issuance of, at any organizational 
level, internal guidance which does not have a significant effect 
beyond the internal operating procedures of the activity, or a 
significant cost or administrative impact on offerors or contractors. 
Internal guidance issued by contracting activities will not be 
published in the Federal Register. HCA's shall ensure that the 
guidance, procedures, or instructions issued--
    (1) Are consistent with the policies and procedures contained in 
this chapter;
    (2) Follow the format, arrangement, and numbering system of this 
chapter to the extent practicable;
    (3) Contain no material which duplicates, paraphrases, or is 
inconsistent with this chapter; and
    (4) Are numbered and identified by use of alphabetical suffixes to 
the chapter number as follows:

4A [Reserved].
4B Agricultural Research Service.
4C Farm Service Agency.
4D Rural Development (mission area).
4E Food Safety and Inspection Service.
4F [Reserved].
4G Forest Service.
4H [Reserved].
4I Natural Resources Conservation Service.
4J [Reserved].
4K Food and Consumer Service.
4L Animal and Plant Health Inspection Service.
4M [Reserved].
4N Office of Operations.
4O [Reserved].
4P [Reserved].
4R Office of Inspector General.
4S [Reserved].


401.304  Agency control and compliance procedures.

    (a) The AGAR System is under the direct oversight and control of 
the SPE, who is responsible for review and issuance of all Department-
wide acquisition regulations published in the Federal Register to 
assure compliance with FAR part 1.
    (b) The SPE is also responsible for review and issuance of 
unpublished, Department-wide internal guidance under the AGAR System.
    (c) HCA's are responsible for establishment and implementation of 
formal procedures for oversight and control of unpublished internal 
guidance issued within the contracting activity to implement FAR or 
AGAR requirements. These procedures shall be subject to the review and 
approval by the SPE.
    (d) The SPE is responsible for evaluating coverage under the AGAR 
System to determine applicability to other agencies and for 
recommending coverage to the FAR Secretariat for inclusion in the FAR.
    (e) Recommendations for revision of existing FAR coverage or new 
FAR coverage shall be submitted by the HCA to the SPE for further 
action.


401.370  Exclusions.

    Subject to the policies of FAR subpart 1.3, certain USDA 
acquisition policies and procedures may be excluded from the AGAR under 
appropriately justified circumstances, such as:
    (a) Subject matter which is effective for a period less than 12 
months.
    (b) Subject matter which is instituted on an experimental basis for 
a reasonable period.
    (c) Acquisition procedures instituted on an interim basis to comply 
with the requirements of statute, regulation, Executive Order, OMB 
Circular, or OFPP Policy Letter.


401.371  AGAR Advisories.

    The SPE may issue AGAR Advisories, consistent with the policies of 
the FAR and the AGAR, for the following purposes:
    (a) To communicate Department-wide policy and/or procedural 
guidance to contracting activities;
    (b) To delegate to procurement officials authority to make 
determinations or to take action to implement the policies of the FAR 
or the AGAR; and,
    (c) To establish internal policy and procedures on an interim 
basis, prior to incorporation in the AGAR or in a Departmental 
Directive.


401.372  Departmental directives.

    Subject to the policies of FAR 1.3, USDA from time to time may 
issue internal directives to establish procedures, standards, guidance, 
or methods of performing duties, functions, or operations. Such 
directives include Departmental Regulations (DR's), Departmental 
Notices, and Secretary's Memoranda.

Subpart 401.4--Deviations from the FAR and AGAR


401.402  Policy.

    Requests for authority to deviate from the provisions of the FAR or 
the AGAR shall be submitted in writing as far in advance as the 
exigencies of the situation will permit. Each request for deviation 
shall contain the following:
    (a) A statement of the deviation desired, including identification 
of the specific paragraph number(s) of the FAR and AGAR;
    (b) The reason why the deviation is considered necessary or would 
be in the best interest of the Government;
    (c) If applicable, the name of the contractor and identification of 
the contract affected;
    (d) A statement as to whether the deviation has been requested 
previously and, if so, circumstances of the previous request;
    (e) A description of the intended effect of the deviation;
    (f) A statement of the period of time for which the deviation is 
needed; and
    (g) Any pertinent background information which will contribute to a 
full understanding of the desired deviation.


401.403  Individual deviations.

    In individual cases, deviations from either the FAR or the AGAR 
will be authorized only when essential to effect a necessary 
acquisition or where special circumstances make such deviations clearly 
in the best interest of the Government. Except for cost principles, 
HCA's may approve individual deviations from the AGAR, after 
coordinating with the General Counsel and the SPE. No deviations from 
the FAR or AGAR may be authorized at the contracting office level. A 
copy of each deviation and its supporting documentation shall be 
provided to the SPE. Deviations from the FAR shall not be made unless 
such action is authorized by the SPE after consultation with the Office 
of the General Counsel and any other appropriate office, on the basis 
of a written justification stating clearly the special circumstances 
involved.

[[Page 53649]]

401.404  Class deviations.

    Where deviations from the FAR or AGAR are considered necessary for 
classes of contracts, requests for authority to deviate shall be 
submitted in writing to the SPE for approval. The SPE may authorize 
class deviations from the FAR without consulting the Chairperson of the 
Civilian Agency Acquisition Council where urgency precludes 
consultation. The SPE shall subsequently inform the Chairperson of the 
Civilian Agency Acquisition Council of the deviation including the 
circumstances under which it was required.

Subpart 401.6--Contracting Authority and Responsibilities


401.601  General.

    (a) The authority and responsibility vested in the Secretary to 
manage USDA's acquisition function is delegated through the Assistant 
Secretary for Administration to the SPE. This broad authority includes, 
but is not limited to, the following responsibilities:
    (1) Prescribing and publishing Departmental acquisition policies, 
regulations, and procedures.
    (2) Taking any necessary actions consistent with policies, 
regulations, and procedures with respect to purchases, contracts, 
leases, and other transactions.
    (3) Designating contracting officers.
    (4) Establishing clear lines of contracting authority.
    (5) Evaluating and monitoring the performance of USDA's acquisition 
system.
    (6) Managing and enhancing career development of the contracting 
work force.
    (7) Participating in the development of Government-wide acquisition 
policies, regulations, and standards; and determining specific areas 
where government-wide performance standards should be established and 
applied.
    (8) Determining areas of Department-unique standards and developing 
unique Department-wide standards.
    (9) Certifying to the Secretary that the acquisition system meets 
approved standards.
    (b) The SPE may delegate contracting authority to the Heads of 
Contracting Activities (HCA's) and the responsibility to manage their 
acquisition function.
    (c) Unless prohibited by the FAR, the AGAR, or by other applicable 
statutes and regulations, the SPE may redelegate to HCA's the authority 
to make determinations as the agency head in order to implement the 
policies and procedures of the FAR. Such delegations shall be in 
writing, but need not be published.
    (d) Unless prohibited by the FAR, the AGAR, or by other applicable 
statutes or regulations, each HCA may designate one individual from the 
contracting activity to carry out the functions of the HCA (HCAD). The 
HCAD may exercise all authority delegated to the HCA.


401.602  Contracting officers.


401.602-3  Ratification of unauthorized commitments.

    (a) Definitions. ``Ratification,'' as used in this section, means 
the signed, documented action taken by an authorized official to 
approve and sanction a previously unauthorized commitment.
    ``Unauthorized commitment,'' as used in this section, means an 
agreement made by a Government representative who lacked the authority 
to enter into a contract on behalf of the Government.
    (b) Policy. The HCA may delegate ratification authority to the 
chief of the contracting office.
    (c) Procedure. Whenever an official of the cognizant contracting 
activity who is authorized to ratify unauthorized commitments learns 
that a person or firm has assumed work as a result of an unauthorized 
commitment, that official shall take the following actions:
    (1) Immediately inform any person who is performing work as a 
result of an unauthorized commitment that the work is being performed 
at that person's risk;
    (2) Inform the individual who made the unauthorized commitment of 
the seriousness of the act and the possible consequences;
    (3) Ensure that the individual who made the unauthorized commitment 
furnishes all records and documents concerning the commitment and a 
complete, written statement of facts, including, but not limited to: a 
statement as to why a contracting officer was not used; why the vendor 
was selected and a list of sources considered; a description of work to 
be performed or products to be furnished; the estimated or agreed 
price; whether an appropriation is available for the work; and whether 
performance has begun. Under exceptional circumstances, such as when 
the individual who made the unauthorized commitment is no longer 
available to attest to the circumstances of the unauthorized 
commitment, the ratifying official may waive these requirements; and
    (4) Decide whether ratification is proper and proceed as follows:
     (i) If ratification is not justifiable, provide the cognizant 
program office, contracting office, and the unauthorized contractor 
with an explanation of the decision not to ratify.
     (ii) If ratification appears adequately justified, ratify the 
action and retain or assign the contract to a successor contracting 
officer if necessary.
     (iii) Maintain related approval, decisional, and background 
documents in the contract file for audit purposes.
     (iv) Notify the cognizant program supervisor or line officer about 
the final disposition of the case; the notification may include a 
recommendation that the unauthorized commitment should be further 
considered a violation of USDA's employee conduct regulations.


401.603  Selection, appointment, and termination of appointment.


401.603-1  General.

    An HCA may delegate contracting authority to the extent authorized 
by the SPE in a general delegation of acquisition authority, by 
appointing qualified individuals as contracting officers, in accordance 
with the USDA Contracting Officer Warrant System, Departmental 
Regulation 5001-1.

PART 402--DEFINITIONS OF WORDS AND TERMS

Sec.
402.000  Scope of part.

Subpart 402.1--Definitions

402.101  Definitions.

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


402.000  Scope of part.

    As used throughout this chapter, the following words and terms are 
used as defined in this subpart unless the context in which they are 
used clearly requires a different meaning, or a different definition is 
prescribed for a particular part or portion of a part.

Subpart 402.1--Definitions


402.101  Definitions.

    Acquisition official means an individual who has been delegated 
authority to manage or to exercise acquisition functions and 
responsibilities.
    Agency head or Head of the Agency means the Secretary of 
Agriculture, Deputy Secretary, or the Assistant Secretary for 
Administration.
    Head of the contracting activity (HCA) means the official who has 
overall responsibility for managing the contracting activity (i.e., 
Chief, Forest Service; Administrator, Agricultural Research Service; 
etc.), or the individual designated by such an official to carry out 
the functions of the HCA.

[[Page 53650]]

    Senior Procurement Executive (SPE) means the agency official 
appointed as such by the head of the agency pursuant to Executive Order 
12931. The Director, Procurement and Property Management, Policy 
Analysis and Coordination Center, has been designated as the USDA SPE.

PART 403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

Subpart 403.1--Safeguards

Sec.
403.101  Standards of conduct.
403.101-3  Agency regulations.
403.104  Procurement integrity.
403.104-5  Disclosure, protection, and marking of proprietary and 
source selection information.
403.104-11  Processing violations or possible violations.

Subpart 403.2--Contractor Gratuities to Government Personnel

403.203  Reporting suspected violations of the gratuities clause.
403.204  Treatment of violations.

Subpart 403.3--Reports of Suspected Antitrust Violations

403.303  Reporting suspected antitrust violations.

Subpart 403.4--Contingent Fees

403.409  Misrepresentations or violations of the Covenant Against 
Contingent Fees.

Subpart 403.5--Other Improper Business Practices

403.502  Subcontractor kickbacks.

Subpart 403.6--Contracts With Government Employees or Organizations 
Owned or Controlled by them

403.602  Exceptions.
403.603  Responsibilities of the contracting officer.

Subpart 403.8--Limitation on the Payment of Funds to Influence Federal 
Transactions

403.806  Processing suspected violations

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

Subpart 403.1--Safeguards


403.101  Standards of conduct.


403.101-3  Agency regulations.

    (a) The standards of conduct for USDA procurement officials are the 
uniform standards established by the Office of Government Ethics in 5 
CFR Part 2635, Standards of Ethical Conduct for Employees of the 
Executive Branch, and FAR 3.104, Procurement integrity.
    (b) Procurement officials and other employees who require advice 
concerning the application of standards of conduct to any acquisition 
issue shall obtain ethics advisory opinions from ethics advisory 
officials in their agency personnel offices.


403.104  Procurement integrity.


403.104-5  Disclosure, protection, and marking of proprietary and 
source selection information.

    For contracts and contract modifications in excess of $100,000, the 
contracting officer shall assure that the information listed in FAR 
3.104-5(d)(2) is maintained in the contract file.


403.104-11  Processing violations or possible violations.

    (a) The contracting officer shall forward information concerning 
any violation or possible violation of the Procurement Integrity Act 
(41 U.S.C. 423) to the chief of the contracting office.
    (b) Heads of contracting activities (HCA's) or their designees who 
receive information concerning any violation or possible violation of 
the Act shall take action in accordance with FAR 3.104-11(b)(1), (2), 
(3), or (4).

Subpart 403.2--Contractor Gratuities to Government Personnel


403.203  Reporting suspected violations of the gratuities clause.

    A suspected violation of the contract clause, FAR 52.203-3, 
Gratuities, shall be reported immediately to the cognizant contracting 
officer in writing, stating the circumstances surrounding the 
incident(s), the date(s), and names of all parties involved. The 
contracting officer shall review the report for completeness, add any 
additional information deemed necessary and a recommendation for 
action, and submit the report to the HCA.


403.204  Treatment of violations.

    The HCA shall review the report and consult with the Offices of 
General Counsel and Inspector General to determine whether further 
action should be pursued. If it is found that the facts and 
circumstances warrant further action, the HCA shall give the contractor 
a formal written notice which summarizes the reported violation and 
affords the contractor the opportunity to make a written or oral 
response within a reasonable, specified period after receipt of the 
notice. The notice shall be sent by certified mail with return receipt 
requested. Oral presentations shall follow the procedures outlined in 
FAR 3.204(b). The HCA shall furnish copies of any adverse determination 
to the contracting officer and the Department Debarring Officer for 
their subsequent considerations under FAR 3.204(c)(1) and (2), 
respectively.

Subpart 403.3--Reports of Suspected Antitrust Violations


403.303  Reporting suspected antitrust violations.

    Contracting officers shall report the circumstances of suspected 
violations of antitrust laws to the Office of Inspector General in 
accordance with procedures in Departmental Regulations (1700 series).

Subpart 403.4--Contingent Fees


403.409  Misrepresentations or violations of the Covenant Against 
Contingent Fees.

    (a) A suspected misrepresentation or violation of the Covenant 
Against Contingent Fees shall be documented in writing by the 
contracting officer and reported immediately to the chief of the 
contracting office. The chief of the contracting office shall determine 
if a violation has occurred and report any violation to the Office of 
Inspector General. The chief of the contracting office shall take 
action in accordance with FAR 3.409(b).
    (b) If the chief of the contracting office decides to refer the 
case to the Department of Justice, it should be referred through the 
Office of Inspector General with a copy of the report and referral 
submitted through the HCA to the Senior Procurement Executive.

Subpart 403.5--Other Improper Business Practices


403.502  Subcontractor kickbacks.

    Contracting officers shall report the circumstances of suspected 
violations of the Anti-Kickback Act (41 U.S.C. 51-54) to the Office of 
Inspector General in accordance with procedures in Departmental 
Regulations (1700 series).

Subpart 403.6--Contracts With Government Employees or Organizations 
Owned or Controlled by Them


403.602  Exceptions.

    The HCA is authorized to accept a contract from the policy in FAR 
3.601.


403.603  Responsibilities of the contracting officer.

    The contracting officer, when requesting authorization under 
403.602, shall prepare a written determination and findings for the 
signature of the HCA. The determination shall document compliance with 
FAR 3.603, specifying the compelling reason(s) for award, and shall be 
placed in the contract file.

[[Page 53651]]

Subpart 403.8--Limitation on the Payment of Funds to Influence 
Federal Transactions


403.806  Processing suspected violations.

    Suspected violations of the requirements of 31 U.S.C. 1352 shall be 
referred to the Office of Inspector General in accordance with 
procedures in Departmental Regulations (1700 series).

PART 404--ADMINISTRATIVE MATTERS

Subpart 404.4--Safeguarding Classified Information Within Industry

Sec.
404.403  Responsibilities of contracting officers.

Subpart 404.6--Contract Reporting

404.601  Record requirements.
404.602  Federal Procurement Data System.

Subpart 404.8--Contract Files

404.870  Document numbering system.
404.870-1  Purchase order/delivery order numbering system.
404.870-2  Contract numbering system.

Subpart 404.70--Precontract Notices

404.7001  Solicitation provision.

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

Subpart 404.4--Safeguarding Classified Information Within Industry


404.403  Responsibilities of contracting officers.

    When a proposed solicitation is likely to require access to 
information classified by USDA, the contracting officer shall consult 
with the Director of Human Resources Management within the Policy 
Analysis and Coordination Center of the Office of Assistant Secretary 
for Administration, regarding the procedures that must be followed.

Subpart 404.6--Contract Reporting


404.601  Record requirements.

    The Senior Procurement Executive (SPE) manages an automated 
procurement reporting system for USDA. This system provides the Federal 
Procurement Data System with all required contracting information.


404.602  Federal Procurement Data System.

    Contracting activities shall report contract actions into the USDA 
Procurement Reporting System in accordance with the instructions issued 
or distributed by the SPE.

Subpart 404.8--Contract Files


404.870  Document numbering system.


404.870-1  Purchase order/delivery order numbering system.

    USDA purchasing activities shall number their purchase/delivery 
orders in accordance with NFC Procedures Manual, ``Purchase Orders,'' 
Title II, Section 5.1.


404.870-2  Contract numbering system.

    Contracting offices shall assign an 8 to 12-digit number to all 
contracts. Contract numbers will be divided into four data elements and 
formatted as follows:

                                                                        
(1)--------------------------------------(2)-----(3)-----------------(4)
                   Transaction Ordering Fiscal Control                  
Code                                  Office    Year              Number
------------------------------------------------------------------------
XX                                      XXXX       X          X to XXXXX
------------------------------------------------------------------------
                                                                        

    (a) Transaction code. This two-position code identifies the 
contract as being one of the following types:

    (1) Code 50--construction contract;
    (2) Code 51--[Reserved]
    (3) Code 52--tree planting/thinning contract;
    (4) Code 53--service contract;
    (5) Code 54--supply contract;
    (6) Code 55--aircraft rental (for fire-fighting purposes only) 
contract;
    (7) Code 56--personal equipment rental (rental of vehicular 
equipment for firefighting purposes only) contract;
    (8) Code 57--leasehold interest in real property contract.

    (b) Ordering office. This four-position code corresponds to the 
last four characters of the contracting office's GSA assigned 
FEDSTRIP requisitioner number.
    (c) Fiscal year. This one-position code corresponds to the last 
digit of the fiscal year in which the contract becomes effective.
    (d) Control number. This up-to-five position code (from one to 
five characters may be used) will be assigned by the contracting 
office. While contracts will generally be numbered consecutively (1 
through 99999), contracting offices may assign codes in any manner 
of their choosing. Codes may not be repeated, however, unless one of 
the preceding data elements (transaction code, ordering office, or 
fiscal year) changes. Alpha characters as well as numerals may be 
used in any one or more of the five positions.

Subpart 404.70--Precontract Notices


404.7001  Solicitation Provision.

    The contracting officer shall insert the provision at 452.204-70, 
Inquiries, in all solicitations.

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

PART 405--PUBLICIZING CONTRACT ACTIONS

Subpart 405.3--Synopses of Contract Awards

Sec.
405.303  Announcement of contract awards.

Subpart 405.4--Release of Information

405.403  Requests from Members of Congress.
405.404  Release of long-range acquisition estimates.
405.404-1  Release procedures.

Subpart 405.5--Paid Advertisements

405.502  Authority.

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

Subpart 405.3--Synopses of Contract Awards


405.303  Announcement of contract awards.

    Contracting officers shall make information available on any 
contract award with an estimated total value over $1 million (including 
options) to their agency congressional liaison office in sufficient 
time for the agency to announce it by 5:00 p.m. Washington, DC time on 
the day of award. The agency congressional liaison office shall, 
concurrent with the public announcement, provide the award announcement 
information to the USDA Congressional Relations Office.

Subpart 405.4--Release of Information


405.403  Requests from Members of Congress.

    The head of the contracting activity (HCA) is the agency head 
designee pursuant to FAR 5.403(a).


405.404  Release of long-range acquisition estimates.


405.404-1  Release procedures.

