[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Proposed Rules]
[Pages 1399-1418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-380]


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DEPARTMENT OF JUSTICE

48 CFR Chapter 28


Justice Acquisition Regulations; Rewrite of the Justice 
Acquisition Regulation (JAR). Regarding: Implementation of the Federal 
Acquisition Streamlining Act and the National Performance Review 
Recommendations

AGENCY: Justice Management Division, Justice.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Department of Justice is proposing to rewrite 48 CFR 
Chapter 28, the Justice Acquisition Regulations, in its entirety in 
order to implement regulatory changes resulting from the Federal 
Acquisition Streamlining Act and to further implement recommendations 
of the National Performance Review. This effort will create a new JAR 
that is simpler and less burdensome. This 1998 version of the JAR 
supersedes the 1985 version and all amendments (Justice Acquisition 
Circulars 85-1 through 97-1) issued prior to the date of publication of 
a final rule.

DATES: Comments must be submitted on or before March 10, 1998.

ADDRESSES: Send written comments to Procurement Executive, 1331 
Pennsylvania Avenue, NW., National Place Bldg., Room 1400, Washington, 
DC 20530.

FOR FURTHER INFORMATION CONTACT:
Janis Sposato, Procurement Executive, Justice Management Division (202) 
514-3103.

SUPPLEMENTARY INFORMATION: The Director, Office of Management and 
Budget (OMB), by memorandum dated December 14, 1984, exempted agency 
procurement regulations from review

[[Page 1400]]

under Executive Order 12291, except for selected areas. The exception 
applies to this rule. In addition, the Department of Justice certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601-612) because the amendment sets forth, wholly, 
internal departmental procedures. All information collection 
requirements which require approval by OMB under the Paperwork 
Reduction Act of 1980 (Pub. L. 96-511) have been submitted to OMB. In 
those cases where an OMB control number has been assigned, the control 
number is included in the regulation.

List of Subjects in 48 CFR Parts 2801 Through 2852

    Government procurement.
Stephen R. Colgate,
Assistant Attorney General For Administration.

    For the reasons set out in the preamble, Chapter 28 of Title 48 of 
the Code of Federal Regulations is proposed to be revised as set forth 
below.

CHAPTER 28--DEPARTMENT OF JUSTICE

SUBCHAPTER A--GENERAL

Part 2801--Department of Justice Acquisition Regulations System
Part 2802--Definitions of Words and Terms
Part 2803--Improper Business Practices and Personal Conflicts of 
Interest
Part 2804--Administrative Matters

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

Part 2805--Publicizing Contract Actions
Part 2806--Competition Requirements
Part 2807--Acquisition Planning
Part 2808--Required Sources of Supplies and Services
Part 2809--Contractor Qualifications
Part 2811--Describing Agency Needs
Part 2812--Acquisition of Commercial Items

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

Part 2813--Simplified Acquisition Procedures
Part 2814--Sealed Bidding
Part 2815--Contracting By Negotiation
Part 2816--Types of Contracts
Part 2817--Special Contracting Methods

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

Part 2819--Small Business Programs
Part 2822--Application of Labor Laws to Government Acquisitions
Part 2823--Environment, Conservation, Occupational Safety, and Drug-
Free Workplace
Part 2824--Protection of Privacy and Freedom of Information
Part 2825--Foreign Acquisition

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

Part 2828--Bonds and Insurance
Part 2829--Taxes
Part 2830--Cost Accounting Standards Administration
Part 2831--Contract Cost Principles and Procedures
Part 2832--Contract Financing
Part 2833--Protests, Disputes, and Appeals

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

Part 2834--Major System Acquisition

SUBCHAPTER G--CONTRACT MANAGEMENT

Part 2842--Contract Administration
Part 2845--Government Property
Part 2846--Quality Assurance

SUBCHAPTER H--CLAUSES AND FORMS

Part 2852--Solicitation Provisions and Contract Clauses

SUBCHAPTER A--GENERAL

PART 2801--DEPARTMENT OF JUSTICE ACQUISITION REGULATIONS SYSTEM

Subpart 2801.1--Purpose, Authority, Issuance

2801.101  Purpose.

Subpart 2801.2--Administration

2801.270-1  Revisions.

Subpart 2801.3--Agency Acquisition Regulations

2801.304  Agency control and compliance procedures.

Subpart 2801.4--Deviations From The FAR and JAR

2801.403  Individual deviations.
2801.404  Class deviations.
2801.470  Requests for class deviations.

Subpart 2801.6--Career Development, Contracting Authority, and 
Responsibilities

2801.601  General.
2801.602  Contracting Officers.
2801602-3  Ratification of unauthorized commitments.
2801.603  Selection, appointment and termination of appointment.
2801.603-1  Department of Justice Acquisition Career Management 
Program.
2801.603-3  Appointment.

Subpart 2801.70--Contracting Officer's Technical Representative

2801.7001-701  General.
2801.7001-702  Selection, appointment, and limitation of authority.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2801.1--Purpose, Authority, Issuance


2801.101   Purpose.

    (a) The Justice Acquisition Regulations (JAR) in this chapter are 
established to provide procurement regulations that supplement the 
Federal Acquisition Regulation (FAR), 48 Code of Federal Regulations 
(CFR), Chapter 1. As such, the regulations contained in the JAR will 
include coverage of only those areas where agency implementation is 
required by the FAR, or where Department of Justice (DOJ) policies and 
procedures exist that supplement FAR coverage and directly affect the 
contractual relationship between the Department and potential or 
existing contractors. The JAR will not repeat FAR coverage.
    (b) The FAR contains many references to agency procedures. If the 
JAR does not include supplemental guidance under the corresponding part 
or subpart, it is because the FAR language is considered to be 
sufficient. In those instances where the JAR states ``in accordance 
with bureau procedures'', it does not mean that the bureau must have a 
procedure. It is intended that the bureau procedures are to be followed 
if they exist; however, it does not mean that the bureau must have a 
formal written procedure. Where both the JAR and bureau procedures do 
not address a FAR subject, the FAR guidance is to be followed.
    (c) The JAR is not a complete system of regulations and must be 
used in conjunction with the FAR.