    (a) HCA's shall establish written procedures to control the release 
of long-range acquisition estimates, as authorized under FAR 5.404-1.
    (b) Classified information shall not be released without the 
approval of the USDA Security Officer, Policy Analysis and Coordination 
Center--Human Resources Management. Departmental Manual and Regulation 
(3400 series) contain guidance on classified information.

Subpart 405.5--Paid Advertisements


405.502  Authority.

    (a) The authority vested in the agency head to authorize 
publication of paid advertisements in newspapers (44

[[Page 53652]]

U.S.C. 3702) is delegated, with power of redelegation, to HCA's. HCA 
redelegation of this authority shall be in writing.
    (b) Policies and procedures regarding prior authorization required 
for media other than newspapers are contained in USDA Departmental 
Regulations 1400 series.

Part 406--Competition Requirements

Subpart 406.2--Full and Open Competition After Exclusion of Sources

Sec.
406.202  Establishing or maintaining alternative sources.

Subpart 406.3--Other Than Full and Open Competition

406.302  Circumstances permitting other than full and open 
competition.
406.302-70  Otherwise authorized by law.

Subpart 406.5--Competition Advocates

406.501  Requirements.

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

Subpart 406.2--Full and Open Competition After Exclusion of Sources


406.202  Establishing or maintaining alternative sources.

    The Senior Procurement Executive is authorized to make 
determinations pursuant to FAR 6.202(a) and sign the determination and 
findings required by FAR 6.202(b).

Subpart 406.3--Other than Full and Open Competition


406.302  Circumstances permitting other than full and open competition.


406.302-70  Otherwise authorized by law.

    (a) Authority. Section 1472 of the National Agricultural Research, 
Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act) 
authorizes the Secretary of Agriculture to award contracts, without 
competition, to further research, extension, or teaching programs in 
the food and agricultural sciences.
    (b) Limitations. The use of this authority is limited to those 
instances where it can be determined that contracting without full and 
open competition is in the best interest of the Government and 
necessary to the accomplishment of the research, extension, or teaching 
program. Therefore:
    (1) Contracts under the authority of the Act shall be awarded on a 
competitive basis to the maximum practicable extent.
    (2) When full and open competition is not deemed appropriate, the 
contracting officer shall make a written justification on a case-by-
case basis in accordance with procedures in FAR 6.303 and 6.304.

Subpart 406.5--Competition Advocates


406.501  Requirements.

    (a) The Chief, Procurement Policy Division, Procurement and 
Property Management, Policy Analysis and Coordination Center, has been 
designated as the Competition Advocate for USDA.
    (b) Each HCA shall designate a competition advocate for the 
contracting activity.

PART 407--ACQUISITION PLANNING

Subpart 407.1--Acquisition Plans

Sec.
407.103  Agency-head responsibilities.
407.170  Advance acquisition plans.

Subpart 407.3--Contractor Versus Government Performance

407.302  General.

Subpart 407.5--Inherently Governmental Functions

407.503  Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C.

Subpart 407.1--Acquisition Plans


407.103  Agency-head responsibilities.

    Heads of Contracting Activities (HCA's) shall develop procedures to 
comply with FAR 7.103.


407.170  Advance acquisition plans.

    Each HCA shall implement an advance acquisition planning system in 
accordance with procedures in Departmental Directives (5000 series).

Subpart 407.3--Contractor Versus Government Performance


407.302  General.

    The requirements of FAR subpart 7.3 and OMB Circular A-76 are 
implemented by Departmental Directives (2100 series).

Subpart 407.5--Inherently Governmental Functions


407.503  Policy.

    (a) HCA's shall establish procedures to ensure that requesting 
activities provide the written determination required by FAR 7.503(e), 
when submitting requests for procurement of services.
    (b) In the event of a disagreement as to whether the functions to 
be performed are inherently governmental, the HCA may refer the matter 
to the Senior Procurement Executive (SPE) for resolution. When 
submitting disagreements to the SPE for resolution the HCA shall 
provide a summary of the areas of disagreement, supported by the 
following:
    (1) The HCA's assessment of whether the services are ``inherently 
governmental'';
    (2) The basis for that assessment (include references to the 
definition and policy in FAR subpart 7.5 and/or Office of Federal 
Procurement Policy letter 92-1);
    (3) A copy of the statement of work; and,
    (4) The requesting activity written determination in accordance 
with FAR 7.503(e).
    (c) Such disagreements shall be resolved prior to issuance of the 
solicitation.

PART 408--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 408.4--Federal Supply Schedules

Sec.
408.404  Using schedules.
408.404-3  Requests for waivers.

Subpart 408.7--Acquisition From Nonprofit Agencies Employing People Who 
Are Blind or Severely Handicapped

408.701  Definitions.
408.705  Procedures.
408.705-2  Direct order process.
408.705-3  Allocation process.
408.705-4  Compliance with orders.
408.706  Purchase exemptions.
408.707  Prices.
408.711  Quality complaints.
408.712  Specification changes.
408.714  Communications with the central nonprofit agencies and the 
Committee.

Subpart 408.8--Acquisition of Printing and Related Supplies

408.802  Policy.

Subpart 408.11--Leasing of Motor Vehicles

408.1103  Contract requirements.

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

Subpart 408.4--Federal Supply Schedules


408.404  Using schedules.


408.404-3  Requests for waivers.

    A copy of the request for a waiver and the approval shall be placed 
in the contract file to support the acquisition of items off schedule.

Subpart 408.7--Acquisition From Nonprofit Agencies Employing People 
Who Are Blind or Severely Handicapped


408.701  Definitions.

    Committee Member is the Presidential appointee representing USDA as 
a member of the Committee for Purchase

[[Page 53653]]

from People Who Are Blind or Severely Disabled.
    Organization head is the head of the contracting activity (HCA), 
the head of a USDA corporation (as described in 31 U.S.C. 9101), or the 
head of a USDA staff office.


408.705  Procedures.

    (a) The organization head shall appoint one person as Javits-
Wagner-O'Day Act (JWOD) Advocate to represent the organization and to 
coordinate the organization's actions with the Committee Member.
    (b) JWOD advocates may represent more than one organization. 
Advocates need not be acquisition officials.
    (c) The organization head shall issue and maintain an action plan 
to promote and enhance the organization's acquisitions from JWOD 
participating nonprofit agencies.
    (d) The action plan shall:
    (1) Announce the organization's support for the JWOD Act;
    (2) Establish a promotion program for the products and services 
provided by the JWOD participating nonprofit agencies;
    (3) Provide for the JWOD Advocate's role in acquisition planning;
    (4) Establish measurable program goals for growth or other 
accomplishment in the organization's JWOD program actions; and
    (5) Establish an awards program for successful participation in the 
JWOD program.


408.705-2  Direct order process.

    (a) The chief of a contracting office may apply to a central 
nonprofit agency for authorization to order specific supplies or 
services directly from a JWOD participating nonprofit agency.
    (b) A copy of the application should be provided to the JWOD 
Advocate who will inform the USDA Committee Member.


408.705-3  Allocation process.

    (a) The chief of a contracting office may apply to a central 
nonprofit agency for a production allocation of specific supplies or 
services to a JWOD participating nonprofit agency.
    (b) A copy of the application should be provided to the JWOD 
Advocate who will inform the USDA Committee Member.


408.705-4  Compliance with orders.

    Prior to attempting to resolve a failure to perform by a 
participating nonprofit agency with the Committee, the chief of the 
contracting office should provide advance notice to the JWOD Advocate 
who will inform the USDA Committee Member.


408.706  Purchase exemptions.

    Prior to applying to the Committee for a purchase exemption, the 
chief of the contracting office should provide advance notice to the 
JWOD Advocate who will inform the USDA Committee Member.


408.707  Prices.

    Prior to applying for a price revision, the chief of the 
contracting office should provide advance notice to the JWOD Advocate 
who will inform the USDA Committee Member.


408.711  Quality complaints.

    Prior to attempting to resolve a complaint regarding the quality of 
goods or services provided by participating nonprofit agency with the 
Committee, the chief of the contracting office should provide advance 
notice to the JWOD Advocate who will inform the USDA Committee Member.


408.712  Specification changes.

    Prior to providing 90-days advance notification to the Committee on 
actions that affect supplies and services on the Procurement List, the 
chief of the contracting office should provide advance notice to the 
JWOD Advocate who will inform the USDA Committee Member.


408.714  Communications with the central nonprofit agencies and the 
Committee.

    Any matter requiring referral to the Committee shall be provided to 
the JWOD Advocate who will coordinate the matter with the Committee 
Member.

Subpart 408.8--Acquisition of Printing and Related Supplies


408.802  Policy.

    (a) The Director, Office of Communications (OC) has been designated 
as the central printing authority in USDA, with the authority to 
represent the USDA before the Joint Committee on Printing (JCP), the 
Government Printing Office, and other Federal and State agencies on all 
matters related to printing.
    (b) Prior to contracting for any of the items defined in FAR 8.801, 
the contracting officer shall verify that the requisite approval has 
been received by the publication liaison officer or requisitioner.
    (c) The approval from OC or the approval authority designated by OC 
shall be maintained in the contract file.

Subpart 408.11--Leasing of Motor Vehicles


408.1103  Contract requirements.

    If the requirement includes the need for the vendor to provide 
operational maintenance such as oil and other fluid changes or 
replenishment, the contracting officer shall include in the contract:
    (1) A requirement for fluids containing the maximum available 
amounts of recovered materials; and
    (2) A preference for either retreaded tires meeting the Federal 
retread specifications or retreading services for the tires on the 
vehicle.

PART 409--CONTRACTOR QUALIFICATIONS

Subpart 409.4--Debarment, Suspension and Ineligibility

Sec.
409.403  Definitions.
409.404  List of parties excluded from Federal procurement and 
nonprocurement programs.
409.405  Effect of listing.
409.405-1  Continuation of current contracts.
409.405-2  Restrictions on subcontracting.
409.406  Debarment.
409.406-3  Procedures.
409.407  Suspension.
409.407-3  Procedures.
409.470  Appeals.

Subpart 409.5--Organizational and Consultant Conflicts of Interest

409.503  Waiver.

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

Subpart 409.4--Debarment, Suspension and Ineligibility


409.403  Definitions.

    Debarring official. The Senior Procurement Executive (SPE) is 
designated as the debarring official (Department Debarring Officer) 
pursuant to the Secretary's delegations of authority in 7 CFR 2.24. 
However, for contracts awarded under the School Lunch and Surplus 
Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department 
Debarring Officer has delegated debarring authority to the Agricultural 
Marketing Service (AMS).


409.404  List of parties excluded from Federal procurement and 
nonprocurement programs.

    The Department Debarring Officer is USDA's single point of contact 
with GSA for debarment and suspension actions taken under this subpart. 
The debarring official for AMS shall notify the Department Debarring 
Officer of each debarment and suspension action by promptly submitting 
a copy of the debarment or suspension notice and any later changes to 
the debarment or suspension status. The Department Debarring Officer 
will forward a copy of each notice to GSA for inclusion in the 
Government-wide list.

[[Page 53654]]

409.405  Effect of listing.

    Compelling reasons are considered to be present where failure to 
contract with the debarred or suspended contractor would seriously harm 
the agency's programs and prevent accomplishment of mission 
requirements. The SPE is authorized to make the determinations under 
FAR 9.405. Requests for such determinations shall be submitted through 
the head of the contracting activity (HCA) to the SPE.


409.405-1  Continuation of current contracts.

    The HCA is authorized to make the determinations under FAR 9.405-1.


409.405-2  Restrictions on subcontracting.

    The HCA is authorized to approve subcontracts with debarred or 
suspended subcontractors under FAR 9.405-2.


409.406  Debarment.


409.406-3  Procedures.

    (a) Investigation and referral. When a contracting officer becomes 
aware of possible irregularities or any information which may be 
sufficient cause for debarment, the case shall be immediately referred 
through the HCA to the debarring official. The case must be accompanied 
by a complete statement of the facts (including a copy of any criminal 
indictments, if applicable) along with a recommendation for action. 
Where the statement of facts indicates the irregularities to be 
possible criminal offenses, or for any other reason further 
investigation is considered necessary, the matter shall be referred to 
the HCA who should consult with the Office of Inspector General to 
determine if further investigation is required prior to referring to 
the debarring official.
    (b) Decision-making process. If, after reviewing the 
recommendations and consulting with the Office of Inspector General and 
Office of the General Counsel, as appropriate, the debarring official 
determines debarment is justified, the debarring official shall 
initiate the proposed debarment in accordance with FAR 9.406-3(c) and 
notify the HCA of the action taken.
    (c) Fact-finding proceeding. For actions listed under FAR 9.406-
3(b)(2), the contractor shall be given the opportunity to appear at an 
informal hearing. The hearing should be held at a location and time 
that is convenient to the parties concerned, if at all possible. The 
contractor and any specifically named affiliates may be represented by 
counsel or any duly authorized representative. Witnesses may be called 
by either party. The proceedings shall be conducted expeditiously and 
in such a manner that each party will have an opportunity to present 
all information considered pertinent to the proposed debarment. The 
contractor shall be provided a copy of a transcript of the proceedings 
under the conditions established in FAR 9.406-3(b)(2)(ii).


409.407  Suspension.


409.407-3  Procedures.

    (a) Investigation and referral. When a contracting officer becomes 
aware of possible irregularities or any information which may be 
sufficient cause for suspension, the case shall be immediately referred 
through the HCA to the debarring official. The case must be accompanied 
by a complete statement of the facts along with a recommendation for 
action. Where the statement of facts indicates the irregularities to be 
possible criminal offenses, or for any other reason further 
investigation is considered necessary, the matter shall be referred to 
the HCA who should consult with the Office of Inspector General to 
determine if further investigation is required prior to referring it to 
the debarring official.
    (b) Decision-making process. If, after reviewing the 
recommendations and consulting with the Office of Inspector General and 
Office of the General Counsel, as appropriate, the debarring official 
determines suspension is justified, the debarring official shall 
initiate the proposed suspension in accordance with FAR 9.407-3(c) and 
notify the HCA of the action taken.
    (c) Fact-finding proceedings. For actions listed under FAR 9.407-
3(b)(2), the contractor shall be given the opportunity to appear at an 
informal hearing, similar in nature to the hearing for debarments as 
discussed in 409.406-3(c).


409.470  Appeals.

    A debarred or suspended contractor may appeal the debarring 
official's decision by mailing or otherwise furnishing a written notice 
within 90 days from the date of the decision to the U.S. Department of 
Agriculture Board of Contract Appeals, Washington, D.C. 20250. A copy 
of the notice of appeal shall be furnished to the debarring officer 
from whose decision the appeal is taken. Appeals under subpart 409.4 
shall be governed by the rules and procedures of the U.S. Department of 
Agriculture Board of Contract Appeals set forth in 7 CFR part 24.

Subpart 409.5--Organizational and Consultant Conflicts of Interest


409.503  Waiver.

    (a) The HCA, on a non-delegable basis, is authorized to waive any 
general rule or procedure in FAR 9.5 when in the Government's interest.
    (b) Each request for waiver shall include:
    (1) The general rule or procedure proposed to be waived;
    (2) An analysis of the potential conflict, including the benefits 
and detriments to the Government and prospective contractors;
    (3) A discussion of why the conflict cannot be avoided, 
neutralized, or mitigated; and
    (4) Advice of counsel obtained under FAR 9.504(b).

PART 411--DESCRIBING AGENCY NEEDS

Subpart 411.1--Selecting and Developing Requirements Documents

Sec.
411.103  Market acceptance.
411.105  Purchase descriptions for service contracts.
411.170  Brand name or equal.
411.171  Solicitation provisions and contract clauses.

Subpart 411.2--Using and Maintaining Requirements Documents

411.202  Maintenance of standardization documents.

Subpart 411.4--Delivery or Performance Schedules

411.404  Contract clauses.

Subpart 411.6--Priorities and Allocations

411.600  Scope of subpart.

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

Subpart 411.1--Selecting and Developing Requirements Documents


411.103  Market acceptance.

    (a) The head of the contracting activity (HCA) may determine that 
offerors must demonstrate, in accordance with FAR 11.103(a), the market 
acceptability of their items to be offered.
    (b) The contracting officer shall place a copy of this 
determination, signed by the HCA, in the solicitation file.


411.105  Purchase descriptions for service contracts.

    When contract personnel are to be used, the requiring official 
shall record on the requisition his or her determination whether harm 
to the Government might occur should contractor personnel fail to 
identify themselves as non-Government officials.

[[Page 53655]]

411.170  Brand name or equal.

    (a) A ``brand name or equal'' purchase description shall include 
the following type of information:
    (i) Identification of the item by generic description.
    (ii) Make, model number, catalog designation, or other description, 
and identification of a commercial catalog where it is listed.
    (iii) Name of manufacturer, producer, or distributor of the item 
and complete address.
    (iv) All salient characteristics of the ``brand name or equal'' 
product or products which have been determined by the requisitioner to 
be essential to the Government's minimum requirements.


411.171  Solicitation provisions and contract clauses.

    (a) Contracting officers shall insert the provision at 452.211-1, 
Brand Name or Equal, in solicitations, other than those for 
construction, where ``brand name or equal'' purchase descriptions are 
used.
    (b) Contracting officers shall insert the clause at 452.211-2, 
Equal Products Offered, in solicitations, other than those for 
construction, where the provision at 452.211-1 is included.
    (c) Contracting officers shall insert the clause at 452.211-3, 
Statement of Work/Specifications, when the description (statement of 
work) or specification(s) is included in Section J of the solicitation.
    (d) Contracting officers shall insert the clause at 452.211-4, 
Attachment to Statement of Work/Specifications, when there are 
attachments to the description (statement of work) or specifications.

Subpart 411.2--Using and Maintaining Requirements Documents


411.202  Maintenance of standardization documents.

    Recommendations for changes to standardization documents are to be 
submitted through the Senior Procurement Executive, who will coordinate 
the submission of these recommendations to the cognizant preparing 
activity.

Subpart 411.4--Delivery or Performance Schedules


411.404  Contract clauses.

    (a) The contracting officer shall insert the clause at 452.211-5, 
Period of Performance, when it is necessary to specify a period of 
performance, beginning on the date of award, date of receipt of notice 
of award, or a specified date.
    (b) The contracting officer shall insert the clause at 452.211-6, 
Effective Period of the Contract, when it is necessary to specify the 
effective period of the contract.

Subpart 411.6--Priorities and Allocations


411.600  Scope of subpart.

    The Defense Priorities and Allocation System (DPAS) excludes USDA 
activities (see 15 CFR 700.18(b)). USDA Contracting Officers are not 
authorized to place rated orders under DPAS.

Part 412--ACQUISITION OF COMMERCIAL ITEMS

Subpart 412.3--Solicitation Provisions and Contract Clauses for the 
Acquisition of Commercial Items

Sec.
412.302  Tailoring of provisions and clauses for the acquisition of 
commercial items.

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

Subpart 412.3--Solicitation Provisions and Contract Clauses for the 
Acquisition of Commercial Items


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

    The head of the contracting activity is authorized to approve 
waivers in accordance with FAR 12.302(c). The approved waiver may be 
either for an individual contract or for a class of contracts for the 
specific item. The approved waiver and supporting documentation shall 
be incorporated into the contract file.

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

PART 413--SIMPLIFIED ACQUISITION PROCEDURES

Subpart 413.1--General

Sec.
413.103  Policy.

Subpart 413.4--Imprest Fund

413.401  General.

Subpart 413.5--Purchase Orders

413.505  Purchase order and related forms.

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

Subpart 413.1--General


413.103  Policy.

    USDA policy and procedures on use of the Governmentwide commercial 
purchase card are established in Departmental Regulation Series 5000.

Subpart 413.4--Imprest Fund


413.401  General.

    Departmental Regulation 2000 series sets policies and guidelines 
for the use of imprest funds within USDA. Departmental Regulation 5000 
series establishes policies and procedures for the use of the Third 
Party Draft System in USDA.

Subpart 413.5--Purchase Orders


413.505  Purchase order and related forms.

    (a) Form AD-838, Purchase Order, is prescribed for use by USDA in 
lieu of Optional Forms 347 and 348.
    (b) The Standard Form 44 (and the previously prescribed USDA Form 
AD-744) is not authorized for use within USDA.

PART 414--SEALED BIDDING

Subpart 414.2--Solicitation of Bids

Sec.
414.201  Preparation of invitations for bids.
414.201-6  Solicitation provision.

Subpart 414.4--Opening of bids and Award of Contract

414.404  Rejection of bids.
414.404-1  Cancellation of invitations after opening.
414.407  Mistakes in bids.
414.407-3  Other mistakes disclosed before award.
414.407-4  Mistakes after award.
414.409  Information to bidders.
414.409-2  Award of classified contracts.

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

Subpart 414.2--Solicitation of Bids


414.201  Preparation of invitations for bids.


414.201-6  Solicitation provisions.

    The contracting officer shall insert the provision 452.214-70, 
Award by Lot, when multiple items are segregated into clearly 
identifiable lots and the contracting officer wants to reserve the 
right to award by item within a lot, if award in that manner would be 
advantageous to the Government.

Subpart 414.4--Opening of Bids and Award of Contract


414.404  Rejection of bids.


414.404-1  Cancellation of invitations after opening.

    An acquisition official at a level above the contracting officer is 
authorized to make the determinations under FAR 14.404-1(c) and (e)(1).


414.407  Mistakes in bids.


414.407-3  Other mistakes disclosed before award.

    The authority to make the determinations under FAR 14.407-3(a), 
(b), and (d) is delegated, without power of redelegation, to the head 
of the contracting activity. The authority to

[[Page 53656]]

make the determination under FAR 14.407-3(c) is delegated to the 
contracting officer. Each determination pursuant to FAR 14.407-3 shall 
have the concurrence of the Office of the General Counsel (OGC).


414.407-4  Mistakes after award.

    If a mistake in bid is disclosed after award, the contracting 
officer shall make a final determination in accordance with the 
provisions of FAR 14.407-4 (b) and (c) and shall coordinate each 
proposed determination with OGC. Such coordination shall, at a minimum, 
consist of the contracting officer providing the proposed determination 
and the case file to OGC for comment.


414.409  Information to bidders.


414.409-2  Award of classified contracts.

    Disposition of classified information shall be in accordance with 
Departmental Regulation and Manual (3400 Series) and in accordance with 
direction issued by the USDA Security Officer, Policy Analysis and 
Coordination Center--Human Resources Management.

PART 415--CONTRACTING BY NEGOTIATION

Subpart 415.1--General Requirements for Negotiation

Sec.
415.103  Converting from sealed bidding to negotiation procedures.

Subpart 415.4--Solicitation and Receipt of Proposals and Quotations

415.406  Preparing requests for proposals (RFP's) and requests for 
quotations (RFQ's).
415.406-1  Uniform contract format.
415.407  Solicitation provisions.
415.408  Issuing solicitations.
415.411  Receipt of proposals and quotations.
415.413  Disclosure and use of information before award.
415.413-2  Alternate II.

Subpart 415.5--Unsolicited Proposals

415.504  Advance guidance.
415.506  Agency procedures.

Subpart 415.6--Source Selection

415.607  Disclosure of mistakes before award.
415.608  Proposal evaluation.
415.612  Formal source selection.

Subpart 415.9--Profit

415.902  Policy.

Subpart 415.10--Preaward, Award, and Postaward Notifications, Protests 
and Mistakes

415.1070  Post-award conference.

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

Subpart 415.1--General Requirements for Negotiation


415.103  Converting from sealed bidding to negotiation procedures.

    An acquisition official at a level above the contracting officer is 
authorized to make the determination to permit the use of negotiation 
to complete an acquisition following the cancellation of an invitation 
for bids.

Subpart 415.4--Solicitation and Receipt of Proposals and Quotations


415.406  Preparing requests for proposals (RFP's) and requests for 
quotations (RFQ's).


415.406-1  Uniform contract format.

    The Senior Procurement Executive is authorized to exempt contracts 
from the uniform contract format.


415.407  Solicitation provisions.

    (a) The provision at 452.215-71, Instructions for the Preparation 
of Technical and Business Proposals, may be used when offerors will be 
required to submit technical and business proposals. Contracting 
officers should tailor the clause to reflect the degree of information 
required for the specific acquisition.
    (b) The contracting officer shall insert the provision at 452.215-
72, Amendments to Proposals, in solicitations which require the 
submittal of lengthy, complex technical proposals.


415.408  Issuing solicitations.

    Departmental Regulation and Manual (Series 3400), establishes 
policy and procedures regarding classification, declassification and 
safeguarding of classified information.


415.411  Receipt of proposals and quotations.

    Departmental Regulation and Manual (Series 3400), contains guidance 
on classification, declassification and safeguarding of classified 
information.


415.413  Disclosure and use of information before award.

    Contracting officers shall use the Alternate II procedures in FAR 
15.413-2 and subsection 415.413-2 when releasing proposals outside the 
Government for evaluation purposes.


415.413-2  Alternate II.

    (a) The head of the contracting activity (HCA) is authorized to 
approve the release of proposals outside the Government for evaluation 
purposes. Each such decision shall be supported by a written 
justification that shows in sufficient detail the special needs or 
circumstances requiring the services of individuals outside the 
Government.
    (b) During the preaward period, only the contracting officer, the 
chief of the contracting office, or others specifically authorized by 
either of them may communicate technical or other information to, or 
conduct discussions with, offerors. Information shall not be furnished 
to an offeror if, alone or together with other information, it may 
afford the offeror an advantage over other offerors. However, general 
information that is not prejudicial to other offerors may be furnished.
    (c) Agency personnel and non-Government evaluators having 
authorized access to information contained in proposals shall disclose 
neither the number of offerors nor their identity to the public or to 
anyone in Government except as authorized in accordance with FAR 3.104 
(See also FAR 5.403).
    (d) The contracting officer shall obtain the following written 
agreement from the non-Government evaluator prior to the release of any 
proposal to that evaluator.

``AGREEMENT GOVERNING THE USE AND DISCLOSURE OF PROPOSALS''

RFP#-------------------------------------------------------------------
Offeror----------------------------------------------------------------

    1. To the best of my knowledge and belief, no conflict of 
interest exists that may diminish my capacity to perform an 
impartial and objective review of the offeror's proposal, or may 
otherwise result in a biased opinion or an unfair advantage. If a 
potential conflict of interest arises or if I identify such a 
conflict, I agree to notify the Government promptly concerning the 
potential conflict. In determining whether any potential conflict of 
interest exists, I agree to review whether me or my employer's 
relationships with other persons or entities, including, but not 
limited to, ownership of stocks, bonds, other outstanding financial 
interests or commitments, employment arrangements (past, present, or 
under consideration), and, to the extent known by me, all financial 
interests and employment arrangements of my spouse, minor children, 
and other members of my immediate household, may place me in a 
position of conflict, real or apparent, with the evaluation 
proceedings.
    2. I agree to use proposal information only for evaluation 
purposes. I understand that any authorized restriction on disclosure 
placed upon the proposal by the prospective contractor or 
subcontractor or by the Government shall be applied to any 
reproduction or abstracted information of the proposal. I agree to 
use my best effort to safeguard such information physically, and not 
to disclose the contents of, or release any information relating to, 
the proposal(s) to anyone outside of the Source Evaluation Board or 
other panel assembled for this acquisition, the Contracting Officer, 
or other individuals designated by the Contracting Officer.

[[Page 53657]]

    3. I agree to return to the Government all copies of proposals, 
as well as any abstracts, upon completion of the evaluation.
----------------------------------------------------------------------
(Name and Organization)
----------------------------------------------------------------------
(Date)

(End of provision)

    (e) The release of a proposal outside the Government for evaluation 
does not constitute the release of information for purposes of the 
Freedom of Information Act (5 U.S.C. 552).
    (f) The contracting officer shall attach a cover page bearing the 
GOVERNMENT NOTICE FOR HANDLING PROPOSALS, as set forth in FAR 15.413-
2(e), to each proposal upon receipt. The last sentence of the notice 
shall cite 48 CFR 415.413 as the agency implementing regulation.

Subpart 415.5--Unsolicited Proposals


415.504  Advance guidance.

    HCA's are responsible for establishing procedures to ensure 
compliance with the requirements of FAR 15.504.


415.506  Agency procedures.

    HCA's are responsible for establishing the procedures for control 
of unsolicited proposals required by FAR 15.506(a) and for identifying 
the contact points as required by FAR 15.506(b).

Subpart 415.6--Source Selection


415.607  Disclosure of mistakes before award.

    The HCA with the concurrence of the Office of the General Counsel 
is authorized to make the determination permitting proposal correction 
as required by FAR 15.607(c)(3).


415.608  Proposal evaluation.

    An acquisition official above the level of the contracting officer 
is authorized to make the determination to reject all proposals under 
the circumstances listed in FAR 15.608(b).


415.612  Formal source selection.

    The HCA shall determine when a formal source selection process will 
be used and establish procedures for implementing the requirements of 
FAR 15.612.

Subpart 415.9--Profit


415.902  Policy.

    (a)(1) USDA will use a structured approach to determine the profit 
or fee prenegotiation objective in acquisition actions when price 
negotiation is based on cost analysis.
    (2) The following types of acquisitions are exempt from the 
requirements of the structured approach, but the contracting officer 
shall comply with FAR 15.905-1 when analyzing profit for these 
contracts or actions:
    (i) Architect-engineer contracts;
    (ii) Construction contracts;
    (iii) Contracts primarily requiring delivery of material supplied 
by subcontractors;
    (iv) Termination settlements; and
    (v) Cost-plus-award-fee contracts;
    (b) Unless otherwise restricted by contracting activity procedures, 
the Contracting Officer may use another Federal agency's structured 
approach if that approach has been formalized and is maintained as part 
of that Agency's acquisition regulations (i.e., included in that 
Agency's assigned chapter of Title 48 of the Code of Federal 
Regulations).
    (c) The HCA is responsible for establishing procedures to ensure 
compliance with this subpart.

Subpart 415.10--Preaward, Award, and Postaward Notifications, 
Protests and Mistakes


415.1070  Post-Award Conference.

    If a postaward conference is necessary, the contracting officer 
shall insert clause 452.215-73, Post-Award Conference.

PART 416--TYPES OF CONTRACTS

Sec.
416.000  Scope of part.

Subpart 416.2--Fixed-Price Contracts

416.203  Fixed-price contracts with economic price adjustment.
416.203-4  Contract clauses.

Subpart 416.4--Incentive Contracts

416.404  Cost-reimbursement incentive contracts.
416.404-2  Cost-plus-award-fee contracts.
416.405  Contract clauses.
416.470  Solicitation provision.

Subpart 416.5--Indefinite-Delivery Contracts

416.505  Ordering.
416.506  Solicitation provision and contract clauses.

Subpart 416.6--Time-and-Materials, Labor-Hour, and Letter Contracts

416.603  Letter contracts.
416.603-2  Application.
416.603-4  Contract clauses.
416.670  Contract clauses.

Subpart 416.7--Agreements

416.702  Basic agreements.

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


416.000  Scope of part.

    Heads of contracting activities (HCA's) are authorized to establish 
written procedures allowing the use of any contract type described in 
FAR part 16 for acquisitions made under simplified acquisition 
procedures in FAR part 13.

Subpart 416.2--Fixed-Price Contracts


416.203  Fixed-price contracts with economic price adjustment.


416.203-4  Contract clauses.

    An economic price adjustment clause based on cost indexes of labor 
or material may be used under the conditions listed in FAR 16.203-4(d) 
after approval by the HCA and consultation with the Office of the 
General Counsel.

Subpart 416.4--Incentive Contracts


416.404  Cost-reimbursement incentive contracts.


416.404-2  Cost-plus-award-fee contracts.

    The HCA may designate an acquisition official other than the 
contracting officer as the fee determination official (FDO) to make the 
final determination of the award fee. The designated official must have 
warranted contracting authority at the same level as the contracting 
officer or higher, and shall not have participated in preparing the 
contractor performance evaluation. If the HCA does not designate an 
FDO, the chief of the contracting office shall act as the FDO.


416.405  Contract clauses.

    The contracting officer shall insert a clause substantially the 
same as the clause at 452.216-70, Award Fee, in solicitations and 
contracts which contemplate the award of cost-plus-award-fee contracts.


416.470  Solicitation provision.

    The contracting officer shall insert the provision at 452.216-71, 
Base Fee and Award Fee Proposal, in solicitations which contemplate the 
award of a cost-plus-award-fee contract.

Subpart 416.5--Indefinite-Delivery Contracts


416.505  Ordering.

    (a) The Chief, Procurement Policy Division, Procurement and 
Property Management, Policy Analysis and Coordination Center, has been 
designated as the Departmental Task Order Ombudsman.
    (b) The Departmental Task Order Ombudsman shall designate a task 
order ombudsman for each contracting activity. Contracting activity 
ombudsmen shall review and resolve complaints from contractors 
concerning task or delivery orders placed by the contracting activity.
    (c) Any contractor who is not satisfied with the resolution of a 
complaint by a

[[Page 53658]]

contracting activity ombudsman may request the Departmental Task Order 
Ombudsman to review the complaint.


416.506  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert a provision substantially 
the same as the provision at 452.216-72, Evaluation Quantities-
Indefinite-Delivery Contract, in solicitations which contemplate the 
award of indefinite-quantity or requirements contracts to establish the 
basis on which offers will be evaluated.
    (b) The contracting officer shall insert the clause at 452.216-73, 
Minimum and Maximum Contract Amounts, in indefinite-delivery, 
indefinite-quantity contracts when the clause at FAR 52.216-18 is used.

Subpart 416.6--Time-and-Materials, Labor-Hour, and Letter Contracts


416.603  Letter contracts.


416.603-2  Application.

    The HCA is authorized to extend the period for defining a letter 
contract required by FAR 16.603-2(c) in extreme cases where it is 
determined in writing that such action is in the best interest of the 
Government.


416.603-4  Contract clauses.

    The contracting officer shall insert the clause at 452.216-75, 
Letter Contract, in a definitive contract superseding a letter 
contract.


416.670  Contract clauses.

    The contracting officer shall limit the Government's obligation 
under a time-and-materials or labor-hour contract by inserting the 
clause at 452.216-74, Ceiling Price.

Subpart 416.7--Agreements


416.702  Basic agreements.

    Promptly after execution by the Government, the HCA shall furnish 
to the Senior Procurement Executive a copy of each basic agreement 
negotiated with contractors in accordance with FAR 16.702.

PART 417--SPECIAL CONTRACTING METHODS

Subpart 417.2--Options

Sec.
417.204 Contracts.

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

Subpart 417.2--Options


417.204  Contracts.

    The head of the contracting activity is authorized to approve 
contracts which exceed the 5 year limitation in FAR 17.204(e).

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

PART 419--SMALL BUSINESS PROGRAMS

Subpart 419.2--Policies

Sec.
419.201 General policy.
419.201-70 Office of Small and Disadvantaged Business Utilization 
(OSDBU).
419.201-71 Small business coordinators.
419.201-73 Reports.

Subpart 419.5--Set-Asides for Small Business

419.508  Solicitation provisions.

Subpart 419.6--Certificates of Competency and Determinations of 
Eligibility

419.602 Procedures.
419.602-1 Referral.
419.602-3 Resolving differences between the agency and the Small 
Business Administration.

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

Subpart 419.2--Policies


419.201  General policy.

    It is the policy of USDA to provide a fair portion of its 
contracting and subcontracting opportunities to small, disadvantaged, 
minority, and women-owned businesses.


419.201-70  Office of Small and Disadvantaged Business Utilization 
(OSDBU).

    The Office of Small and Disadvantaged Business Utilization (OSDBU) 
develops rules, policy, procedures and guidelines for the effective 
administration of USDA's small and disadvantaged business procurement 
preference program to include minority and women-owned business.


419.201-71  Small business coordinators.

    The head of the contracting activity (HCA) or a representative of 
the HCA shall designate in writing a small business coordinator in each 
contracting office. Supervisors of small business coordinators are 
encouraged to provide sufficient time for the coordinators to carry out 
their small business program duties. Coordinators' duties shall 
include, but not be limited to, the following:
    (a) Review each proposed acquisition expected to exceed the 
simplified acquisition threshold prior to its solicitation. The 
coordinator shall:
    (1) Recommend section 8(a) action and identify potential 
contractors, or
    (2) Identify available minority and women-owned businesses to be 
solicited by competitive procedures. Coordinators shall document the 
contract file with recommendations made and actions taken.
    (b) Participate in goal-setting procedures and planning activities 
and establish aggressive minority and women-owned business goals based 
on the annual review of advance acquisition plans.
    (c) Participate in the review of those contracts which require the 
successful offeror to submit written plans for the utilization of small 
and small disadvantaged businesses as subcontractors.
    (d) Ensure that purchases exceeding $2,500 and not exceeding the 
simplified acquisition threshold are reserved exclusively for small 
businesses, including minority and women-owned businesses. This policy 
shall be implemented unless the contracting officer is unable to obtain 
offers from two or more small business concerns that are competitive 
with market prices and in terms of quality and delivery of the goods or 
services being purchased.
    (e) Maintain comprehensive source listings of small businesses.
    (f) Upon written request, provide small, minority and women-owned 
businesses the bidders mailing lists of individuals receiving 
solicitations which will contain the subcontracting clause entitled 
``Utilization of Small Business Concerns and Small Disadvantaged 
Business Concerns.'' These lists may be limited to those supplies or 
services of major interest to the requesting firms.
    (g) Develop a program of contacts with local, small, minority, and 
women-owned trade, business, and professional associations and 
organizations and Indian tribal councils to apprise them of USDA's 
program needs and recurring contract requirements.
    (h) Periodically meet with program managers to discuss requirements 
of the small business preference program, explore the feasibility of 
breaking large complex requirements into smaller lots suitable for 
participation by small firms, and encourage program managers to meet 
with these firms so that their capabilities can be demonstrated.
    (i) Establish internal operating procedures which implement the 
requirements of the regulations as set forth in this part 419. Compile 
data and prepare all reports pertaining to the small, minority and 
women-owned business activities. Ensure that these reports are 
accurate, complete and up-to-date.

[[Page 53659]]

    (j) Assist and counsel small business firms and especially those 
found to be nonresponsive or nonresponsible to help qualify them for 
future awards.
    (k) Review proposed large contract requirements to determine the 
potential for breaking out components suitable for purchase from small 
business firms.
    (l) Ensure that the SBA Resident Procurement Center Representative 
(PCR) is provided an opportunity and reasonable time to review any 
solicitation that meets the dollar threshold for small business and 
small disadvantaged business subcontracting plans.


419.201-73  Reports.

    (a) The Director, OSDBU, shall be responsible for submitting 
reports concerning USDA's progress and achievements in the procurement 
preference program.
    (b) Subcontracting data for an agency shall be collected by the 
small business coordinators and submitted to OSDBU by April 10 and 
November 20 of each year.

Subpart 419.5--Set-asides for Small Business


419.508  Solicitation provisions.

    The contracting officer shall insert the provision at 452.219-70, 
Size Standard and SIC Code Information, in solicitations that are set 
aside for small businesses.

Subpart 419.6--Certificates of Competency and Determinations of 
Eligibility


419.602  Procedures.


419.602-1  Referral.

    Contracting officers shall refer determinations of non-
responsibility regarding small businesses directly to the SBA Regional 
Office servicing the location where the contractor's office (home) is 
located.


419.602-3  Resolving differences between the agency and the Small 
Business Administration.

    The HCA is authorized to file the formal appeal with the Small 
Business Administration's Central Office as provided by FAR 19.602-
3(c).

PART 422--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 422.1--Basic Labor Policies

Sec.
422.103   Overtime.
422.103-4   Approvals.

Subpart 422.3--Contract Work Hours and Safety Standards Act

422.302   Liquidated damages and overtime pay.

Subpart 422.4--Labor Standards for Contracts Involving Construction

422.404   Davis-Bacon wage determinations.
422.404-6   Modifications of wage determinations.
422.406   Administration and enforcement.
422.406-8   Investigations.

Subpart 422.6--Walsh-Healey Public Contracts Act

422.604   Exemptions.
422.604-2   Regulatory exemptions.
422.608   Procedures.
422.608-4   Award pending final determination.

Subpart 422.8--Equal Employment Opportunity

422.803   Responsibilities.
422.804   Affirmative action programs.
422.804-2  Construction.
422.807  Exemptions.

Subpart 422.13--Special Disabled and Vietnam Era Veterans

422.1303  Waivers.
422.1306  Complaint procedures.

Subpart 422.14--Employment of the Handicapped

422.1403  Waivers.
422.1406  Complaint procedures.

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

Subpart 422.1--Basic Labor Policies

422.103  Overtime.
422.103-4  Approvals.
    Requests for the use of overtime shall be approved by an 
acquisition official at a level above the contracting officer in 
accordance with the procedures in FAR 22.103-4 (a) and (b).