Subpart 2801.2--Administration


2801.270-1   Revisions.

    In addition to changes published in the Federal Register, the JAR 
will be amended by issuance of Justice Acquisition Circulars (JACs) 
containing loose-leaf replacement pages which revise parts, subparts, 
sections, subsections, paragraphs or subparagraphs. A vertical bar 
(edit bar) at the beginning or end of a line indicates that a change 
has been made within that line.

Subpart 2801.3--Agency Acquisition Regulations


2801.304   Agency control and compliance procedures.

    Pursuant to FAR 1.304, the Procurement Executive (PE) is 
responsible for ensuring that bureau acquisition regulations and 
directives do not restrain the flexibilities found in the FAR. For this 
reason, bureau acquisition regulations shall be forwarded to the PE 
upon issuance. The PE reserves the right to revoke the regulations and 
directives in this chapter if they are determined to be restrictive.

[[Page 1401]]

Subpart 2801.4--Deviations from the FAR and JAR


Sec. 2801.403  Individual deviations.

    Individual deviations from the FAR or the JAR shall be approved by 
the head of the contracting activity (HCA). A copy of the deviation 
shall be included in the contract file. Copies of all deviations will 
be provided to the PE.


Sec. 2801.404  Class deviations.

    Requests for class deviations from the FAR or the JAR shall be 
submitted to the PE. The PE will consult with the chairperson of the 
Civilian Agency Acquisition Council, as appropriate, and send his/her 
recommendations to the AAG/A. The AAG/A will grant or deny requests for 
such deviations. For the purposes of this chapter, requests for 
deviations involving basic ordering agreements, master type contracts, 
or situations where multiple awards are made from one solicitation, are 
considered to involve more than one contract and therefore considered 
to be class deviation requests.


Sec. 2801.470  Requests for class deviations.

    Requests for approval of class deviations from the FAR or the JAR 
shall be forwarded to the PE. Such requests will be signed by the 
Bureau Procurement Chief (BPC). Requests for class deviations shall be 
submitted as far in advance as the exigencies of the situation permit 
and shall contain sufficient written justification to evaluate the 
request.

Subpart 2801.6--Career Development, Contracting Authority, and 
Responsibilities


Sec. 2801.601  General.

    (a) In accordance with Attorney General Order 1687-93, the 
authority vested in the Attorney General with respect to contractual 
actions, for goods and services, is delegated to the following 
officials:
    (1) Assistant Attorney General for Administration (for the offices, 
boards, and divisions (OBDs);
    (2) Director, Federal Bureau of Investigation;
    (3) Director, Bureau of Prisons;
    (4) Commissioner, Federal Prison Industries;
    (5) Commissioner, Immigration and Naturalization Service;
    (6) Administrator, Drug Enforcement Administration;
    (7) Assistant Attorney General, Office of Justice Programs;
    (8) Director, U.S. Marshals Service;
    (9) Director, National Institute of Corrections; and
    (10) Inspector General, Office of the Inspector General.
    (b) The acquisition authority delegated to the officials in 
2801.601(a) may be redelegated to subordinate officials as necessary 
for the efficient and proper administration of the Department's 
acquisition operations. Such redelegated authority shall expressly 
state whether it carriers the power of redelegation of authority.
    (c) The redelegation of contracting authority directly to specific 
persons without regard for intermediate organizational levels only 
establishes authority to represent the Government in its commercial 
business dealings. It is not intended to affect the organizational 
relationship between the contracting officers and higher administrative 
and supervisory levels in the performance of their duties.


Sec. 2801.602  Contracting officers.


Sec. 2801.602-3  Ratification of unauthorized commitments.

    The HCA may delegate the authority to ratify unauthorized 
commitments to the chief of the contracting office, except for those 
actions effected by his or her office. Dollar thresholds for 
delegations made under this section will be determined by the HCA. 
Copies of all ratifications are to be provided to the PE.


Sec. 2801.603  Selection, appointment and termination of appointment.


Sec. 2801.603-1  Department of Justice Acquisition Career Management 
Program.

    (a) Each Bureau Procurement Chief shall develop and manage an 
acquisition career management program for contracting personnel in his 
or her component, consistent and uniform with this section and the 
Department of Justice Acquisition Procurement Career Management 
Program.
    (b) The program shall cover all contracting personnel in the 
following categories:
    (1) General Schedule (GS-1102) Contracting Series;
    (2) Contracting officers, regardless of General Schedule Series, 
with contracting authority above the simplified acquisition threshold;
    (3) Purchasing Series (GS-1105), other individuals performing 
purchasing duties and individuals with contracting authority between 
the micro purchase and simplified acquisition thresholds.
    (4) All Contracting Officer Representatives/Contracting Officer 
Technical Representatives, or equivalent positions.
    (c) The program shall include:
    (1) Management information system. Standardized information on the 
acquisition workforce will be collected and maintained. To the maximum 
extent practicable, such data requirements shall conform to the 
standards established by the Office of Personnel Management for the 
Central Personnel Data File and shall be compatible with the Department 
of Justice acquisition workforce management information system.
    (2) Individual assessments and development plans for personnel in 
the GS-1102 Contracting Series.
    (i) An individual assessment by a supervisor of each covered 
employee's state of competence to perform the full range of potential 
duties of his or her job; and
    (ii) An individual development plan to schedule classroom, on-the-
job training, or other training to develop the employee's skill level 
to an appropriate level in each area of competence necessary to perform 
his or her job.
    (iii) Individual assessments and development plans should be 
designed to fit the needs of the component, but they should be built 
upon the units of competence and instruction prepared by the Federal 
Acquisition Institute whenever feasible. Individual development plans 
should attempt to bring the employee to an appropriate level of skill 
in all necessary competencies in the field of procurement. In general, 
a proficiency skill level of 3, as defined in Attachment 1 to OFPP 
Policy Letter 92-3, shall be obtained for any contracting duty that is 
actually required to be performed on the job. Individual assessments 
and development plans should be reviewed annually and revised as 
appropriate, until the employee reaches the full competency level of 
his or her job.
    (iv) Employees who perform only purchasing duties, regardless of 
occupational series, shall be required to obtain the requisite level of 
skill only in competencies involving simplified acquisitions. If the 
employee's duties are expanded to include contracting duties, then 
skill procurement competencies must be assessed and developed.
    (v) Individual assessments of covered employee skills shall be 
completed within 90 days of the employee's entry on duty.
    (3) Mandatory training. Training shall be provided for the 
identified categories of contracting personnel to meet the minimum 
standards identified in OFPP Policy Letter 97-01.
    (4) Skills currency. Contract Specialists (GS-1102) and contracting 
officers with authority to obligate funds above the micropurchase 
threshold that have satisfied the mandatory training

[[Page 1402]]

requirements, shall be provided the equivalent of at least 40 hours of 
continuing procurement and acquisition related education and training 
every two years for the purpose of maintaining the currency of 
acquisition knowledge and skills.
    (5) Program funding. Bureau Procurement Chiefs are responsible for 
assessing the funding needs to provide for the education and training 
of their acquisition workforce and requesting such funding in the 
annual budget process.