Subpart 422.3--Contract Work Hours and Safety Standards Act


422.302  Liquidated damages and overtime pay.

    Heads of contracting activities (HCA's) are authorized to review 
determinations of liquidated damages due under section 104(c) of the 
Contract Work Hours and Safety Standards Act, and to take remedial 
action, if appropriate, in accordance with FAR 22.302(c). Contractors 
or subcontractors may request review of administrative determinations 
of liquidated damages by written notice to the contracting officer. The 
contracting officer shall promptly forward appeals of liquidated 
damages determinations to the HCA.

Subpart 422.4--Labor Standards for Contracts Involving Construction


422.404  Davis-Bacon Act wage determinations.


422.404-6  Modifications of wage determinations.

    HCA's are authorized to request extension of the 90 day period for 
award after bid opening as provided in FAR 22.404-6(b)(6).


422.406  Administration and enforcement.


422.406.8  Investigations.

    Reports of violations shall be forwarded to the HCA, who shall 
process such reports in accordance with FAR 22.406-8(d).

Subpart 422.6--Walsh-Healey Public Contracts Act


422.604  Exemptions.


422.604-2  Regulatory exemptions.

    The Assistant Secretary for Administration can request the 
Secretary of labor to exempt contracts from the Walsh-Healey Public 
Contracts Act pursuant to FAR 22.604-2(c). A written finding justifying 
the request for exemption shall be prepared for the Assistant 
Secretary's signature and submitted by the HCA to the Senior 
Procurement Executive (SPE) for referral to the Assistant Secretary.


422.608  Procedures.


422.608-4  Award pending final determination.

    The HCA is delegated authority to approve the contracting officer's 
certification for award required by FAR 22.608-4.

Subpart 422.8--Equal Employment Opportunity


422.803  Responsibilities.

    The contracting office shall submit questions involving the 
applicability of Executive Order 11246 and FAR subpart 22.8 through the 
HCA to the SPE for resolution.


422.804  Affirmative action programs.


422.804-2  Construction.

    The HCA shall ensure that each contracting office, awarding 
nonexempt construction contracts, maintains a current listing of 
covered geographical areas subject to affirmative action requirements 
specifying goals for minorities and women in covered construction 
trades.


422.807  Exemptions.

    (a) The Assistant Secretary for Administration is authorized to 
make

[[Page 53660]]

the determination in FAR 22.807(a)(1) that a contract is essential to 
the national security.
    (b) The contracting officer shall submit requests for exemptions 
under FAR 22.807(a)(1), (a)(2), and (b)(5) through the HCA to the SPE 
for determination by the Assistant Secretary of Administration or 
referral to the Director, Office of Federal Contract Compliance 
Programs (OFCCP), as appropriate.

Subpart 422.13--Special Disabled and Vietnam Era Veterans


422.1303  Waivers.

    (a) The Assistant Secretary for Administration is authorized to 
make the waiver determinations under FAR 22.1303(a) and FAR 22.1303(b) 
with concurrence of the Director, OFCCP.
    (b) The contracting office shall submit requests for waivers 
through the HCA to the SPE for determination by the Assistant Secretary 
for Administration.


422.1306  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of the Vietnam Era Veterans Readjustment Assistance Act 
directly to the Department of Labor (DoL) as prescribed in FAR 22.1306.

Subpart 422.14--Employment of the Handicapped


422.1403  Waivers.

    (a) The Assistant Secretary for Administration is authorized to 
make the waiver determinations under FAR 22.1403(a) and (b) with 
concurrence of the Director, OFCCP.
    (b) The contracting officer shall submit requests for waivers 
through the HCA to the SPE for determination by the Assistant Secretary 
for Administration.


422.1406  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of Section 503 of the Rehabilitation Act of 1973, as 
amended, directly to the OFCCP as prescribed in FAR 22.1406.

PART 423--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

Subpart 423.1--Pollution Control and Clean Air and Water

Sec.
423.101  Applicability.
423.103  Policy.
423.104  Exemptions.
423.106  Delaying award.
423.107  Compliance responsibilities.

Subpart 423.2--Energy Conservation

423.203  Policy.

Subpart 423.4--Use of Recovered Materials

423.400  Scope of subpart.
423.402  Definitions.
423.404  Procedures.
423.404-70  Acquisition, Recycling, and Waste Prevention Program 
(AR&WPP).

Subpart 423.5--Drug-Free Workplace

423.506  Suspension of payments, termination of contract, and 
debarment and suspension actions.

Subpart 423.6--Notice of Radioactive Material

423.601  Requirements.

Subpart 423.7--Contracting for Environmentally Preferable and Energy-
Efficient Products and Services

423.704  Policy.

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

Subpart 423.1--Pollution Control and Clean Air and Water


423.101  Applicability.

    In addition to the requirement in FAR 23.101, this subpart applies 
to indefinite-delivery contracts, other than those for commercial 
items, when the contracting officer estimates that the contract will 
exceed $100.000.


423.103  Policy.

    The head of the contracting activity (HCA) shall establish a system 
of instructions to make available to each contracting officer the EPA 
List of Violating Facilities and to ensure the contracting officer 
reviews the list prior to each proposed award.


423.104  Exemptions.

    (a) The Assistant Secretary for Administration is authorized to 
grant an exemption described in FAR 23.104.
    (b) The Senior Procurement Executive (SPE) is authorized to consult 
with the EPA Administrator regarding a proposed class exemption.


423.106  Delaying award.

    Prior to notifying EPA, the contracting officer shall advise the 
SPE of the need to award before the requested time period expires.


423.107  Compliance responsibilities.

    The HCA is authorized to notify the Administrator of EPA of known 
or suspected noncompliance with clean air or water standards in 
facilities used in performing nonexempt contracts. A copy of the 
notification is to be provided to the SPE.

Subpart 423.2--Energy Conservation


423.203  Policy.

    In the acquisition of products and services, USDA will give 
preference to those that are more energy-efficient.

Subpart 423.4--Use of Recovered Materials


423.400  Scope of subpart.

    This subpart implements and supplements FAR policies and procedures 
for acquiring products and services when preference is given to offers 
of products containing recovered materials. This subpart further 
supplements FAR subpart 23.4 by providing guidance for recycling and 
waste prevention programs in accordance with Executive Order 12873 and 
42 U.S.C. 6962.


423.402  Definitions.

    Mission areas are USDA organizational elements headed by an 
Undersecretary or an Assistant Secretary.
    USDA Acquisition, Recycling, and Waste Prevention Program, issued 
by the USDA Environmental Executive, provides implementing guidance for 
Departmental affirmative procurement, recycling, and waste reduction.
    The USDA Environmental Executive is the Deputy Assistant Secretary 
for Administration.


423.404  Procedures.

    (a) The dollar thresholds described in FAR 23.404(a) apply to USDA 
as a whole.
    (b) EPA designated items. The officials identified as Acquisition, 
Recycling, and Waste Prevention Program (AR&WPP) Coordinators are 
authorized to approve determinations to buy EPA designated items which 
do not meet EPA or USDA minimum recovered material content standards.
    (c) Agency designated items. The USDA Environmental Executive may, 
without further publication in this chapter, designate items or classes 
of items containing recovered material to be acquired under the 
procedures in FAR 23.4 and this subpart.


423.404-70  Acquisition, Recycling, and Waste Prevention Program 
(AR&WPP).

    (a) Applicability. The AR&WPP applies to all USDA organizations; 
i.e., USDA mission areas, USDA corporations (as described in 31 U.S.C. 
9101), and USDA staff offices not included within a mission area.
    (b) Authority. The AR&WPP has been established to comply with the 
requirements of Executive Order 12873 to coordinate all environmental

[[Page 53661]]

programs in the areas of procurement and acquisition, standards and 
specification review, facilities management, waste prevention and 
recycling, and logistics.
    (c) Responsibilities. (1) Each USDA organization will identify one 
or more AR&WPP Coordinators in writing to represent the mission area, 
serve on the Council of Coordinators, and work in conjunction with the 
USDA Environmental Executive.
    (2) Each USDA organization periodically will conduct an audit 
(survey or inventory) of the waste stream generated by the 
organization. The goals of the audit are:
    (i) To identify and measure the elements of waste generated in its 
operations;
    (ii) To identify processes, equipment, techniques, or materials 
which generate waste in energy or materials;
    (iii) To identify actions which can be taken to reduce and to 
recycle or recover the wastes generated; and
    (iv) To assign time frames to accomplish those actions.
    (3) Each USDA organization will implement an avoidance or recovery 
or recycling program based on the results of the waste stream audit.
    (4) Each USDA organization will implement a plan to install on-
going waste prevention techniques.
    (5) Each USDA organization will ensure that responsibility for 
preparation, implementation, and monitoring of its affirmative 
procurement program is shared between program personnel and procurement 
personnel.
    (6) Each USDA organization will establish measurable goals by which 
the effectiveness of its participation in AR&WPP can be assessed on an 
annual basis.
    (7) Each USDA organization will sponsor annual awards to recognize 
the most innovative environmental program of the year.
    (d) Acquisition and administration. (1) Each USDA organization will 
annually review its product descriptions to enhance the use of 
recovered materials and environmentally preferable products and 
services by eliminating from the product description:
    (i) Any exclusion of recovered materials, and
    (ii) Any requirement that items be manufactured from virgin 
materials.
    (2) Each USDA organization will create a promotion program to 
internally and externally promote its desire to buy recycled products.
    (3) Each USDA organization will implement the USDA electronic 
acquisition system to reduce waste by eliminating unnecessary paper 
transactions and to foster accurate data collection and reporting of 
acquisitions.
    (4) Each USDA organization will establish an affirmative 
procurement program specifically for the needs and requirements of its 
own organization, to maximize environmental benefits, consistent with 
price, performance, and availability considerations.
    (5) Each USDA organization will ensure that the on-going inspection 
and production surveillance systems in place will monitor the 
production or the testing of goods and services to verify the recovered 
material contents reported.
    (6) Each USDA organization will include
    (i) Requirements in contracts for contractor operation of 
Government-owned or leased facilities to provide for waste prevention 
activities and the recycling of materials and
    (ii) Environmental and recycling factors in the selection process 
for the acquisition and management of real property.

Subpart 423.5--Drug-Free Workplace


423.506  Suspension of payments, termination of contract, and debarment 
and suspension actions.

    (a) The contracting officer may recommend waiver of the 
determination to suspend payments, to terminate a contract, or to debar 
or to suspend a contractor.
    (b) The recommendation shall be submitted through the HCA to the 
SPE and shall include a full description of the disruption of USDA 
operations should the determination not be waived.
    (c) The SPE will submit the request for a waiver to the Secretary 
with a recommendation for action.

Subpart 423.6--Notice of Radioactive Material


423.601 Requirements.

    The HCA shall establish a system of instructions to identify the 
installation/facility radiation protection officer.

Subpart 423.7--Contracting for Environmentally Preferable and 
Energy-Efficient Products and Services


423.704  Policy.

    In its acquisitions, USDA will give preference to environmentally 
preferable and energy-efficient products and services.

PART 424--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

Subpart 424.1--Protection of Individual Privacy

Sec.
424.103  Procedures.
424.104  Contract clauses.

Subpart 424.2--Freedom of Information Act

424.202  Policy.

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

Subpart 424.1--Protection of Individual Privacy


424.103  Procedures.

    USDA regulations implementing the Privacy Act are found in 7 CFR, 
subtitle A, part 1, subpart G. Contracting officers shall follow these 
regulations when responding to requests for information or awarding 
contracts that will involve the design, development, or operation of a 
system of records on individuals to accomplish agency functions.


424.104  Contract clauses.

    When applicable, the contracting officer shall insert the clause at 
452.224-70, Confidentiality of Information, in contracts involving 
confidential information.

Subpart 424.2--Freedom of Information Act


424.202  Policy.

    USDA regulations implementing the Freedom of Information Act are 
found in 7 CFR, subtitle A, part 1, subpart A. Contracting officers 
shall follow these regulations when responding to requests for 
information or awarding contracts that will involve the design, 
development, or operation of a system of records on individuals to 
accomplish agency functions.

PART 425--FOREIGN ACQUISITION

Subpart 425.1--Buy American Act--Supplies

Sec.
425.102  Policy.
425.105  Evaluating offers.
425.108  Expected articles, materials and supplies.

Subpart 425.2--Buy American Act--Construction Materials

425.202  Policy.
425.203  Evaluating offers.
425.204  Violations.

Subpart 425.3--Balance of Payments Program

425.302  Policy.
425.304  Excess and near-excess foreign currencies.

[[Page 53662]]

Subpart 425.4--Trade Agreements

425.402  Policy.

Subpart 425.9--Additional Foreign Acquisition Clauses

425.901  Omission of audit clause.

Subpart 425.10--Implementation of Sanctions Against Countries That 
Discriminate Against United States Products or Services in Government 
Procurement

425.1002  Trade sanctions.

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

Subpart 425.1--Buy American Act--Supplies


425.102  Policy.

    The Senior Procurement Executive (SPE) shall make the determination 
prescribed in FAR 25.102(a)(3).


425.105  Evaluating offers.

    The SPE shall make the determinations prescribed in FAR 25.105. 
Requests for SPE approval shall be submitted by the HCA, in writing, 
and shall provide a detailed justification supporting why the proposed 
award is in the best interest of the Government.


425.108  Excepted articles, materials, and supplies.

    (a) Copies of determinations of nonavailability in accordance with 
FAR 25.102(a)(4) or 25.202(a)(3), for articles, material or supplies 
not listed in FAR 25.108, shall be submitted to the SPE for submission 
to the FAR Council.
    (b) Information required by FAR 25.108(c) shall be submitted to the 
SPE for submission to the FAR Council.

Subpart 425.2--Buy American Act--Construction Materials


425.202  Policy.

    The SPE shall make the determination prescribed in FAR 
25.202(a)(2).


425.203  Evaluating offers.

    (a) The SPE may determine that the use of a particular domestic 
construction material would be impracticable or would unreasonably 
increase the cost of the contract.
    (b) If a contracting officer proposes that the use of a particular 
domestic construction material should be waived for a contract, the 
contracting officer shall submit the proposed award and the information 
prescribed in FAR 25.203(b) through the HCA to the SPE for approval or 
disapproval.


425.204  Violations.

    Contracting officers shall, in accordance with the debarment 
procedures prescribed in 409.4, refer all violations of FAR clause 
52.225-5, Buy American Act--Construction Material, to the Department 
Debarring Officer for possible debarment action.

Subpart 425.3--Balance of Payments Program


425.302  Policy.

    The HCA shall make the determinations prescribed in FAR 
25.302(b)(2) and (3) and may authorize differentials greater than 50 
percent as prescribed in FAR 25.302(c).


425.304  Excess and near-excess foreign currencies.

    HCA's shall make the determinations as to the feasibility of using 
excess or near-excess currency.

Subpart 425.4--Trade Agreements


425.402  Policy.

    Whenever the U.S. Trade Representative publishes a redetermination 
of the dollar threshold at which the Trade Agreements Act applies, that 
dollar threshold will be published in a Departmental Notice, 5025 
series.

Subpart 425.9--Additional Foreign Acquisition Clauses


425.901  Omission of audit clause.

    The SPE shall make the determination under FAR 25.901(c)(1).

Subpart 425.10--Implementation of Sanctions Against Countries That 
Discriminate Against United States Products or Services in 
Government Procurement


425.1002  Trade sanctions.

    The Secretary, without power of redelegation, has the authority to 
make the necessary determination(s) and authorize award(s) of 
contract(s) in accordance with FAR 25.1002(c).

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

PART 427--PATENTS, DATA AND COPYRIGHTS

Subpart 427.1--General

Sec.
427.104  General guidance.

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

Subpart 427.1--General


427.104  General guidance

    As used in FAR part 27, the agency head or agency head designee is 
the Senior Procurement Executive, except under FAR 27.306(a) and (b). 
Under FAR 27.306(a) and (b), the agency head is the Secretary without 
power of redelegation.

PART 428--BONDS AND INSURANCE

Subpart 428.1--Bonds

Sec.
428.101   Bid guarantees.
428.101-1   Policy on use.
428.106   Administration.
428.106-6  Furnishing information.

Subpart 428.2--Sureties

428.203  Acceptability of individual sureties.
428.204  Alternatives in lieu of corporate or individual sureties.
428.204-2  Certified or cashier's checks, bank drafts, money orders, 
or currency.

Subpart 428.3--Insurance

428.307  Insurance under cost-reimbursement contracts.
428.307-1  Group insurance plans.
428.310  Contract clause for work on a Government installation.
428.370  Government-owned vehicles operated in foreign countries.

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

Subpart 428.1--Bonds


428.101  Bid guarantees.


428.101-1  Policy on use.

    The Senior Procurement Executive may authorize class waivers of the 
requirement to obtain bid guarantees.


428.106  Administration.


428.106-6  Furnishing information.

    Heads of contracting activities (HCA's) or their designees may 
furnish certified copies of bonds and the contracts for which they were 
given as provided by FAR 28.106-6(c). Requesters may be required to pay 
costs of certification and copying established by the Departmental Fee 
Schedule for records requests (7 CFR part 1, subpart A, appendix A).

Subpart 428.2--Sureties


428.203  Acceptability of individual sureties.

    Evidence of possible criminal or fraudulent activities by an 
individual surety shall be reported to the Office of Inspector General 
in accordance with Departmental Regulations (1700 series).


428.204  Alternatives in lieu of corporate or individual sureties.

    HCA's shall establish procedures to ensure protection and 
conveyance of deposited securities of the types listed in FAR 28.204-1 
through 28.204-3.

[[Page 53663]]

428.204-2  Certified or cashier's checks, bank drafts, money orders, or 
currency.

    The contracting officer shall insert the provision at 452.228-70, 
Alternative Forms of Security, in a solicitation if a bond is required.

Subpart 428.3--Insurance


428.307  Insurance under cost-reimbursement contracts.


428.307-1  Group insurance plans.

    Under cost-reimbursement contracts, before buying insurance under a 
group insurance plan, the contractor shall submit the plan to the 
contracting officer for review. During review, the contracting officer 
shall use all sources of information available, such as audits, 
industry practice, or other sources of information, to determine 
whether acceptance of the plan submitted would be in the Government's 
best interest.


428.310  Contract clause for work on a Government installation.

    The contracting officer shall insert the clause at 452.228-71, 
Insurance Coverage, in solicitations and contracts which include the 
clause at FAR 52.228-5, Insurance--Work on a Government Installation. 
If property liability insurance is required, the contracting officer 
shall use the clause with its Alternate I.


428.370  Government-owned vehicles operated in foreign countries.

    USDA is authorized to obtain insurance to cover liability incurred 
by any of its employees while acting within the scope of their 
employment and operating a Government-owned vehicle in a foreign 
country. (7 U.S.C. 2262).

PART 430---COST ACCOUNTING STANDARDS ADMINISTRATION

Sec.
430.070  Definitions.

Subpart 430.2---CAS Program Requirements

430.201  Contract requirements.
430.201-5  Waiver.
430.202  Disclosure requirements.
430.202-2  Impracticality of submission.
430.202-8  Subcontractor Disclosure Statements.

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


430.070  Definitions.

    ACO, as used in this part and in FAR part 30, means administrative 
contracting officer as described in FAR part 42.

Subpart 430.2---CAS Program Requirements


430.201  Contract requirements.


430.201-5  Waiver.

    The Senior Procurement Executive (SPE), without the authority to 
further redelegate, is authorized to request the Cost Accounting 
Standards Board to waive the application of the Cost Accounting 
Standards (CAS). Contracting officers shall prepare waiver requests in 
accordance with 48 CFR chapter 99 (Appendix B, FAR loose-leaf edition), 
subsection 9903.201-5, and submit them to the SPE through the head of 
the contracting activity (HCA).


430.202  Disclosure requirements.


430.202-2  Impracticality of submission.

    (a) The Secretary, without the power to delegate, is authorized to 
determine, in accordance with FAR part 99 (Appendix B), subsection 
9903.202-2, that the Disclosure Statement is impractical to secure and 
to authorize award without obtaining the Disclosure Statement.
    (b) The request for this determination is to be prepared in 
accordance with FAR part 99 (Appendix B), subsection 9903.202-2 and is 
to contain the proposed report to the CASB.
    (c) Requests for a determination under paragraph (a) of this 
section shall be prepared by the contracting officer and submitted 
through the HCA to the SPE for concurrence and submittal to the 
Secretary.