2801.603-3  Appointment.

    Contracting officers whose authority will be limited to micro-
purchases shall be appointed in writing and include any limitations to 
that authority.

Subpart 2801.70--Contracting Officer's Technical Representative


2801.7001-701  General.

    Contracting officers may appoint individuals selected by program 
offices to act as authorized representatives in the monitoring and 
administration of a contract. Such officials shall be designated as 
Contracting Officers' Technical Representatives (COTRs).


2801.7001-702  Selection, appointment, and limitation of authority.

    (a) COTR Standards Program. This subpart sets forth policies and 
procedures for establishing standards for COTRs in DOJ. The program 
sets forth minimum standards for individuals to be eligible for an 
appointment as a COTR.
    (b) Applicability. the eligibility requirements of this subpart 
apply to all individuals who are designated by the contracting officer 
as COTRs.
    (c) Eligibility standards. To be determined eligible for an 
appointment as a DOJ COTR, the following standards must be met:
    (1) The candidate must attend and successfully complete a minimum 
of a 16-hour basic COTR course; and
    (2) The candidate must attend a minimum of 1 hour training 
specifically in procurement ethics, either through courses offered 
periodically by the Department, the bureaus, or a Government or 
commercial vendor.
    (d) Limitations. Each COTR appointment made by the contracting 
officer shall clearly state that the representative is not an 
authorized contracting officer and does not have the authority under 
any circumstances to:
    (1) Award, agree to award, or execute any contract, contract 
modification, notice of intent, or other form of binding agreement;
    (2) Obligate, in any manner, the payment of money by the 
Government;
    (3) Make a final decision on any contract matter which is subject 
to the clause at FAR 52.233-1, Disputes; or
    (4) Terminate, suspend, or otherwise interfere with the 
contractor's right to proceed, or direct any changes in the 
contractor's performance that are inconsistent with or materially 
change the contract specifications.
    (e) Termination. Termination of the COTR's appointment shall be 
made in writing by the contracting officer and shall give the effective 
date of the termination. The contracting officer shall promptly modify 
the contract once a COTR termination notice has been issued. A 
termination notice is not required when the COTR's appointment 
terminates upon expiration of the contract.
    (f) Waivers. No individual may serve as a COTR on any contract 
without the requisite training and signed COTR certificate for the 
file. In the rare event that there is an urgent requirement for a 
specific individual to serve as a COTR and the individual has not 
successfully completed the required training, the BPC may waive the 
training requirements and authorize the individual to perform the COTR 
duties, for a period of time not to exceed 120 days. The waiver will be 
granted in accordance with bureau procedures.

PART 2802--DEFINITIONS OF WORDS AND TERMS

Subpart 2.1--Definitions


2802.101  Definitions.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2.1--Definitions


2802.101  Definitions.

    Throughout this chapter, the following words and terms are used as 
defined in this subpart unless the context in which they appear clearly 
requires a different meaning, or a different definition is prescribed 
for a particular part or portion of a part.
    (a) Bureaus means contracting activities. (See contracting activity 
in this subpart.)
    (b) Bureau procurement chief means that supervisory official who is 
directly responsible for supervising, managing and directing all 
contracting offices of the bureau.
    (c) Chief of the contracting office means that supervisory official 
who is directly responsible for supervising, managing and directing a 
contracting office.
    (d) Contracting activity means a component within the Department 
which has been delegated procurement authority to manage contracting 
functions associated with its mission. See 2801.601(a).
    (e) DOJ means the Department of Justice.
    (f) Head of the contracting activity means those officials 
identified in 2801.601(a) having responsibility for supervising, 
managing, and directing the operations of the contracting activities.
    (g) JAR means the Department of Justice Acquisition Regulations.
    (h) JMD means the Justice Management Division.
    (i) OBD means the offices, boards, and divisions within the Justice 
Department.
    (j) PE means the Procurement Executive for the Department of 
Justice.

PART 2803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

Subpart 2803.1--Safeguards

2803.101-3  Agency regulations.
2803.104  Procurement integrity.
2803.104-10  Violations or possible violations.
2803.104-70  Ethics program training requirements.

Subpart 2803.2--Contractor Gratuities to Government Personnel

2803.203  Reporting suspected violations of the Gratuities clause.
2803.204  Treatment of violators.

Subpart 2803.3--Reports of Suspected Antitrust Violations

2803.301  General.

Subpart 2803.9--Whistleblower Protections for Contractor Employees

2803.905  Procedures for investigating complaints.
2803.906  Remedies.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2803.1--Safeguards


2803.101-3  Agency regulations.

    The DOJ regulations governing Standards of Conduct are contained in 
5 CFR part 2635.


2803.104  Procurement integrity.


2803.104-10  Violations or possible violations.