430.202-8  Subcontractor Disclosure Statements.

    (a) The Secretary, without the power to redelegate, is authorized 
to determine that the Disclosure Statement for a subcontractor is 
impractical to secure and to authorize award without obtaining the 
Disclosure Statement.
    (b) Requests for this determination are to be prepared and 
forwarded as described in 430.202-2.

PART 431--CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 431.1--Applicability

Sec.
431.101  Objectives.

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

Subpart 431.1--Applicability


431.101  Objectives.

    (a) The SPE is designated as the official authorized to give 
advance approval of an individual deviation concerning cost principles.
    (b) The SPE is designated as the official authorized to give 
advance approval of a class deviation concerning cost principles after 
coordination with the Civilian Agency Acquisition Council.
    (c) Requests for advance approval of class deviations concerning 
cost principles must be submitted to the SPE through the HCA.

PART 432--CONTRACT FINANCING

Sec.
432.001  Definitions.
432.003  Simplified acquisition procedures financing.
432.006  Reduction or suspension of contract payments upon finding 
of fraud.
432.006-2  Definitions.
432.006-3  Responsibilities.
432.006-4  Procedures.
432.006-5  Reporting.

Subpart 432.1--Non-Commercial Item Purchase Financing

432.102  Description of contract financing methods.
432.103  Progress payments under construction contracts.
432.111  Contract clauses for non-commercial purchases.
432.113  Customary contract financing.
432.114  Unusual contract financing.

Subpart 432.2--Commercial Item Purchase Financing

432.202  General.
432.202-1  Policy.
432.202-4  Security for Government financing.
432.206  Solicitation provisions and contract clauses.
432.207  Administration and payment of commercial financing 
payments.

Subpart 432.3--Loan Guarantees for Defense Production

432.301  Definitions.

Subpart 432.4--Advance Payments for Non-Commercial Items

432.402  General.
432.406  Letters of credit.
432.407  Interest.
432.412  Contract clause.

Subpart 432.6--Contract Debts

432.601  Definition.
432.616  Compromise actions.

Subpart 432.7--Contract Funding

432.703  Contract funding requirements.
432.703-3  Contracts crossing fiscal years.
432.770  USDA specific funding limitations.

Subpart 432.8--Assignment of Claims

432.802  Conditions.
432.803  Policies.
432.805  Procedure.
432.806  Contract clauses.

Subpart 432.9--Prompt Payment

432.905  Invoice payments.
432.906  Contract financing payments.

[[Page 53664]]

Subpart 432.10--Performance-Based Payments

432.1007  Administration and payment of performance-based payments.

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


432.001  Definitions.

    The agency contract finance office is the office, other than the 
office of the requisitioner, providing funding or performing funding 
record keeping for the contract action.
    Responsible fiscal authority is that officer in the agency contract 
finance office with the responsibility to ensure that adequate funds 
are available and usable for the intended purpose.


432.003  Simplified acquisition procedures financing.

    (a) The chief of the contracting office may approve contract 
financing on a contract to be entered under the simplified acquisition 
procedures. Class approvals may not be made.
    (b) The signed approval must contain the supporting rationale for 
the action and an estimate of the cost and/or risk to the government.


432.006  Reduction or suspension of contract payments upon finding of 
fraud.


432.006-2  Definitions.

    (a) The USDA remedy coordination official (RCO) is the Assistant 
Secretary for Administration.
    (b) For the purposes of this part, head of the agency means, 
exclusively, the Secretary or the Deputy Secretary.


432.006-3  Responsibilities.

    When a contracting officer suspects that a request for advance, 
partial, or progress payment is based on fraud, the request shall be 
referred directly to the Office of Inspector General (OIG) in 
accordance with their instructions. A copy of the referral shall be 
submitted through the head of the contracting activity (HCA) to the 
Senior Procurement Executive (SPE).


432.006-4  Procedures.

    (a) Immediately upon submittal of the referral described in 
432.006-3, the HCA and the contracting officer shall confer with the 
SPE and representatives of the OIG to discuss the potential for 
reduction or suspension of further payments based on the considerations 
listed in FAR 32.006-4(d) (1) through (5).
    (b) The SPE will determine whether the contractor has contracts 
with other Departments or contracting activities and will involve them, 
as necessary, in the decision making process.
    (c) The OIG will determine the need for and the extent of an 
investigation.
    (d) Immediately upon completion of the OIG investigation (or, if 
deemed necessary by the OIG and the SPE, before completion of the 
investigation) the SPE, in coordination with the HCA, the contracting 
officer, and the OIG, shall make a report on the action to the RCO.
    (e) Upon receipt of the report, the RCO will submit a 
recommendation to the Secretary.
    (f) Upon receipt of the RCO's report the Secretary will:
    (1) Notify the contractor in writing, allowing 30 calendar days 
after receipt of the notice, that the contractor may submit in writing 
information and arguments in opposition to the recommendation; and
    (2) Consider the RCO's recommendation, the SPE's report, the 
response of the contractor, and any other relevant information in order 
to make an appropriate final determination.
    (g) This determination will be provided to the contractor and to 
the SPE for distribution to the agencies involved and for appropriate 
action under the determination.
    (h) The determination and the supporting documentation will be 
placed in the contract file(s) and a copy will be maintained by the 
SPE.
    (i) The contracting officer will advise the SPE of the actual date 
of the reduction or suspension action.
    (j) Not later than 150 calendar days after the actual date of the 
reduction or suspension action, the SPE will prepare for the RCO a 
review of the agency head's determination, and will propose a 
recommendation from the RCO to the agency head as to whether the 
reduction or suspension action should continue. The RCO will submit the 
recommendation (including a recommendation for the time period of a 
follow up review) to the agency head. This recommendation will be 
considered by the Secretary and handled as a final action described in 
paragraph (f) of this section.
    (k) The contract may not be closed nor final payment made prior to 
a final determination by the Secretary.


432.006-5  Reporting.

    The annual report required by FAR 32.006-5 is to be prepared by the 
SPE and to be submitted to the Secretary within 90 calendar days after 
the end of the fiscal year. When signed by the Secretary, the report is 
to be maintained by the SPE.

Subpart 432.1--Non-commercial Item Purchase Financing


432.102  Description of contract financing methods.

    Progress payments based on a percentage or stage of completion are 
authorized for use as a payment method under USDA contracts or 
subcontracts for construction, alteration or repair, and shipbuilding 
and conversion. Such payments also are authorized for service 
contracts, if the contracting officer determines that progress payments 
based on costs are not practicable and adequate safeguards are provided 
to administer progress payments based on a percentage or stage of 
completion. For all other contracts, progress payment provisions shall 
be based on costs except that the HCA may authorize progress payments 
based on a percentage or stage of completion on a case-by-case basis. 
Each authorization by the HCA shall include a determination and finding 
that progress payments based on costs cannot be employed practically 
and that there are adequate safeguards provided for the administration 
of progress payments based on a percentage or stage of completion.


432.103  Progress payments under construction contracts.

    (a) When approving a progress payment under a construction 
contract, the contracting officer shall indicate the amount to be paid 
by the payment office and include in the contract file the rationale in 
support of the payment.
    (b) When a retainage is made on a progress payment under a 
construction contract, the contracting officer shall place in the 
contract file a written determination stating the reason(s) for the 
retainage.
    (c) When a progress payment under a construction contract has been 
approved, the amount to be paid, the amount of any retainage withheld, 
and the reason(s) for the retainage shall be provided to the contractor 
by the contracting officer in writing before the payment due date.
    (d) When the contractor, under a fixed-price construction contract, 
furnishes evidence to the contracting officer that the surety has been 
paid in full for bond premiums and requests reimbursement, the first 
subsequent progress payment shall include the total amount attributable 
to such bond premiums and the Government shall pay that amount in full. 
This amount paid for the bond premiums is not an amount in addition to 
the stated contract price.

[[Page 53665]]

432.111  Contract clauses for non-commercial purchases.

    The contracting officer shall insert the clause at 452.232-1, 
Reimbursement for Bond Premiums--Fixed Price Construction Contracts, 
whenever the clause at FAR 52.232-5, Payments under Fixed-Price 
Construction Contracts, is used in a contract.


432.113  Customary contract financing.

    The contracting officer may determine the necessity for customary 
contract financing. The determination and finding that customary 
contract financing is needed shall be placed in the contract file.


432.114   Unusual contract financing.

    The HCA is authorized to approve unusual contract financing. The 
signed determination and finding supporting this approval shall be 
included in the contract file.

Subpart 432.2--Commercial Item Purchase Financing


432.202   General.


432.202-1   Policy.

    In the case of unusual contract financing, the approval by the HCA 
shall be recorded in a determination and finding and maintained in the 
contract file.


432.202-4   Security for Government financing.

    Prior to determining that an offeror's financial condition is 
adequate security, the contracting officer must obtain the concurrence 
of the funding activity in the proposed determination.


432.206   Solicitation provisions and contract clauses.

    The responsibility for administration of the liquidation provisions 
of a contract may not be transferred from the contracting officer.


432.207   Administration and payment of commercial financing payments.

    The responsibility for receiving, reviewing, and approval of 
contract financing requests may not be transferred from the contracting 
officer.

Subpart 432.3--Loan Guarantees for Defense Production


432.301   Definitions.

    Within this subpart, the ``agency'' or ``guaranteeing agency'' is 
the ``head of the contracting activity'' (HCA) and may not be 
redelegated.

Subpart 432.4--Advance Payments for Non-commercial Items


432.402   General.

    The HCA is designated as the individual responsible for making the 
findings and determination, and for approval of the contract terms 
concerning advance payments.


432.406   Letters of credit.

    The HCA is designated as the individual responsible for 
coordination with the Department of Treasury concerning letters of 
credit.


432.407   Interest.

    (a) The HCA is designated as the individual who may authorize, on a 
case by case basis, advance payments without interest for the contract 
types described in FAR 32.407(d)(1), (2), (3), and (4). The signed 
determination and findings supporting these authorizations shall be 
included in the contract files.
    (b) The SPE is designated as the individual who may authorize 
advance payments without interest other than those described in 
paragraph (a) of this section.


432.412   Contract clause.

    The decision to use Alternates I or III to clause 52.232-12 must be 
supported by a determination and finding.

Subpart 432.6--Contract Debts


432.601   Definition.

    Responsible official means the contracting officer.


432.616   Compromise actions.

    Compromise of a debt within the proceedings under appeal to the 
Board of Contract Appeals is the responsibility of the contracting 
officer.

Subpart 432.7--Contract Funding


432.703  Contract funding requirements.


432.703-3  Contracts crossing fiscal years.

    Funds appropriated to USDA may be used for one-year contracts which 
are to be performed in two fiscal years so long as the total amount for 
such contracts is obligated in the year for which the funds are 
appropriated (7 U.S.C. 2209c).


432.770   USDA specific funding limitations.

    (a) The USDA is authorized to subscribe for newspapers as may be 
necessary to carry out its authorized work: Provided, that such 
subscriptions shall not be made unless provision is made therefor in 
the applicable appropriation and the cost thereof is not in excess of 
limitations prescribed therein (7 U.S.C. 2258).
    (b) The expenditure of any USDA appropriation for any consulting 
service through any contract, pursuant to section 3109 of Title 5 of 
the U.S. Code shall be limited to those contracts where such 
expenditures are a matter of public record and available for public 
inspection, except where otherwise provided under existing law, or 
under existing Executive Order issued pursuant to existing law (7 
U.S.C. 2225a).

Subpart 432.8--Assignment of Claims


432.802   Conditions.

    Written notices of assignment and a true copy of the assigned 
instrument are to be sent to the contracting officer rather than the 
agency head. Other copies are distributed as directed in FAR 32.802.


432.803   Policies.

    The HCA may make a determination of need to include a no-setoff 
commitment in a contract.


432.805   Procedure.

    The information described in FAR 32.805 shall be filed with the 
contracting officer.


432.806   Contract clauses.

    The contracting officer may make the determination whether to 
include the clause at FAR 52.232-23 in any purchase order expected to 
exceed the micro-purchase threshold.

Subpart 432.9--Prompt Payment


432.905   Invoice payments.

    The payment terms for supplies and services on the Procurement List 
and provided by a Javits-Wagner-O'Day Act participating nonprofit 
agency are governed by FAR 8.709.


432.906   Contract financing payments.

    The HCA may prescribe, on a case-by-case basis, a shorter period 
for financing payments.

Subpart 432.10--Performance-Based Payments


432.1007   Administration and payment of performance-based payments.

    The responsibility for receiving, reviewing, and approval of 
performance-based payment requests may not be transferred from the 
contracting officer.

[[Page 53666]]

PART 433--PROTESTS, DISPUTES AND APPEALS

Subpart 433.1--Protests

Sec.
433.102  General.
433.103  Protests to the agency.
433.104  Protests to GAO.

Subpart 433.2--Disputes and Appeals

433.203  Applicability.
433.203-70  Agriculture Board of Contract Appeals.
433.209  Suspected fraudulent claims.

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

Subpart 433.1--Protests


433.102   General.

    (a) The Senior Procurement Executive (SPE) is responsible for 
coordinating the handling of bid protests lodged with the General 
Accounting Office (GAO).
    (b) The head of the contracting activity (HCA), on a non-delegable 
basis, may resolve protests and authorize reimbursement of costs in 
accordance with FAR 33.102(b).


433.103   Protests to the agency.

    (a) Actual or prospective bidders or offerors may file protests 
either with the HCA, as provided by 433.102(b), or with the contracting 
officer. Protesters who file protests with the HCA shall furnish a 
complete copy to the contracting officer no later than 1 day after the 
protest is filed with the HCA.
    (b) When a protest is received, the adjudicating official shall 
take prompt action towards resolution and notify the protester in 
writing of the action taken. The written final decision shall include a 
paragraph substantially as follows:

    This decision shall be final and conclusive unless a further 
written notice of protest is filed with the General Accounting 
Office in accordance with 4 CFR part 21. Neither the filing of a 
protest with USDA nor the filing of a protest with the General 
Accounting Office affects your right to file an action in a district 
court of the United States or the United States Court of Federal 
Claims.


433.104  Protests to GAO.

    The contracting activity shall furnish a copy of all reports 
submitted to the GAO, including all relevant documents, to the SPE 
simultaneously with their submission to the GAO.

Subpart 433.2--Disputes and Appeals


433.203  Applicability.

    The Assistant Secretary for Administration is authorized to 
determine the applicability of the Contract Disputes Act to contracts 
with foreign governments pursuant to FAR 33.203.


433.203-70  Agriculture Board of Contract Appeals.

    The organization, jurisdiction, and functions of the Agriculture 
Board of Contract Appeals, together with its Rules of Procedure, are 
set out in 7 CFR part 24.


433.209  Suspected fraudulent claims.

    The contracting officer shall refer all matters related to 
suspected fraudulent claims by a contractor under the conditions in FAR 
33.209 to the Office of Inspector General for additional action or 
investigation.

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

PART 434--MAJOR SYSTEM ACQUISITION

Subpart 434.0--General

Sec.
434.001  Definitions.
434.002  Policy.
434.003  Responsibilities.
434.004  Acquisition strategy.
434.005  General requirements.
434.005-6  Full production.

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

Subpart 434.0--General


434.001  Definitions.

    Pursuant to OMB Circular No. A-109 (A-109) and the definition at 
FAR 34.001, within USDA, a system shall be considered a major system 
if:
    (a) The total acquisition costs with private industry are estimated 
to be $50 million or more, or
    (b) The system has been specifically designated to be a major 
system by the USDA Acquisition Executive, even if the acquisition costs 
are not expected to exceed $50 million.


434.002  Policy.

    In addition to the policy guidance at FAR 34.002, the policies 
outlined in paragraph 6 of A-109 should serve as guidelines for all 
contracting activities in planning and developing systems, major or 
otherwise.


434.003  Responsibilities.

    (a) The Secretary of Agriculture or other designated USDA key 
executive is responsible for making four key decisions in each major 
system acquisition process. These are listed in paragraph 9 of A-109 
and elaborated on in paragraphs 10 through 13. The key executives of 
USDA (Secretary, Deputy Secretary, Under Secretaries and Assistant 
Secretaries) individually or as a group will participate in this 
decision making process.
    (b) The Assistant Secretary for Administration (ASA) is the USDA 
Acquisition Executive. The ASA will ensure that A-109 is implemented in 
USDA and that the management objectives of the Circular are realized. 
The ASA is responsible for designating the program manager for each 
major system acquisition, designating an acquisition to be a major 
system acquisition, and approving the written charter and project 
control system for each major system acquisition.
    (c) The Procurement and Property Management staff is responsible 
for assisting the ASA in carrying out the above responsibilities.
    (d) Heads of contracting activities must:
    (1) Ensure compliance with the requirements of A-109, FAR part 34 
and AGAR 434.
    (2) Ensure that potential major system acquisitions are brought to 
the attention of the USDA Acquisition Executive.
    (3) Recommend qualified candidates for designation as program 
managers for each major system acquisition within their jurisdiction.
    (4) Ensure that program managers fulfill their responsibilities and 
discharge their duties.
    (5) Cooperate with the ASA in implementing the requirements of A-
109.
    (e) The program manager is responsible for planning and executing 
the major system acquisition, ensuring appropriate coordination with 
the USDA Acquisition Executive and other key USDA executives.


434.004  Acquisition strategy.

    (a) The program manager will develop, in coordination with the 
Acquisition Executive, a written charter outlining the authority, 
responsibility, accountability, and budget for accomplishing the 
proposed objective.
    (b) The program manager will develop, subject to the approval of 
the Acquisition Executive, a project control system to schedule, 
monitor, and regularly report on all aspects of the project. The 
control system shall establish reporting periods and milestones 
consistent with the key decisions listed in paragraph 9 of A-109.
    (c) Upon initiation of the project, the program manager will report 
regularly to the Acquisition Executive.


434.005  General requirements.


434.005-6  Full production.

    The Secretary or the USDA key executive designated by the Secretary 
for the specific program is the agency head for the purposes of FAR 
34.005-6.

[[Page 53667]]

PART 435--RESEARCH AND DEVELOPMENT CONTRACTING

Sec.
435.010  Scientific and technical reports.

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


435.010  Scientific and technical reports.

    Research and development contracts shall contain a provision 
requiring that the contractor send copies of all scientific and 
technical reports to the National Technical Information Service at the 
address indicated in FAR 35.010(b). The release of research and 
development contract results to other government activities and to the 
private sector is subject to the provisions of FAR subpart 4.4.

PART 436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

Subpart 436.2--Special Aspects of Contracting for Construction

Sec.
436.201  Evaluation of contractor performance.
436.203  Government estimate of construction costs.
436.204  Disclosure of the magnitude of construction projects.
436.205  Statutory cost limitations.
436.209  Construction contracts with architect-engineer firms.

Subpart 436.3--Special Aspects of Sealed Bidding in Construction 
Contracting

436.302  Presolicitation notices.

Subpart 436.5--Contract Clauses

436.500  Scope of subpart.
436.571  Prohibition against the use of lead-based paint.
436.572  Use of premises.
436.573  Archeological or historic sites.
436.574  Control of erosion, sedimentation, and pollution.
436.575  Maximum workweek-construction schedule.
436.576  Samples and certificates.
436.577  Emergency response.
436.578  Standard specifications for construction of roads and 
bridges.
436.579  Opted timber sale road requirements.

Subpart 436.6--Architect-Engineer Services

436.601  Policy
436.601-3  Applicable contracting procedures.
436.602  Selection of firms for architect-engineer contracts.
436.602-1  Selection criteria.
436.602-2  Evaluation boards.
436.602-3  Evaluation board functions.
436.602-4  Selection authority.
436.602-5  Short selection process for contracts not to exceed the 
simplified acquisition threshold.
436.603  Collecting data on and appraising firms' qualifications.
436.604  Performance evaluation.
436.605  Government cost estimate for architect-engineer work.
436.609  Contract clauses.
436.609-1  Design within funding limitations.
436.670  Firms ineligible for award--construction.