    (a) Upon receipt of information of a violation or possible 
violation of section 27 of the Act, the contracting officer must do the 
following:
    (1) Refer the matter to the office of the Inspector General or 
other office designated in Attorney General Order 1931-94; and,

[[Page 1403]]

    (2) Make the determination required by FAR 3.104-10(a) and followed 
the procedures prescribed therein.
    (b) The individual referenced in FAR 3.104-10(a)(1) is the Bureau 
Procurement Chief.
    (c) The HCA must follow the criteria contained in FAR 3.104-10(g) 
when designating authority under this subpart.
    (d) The HCA, or designee, shall refer information regarding actual 
or possible violations of section 27 of the Act to the Office of the 
Inspector General or other office designated in Attorney General Order 
1931-94 for guidance before taking action.
    (e) If the HCA, or designee, receiving the information of a 
violation, or possible violation, determines that award is justified by 
urgent and compelling circumstances, or is otherwise in the interest of 
the Government, then the contracting officer may be authorized to award 
the contract after notification to the Office of the Inspector General 
or other office designated in Attorney General Order 1931-94.
    (f) The contracting officer will be advised, or directed by the 
HCA, or designee, as to the action to be taken. The types of actions 
that would normally be taken when a violation has occurred that 
affected the outcome of a procurement are listed in FAR 3.104-11(d).
    (g) The PE shall be advised of all instances where violations have 
been determined to have occurred. Information must describe the 
violation as well as actions taken.


2803.104-70  Ethics program training requirements.

    It is the responsibility of the bureaus to provide training for 
``procurement officials'' concerning the requirements of FAR 3.104. The 
bureau procurement training efforts should be coordinated with the 
Department's Ethics Official, who is responsible for developing agency 
ethics training plans, to include briefings on ethics and standards of 
conduct for employees who are contracting officers and procurement 
officials. The Ethics Official should be contacted directly to schedule 
training.

Subpart 2803.2--Contractor Gratuities to Government Personnel


2803.203  Reporting suspected violations of the Gratuities clause.

    DOJ personnel shall report suspected violations of the Gratuities 
clause to the contracting officer or chief of the contracting office in 
writing. The report shall clearly state the circumstances surrounding 
the incident, including the nature of the gratuity, the behavior or 
action the gratuity was to influence, and the persons involved. The 
contracting officer, after review, shall forward the report along with 
his or her recommendations regarding the treatment of the violation in 
accordance with FAR 3.204(c) to the HCA or designee.


2803.204  Treatment of violations.

    (a) The HCA or designee shall determine whether adverse action 
against the contractor in accordance with FAR 3.204(c) should be taken. 
In reaching a decision, the HCA or designee shall consult with the 
contracting activity's legal advisor and the Office of the Inspector 
General or other office designated in Attorney General Order 1931-94.
    (b) Prior to taking any action against the contractor the HCA or 
designee shall allow the contractor the opportunity to present opposing 
arguments in accordance with FAR 3.204(b).
    (c) The PE shall be advised of all instances where violations have 
been determined to have occurred. Information must describe the 
violation as well as actions taken.

Subpart 2803.3--Reports of Suspected Antitrust Violations


2803.301  General.

    Reports of suspected antitrust violations shall be referred to the 
AG and PE in accordance with bureau procedures.

Supart 2803.9--Whistleblower Protections for Contractor Employees


2803.905  Procedures for investigating complaints.

    (a) The Inspector General shall conduct an investigation and 
provide a written report of findings to the HCA.
    (b) The HCA will ensure that the Inspector General provides the 
report of finding as specified in FAR 3.905(c).
    (c) the complainant and contractor shall be afforded the 
opportunity to submit a written response to the report of findings 
within 30 days to the HCA. Extensions of time to file a written 
response may be granted by the HCA.
    (d) The HCA may at any time request additional investigative work 
be done on the complaint.


2803.906  Remedies.

    (a) Upon determination that a contractor has subjected one of its 
employees to a reprisal for providing information, the HCA may take one 
or more actions specified in FAR 3.906(a).
    (b) Whenever a contractor fails to comply with an order, the HCA 
shall request an action be filed for enforcement of such order in the 
United States district court.

PART 2804--ADMINISTRATIVE MATTERS

Subpart 2804.4--Safeguarding Classified Information Within Industry
2804.402 General.
2804.403 Responsibilities of contracting officers.
2804.470 Contractor Personnel Security Program.
2804.470-1 Policy.
2804.470-2 Responsibilties.

Subpart 2804.5--Electronic Commerce in Contracting

2804.506 Exemptions.

Subpart 2804.6--Contract Reporting

2804.602 Federal Procurement Data System.

Subpart 2804.8--Government Contract Files

2804.805 Storage, handling, and disposal of contract files.

Subpart 2804.9--Information Reporting to the Internal Revenue Service

2804.901 Definitions.
2804.902 Contract information.
2804.970 Special reporting exceptions.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2804.4--Safeguarding Classified Information Within Industry


2804.402  General.

    Classified acquisitions or contracts which require access to 
classified material, as defined in FAR 4.401, for their performance 
shall be subject to the policies, procedures, and instructions 
contained in departmental regulations in this chapter and shall be 
processed in a manner consistent with those regulations.


2804.403  Responsibilities of contracting officers.

    For proposed solicitations and contracts which may require access 
to classified material or where guard services are assigned to 
safeguard departmental activities in possession of classified 
information, the contracting officer will consult with the COTR and the 
Director, Security and Emergency Planning Staff, JMD, to determine the 
appropriate security measures to safeguard such material and 
information.


2804.470  Contractor Personnel Security Program.


2804.470-1  Policy.

    It is the policy of the Department of Justice that all acquisitions 
which allow

[[Page 1404]]

unescorted contractor access to Government facilities or sensitive 
information contain, as appropriate, requirements for appropriate 
personnel security screening by the contractor. To the maximum extent 
practicable, contractors shall be made responsible for the performance 
of personnel security screening. The personnel security screening may 
vary from one acquisition to another, depending upon the type, context, 
duration and location of the work to be performed. Classified contracts 
are exempted from the requirements of this section because they are 
governed by he requirements of Executive Order 12829 (January 6, 1993).


2804.470-2 Responsibilities.

    (a) The primary acquiring component, together with its Security 
Program Manager, is responsible for providing the contracting officer 
with the appropriate contractor personnel security screening 
requirements (including waiver requirements, if appropriate) to be 
included in the statement of work.
    (b) The contracting officer is responsible for including in the 
contract file for all such acquisitions, a certification made by the 
responsible Security Program Manager that the Personnel security 
requirements of the contract are adequate to ensure the security of 
Departmental operations, information and personnel.
    (c) The Security Program Manager for the acquiring component is 
responsible for monitoring and ensuring that the contractor personnel 
security requirements of the contract are accomplished.
    (d) For purposes of this section, the term Contracting Officer 
includes anyone empowered to place orders under Blanket Purchase 
Agreements (BPA) or any other existing contract vehicle and/or through 
the use of the government-wide commercial purchase card.