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

Subpart 436.2--Special Aspects of Contracting for Construction


436.201  Evaluation of contractor performance.

    Preparation of performance evaluation reports. In addition to the 
requirements of FAR 36.201, performance evaluation reports shall be 
prepared for indefinite-delivery type contracts when either the 
contract maximum or the contracting activity's reasonable estimate of 
services to be ordered exceeds $500,000.00. For these contracts, 
performance evaluation reports shall be prepared for each order at the 
time of final acceptance of the work under the order.


436.203  Government estimate of construction costs.

    For acquisitions using sealed bid procedures, the contracting 
officer may disclose the overall amount of the Government's estimate of 
construction costs following identification of the responsive bid most 
advantageous to the Government; verification of that bid's price 
reasonableness; and verification of the bidder's responsibility. For 
acquisitions using other than sealed bid procedures (e.g., 
negotiation), the contracting officer may disclose the overall amount 
of the estimate after contract award.


436.204  Disclosure of the magnitude of construction projects.

    In the case of indefinite-delivery type contracts, the reasonable 
estimate of work to be done or the maximum in the solicitation, both 
including all options, is to be used to select the price range. 
Contracting officers may elect to use both a price range for the base 
period of services and the total, inclusive of options, to best 
describe the magnitude of the solicitation.


436.205  Statutory cost limitations.

    (a) When it appears that funds available for a project may be 
insufficient for all the desired features of construction, the 
contracting officer may provide in the solicitation for a base bid item 
covering the work generally as specified and for one or more additive 
or deductive bid items which progressively add or omit specified 
features of the work in a stated order of priority. In this case, the 
contracting officer shall insert the provision at 452.236-70, Additive 
or Deductive Items, in solicitations for construction.
    (b) In the alternative to the process in paragraph (a) of this 
section, the contracting officer may use the policies and procedures 
found in FAR 17.2.


436.209  Construction contracts with architect-engineer firms.

    The head of the contracting activity (HCA) is authorized to approve 
the award of a contract to construct a project, in whole or in part, to 
the firm (inclusive of its subsidiaries or affiliates) that designed 
the project.

Subpart 436.3--Special Aspects of Sealed Bidding in Construction 
Contracting


436.302  Presolicitation notices.

    The authority to waive a presolicitation notice is restricted to 
the HCA.

Subpart 436.5--Contract Clauses


436.500  Scope of subpart.

    This subpart prescribes clauses for insertion in USDA solicitations 
and contracts for construction and for dismantling, demolition, or 
removal of improvements or structures. The contracting officer shall 
use the clauses as prescribed, in contracts that exceed the simplified 
acquisition threshold. The contracting officer may use the clauses if 
the contract amount is expected to be within the simplified acquisition 
threshold.


436.571  Prohibition against the use of lead-based paint.

    The contracting officer shall insert the clause at 452.236-71, 
Prohibition Against the Use of Lead-Based Paint, in solicitations and 
contracts, if the work involves construction or rehabilitation 
(including dismantling, demolition, or removal) of residential 
structures. This clause may be used in contracts for other than 
residential structures.


436.572  Use of premises.

    The contracting officer shall insert the clause at 452.236-72, Use 
of Premises, if the contractor will be permitted to use land or 
premises administered by USDA.


436.573  Archeological or historic sites.

    The contracting officer shall insert the clause at 452.236-73, 
Archeological or Historic Sites, if the contractor will be working in 
an area where such sites may be found. Use of the clause is optional in 
service contracts for on-the-ground work, e.g. reforestation, 
silvicultural,

[[Page 53668]]

land stabilization, or other agricultural-related projects.


436.574  Control of erosion, sedimentation, and pollution.

    The contracting officer shall insert the clause at 452.236-74, 
Control of Erosion, Sedimentation and Pollution, if there is a need for 
applying environmental controls in the performance of work. Use of the 
clause is optional in service contracts for on-the-ground e.g., 
reforestation, silvicultural, land stabilization, or other 
agricultural-related projects.


436.575  Maximum workweek-construction schedule.

    The contracting officer shall insert the clause at 452.236-75, 
Maximum Workweek-Construction Schedule, if the contractor's work 
schedule is restricted by access to the facility or must be coordinated 
with the schedule of contract administration personnel.


436.576  Samples and certificates.

    The contracting officer shall insert the clause at 452.236-76, 
Samples and Certificates, in all contracts.


436.577  Emergency response.

    The contracting officer may insert the clause at 452.236-77, 
Emergency Response, in construction contracts awarded for the Forest 
Service.


436.578  Standard specifications for construction of roads and bridges.

    The contracting officer shall insert the clause at 452.236-78, 
Forest Service Standard Specifications for Construction of Roads and 
Bridges, in construction contracts that incorporate the standard 
specifications.


436.579  Opted timber sale road requirements.

    The contracting officer shall insert the clause at 452.236-79, 
Opted Timber Sale Road Requirements, in road construction contracts 
resulting from a timber sale turnback.

Subpart 436.6--Architect-Engineer Service.


436.601  Policy.


436.601-3  Applicable contracting procedures.

    The technical official's listing of areas where recovered materials 
cannot be used shall be referred to the contracting activity's official 
designated in accordance with FAR 23.404. A copy of the listing and of 
any approval or disapproval by that official is to be retained in the 
solicitation file.


436.602  Selection of firms for architect-engineer contracts.


436.602-1  Selection criteria.

    The HCA is authorized to approve the use of design competition 
under the conditions in FAR 36.602-1(b).


436.602-2  Evaluation boards.

    HCA's shall establish written procedures for providing permanent or 
ad hoc architect-engineer evaluation boards as prescribed in FAR 
36.602-2. The procedures may provide for the appointment of private 
practitioners of architecture, engineering, or related professions when 
such action is determined by the HCA to be essential to meet the 
Government's minimum needs.


436.602-3  Evaluation board functions.

    The selection report required in FAR 36.602-3(d) shall be prepared 
for the approval of the HCA. The HCA may authorize an acquisition 
official above the level of the contracting officer to execute the 
required approval.


436.602-4  Selection authority.

    (a) The HCA shall serve as the selection authority in accordance 
with FAR 36.602-4. The HCA may authorize an acquisition official above 
the level of the contracting officer to serve as the selection 
authority.
    (b) A copy of the final selection, inclusive of the supporting 
documents, shall be provided to the contracting officer and maintained 
in the solicitation file.


436.602-5  Short selection process for contracts not to exceed the 
simplified acquisition threshold.

    The HCA may include either or both procedures in FAR 36.602-5 in 
the procedures for evaluation boards.


436.603  Collecting data on and appraising firms' qualifications.

    (a) HCA's which require architect-engineer services shall establish 
procedures to comply with the requirements of FAR 36.603.
    (b) The procedures shall include a list of names, addresses, and 
phone numbers of offices or boards assigned to maintain architect-
engineer qualification data files. The list shall be updated annually.


436.604  Performance evaluation.

    Preparation of performance evaluation reports. (a) In addition to 
the requirements of FAR 36.604, performance evaluation reports shall be 
prepared for indefinite-delivery type contracts when either the 
contract maximum or the contracting activities reasonable estimate of 
services to be ordered exceeds $25,000.00. For these contracts, 
performance evaluation reports shall be prepared for each order at the 
time of final acceptance of the work under the order.
    (b) The contracting officer may require a performance evaluation 
report on the work done by the architect-engineer after the completion 
of or during the construction of the designed project.


436.605  Government cost estimate for architect-engineer work.

    The contracting officer may release the Government's total cost 
estimate in accordance with FAR 36.605(b).


436.609  Contract clauses.


436.609-1  Design within funding limitations.

    (a) Should the head of the contracting activity appoint a designee 
to make the determination in FAR 36.609-1(c)(1), the appointment may be 
to one no lower than the official authorized to commit program funds 
for the work being acquired.
    (b) The contracting officer, with the advice of appropriate 
technical representatives, may make the determination in FAR 36.609-
1(c)(2) or (3).
    (c) A copy of the determinations described in paragraph (b) and (c) 
of this section shall be maintained in the contract file.


436.670  Firms ineligible for award--construction.

    The contracting officer shall insert the clause at 452.236-80, 
Firms Ineligible For Award--Construction, in the contract for 
architect-engineering services except as provided in FAR 36.209 and 
AGAR 436.209.

PART 437--SERVICE CONTRACTING

Subpart 437.1--Service Contracts--General

Sec.
437.104  Personal services contracts.
437.110  Solicitation provisions and contract clauses.

Subpart 437.2--Advisory and Assistance Services

437.203  Policy.
437.270  Solicitation provisions and contracts clauses.

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

Subpart 437.1--Service Contracts--General


437.104  Personal services contracts.

    USDA has the following specific statutory authorities to contract 
for personal services:

[[Page 53669]]

    (a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225) 
authorizes contracting with persons or organizations on a temporary 
basis, without regard to civil service compensation classification 
standards in 5 U.S.C., Chapter 51 and Subchapter III of Chapter 53, 
Provided:
    (1) That no expenditures shall be made unless specifically provided 
for in the applicable appropriation, and
    (2) Expenditures do not exceed any limitations prescribed in the 
appropriation.
    (b) 7 U.S.C. 1627 authorizes the Secretary of Agriculture to 
contract with technically qualified persons, firms or organizations to 
perform research, inspection, classification, technical, or other 
special services, without regard to the civil-service laws, Provided: 
it is for a temporary basis and for a term not to exceed six months in 
any fiscal year.


437.110  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-70, Loss Damage, Destruction or Repair, 
in contracts for equipment rental, whether the equipment is furnished 
with or without operator.
    (b) The contracting officer shall insert a provision substantially 
the same as the clause at 452.237-71, Pre-Bid/Pre-Proposal Conference, 
in all solicitations if a conference with prospective offerors will be 
held prior to the submittal of bids or proposals.
    (c) The contracting officer shall insert the provision at 452.237-
73, Equipment Inspection visit, in solicitations if work is to be done 
on Government equipment and an offeror's inspection is encouraged for 
an understanding of the work to be performed prior to submittal of bids 
or proposals.
    (d) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-74, Key Personnel, in contracts if 
contract performance requires identification of the contractor's key 
personnel.
    (e) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-75, Restrictions Against Disclosure, in 
service contracts (including architect-engineer contracts) requiring 
restrictions on release of information developed or obtained in 
connection with performance of the contract.

Subpart 437.2--Advisory and Assistance Services


437.203  Policy.

    Contracting for advisory and assistance services is subject to the 
policy and procedures in Departmental Regulations (5000 series).


437.270  Solicitation and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-76, Progress Reporting, in all contracts 
for advisory and assistance services. It may also be used in other 
service contracts.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-78, Contracts with Consulting Firms for 
Services, in solicitations and contracts for consulting services which 
prohibit follow-on contracts with the contracting firm.

PART 441--ACQUISITION OF UTILITY SERVICES

Subpart 441.2--Acquiring Utility Services


441.201  Policy.

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

Subpart 441.2--Acquiring Utility Services


441.201  Policy.

    As used in FAR 41.201(d)(2)(i) and 41.201(d)(3) the Federal agency 
head designee is the head of the contracting activity.

SUBCHAPTER G--CONTRACT MANAGEMENT

PART 442--CONTRACT ADMINISTRATION

Subpart 442.1--Interagency Contract Administration and Audit Services

Sec.
442.102  Procedures.

Subpart 442.15--Contractor Performance Information

442.1502  Policy.

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

Subpart 442.1--Interagency Contract Administration and Audit 
Services


442.102  Procedures.

    (a) The Office of Inspector General (OIG), Audit Division, has 
established a cross-servicing arrangement with the Defense Contract 
Audit Agency (DCAA) to provide contract audit services required by the 
FAR.
    (b) All contract audit services required by contracting officers, 
except those which can be accomplished in-house, shall be coordinated 
through the cognizant OIG Regional Inspector General--Auditing (RIG-A). 
Cognizance is determined on the basis of the contractor's location. 
There is no charge for DCAA audit services coordinated through OIG.
    (c) In order to ensure compliance with this requirement and to 
evaluate the results of audits, contracting officers shall forward to 
the RIG-A copies of all price negotiation memoranda prepared for 
contracts and contract modifications in excess of $500,000.

Subpart 442.15--Contractor Performance Information


442.1502  Policy.

    The head of the contracting activity shall be responsible for 
establishing past performance evaluation procedures and systems as 
required by FAR 42.1502 and 42.1503.

PART 445--GOVERNMENT PROPERTY

Subpart 445.3--Providing Government Property to Contractors

Sec.
445.302  Providing facilities.
445.302-1  Policy.

Subpart 445.4--Contractor Use and Rental of Government Property

445.403  Rental--Use and Charges clause.
445.407  Non-Government use of plant equipment.

Subpart 445.6--Reporting, Redistribution and Disposal of Contractor 
Inventory

445.608  Screening of contracting inventory.
445.608-6  Waiver of screening requirements.

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

Subpart 445.3--Providing Government Property to Contractors


445.302  Providing facilities.


445.302-1  Policy.

    Heads of contracting activities (HCA's) are authorized to make 
determinations for providing facilities to a contractor as prescribed 
in FAR 45.302-1(a)(4).

Subpart 445.4--Contractor Use and Rental of Government Property


445.403  Rental--Use and Charges clause.

    HCA's are authorized to make determinations for charging rent on 
the basis of use under the Use and Charges clause in FAR 52.245-9 as 
prescribed in FAR 45.403(a).


445.407  Non-Government use of plant equipment.

    Requests for non-Government use of plant equipment as prescribed in 
FAR 45.407 shall be submitted by the HCA to the Senior Procurement 
Executive (SPE) for approval.

[[Page 53670]]

Subpart 445.6--Reporting, Redistribution and Disposal of Contractor 
Inventory


445.608  Screening of contractor inventory.


445.608-6  Waiver of screening requirements.

    Requests to waive screening requirements as prescribed in FAR 
46.608-6 shall be submitted by the HCA to the SPE for approval.

PART 446--QUALITY ASSURANCE

Subpart 446.3--Contract Clauses

Sec.
446.370  Inspection and acceptance.

    Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).

Subpart 446.3--Contract Clauses


446.370  Inspection and acceptance.

    The Contracting Officer shall insert the clause at 452.246-70, 
Inspection and Acceptance, in contracts where inspection and acceptance 
will be performed at the same location. The clause with its Alternate I 
is for use when inspection and acceptance will be performed at 
different locations.

PART 447--TRANSPORTATION

Subpart 447.3--Transportation in Supply Contracts

Sec.
447.302  Place of delivery--F.O.B. point.
447.305  Solicitation provisions, contract clauses, and 
transportation factors.
447.305-10  Packing, marking, and consignment instructions.

    Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).

Subpart 447.3--Transportation in Supply Contracts


447.302  Place of delivery--F.O.B. point.

    The contracting officer shall insert a clause substantially the 
same as the clause at 452.247-70, Delivery Location, in supply 
contracts when it is necessary to specify delivery locations. If 
appropriate, the clause may reference an attachment which lists various 
delivery locations and other delivery details (e.g., quantities to be 
delivered to each location, etc.).


447.305  Solicitation provisions, contract clauses, and transportation 
factors.


447.305-10  Packing, marking, and consignment instructions.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.247-71, Marking Deliverables, in 
solicitations and contracts if special marking on deliverables (other 
than reports) are required.
    (b) The contracting officer shall insert the clause at 452.247-72, 
Packing for Domestic Shipment, in contracts when item(s) will be 
delivered for immediate use to a destination in the continental United 
States; when the material specification or purchase description does 
not provide preservation, packaging, packing, and/or marking 
requirements; and/or when the requiring activity has not cited a 
specific specification for packaging.
    (c) The contracting officer shall insert the clause at 452.247-73, 
Packing for Overseas Shipment, in contracts when item(s) will be 
delivered to an overseas destination for immediate use, the material 
specification does not specify packing levels, and the required 
activity has not specified such requirements.

PART 449--TERMINATION OF CONTRACTS

Subpart 449.1--General Principles

Sec.
449.106  Fraud or other criminal conduct.
449.111  Review of proposed settlements.

Subpart 449.4--Termination for Default

449.402  Termination of fixed-price contracts for default.
449.402-3  Procedure for default.

Subpart 449.5--Contract Termination Clauses

449.501  General

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

Subpart 449.1--General Principles


449.106  Fraud or other criminal conduct.

    (a) If the contracting officer suspects fraud or other criminal 
conduct a written report documenting the facts shall be submitted by 
the head of the contracting activity (HCA) to the Office of Inspector 
General. Copies of documents or other information connected with the 
suspected fraud or criminal conduct shall be provided with the report. 
Concurrently, a copy of the report shall also be submitted to the 
Senior Procurement Executive.
    (b) Depending on the findings of the Office of Inspector General, 
the HCA may initiate suspension or debarment action as prescribed in 
FAR part 9.4 and part 409.4.


449.111  Review of proposed settlements.

    Proposed settlement agreements shall be reviewed and approved in 
accordance with contracting activity procedures.

Subpart 449.4--Termination for Default


449.402  Termination of fixed-price contracts for default.


449.402-3  Procedure for default.

    In addition to the requirements of FAR 49.402-3(g), the notice of 
termination shall contain instructions regarding the disposition of any 
Government property in the possession of the contractor (see FAR 
45.508-1) and, in the case of construction contracts, such materials, 
appliances, and structures as may be on the site of the construction 
work. The notice shall also contain a statement concerning the 
liability of the contractor or its surety for any liquidated damages 
(see FAR 49.402-7).

Subpart 449.5--Contract Termination Clauses


449.501  General.

    Use of special purpose termination clauses pursuant to the 
authority of FAR 49.501 shall be approved in advance by the HCA.

PART 450--EXTRAORDINARY CONTRACTUAL ACTIONS

Sec.
450.001  Definitions.

Subpart 450.1--General

450.104  Reports.

Subpart 450.2--Delegation of and Limitations on Exercise of Authority

450.201 Delegation of authority.

Subpart 450.3--Contract Adjustments

450.303  Contract adjustment.
450.303-1  Contractor requests.

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


450.001  Definitions.

    Approving authority, as used in this part, means the Assistant 
Secretary for Administration.
    Secretarial level, as used in this part means the Assistant 
Secretary for Administration.

Subpart 450.1--General


450.104  Reports.

    The Senior Procurement Executive shall prepare the report required 
by FAR 50.104.

Subpart 450.2--Delegation of and Limitations on Exercise of 
Authority


450.201  Delegation of authority.

    The Assistant Secretary for Administration is authorized to approve 
all actions under FAR part 50 except indemnification actions listed in 
FAR 50.201(d) which must be approved by

[[Page 53671]]

the Secretary, without power of delegation.

Subpart 450.3--Contract Adjustments


450.303  Contract adjustment.


450.303-1  Contractor requests.

    Contractor requests shall be submitted to the contracting officer.

SUBCHAPTER H--CLAUSES AND FORMS

PART 452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 452.2--Texts of Provisions and Clauses

Sec.
452.204-70  Inquiries.
452.211-1  Brand Name or Equal.
452.211-2  Equal Products Offered.
452.211-3  Statement of Work/Specifications.
452.211-4  Attachments to Statement of Work/Specifications.
452.211-5  Period of Performance.
452.211-6  Effective Period of the Contract.
452.214-70  Award by Lot.
452.215-71  Instructions for the Preparation of Technical and 
Business Proposals.
452.215-72  Amendments to Proposals.
452.215-73  Post-Award Conference.
452.216-70  Award Fee.
452.216-71  Base Fee and Award Fee Proposal.
452.216-72  Evaluation Quantities--Indefinite-Delivery Contract.
452.216-73  Minimum and Maximum Contract Amounts.
452.216-74  Ceiling Price.
452.216-75  Letter Contract.
452.219-70  Size Standard and SIC Code Information.
452.224-70  Confidentiality of Information.
452.228-70  Alternative Forms of Security.
452.228-71  Insurance Coverage.
452.232-1  Reimbursement for Bond Premiums--Fixed-Price 
Construction.
452.236-70  Additive or Deductive Items.
452.236-71  Prohibition Against the Use of Lead-Based Paint.
452.236-72  Use of Premises.
452.236-73  Archaeological or Historic Sites.
452.236-74  Control of Erosion, Sedimentation, and Pollution.
452.236-75  Maximum Workweek--Construction Schedule.
452.236-76  Samples and Certificates.
452.236-77  Emergency Response.
452.236-78  Forest Service Standard Specifications for Construction 
of Roads and Bridges.
452.236-79  Opted Timber Sale Road Requirements.
452.236-80  Firms Ineligible for Award--Construction.
452.237-70  Loss, Damage, Destruction or Repair.
452.237-71  Pre-Bid/Pre-Proposal Conference.
452.237-73  Equipment Inspection Visit.
452.237-74  Key Personnel.
452.237-75  Restrictions Against Disclosure.
452.237-76  Progress Reporting.
452.237-78  Contracts with Consulting Firms for Services.
452.246-70  Inspection and Acceptance.
452.247-70  Delivery Location.
452.247-71  Marking Deliverables.
452.247-72  Packing for Domestic Shipment.
452.247-73  Packing for Overseas Shipment.