Subpart 2804.5--Electronic Commerce in Contracting


2804.506  Exemptions.

    Pursuant to FAR 4.506(b), all determinations that FACNET processing 
is not cost-effective or practicable for the contracting office, or 
portions thereof, shall be initiated by the HCA and submitted to the PE 
for processing to the Attorney General for signature.

Subpart 2804.6--Conract Reporting


2804.602  Federal Procurement Data System.

    (a) Federal Procurement Data System (FPDS) reports shall be 
submitted to the Procurement Policy and Review Group (PPRG) within 21 
days of the close of each of the first three quarters of the fiscal 
year and within 30 days after the close of the fourth quarter. Specific 
preparation procedures are contained in the FPDS Reporting Manual and 
the Product and Service Code Manual.
    (b) Bureaus shall submit their annual summary subcontract reports, 
together with copies of their Standard Form 295 to PPRG, and enter 
their summary subcontract data on-line to GSA, not later than February 
15th of the following year.
    (c) BPCs shall provide to the PE, the name, office, mailing 
address, and telephone number of the individual who will provide day-
to-day operational contact within the bureau for the implementation of 
the FPDS. Changes and updates shall be forwarded to PPRG within 10 days 
after they occur. It is the responsibility of the bureau contacts to 
ensure that all actions are reported and submitted to PPRG in a timely 
manner and that all statistics and reports are accurate, current, and 
complete. BPCs shall be responsible for validating the data.

Subpart 2804.8--Government Contract Files


2804.805  Storage, handling, and disposal of contract files.

    In accordance with FAR 4.805, each bureau shall prescribe 
procedures for the handling, storage, and disposing of contract files.

Subpart 2804.9--Information Reporting to the Internal Revenue 
Service


2804.901  Definitions.

    Classified contract, as used in this subpart, means a contract such 
that the fact of its existence or its subject matter has been 
designated and clearly marked or clearly represented, pursuant to the 
provisions of Federal law or an Executive Order, as requiring a 
specific degree of protection against unauthorized disclosure for 
reasons of national security.
    Confidential contract, as used in this subpart, means a contract, 
the reporting of which to the Internal Revenue Service (IRS) as 
required under 26 U.S.C. 6050M, would interfere with the effective 
conduct of a confidential law enforcement activity, such as contracts 
for sites for undercover operations or contracts with informants, or 
foreign counterintelligence activity.


2804.902  Contract information.

    (a) Pursuant to FAR 4.902, the HCA, or delegate, shall certify to 
the PE, in the format specified in this section, under penalty of 
perjury, that such official has examined the information submitted by 
that bureau as its FPDS data, that the data has been prepared pursuant 
to the requirements of 26 U.S.C. 6050M, and that, to the best of such 
official's knowledge and belief it is compiled from bureau records 
maintained in the normal course of business for the purpose of making a 
true, correct and complete return as required by 26 U.S.C. 6050M.
    (b) The following certification will be signed and dated by the 
HCA, or delegate, and submitted with each bureau quarterly FPDS report 
(as specified by 2804.602).

Certification

    I, ________ (Name), ________ (Title) under the penalties of 
perjury have examined the information to be submitted by ________ 
(Bureau) to the Procurement Executive, for making information 
returns on behalf of the Department of Justice to the Internal 
Revenue Service, and certify that this information has been prepared 
pursuant to the requirements of 26 U.S.C. 6050M and that it is to 
the best of my knowledge and belief, a compilation of bureau records 
maintained in the normal course of business for the purpose of 
providing true, correct and complete returns as required by 26 
U.S.C. 6050M.
----------------------------------------------------------------------
Signature

----------------------------------------------------------------------
Date

    (c) The PE will certify the consolidated FPDS data for the 
Department, transmit the data to the Federal Procurement Data Center 
(FPDC) and authorize the FPDC to make returns to the IRS on behalf of 
the agency.


2804.970  Special reporting exceptions.

    (a) The Technical and Miscellaneous Revenue Act of 1988 (Pub. L. 
100-647) amended 26 U.S.C. 6959M to allow exceptions to the reporting 
requirements for certain classified or confidential contracts.
    (b) The head of the agency has determined that the filing of 
information returns, as required by 26 U.S.C. 6050M, on confidential 
contracts, which involve law enforcement or foreign counterintelligence 
activities, would interfere with the effective conduct of those 
confidential law enforcement or foreign counterintelligence activities, 
and that the special reporting exceptions added to 26 U.S.C. 6050M by 
The Technical and Miscellaneous

[[Page 1405]]

Revenue Act of 1988 apply to these types of contracts.

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

PART 2805--PUBLICIZING CONTRACT ACTIONS

Subpart 2805.2--Synopses of Proposed Contract Actions

2805.201-70  Departmental notification.

Subpart 2805.3--Synopses of Contract Awards

2805.302-70  Departmental notification.

Subpart 2805.5--Paid Advertisements

2805.502  Authority.
2805.503-70  Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2805-2--Synopses of Proposed Contract Actions


2805.201-70  Departmental notification.

    (a) A copy of each synopsis of a proposed contract action sent to 
the Department of Commerce, shall be furnished to the Director, Office 
of Small and Disadvantaged Business Utilization (OSDBU), Justice 
Management Division (JMD).
    (b) Contracting officers shall document, in the contract file, that 
a copy of the notice has been forwarded to the OSDBU. A ``cc'' to the 
OSDBU on the file copy of the Commerce Business Daily (CBD) notice 
shall be considered adequate documentation.

Subpart 2805.3--Synopses of Contract Awards


2805.302-70  Departmental notification.

    (a) The contracting officer shall forward a copy of the synopsis of 
contract award, as prepared under FAR 5.302, to the Director, OSDBU, 
JMD.
    (b) Contracting officers shall document in the contract file that a 
copy of the notice has been forwarded to the OSDBU. A ``cc'' to the 
OSDBU on the file copy of the CBD notice shall be considered adequate 
documentation.