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

Subpart 452.2--Texts of Provisions and Clauses


452.204-70  Inquiries.

    As prescribed in 404.7001, insert the following provision:

INQUIRIES (FEB 1988)

    Inquiries and all correspondence concerning this solicitation 
should be submitted in writing to the Contracting Officer. Offerors 
should contact only the Contracting Officer issuing the solicitation 
about any aspect of this requirement prior to contract award.

(End of provision)


452.211-1  Brand Name or Equal.

    As prescribed in 411.171, insert the following provision:

BRAND NAME OR EQUAL (NOV 1996)

    (As used in this provision, the term ``brand name'' includes 
identification of products by make and model.)
    (a) If items called for by this solicitation have been 
identified by a ``brand name or equal'' description, such 
identification is intended to be descriptive, but not restrictive, 
and is to indicate the quality and characteristics of products that 
will be satisfactory. Offers of ``equal'' products (including 
products of the brand name manufacturer other than the one described 
by brand name) will be considered for award if such products are 
clearly identified in the offer (see clause 452.211-2) and are 
determined by the Contracting Officer to meet fully the salient 
characteristics requirements listed in the solicitation.
    (b) Unless the offeror clearly indicates in its offer that it is 
offering an ``equal'' product, the offeror shall be considered as 
offering the brand name product(s) referenced in the solicitation.
    (c)(1) If the offeror proposes to furnish an ``equal'' product 
or products, the brand name(s), if any, and any other required 
information about the product(s) to be furnished shall be inserted 
in the space provided in the solicitation. The evaluation of offers 
and the determination as to the equality of the product(s) offered 
shall be the responsibility of the Government and will be based on 
information furnished by the offeror or identified in its offer as 
well as other information reasonably available to the contracting 
activity. Caution to offerors: The contracting activity is not 
responsible for locating or securing any information which is not 
identified in the offer and is not reasonably available to the 
contracting activity. Accordingly, to assure that sufficient 
information is available, the offeror must furnish as a part of its 
offer all descriptive material (such as cuts, illustrations, 
drawings, or other information) necessary for the contracting 
activity to (i) determine whether the product offered meets the 
salient characteristics requirement of the solicitation, and (ii) 
establish exactly what the offeror proposes to furnish and what the 
Government would be binding itself to purchase by making an award. 
The information furnished may include specific reference to 
information previously furnished or to information otherwise 
available to the contracting activity.
    (2) If an offeror proposes to modify a product so as to make it 
conform to the requirements of the solicitation, the offer shall 
include (i) a clear description of such proposed modifications and 
(ii) clearly marked descriptive material to show the proposed 
modifications.

(End of Provision)


452.211-2  Equal Products Offered.

    As prescribed in 411.171, insert the following or substantially the 
same clause in solicitations seeking offers on a ``brand name or 
equal'' basis to allow offerors the opportunity to clearly identify the 
``equal'' item being offered, and to illustrate how that item meets the 
salient characteristics requirements of the Government.

EQUAL PRODUCTS OFFERED (NOV 1996)

    (a) Offerors proposing to furnish an ``equal'' product, in 
accordance with the ``Brand Name or Equal'' provision of this 
solicitation, shall provide the following information for each 
offered ``equal'' product:
Contract Line Item Number (if any):------------------------------------
Brand Name or Equal Product identified by the Government in this 
solicitation:----------------------------------------------------------
Offered Product Name:--------------------------------------------------
Catalog Description or part number:------------------------------------
----------------------------------------------------------------------
Manufacturer's Name:---------------------------------------------------
Manufacturer's Address:------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
    (b) Offerors are responsible for submitting all additional 
information on the above product necessary for the Contracting 
Officer to determine whether the product offered meets the ``brand 
name or equal'' product's salient characteristics listed in the 
solicitation.

(End of Clause)


452.211-3  Statement of Work/Specifications.

    As prescribed in 411.171, insert the following clause:

STATEMENT OF WORK/SPECIFICATIONS (FEB 1988)

    The Contractor shall furnish the necessary personnel, material, 
equipment, services and facilities (except as otherwise specified), 
to perform the Statement of Work/Specifications referenced in 
Section J.

[[Page 53672]]

(End of Clause)


452.211-4  Attachments to Statements of Work/Specifications.

    As prescribed in 411.171, insert the following clause:

ATTACHMENTS TO STATEMENT OF WORK/SPECIFICATIONS (FEB 1988)

    The attachments to the Statement of Work/Specifications listed 
in Section J are hereby made part of this solicitation and any 
resultant contract.

(End of Clause)


452.211-5  Period of Performance.

    As prescribed in 411.404(a), insert the following clause:

PERIOD OF PERFORMANCE (FEB 1988)

    The period of performance of this contract is from ______ 
through ______.*

(End of Clause)

    * Contracting Officer shall insert the appropriate dates.


452.211-6  Effective Period of the Contract.

    As prescribed in 411.404(b), insert the following clause:

EFFECTIVE PERIOD OF THE CONTRACT (FEB 1988)

    The effective period of this contract is from ______ through 
______.*

(End of Clause)

    * Contracting Officer shall insert the appropriate dates.


452.214-70  Award by Lot.

    As prescribed in 414.201-6, insert a provision substantially as 
follows:

AWARD BY LOT (NOV 1996)

    Subject to the Section L provision FAR 52.214-10, ``Contract 
Award--Sealed Bidding,'' award will generally be made to a single 
bidder on each entire lot. However, the Government reserves the 
right to award by item within any lot when the contracting officer 
determines that it is advantageous to the Government.

(End of Provision)


452.215-71  Instructions for the Preparation of Technical and Business 
Proposals.

    As prescribed in 415.407(a), insert a provision substantially as 
follows:

INSTRUCTIONS FOR THE PREPARATION OF TECHNICAL AND BUSINESS PROPOSALS 
(NOV 1996)

    (a) General Instructions. Proposals submitted in response to 
this solicitation shall be furnished in the following format with 
the numbers of copies as specified below.
     (1) The proposal must include a technical proposal and business 
proposal. Each of the parts shall be separate and complete so that 
evaluation of one may be accomplished independently from evaluation 
of the other. The technical proposal must not contain reference to 
cost; however, resource information (such as data concerning labor 
hours and categories, materials, subcontracts, etc.) must be 
contained in the technical proposal so that the contractor's 
understanding of the statement of work may be evaluated.
     (2) Offerors may, at their discretion, submit alternate 
proposals or proposals which deviate from the requirement; provided, 
that an offeror also submit a proposal for performance of the work 
as specified in the statement of work. Any ``alternate'' proposal 
may be considered if overall performance would be improved or not 
compromised, and if it is in the best interest of the Government. 
Alternate proposals, or deviations from any requirement of this RFP, 
must be clearly identified.
     (3) The Government will evaluate proposals in accordance with 
the evaluation criteria set forth in Section M of this RFP.
     (4) Offerors shall submit their proposal(s) in the following 
format and the quantities specified:
    (a) ______* copies of the completed, signed offer (Sections A 
through K of the solicitation package)
    (b) ______* copies of the technical proposal
    (c) ______* copies of the business/cost proposal
    (b) Technical Proposal Instructions. The technical proposal will 
be used to make an evaluation and arrive at a determination as to 
whether the proposal will meet the requirements of the Government. 
Therefore, the technical proposal must present sufficient 
information to reflect a thorough understanding of the requirements 
and a detailed, description of the techniques, procedures and 
program for achieving the objectives of the specifications/statement 
of work. Proposals which merely paraphrase the requirements of the 
Government's specifications/ statement of work, or use such phrases 
as ``will comply'' or ``standard techniques will be employed'' will 
be considered unacceptable and will not be considered further. As a 
minimum, the proposal must clearly provide the following:
    (Contracting Officer shall identify in this section the minimum 
information required to evaluate each technical evaluation factor 
listed in Section M.)
    (c) Business Proposal Instructions.
     (1) Cost Proposal.
    In addition to any other requirements for cost/pricing 
information required in clause FAR 52.215-41, Requirements for Cost 
or Pricing Data or Other Than Cost of Pricing Data (OCT 1995), the 
following is required:
    (Contracting Officer shall identify additional information 
required if appropriate.)
    (2) Business Proposal.
    (a) Furnish financial statements for the last two years, 
including an interim statement for the current year, unless 
previously provided to the office issuing the RFP, in which case a 
statement as to when and where this information was provided may be 
furnished instead.
    (b) Specify the financial capacity, working capital and other 
resources available to perform the contract without assistance from 
any outside source.
    (c) Provide the name, location, and intercompany pricing policy 
for other divisions, subsidiaries, parent company, or affiliated 
companies that will perform work or furnish materials under this 
contract.

(End of Provision)

    *Contracting officer shall insert number of copies required.
    Alternate I (NOV 1996): When FAR clause 52.215-41 is not used to 
specify the cost/price information requirements and cost and pricing 
data is required substitute the following for subparagraph (1):
    (c)(1) Cost and pricing data is required. Cost proposals must be 
submitted on a Standard Form 1411, Contract Pricing Proposal Cover 
Sheet, with supporting attachments in accordance with FAR Table 15-
2, Instructions for Submission of a Contract Pricing Proposal.
    Alternate II (NOV 1996): When FAR clause 52.215-41 is not used 
and use of a SF 1448 is required for submission of other than cost 
and pricing data, substitute the following subparagraph for c(1) 
above:
    (c)(1) Cost proposals must be submitted on a Standard Form 1448, 
Proposal Cover Sheet (Cost or Pricing Data Not Required), in 
accordance with FAR Table 15-3, Instructions for Submission of 
Information Other Than Cost or Pricing Data.


452.215-72  Amendments to Proposals.

    As prescribed in 415.407(b), insert the following provision:

AMENDMENTS TO PROPOSALS (FEB 1988)

    Any changes to a proposal made by the offeror after its initial 
submittal shall be accomplished by replacement pages. Changes from 
the original page shall be indicated on the outside margin by 
vertical lines adjacent to the change. The offeror shall include the 
date of the amendment on the lower right corner of the changed 
pages.

(End of Provision)


452.215-73  Postaward Conference.

    As prescribed in 415.1070, insert a clause substantially as 
follows:

POST AWARD CONFERENCE (NOV 1996)

    A post award conference with the successful offeror is required. 
It will be scheduled within ______* days after the date of contract 
award. The conference will be held at: ______*.

(End of Clause)

*Contracting officer to insert number of days and location.


452.216-70  Award Fee.

    As prescribed in 416.405, insert a clause substantially as follows:

AWARD FEE (FEB 1988)

    The amount of award fee the Contractor earns, if any, is based 
on a subjective evaluation by the Government of the quality of the 
Contractor's performance in accordance with the award fee plan. The 
Government will determine the amount of award fee every ______* 
months beginning with ______*. The Fee Determination Official (FDO) 
will unilaterally determine the amount of award fee. The FDO's 
determination will be in writing to the Contractor and is not

[[Page 53673]]

subject to the ``Disputes'' clause. The Government may unilaterally 
change the award fee plan at any time and will provide such changes 
in writing to the Contractor prior to the beginning of the 
applicable evaluation period. The Contractor may submit a voucher 
for the earned award fee. Available award fee not earned during one 
period does not carry over to subsequent periods.

(End of Clause)

    * Contracting Officer shall insert appropriate number of months.
    ** Contracting Officer shall insert appropriate date.


452.216-71  Base Fee and Award Fee Proposal.

    As prescribed in 416.470, insert the following provision:

BASE FEE AND AWARD FEE PROPOSAL (FEB 1988)

    For the purpose of this solicitation, offerors shall propose a 
base fee of ______* percent of the total estimated cost proposed. 
The award fee shall not exceed ______* percent of the total 
estimated cost.

(End of Provision)

    *Contracting Officer shall insert appropriate percentages.


452.216-72  Evaluation Quantities--Indefinite Delivery Contract.

    As prescribed in 416.506(a), insert a provision substantially as 
follows:

EVALUATION QUANTITIES--INDEFINITE-DELIVERY CONTRACT (FEB 1988)

    To evaluate offers for award purposes, the Government will apply 
the offeror's proposed fixed-prices/rates to the estimated 
quantities included in the solicitation, and will add other direct 
costs if applicable.

(End of Provision)


452.216-73  Minimum and Maximum Contract Amounts.

    As prescribed in 416.506(b), insert the following clause:

MINIMUM AND MAXIMUM CONTRACT AMOUNTS (FEB 1988)

    During the period specified in FAR clause 52.216-18, ORDERING, 
the Government shall place orders totaling a minimum of ______*, but 
not in excess of ______*.

(End of Clause)

    *Contracting Officer shall insert appropriate quantity or dollar 
amounts.


452.216-74  Ceiling Price.

    As prescribed in 416.670, insert the following clause:

CEILING PRICE (FEB 1988)

    The ceiling price of this contract is $ ______*. The Contractor 
shall not make expenditures or incur obligations in the performance 
of this contract which exceed the ceiling price specified herein, 
except at the Contractor's own risk.

(End of Clause)

    *Contracting Officer shall insert appropriate dollar amount.


452.216-75  Letter Contract.

    As prescribed in 416.603-4, insert the following clause:

LETTER CONTRACT (FEB 1988)

    This contract replaces letter contract No. ______* dated ______* 
and all amendments thereto.

(End of Clause)

    *Contracting Officer shall insert number and date.


452.219-70  Size Standard and SIC Code Information.

    As prescribed in 419.508, insert the following provision:

SIZE STANDARD AND SIC CODE INFORMATION (NOV 1996)

    The Standard Industrial Classification Code(s) and business size 
standard(s) describing the products and/or services to be acquired 
under this solicitation are listed below:

Contract line item(s): ______* SIC Code ______* Size Standard 
______*

(End of provision)

    *Contracting Officer shall insert the appropriate data for each 
contract line item in the solicitation. The data entry line may be 
duplicated as required to describe all of the contract line items or 
sub-items.


452.224-70  Confidentiality of Information.

    As prescribed in 424.104, insert a clause substantially as follows:

CONFIDENTIALITY OF INFORMATION (FEB. 1988)

    (a) Confidential information, as used in this clause, means--
    (1) information or data of a personal nature, proprietary about 
an individual, or (2) information or data submitted by or pertaining 
to an organization.
    (b) In addition to the types of confidential information 
described in (a)(1) and (2) above, information which might require 
special consideration with regard to the timing of its disclosure 
may derive from studies or research, during which public disclosure 
of primarily invalidated findings could create an erroneous 
conclusion which might threaten public health or safety if acted 
upon.
    (c) The Contracting Officer and the Contractor may, by mutual 
consent, identify elsewhere in this contract specific information 
and/or categories of information which the Government will furnish 
to the Contractor or that the Contractor is expected to generate 
which is confidential. Similarly, the Contracting Officer and the 
Contractor may, by mutual consent, identify such confidential 
information from time to time during the performance of the 
contract. Failure to agree will be settled pursuant to the 
``Disputes'' clause.
    (d) If it is established that information to be utilized under 
this contract is subject to the Privacy Act, the Contractor will 
follow the rules and procedures of disclosure set forth in the 
Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and 
policies, with respect to systems of records determined to be 
subject to the Privacy Act.
    (e) Confidential information, as defined in (a)(1) and (2) 
above, shall not be disclosed without the prior written consent of 
the individual, institution or organization.
    (f) Written advance notice of at least 45 days will be provided 
to the Contracting Officer of the Contractor's intent to release 
findings of studies or research, which have the possibility of 
adverse effects on the public or the Federal agency, as described in 
(b) above. If the Contracting Officer does not pose any objections 
in writing within the 45 day period, the Contractor may proceed with 
disclosure. Disagreements not resolved by the Contractor and 
Contracting Officer will be settled pursuant to the ``Disputes'' 
clause.
    (g) Whenever the Contractor is uncertain with regard to the 
proper handling of material under the contract, or if the material 
in question is subject to the Privacy Act or is confidential 
information subject to the provisions of this clause, the Contractor 
shall obtain a written determination from the Contracting Officer 
prior to any release, disclosure, dissemination, or publication.
    (h) The provisions of paragraph (e) of this clause shall not 
apply when the information is subject to conflicting or overlapping 
provisions in other Federal, State or local laws.

(End of Clause)


452.228-70  Alternative Forms of Security.

    As prescribed in 428.204-2, insert the following provision:

ALTERNATIVE FORMS OF SECURITY (NOV. 1996)

    If furnished as security, money orders, drafts, cashiers checks, 
or certified checks shall be drawn payable to: ____*.

(End of Provision)

    *Contracting Officer shall insert the name of the USDA 
contracting activity.


452.228-71  Insurance Coverage.

    As prescribed in 428.310, insert the following clause:

INSURANCE COVERAGE (NOV. 1996)

    Pursuant to FAR clause 52.228-5, Insurance-Work on a Government 
Installation, the Contractor will be required to present evidence to 
show, as a minimum, the amounts of insurance coverage indicated 
below:
    (a) Workers Compensation and Employer's Liability. The 
Contractor is required to comply with applicable Federal and State 
workers' compensation and occupational disease statutes. If 
occupational diseases are not compensable under those statutes, they 
shall be covered under the employer's liability section of the 
insurance policy, except when contract operations are so commingled 
with a Contractor's commercial operations that it would not be 
practical to require this coverage. Employer's liability coverage of 
at least $100,000 shall be required, except in States with exclusive 
or monopolistic funds that do not permit

[[Page 53674]]

worker's compensation to be written by private carriers.
    (b) General Liability. The Contractor shall have bodily injury 
liability insurance coverage written on a comprehensive form of 
policy of at least $500,000 per occurrence.
    (c) Automobile Liability. The Contractor shall have automobile 
liability insurance written on a comprehensive form of policy. The 
policy shall provide for bodily injury and property damage liability 
covering the operation of all automobiles used in connection with 
performing the contract. Policies covering automobiles operated in 
the United States shall provide coverage of at least $200,000 per 
person and $500,000 per occurrence for bodily injury and $20,000 per 
occurrence for property damage or loss.
    (d) Aircraft Public and Passenger Liability. When aircraft are 
used in connection with performing the contract, the Contractor 
shall have aircraft public and passenger liability insurance. 
Coverage shall be at least $200,000 per person and $500,000 per 
occurrence for bodily injury, other than passenger injury. Coverage 
for passenger injury shall be at least $200,000 multiplied by the 
number of seats or passengers, whichever is greater.

(End of Clause)

    Alternate I (NOV. 1996). As prescribed in 428.310, substitute 
the following paragraph (b), when additionally the contractor must 
have property damage liability coverage:
    (b) General Liability. (1) The Contractor shall have bodily 
injury liability coverage written on a comprehensive form of policy 
of at least $500,000 per occurrence.
    (2) The Contractor shall have property damage liability 
insurance shall be required in the amount of ______* per occurrence.
    *Contracting Officer shall insert amount required.


452.232-1  Reimbursement for Bond Premiums--Fixed-Price Construction 
Contracts.

    As prescribed in 432.111, insert the following clause:

REIMBURSEMENT FOR BOND PREMIUMS--FIXED-PRICE CONSTRUCTION CONTRACTS 
(NOV. 1996)

    The Contract Price includes the total amount for premiums that 
the Contractor attributes to the furnishing of performance and 
payment bonds required by the contract. Reimbursement for bond 
premiums under the clause at FAR 52.232-5, Payments Under Fixed-
Price Construction Contract, shall not cover any amount therefor not 
included in the contract price.

(End of clause)


452.236-70  Additive or Deductive Items.

    As prescribed in 436.205, insert the following provision:

ADDITIVE OR DEDUCTIVE ITEMS (FEB. 1988)

    The low bidder for purposes of award shall be the conforming 
responsible bidder offering the low aggregate amount for the first 
or base bid item, plus or minus (in the order of priority listed in 
the schedule) those additive or deductive bid items providing the 
most features of the work within the funds determined by the 
government to be available before bids are opened. If addition of 
another bid item in the listed order of priority would make the 
award exceed such funds for all bidders, it shall be skipped and the 
next subsequent additive bid item in a lower amount shall be added 
if award therein can be made within such funds. For example, when 
the amount available is $100,000 and a bidder's base bid and four 
successive additives are $85,000, $10,000, $8,000, $6,000, and 
$4,000, the aggregate amount of the bid for purposes of award would 
be $99,000 for the base bid plus the first and fourth additives, the 
second and third additives being skipped because of each of them 
would cause the aggregate bid to exceed $100,000. In any case all 
bids shall be evaluated on the basis of the same additive or 
deductive bid items, determined as above provided. The listed order 
of priority need be followed only for determining the low bidder. 
After determination of the low bidder as stated, award in the best 
interests of the Government may be made on the selected first or 
base bid item and any combination of additive or deductive items for 
which funds are determined to be available at the time of the award, 
provided that award on such combination of bid items does not exceed 
the amount offered by any other conforming responsible bidder for 
the same combination of bid items.

(End of clause)


452.236-71  Prohibition Against the Use of Lead-Based Paint.

    As prescribed in 436.571, insert the following clause:

PROHIBITION AGAINST THE USE OF LEAD-BASED PAINT (NOV 1996)

    Neither the Contractor nor any subcontractor performing under 
this contract shall use paints containing more then 0.06 of 1 
percent lead by weight (calculated as lead metal) in the total 
nonvolatile content of the paint, or the equivalent measure of lead 
in the dried film of paint already applied, or both.

(End of clause)


452.236-72  Use of Premises.

    As prescribed in 436.572, insert the following clause:

USE OF PREMISES (NOV 1996)

    (a) Before any camp, quarry, borrow pit, storage, detour, or 
bypass site, other than shown on the drawings, is opened or operated 
on USDA land or lands administered by the USDA, the Contractor shall 
obtain written permission from the Contracting Officer. A camp is 
interpreted to include a campsite or trailer parking area of any 
employee working on the project for the Contractor.
    (b) Unless excepted elsewhere in the contract, the Contractor 
shall (i) provide and maintain sanitation facilities for the work 
force at the site and (ii) dispose of solid waste in accordance with 
applicable Federal, State and local regulations.

(End of clause)


452.236-73  Archaeological or Historic Sites.

    As prescribed in 436.573, insert the following clause:

ARCHAEOLOGICAL OR HISTORIC SITES (FEB 1988)

    If a previously unidentified archaeological or historic site(s) 
is encountered, the Contractor shall discontinue work in the general 
area of the site(s) and notify the Contracting Officer immediately.

(End of clause)


452.236-74  Control of Erosion, Sedimentation, and Pollution.

    As prescribed in 436.574, insert the following clause:

CONTROL OF EROSION, SEDIMENTATION, AND POLLUTION (NOV 1996)

    (a) Operations shall be scheduled and conducted to minimize 
erosion of soils and to prevent silting and muddying of streams, 
rivers, irrigation systems, and impoundments (lakes, reservoirs, 
etc.).
    (b) Pollutants such as fuels, lubricants, bitumens, raw sewage, 
and other harmful materials shall not be discharged on the ground; 
into or nearby rivers, streams, or impoundments; or into natural or 
man-made channels. Wash water or waste from concrete or aggregate 
operations shall not be allowed to enter live streams prior to 
treatment by filtration, settling, or other means sufficient to 
reduce the sediment content to not more than that of the stream into 
which it is discharged.
    (c) Mechanized equipment shall not be operated in flowing 
streams without written approval by the Contracting Officer.

(End of clause)


452.236-75  Maximum Workweek--Construction Schedule.

    As prescribed in 436.575, insert the following clause:

MAXIMUM WORKWEEK--CONSTRUCTION SCHEDULE (NOV 1996)

    Within ____ calendar days after receipt of a written request 
from the Contracting Officer, the Contractor must submit the 
following in writing for approval:
    (a) A schedule as required by FAR clause 52.236-15, Schedules 
for Construction Contracts, and
    (b) The hours (including the daily starting and stopping times) 
and days of the week the Contractor proposes to carry out the work.
    The maximum workweek that will be approved is ______*.

(End of clause)

    *Contracting Officer shall insert appropriate number of days and 
hours and/or days.


452.236-76  Samples and Certificates.

    As prescribed in 436.576, insert the following clause:

SAMPLES AND CERTIFICATES (FEB 1988)

    When required by the specifications or the Contracting Officer, 
samples, certificates, and

[[Page 53675]]

test data shall be submitted after award of the contract, prepaid, 
in time for proper action by the Contracting Officer or his/her 
designated representative. Certificates and test data shall be 
submitted in triplicate to show compliance with materials and 
construction specified in the contract performance requirements.
    Samples shall be submitted in duplicate by the Contractor, 
except as otherwise specified, to show compliance with the contract 
requirements. Materials or equipment for which samples, 
certifications or test data are required shall not be used in the 
work until approved in writing by the Contracting Officer.

(End of clause)


452.236-77  Emergency Response.

    As prescribed in 436.577, the following clause may be used in 
Forest Service construction contracts:

EMERGENCY RESPONSE (NOV 1996)

    (a) Contractor's Responsibility for Fire Fighting. (1) The 
Contractor, under the provisions of FAR clause 52.236-9, PROTECTION 
OF EXISTING VEGETATION, STRUCTURES, EQUIPMENT, UTILITIES, AND 
IMPROVEMENTS, shall immediately extinguish all fires on the work 
site other than those fires in use as a part of the work. (2) The 
Contractor may be held liable for all damages and for all costs 
incurred by the Government for labor, subsistence, equipment, 
supplies, and transportation deemed necessary to control or suppress 
a fire set or caused by the Contractor or the Contractor's agents or 
employees.
    (b) Contractor's Responsibility for Notification in Case of 
Fire. The Contractor shall immediately notify the Government of any 
fires sighted on or in the vicinity of the work site.
    (c) Contractor's Responsibility for Responding to Emergencies. 
When directed by the Contracting Officer, the Contractor shall allow 
the Government to temporarily use employees and equipment from the 
work site for emergency work (anticipated to be restricted to fire 
fighting). An equitable adjustment for the temporary use of 
employees and equipment will be made under the CHANGES clause, FAR 
52.243-4.

(End of clause)


452.236-78  Forest Service Standard Specifications for Construction of 
Roads and Bridges.

    As prescribed in 436.578, insert the following clause:

FOREST SERVICE STANDARD SPECIFICATIONS FOR CONSTRUCTION OF ROADS AND 
BRIDGES (NOV 1996)

    The Forest Service Standard Specifications for Construction of 
Roads and Bridges, XXXX 199X are included by reference. The 
requirements contained in these specifications are hereby made a 
part of this solicitation and any resultant contract.

(End of Clause)


452.236-79  Opted Timber Sale Road Requirements.

    As prescribed in 436.579, insert the following clause:

OPTED TIMBER SALE ROAD REQUIREMENTS (NOV 1996)

    This contract is for the construction of timber sale road(s) 
which a timber purchaser has opted to have the Government construct. 
The Government is obligated to make these roads available to the 
timber purchaser by ______*. Failure to make these roads available 
by this date could result in Government liability for delay to the 
timber purchaser for which the Contractor might become liable should 
the Contractor fail to complete this contract within the specified 
and allowed contract time.

(End of clause)

    *Contracting Officer shall insert appropriate date.


452.236-80  Firms Ineligible for Award--Construction.

    As prescribed in 436.670, insert the following clause:

Firms Ineligible for Award--Construction (NOV 1996)

    The firm(s) and its subsidiaries or affiliates signatory to this 
contract shall be ineligible for award of any construction contract 
resulting from the design work performed under this contract.

(End of clause)


452.237-70  Loss, Damage, Destruction or Repair.

    (a) As prescribed in 437.110(a), insert a clause substantially as 
follows:

LOSS, DAMAGE, DESTRUCTION OR REPAIR (FEB 1988)

    (a) For equipment furnished under this contract without 
operator, the Government will assume liability for any loss, damage 
or destruction of such equipment, not to exceed a total of $______* 
except that no reimbursement will be made for loss, damage or 
destruction due to (1) ordinary wear or tear, (2) mechanical 
failure, or (3) the fault or negligence of the Contractor or the 
Contractor's agents or employees.
    (b) For equipment furnished under this contract with operator, 
the Government shall not be liable for any loss, damage or 
destruction of such equipment, except for loss, damage or 
destruction resulting from the negligent or wrongful act(s) of 
Government employee(s) while acting within the scope of their 
employment.
    (c) All repairs to equipment furnished under this contract shall 
be made by the Contractor and reimbursement, if any, shall be 
determined in accordance with (a) or (b) above. Repairs shall be 
made promptly and equipment returned to use within ______** hours. 
In lieu of repairing equipment, the Contractor may furnish similar 
replacement equipment within the time specified. The Contractor may 
authorize the Government to make repairs upon the request of the 
Contracting Officer. In such case, the Contractor will be billed for 
labor and parts costs.

(End of Clause)

    *Contracting Officer shall insert amount available in current 
funds to cover potential liability.
    **Contracting Officer shall insert appropriate number of hours.


452.237-71  Pre-Bid/Pre-Proposal Conference.

    As prescribed in 437.110(b), insert a provision substantially as 
follows:

PRE-BID/PRE-PROPOSAL CONFERENCE (FEB 1988)

    (a) The Government is planning a pre-bid/pre-proposal 
conference, during which potential offerors may obtain a better 
understanding of the work required.
    (b) Offerors are encouraged to submit all questions in writing 
at least five (5) days prior to the conference. Questions will be 
considered at any time prior to or during the conference; however, 
offerors will be asked to confirm verbal questions in writing. 
Subsequent to the conference, an amendment to the solicitation 
containing an abstract of the questions and answers, and a list of 
attendees, will be disseminated.
    (c) In order to facilitate conference preparations, it is 
requested that the person named on the Standard Form 33 of this 
solicitation be contacted and advised of the number of persons who 
will attend.
    (d) The Government assumes no responsibility for any expense 
incurred by an offeror prior to contract award.
    (e) Offerors are cautioned that, notwithstanding any remarks or 
clarifications given at the conference, all terms and conditions of 
the solicitation remain unchanged unless they are changed by 
amendment to the solicitation. If the answers to conference 
questions, or any solicitation amendment, create ambiguities, it is 
the responsibility of the offeror to seek clarification prior to 
submitting an offer.
    (f) The conference will be held:

Date:------------------------------------------------------------------
Time:------------------------------------------------------------------
Location:--------------------------------------------------------------

(End of Clause)


452.237-73  Equipment Inspection Visit.

    As prescribed in 437.110(c), insert the following provision:

EQUIPMENT INSPECTION VISIT (FEB 1988)

    Offerors are urged and expected to inspect the equipment on 
which maintenance or repairs are to be performed and to satisfy 
themselves regarding all conditions that may affect the cost of 
contract performance, to the extent that the information is 
reasonably obtainable. In no event shall failure to inspect the 
equipment constitute grounds for a claim after contract award.
    Offerors are invited to inspect the ______* at ______* by 
telephoning ______* on ______* for an appointment.

(End of Clause)

    *Contracting Officer shall insert appropriate data.

[[Page 53676]]

452.237-74  Key Personnel.

    As prescribed in 437.110(d), insert a clause substantially as 
follows:

KEY PERSONNEL (FEB 1988)

    (a) The Contractor shall assign to this contract the following 
key personnel: __________
    (b) During the first ninety (90) days of performance, the 
Contractor shall make no substitutions of key personnel unless the 
substitution is necessitated by illness, death, or termination of 
employment. The Contractor shall notify the Contracting Officer 
within 15 calendar days after the occurrence of any of these events 
and provide the information required by paragraph (c) below. After 
the initial 90-day period, the Contractor shall submit the 
information required by paragraph (c) to the Contracting Officer at 
least 15 days prior to making any permanent substitutions.
    (c) The Contractor shall provide a detailed explanation of the 
circumstances necessitating the proposed substitutions, complete 
resumes for the proposed substitutes, and any additional information 
requested by the Contracting Officer. Proposed substitutes should 
have comparable qualifications to those of the persons being 
replaced. The Contracting Officer will notify the Contractor within 
15 calendar days after receipt of all required information of the 
decision on substitutions. The contract will be modified to reflect 
any approved changes of key personnel.

(End of Clause)


452.237-75  Restrictions Against Disclosure.

    As prescribed in 437.110(e), insert a clause substantially as 
follows:

RESTRICTIONS AGAINST DISCLOSURE (FEB 1988)

    (a) The Contractor agrees, in the performance of this contract, 
to keep all information contained in source documents or other media 
furnished by the Government in the strictest confidence. The 
Contractor also agrees not to publish or otherwise divulge such 
information in whole or in part in any manner or form, or to 
authorize or permit others to do so, taking such reasonable measures 
as are necessary to restrict access to such information while in the 
Contractor's possession, to those employees needing such information 
to perform the work provided herein, i.e., on a ``need to know'' 
basis. The Contractor agrees to immediately notify in writing, the 
Contracting Officer, named herein, in the event that the Contractor 
determines or has reason to suspect a breach of this requirement.
    (b) The Contractor agrees not to disclose any information 
concerning the work under this contract to any persons or individual 
unless prior written approval is obtained from the Contracting 
Officer. The Contractor agrees to insert the substance of this 
clause in any consultant agreement or subcontract hereunder.

(End of Clause)


452.237-76  Progress Reporting.

    As prescribed in 437.270(a), insert a clause substantially as 
follows:

PROGRESS REPORTING (FEB 1988)

    The Contractor shall submit a progress report ______*, covering 
work accomplished during that period of the contract performance. 
The progress report shall be brief and factual and shall be prepared 
in accordance with the following format:
    (a) A cover page containing:
    (1) Contract number and title;
    (2) Type of report, sequence number of report, and period of 
performance being reported;
    (3) Contractor's name and address;
    (4) Author(s); and
    (5) Date of report.
    (b) Section I--An introduction covering the purpose and scope of 
the contract effort. This shall be limited to one paragraph in all 
but the first and final month's narrative.
    (c) Section II--A description of overall progress plus a 
separate description of each task or other logical segment of work 
on which effort was expended during the report period. The 
description shall include pertinent data and/or graphs in sufficient 
detail to explain any significant results achieved.
    (d) Section III--A description of current technical or 
substantive performance, and any problem(s) which may impede 
performance along with proposed corrective action.
    (e) Section IV--A planning schedule shall be included with the 
first progress report for all assigned tasks required under the 
contract, along with the estimated starting and completion dates for 
each task. The planning schedule shall be updated and submitted with 
each subsequent technical progress report, including an explanation 
of any difference between actual progress and planned progress, why 
the differences have occurred, and--if behind planned progress--what 
corrective steps are planned.
    (f) Section V--If applicable, financial information shall be 
submitted for each major task or line item cost.
    Data shall include:
    (1) The total estimated cost budgeted (fee excluded).
    (2) The estimated cost expended during the current reporting 
period.
    (3) Identification of direct labor hours of prime contractor and 
subcontractor(s) and/or consultant(s), if applicable.
    (4) Total project to-date expenditures.
    (5) Total remaining funds.

(End of Clause)

    *Contracting Officer shall insert frequency of reporting 
requirement.


452.237-78  Contracts with Consulting Firms for Services.

    As prescribed in 437.270(b), insert a clause substantially as 
follows:

CONTRACTS WITH CONSULTING FIRMS FOR SERVICES (FEB 1988)

    Offerors are specifically cautioned that any firm(s) receiving a 
contract award to provide the services described herein will be 
prohibited from competing for or receiving a follow-on contract to 
perform ______.*

(End of Clause)

    * Contracting Officer shall insert the appropriate information.


452.246-70  Inspection and Acceptance.

    As prescribed in 446.370, insert the following clause:

INSPECTION AND ACCEPTANCE (FEB 1988)

    (a) The Contracting Officer or the Contracting Officer's duly 
authorized representative will inspect and accept the supplies and/
or services to be provided under this contract.
    (b) Inspection and acceptance will be performed at: ______.*

(End of clause)

    * Contracting Officer shall insert appropriate identifying data.
    Alternate I (FEB 1988). As prescribed in 446.370, substitute a 
paragraph (b) and add a paragraph (c):
    (b) Inspection will be performed at: ______.*
    (c) Acceptance will be performed at: ______.*

(End of clause)


452.247-70  Delivery Location.

    As prescribed in 447.302, insert a clause substantially as follows:

DELIVERY LOCATION (FEB 1988)

    Shipment of deliverable items, other than reports, shall be to: 
______.*

(End of Clause)

    * Contracting Officer shall insert appropriate identifying data.


452.247-71  Marking Deliverables.

    As prescribed in 447.305-10(a), insert a clause substantially as 
follows:

MARKING DELIVERABLES (FEB 1988)

    (a) The contract number shall be placed on or adjacent to all 
exterior mailing or shipping labels of deliverable items called for 
by the contract.
    (b) Mark deliverables, except reports, for: ______.*

(End of Clause)

    * Contracting Officer shall insert the appropriate information.


452.247-72  Packing for Domestic Shipment.

    As prescribed in 447.305-10(b), insert the following clause:

PACKING FOR DOMESTIC SHIPMENT (FEB 1988)

    Material shall be packed for shipment in such a manner that will 
insure acceptance by common carriers and safe delivery at 
destination. Containers and closures shall comply with the 
Interstate Commerce Commission regulations, Uniform Freight 
Classification Rules, or regulations of other carriers as applicable 
to the mode of transportation.

[[Page 53677]]

(End of Clause)


452.247-73  Packing for Overseas Shipment.

    As prescribed in 447.305-10(c), insert the following clause:

PACKING FOR OVERSEAS SHIPMENT (FEB 1988)

    Supplies shall be packed for overseas shipment in accordance 
with the best commercial export practice suitable for water movement 
to arrive undamaged at ultimate destination.

(End of Clause)

PART 453--FORMS

Sec.
453.000 Scope of part.

Subpart 453.1--General

453.103 Exceptions.
453.108 Recommendations concerning forms.

Subpart 453.2--Prescription of Forms

453.200 Scope of subpart.
453.213 Simplified Acquisition and other simplified purchase 
procedures (AD-838).
453.270  Request for contract action (AD-700).

Subpart 453.3--Illustrations of Forms

453.300 Scope of subpart.
453.303 Agency forms.
453.303-700 Procurement Request (AD-700).
453.303-838 Purchase Order (AD-838).

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


Sec. 453.000  Scope of part.

    This part:
    (a) Prescribes USDA (AD) forms for use in acquisition,
    (b) Contains requirements and information generally applicable to 
AD forms and forms prescribed by FAR part 53, and
    (c) Illustrates AD forms.

Subpart 453.1--General


453.103  Exceptions.

    (a) The contracting officer shall submit a request for exceptions 
to forms prescribed in FAR part 53 through the head of the contracting 
activity (HCA) to the Senior Procurement Executive (SPE) for referral 
to the GSA.
    (b) Requests for exceptions to AD forms prescribed in part 453 
shall be handled as individual or class deviations, as appropriate (see 
subpart 401.4).


453.108  Recommendations concerning forms.

    Contracting officers shall submit recommendations for new forms or 
to revise, eliminate, or consolidate forms prescribed by FAR part 53 
and part 453 through the HCA to the SPE.

Subpart 453.2--Prescription of Forms


453.200  Scope of subpart.

    This subpart prescribes USDA (AD) forms for use in acquisition. 
Consistent with the approach used in FAR subpart 53.2, this subpart is 
arranged by subject matter, in the same order as, and keyed to, the 
parts of the AGAR in which the form usage requirements are addressed.


453.213  Simplified Acquisition and other simplified purchase 
procedures (AD-838).

    Form AD-838, Purchase Order, is prescribed for use as a Simplified 
Acquisition Procedure/delivery order/task order document in lieu of OF 
347 and OF 348 (see 413.505-1).


453.270  Request for contract action (AD-700).

    Form AD-700, Procurement Request, may be used as a contract 
requisition document by contracting activities in USDA.

Subpart 453.3--Illustrations of Forms


453.300  Scope of subpart.

    This subpart contains illustrations of USDA (AD) forms for use in 
acquisitions.
    Forms are not illustrated in the Federal Register or Code of 
Federal Regulations. Individual copies may be obtained from any USDA 
contracting activity or the office of the SPE.


453.303  Agency forms.


453.303-700  Procurement Request (AD-700).


453.303-838  Purchase Order (AD-838).

[FR Doc. 96-25427 Filed 10-11-96; 8:45 am]
BILLING CODE 3410-98-P