Subpart 2805.5--Paid Advertisements

    This subpart provides policies and procedures for the procurement 
of paid advertising as covered by 5 U.S.C. 302, 44 U.S.C. 3701, 3702, 
and 3703, and Title 7, Chapter 5-25.2, General Accounting Office Policy 
and Procedures Manual for Guidance of Federal Agencies.


2805.502  Authority.

    (a) Authorization for paid advertising is required for newspapers 
only. Pursuant to 28 CFR 0.14, the authority to approve publication of 
paid advertisements in newspapers has been delegated to the officials 
listed in 2801.601(a). This authority may be redelegated as 
appropriate.
    (b) Authority to purchase paid advertising must be granted in 
writing by an official delegated such authority. No advertisement, 
notice, or proposal will be published prior to receipt of advance 
written authority for such publication. No voucher for any such 
advertisement or publication will be paid unless there is presented, 
with the voucher, a copy of such written authority. Authority shall not 
be granted retroactively.


2805.503-70  Procedures.

    (a) Agency Officials exercising the authority delegated by 2805.502 
(a) and (b) shall do so in accordance with the procedures set forth in 
FAR 5.503 and those set forth in this subsection.
    (b) Requests for procurements of advertising shall be accompanied 
by written authority to advertise or publish which sets forth 
justification and includes the names of newspapers or journals 
concerned, frequency and dates of proposed advertisements, estimated 
cost, and other pertinent information.
    (c) Paid advertisements shall be limited to publication of 
essential details of invitations for bids and requests for proposals 
including those for the sale of personal property and for the 
recruitment of employees.
    (d) Procedures for payment of vouchers are contained in Title 7, 
Chapter 5-25.2, General Accounting Office Policy and Procedures Manual 
for Guidance of Federal Agencies.

PART 2806--COMPETITION REQUIREMENTS

Subpart 2806.3--Other Than Full and Open Competition

2806.302  Circumstances permitting other than full and open 
competition.
2806.302-7  Public interest.
2806.302-70  Determination and findings.
2806.303  Justifications.
2806.303-1  Requirements.
2806.303-2  Content.
2806.304  Approval of the justification.

Subpart 2806.5--Competition Advocates

2806.501  Requirement.
2806.502  Duties and responsibilities.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2806.3--Other than Full and Open Competition


2806.302  Circumstances permitting other than full and open 
competition.


2806.302-7  Public interest.


2806.302-70  Determination and findings.

    (a) Procedure. The determination and findings (D&F) required by FAR 
6.302-7(c)(1) shall be prepared in the format provided in paragraph (b) 
of this subsection. The original D&F and documentation supporting the 
use of this exception to the requirement for full and open competition 
shall be submitted to PPRG, JMD, for concurrence and coordination to 
the Attorney General for signature.
    (b) Format. The following format shall be used for the D&F:

Department of Justice, Washington, DC 20530, Determination and 
Findings

Authority To Use Other Than Full and Open Competition:

    Upon the basis of the following findings and determination, 
which I hereby make pursuant to the authority of 41 U.S.C. 
253(c)(7), as implemented by FAR 6.302-7, it is in the public 
interest to provide for other than full and open competition in the 
contract action described below.

Findings:

    1. The (1) purposes to enter into a contract for the acquisition 
of (2).
    2. Use of the authority cited above is necessary and in the 
public interest for the following reasons: (3)

Determination

    For the reasons described above, it is necessary and in the 
public interest to use other than full and open competition in the 
proposed acquisition.
----------------------------------------------------------------------
Signature

----------------------------------------------------------------------
Date

Notes:

    (1) Name of contracting activity.
    (2) Brief description of supplies or services.
    (3) Explain the need for use of the authority.


2806.303  Justification.


2806.302-1  Requirements.

    Pursuant to FAR 6.303-1(d), a copy of the justification shall be 
forwarded through the Department's Competition Advocate to the 
Department's point of contact with the Office of the United States 
Trade Representative.


2806.303-2  Content.

    In addition to the information required by FAR 6.303-2, 
justifications requiring the approval of the PE shall contain the 
following documents:
    (a) A written Acquisition Plan as required by FAR 7.102, and part 
2807 of

[[Page 1406]]

this chapter. If a plan was not prepared, explain why planning was not 
feasible or accomplished.
    (b) A copy of the CBD announcement or proposed announcement in 
accordance with the requirements of FAR 5.203.
    (c) As part of the description of the supplies or services required 
in FAR 6.303-2, the justification shall include the statement of need 
as submitted by the requiring activity and any subsequent changes or 
revisions to the specifications.
    (d) Any additional documentation that may be unique to the proposed 
procurement and is relevant to the justification.


2806.304  Approval of the justification.

    (a) All justifications for contract actions over the contracting 
officer's approval dollar threshold shall be submitted to the BPC for 
concurrence before being forwarded to the contracting activity 
competition advocate for approval. Justifications requiring approval by 
the PE shall be further submitted for the concurrence of the 
contracting activity competition advocate and the HCA, or designee, 
before being forwarded to the PE for approval.
    (b) After approval by the PE, the signed original will be returned 
to the contracting activity and one copy will be retained by the PPRG, 
JMD.
    (c) Pursuant to FAR 6.304(c), a class justification for other than 
full and open competition shall be approved in accordance with bureau 
procedures.

Subpart 2806.5--Competition advocates


2806.501  Requirement.

    In accordance with FAR 6.501:
    (a) The Assistant Director, Procurement Policy and Review Group, 
Management and Planning Staff, Justice Management Division, has been 
designated as the Competition Advocate for the Department of Justice.
    (b) The agency head will appoint, in each bureau, an official to be 
the contracting activity competition advocate. The contracting activity 
competition advocates shall be vested with the overall responsibility 
for competition activities within their contracting activity. No 
individual in the contracting office at or below the level of chief of 
the contracting office may serve as the contracting activity 
competition advocate. An individual at any level above the BPC may 
serve as contracting activity competition advocate.


2806.502  Duties and responsibilities.

    In addition to the duties and responsibilities set forth in FAR 
6.502(b) and elsewhere in this chapter, contracting activity 
competition advocates shall:
    (a) Actively enforce the Department's Competition Advocacy Program 
within the contracting activity and ensure that systems are established 
for the effective internal control of contracting activity functions 
and activities which implement the Department's Competition Advocacy 
Program.
    (b) Implement specific goals and objectives to enhance competition 
and the acquisition of commercial items.
    (c) Prepare and submit to the DOJ Competition Advocate, by November 
30 of each year, an annual report of competition advocacy activities 
conducted during the prior fiscal year.

PART 2807--Acquisition Planning

Subpart 2807.1--Acquistion Plans

2807.102  Policy.
2807.102-70  Applicability.
2807.103  Agency-head responsibilities.
2807.103-70  Other officials' responsibilities.
2807.105  Contents of written acquisition plans.

Subpart 2807.5--Inherently Governmental Functions

2807.503  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2807.1--Acquisition Plans


2807.102  Policy.

    (a)(1) In accordance with FAR 7.1, DOJ contracting activities shall 
perform acquisition planning and conduct market research for all 
acquisitions in order to promote and provide for:
    (i) Full and open competition (see FAR part 6);
    (ii) Maximum practicable competition for those acquisitions where 
full and open competition is not required by FAR part 6; and
    (iii) The acquisition of commercial items or, when commercial items 
are not available, nondevelopmental items to the maximum extent 
practicable.
    (2) The degree of planning and market research may vary, depending 
on such factors as the acquisition's size, scope and complexity.
    (b) Acquisition planning shall be the joint responsibility of both 
the contracting and program offices. All acquisition plans shall be 
prepared sufficiently in advance of solicitation release dates to 
ensure that requirements are presented in a way that promotes full and 
open competition and provides sufficient time for the identification 
and resolution of impediments that could delay the acquisition or lead 
to increased cost or technical risk.


2807.102-70  Applicability.

    (a) Planning commensurate with the complexity and dollar value of 
the individual requirement shall be performed for all acquisitions, 
except for those acquisitions listed in paragraph (c) of this 
subsection which may be exempt from the planning process. Heads of 
contracting activities may authorize the use of oral plans for simple 
and/or small dollar acquisitions. When oral plans are used, the file 
should be documented with the name of the individual who approved the 
plan.
    (b) Written acquisition plans shall be prepared for all major 
systems acquisitions as defined in 2834.002.
    (c) The following types of acquisitions may be exempt from the 
acquisition planning program:
    (1) Architect-engineering services;
    (2) Unsolicited proposals (when deemed innovative and unique in 
accordance with FAR 15.5);
    (3) Regulated utility services where services are available from 
only one source;
    (4) Acquisitions made from or through other Government agencies; 
and
    (5) Contract modifications which exercise an option or add funds to 
an incrementally funded contract (provided there is an approved 
acquisition planning document for the original action and there is no 
significant deviation from that plan).


2807.103  Agency-head responsibilities.

    The AAG/A may establish acquisition planning criteria and 
thresholds for those bureaus who:
    (a) Fail to allow ample time for conducting competitive 
acquisitions;
    (b) Develop a pattern of awarding urgent requirements that 
generally restrict competition; and
    (c) Fail to identify identical or like requirements that can be 
combined under one solicitation and miss opportunities to obtain lower 
costs through volume purchasing, reduce administrative costs in 
processing one contract action versus multiple actions, and standardize 
goods and services.


2807.103-70  Other officials' responsibilities.

    (a) In accordance with FAR 7.1, the HCA shall develop an 
acquisition planning program for all acquisitions to ensure that its 
needs are met in the most effective, economical, and timely manner.

[[Page 1407]]

    (b) Heads of contracting activities have the flexibility to develop 
programs that are best suited to their individual needs. Criteria and 
thresholds shall be established at which increasingly greater detail 
and formality in the planning process is required. DOJ components are 
encouraged to keep paperwork to a minimum and to put a premium on 
simplicity.
    (c) HCAs shall ensure that, during the acquisition planning phase, 
requirements personnel consider the use of:
    (1) The metric system of measurement consistent with 15 U.S.C. 
2205(b); and
    (2) Environmentally preferable and energy-efficient products and 
services.


2807.105  Contents of written acquisition plans.

    (a) HCAs shall prescribe format and content of acquisition planning 
documents that are commensurate with the complexity and dollar value of 
the individual acquisition (sample acquisition planning documents for 
both simple and complex acquisitions will be made available by PPRG, 
JMD, and may be used or modified as appropriate).
    (b) HCAs shall include, at a minimum, the content elements at FAR 
7.105 and 106 for all major systems acquisitions as defined in 
2834.002.

Subpart 2807.5--Inherently Governmental Functions


2807.503  Policy.

    The requirements official shall provide the contracting officer, 
concurrent with the transmittal of the statement of work (or 
modification thereof), a written determination that none of the 
functions to be performed are inherently governmental. Any disputes 
concerning this determination shall be resolved by the contracting 
officer, after consultation with the requirements official. The 
contracting officer's determination shall be final.

PART 2808--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 2808.8--Acquisition of Printing and Related Supplies

2808.802  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2808.8--Acquisition of Printing and Related Supplies


2808.802  Policy.

    The Director, Facilities and Administrative Services Staff, has 
been designated to serve as the central printing authority for the 
Department.

PART 2809--CONTRACTOR QUALIFICATIONS

Subpart 2809.4--Debarment, Suspension, and Ineligibility

2809.402  Policy.
2809.404  List of parties excluded from Federal procurement and 
nonprocurement programs.
2809.405  Effect of listing.
2809.405-1  Continuation of current contracts.

Subpart 2809.5--Organizational and Consultant Conflict of Interest

2809.503  Waiver.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2809.4--Debarment, Suspension, and Ineligibility


2809.402  Policy.

    Contracting activities shall:
    (a) Consider debarment or suspension of a contractor when cause is 
shown as listed under FAR 9.406-2 and FAR 9.407-2. Contracting staffs 
should consult with their appropriate legal counsel prior to making a 
decision to initiate debarment or suspension proceedings. If a 
determination is made that available facts do not justify beginning 
debarment or suspension proceedings, the file should be documented 
accordingly. This determination should be subject to reconsideration if 
new information or additional fact-finding so justifies.
    (b) If the decision is made to initiate debarment and/or suspension 
of a contractor, immediately prepare a notice in accordance with FAR 
9.046-3(c) or FAR 9.407-3(c). The draft notice, along with the 
administrative file containing all relevant facts and analysis shall be 
forwarded to the PE, as the debarring and suspending official, 
following review by the activity's legal counsel and BPC.
    (c) The PE shall:
    (1) Review the notice and administrative file for sufficiency and 
provide for review by other DOJ officials as considered appropriate;
    (2) If it is determined that action is warranted, give the 
contractor prompt notice of the proposed debarment or suspension, in 
accordance with FAR 9.406-3(c) or FAR 9.407-3(c);
    (3) Direct additional fact-finding as necessary when material facts 
are in dispute.
    (4) Notify the contractor of the final decision to debar or 
suspend, including a decision not to debar or suspend, in accordance 
with FAR 9.406-3(c) and FAR 9.407-3(c).


2809.404  List of parties excluded from federal procurement and 
nonprocurement programs.

    (a) The PE shall:
    (1) Provide GSA notification of the information set forth in FAR 
9.404(b) within five working days after debarring or suspending a 
contractor or modifying or rescinding such an action.
    (2) Maintain agency-wide records of debarred or suspended 
contractors in accordance with FAR 9.404.
    (b) Contracting activities shall provide an effective system to 
ensure that contracting staff consult the ``List of Parties Excluded 
from Federal Procurement and Nonprocurement Programs'' prior to 
soliciting offers from, awarding or extending contracts to, or 
consenting to subcontracts with contractors on the list.


2809.405  Effect of listing.

    (a) Contractors debarred, suspended, or proposed for debarment are 
excluded from receiving contracts, and bureaus shall not solicit offers 
from, award contracts to, or consent to subcontracts with these 
contractors, unless the HCA determines that there is a compelling 
reason for such action and the PE approves such determinations.
    (b) Bids received from any listed contractor in response to an 
invitation for bids shall be entered on the abstract of bids, and 
rejected unless the HCA determines in writing that there is a 
compelling reason to consider the bid and the PE approves such action.
    (c) Proposals, quotations, or offers received from any listed 
contractor shall not be evaluated for award or included in the 
competitive range, nor shall discussions be conducted with a listed 
offeror during a period of ineligibility, unless the HCA determines in 
writing that there is a compelling reason to do so and the PE approves 
such action.


2809.405-1  Continuation of current contracts.

    (a) In accordance with FAR 9.405-1, contracting activities may 
continue contracts or subcontracts in existence at the time a 
contractor is suspended or debarred unless it is determined that 
termination of the contract is in the best interest of the Government. 
In making this determination, contracting activities shall consider the 
seriousness of the act or omission leading to the debarment or 
suspension, the effect of debarment or suspension on the contractor's 
ability to continue operations, and the Department's ability to 
safeguard its interests and receive satisfactory performance.
    (b) Contracting activities shall not renew or otherwise extend the 
duration

[[Page 1408]]

of current contracts, or consent to subcontracts, with contractors 
debarred, suspended, or proposed for debarment, unless the HCA states, 
in writing, the compelling reasons for renewal or extension and the PE 
approves such action.

Subpart 2809.5--Organizational and Consultant Conflicts of Interest


2809.503  Waiver.

    The HCA may waive any general rule or procedure of FAR 9.5 by 
determining that its application in a particular situation would not be 
in the Government's interest.

PART 2811--DESCRIBING AGENCY NEEDS

2811.001  Definitions.
2811.002  Policy.

Subpart 2811.1--Selecting and Developing Requirements Documents

2811.103  Market acceptance.
2811.104-70  Brand-name or equal description.

Subpart 2811.6--Priorities and Allocations

2811.603  Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).


2811.001  Definitions.

    Dual systems means the use of both inch-pound and metric systems. 
For example, an item is designed, produced and described in inch-pound 
values with soft metric values also shown for information or comparison 
purposes.
    Hybrid systems means the use of both inch-pound and standard metric 
values in specifications, standards, supplies, and services; e.g., an 
engine with internal parts in metric dimensions and external fittings 
or attachments in inch-pound dimensions.
    Metric system means the International System of Units established 
by the General Conference of Weights and Measures in 1960.
    Soft metric means the result of mathematical conversion of inch-
pound measurements to metric equivalents in specifications, standards, 
supplies, and services. The physical dimensions are not changed.


2811.002  Policy.

    Consistent with the policy expressed in FAR 11.002(b), 
solicitations must include specifications and purchase descriptions 
stated in metric units of measurement whenever metric is the accepted 
industry system. Whenever possible, commercially developed metric 
specifications and internationally, or domestically developed voluntary 
standards, using metric measurements, must be adopted. While an 
industry is in transition to metric specifications, solicitations must 
include requirements documents stated in soft metric, hybrid, or dual 
systems, except when impractical or inefficient.

Subpart 2811.1--Selecting and Developing Requirements Documents


2811.103  Market acceptance.

    Pursuant to FAR 11.103, the HCA or designee at a level not lower 
than the BPC has the authority to require offerors to demonstrate that 
the items offered meet the criteria set forth in FAR 11.103(a).


2811.104-70  Brand-name or equal description.

    When a brand-name or equal description is used, the clause set 
forth in 2852.211-70, Brand-Name or Equal, shall be inserted into the 
solicitation.

Subpart 2811.6--Priorities and Allocations


2811.603  Procedures.

    The PE is the agency official delegated authority to exercise 
priority authority on behalf of the Department. Any request for a 
priority rating on a contract or order must be submitted to PPRG, JMD, 
in accordance with the procedures in this subpart.
    (a) The requesting activity shall submit, to the PE, a description 
of the supplies or services requiring a priority rating and a complete 
justification for the necessity of a rated order including the method 
and type of contract and the anticipated award date. The justification 
must also state the level of priority rating requested and comply with 
the requirements of the Defense Priorities and Allocations System.
    (b) Upon receipt, the PPRG shall review the request for 
completeness and establish appropriate liaison with the Department of 
Commerce (DOC), the administering agency. Depending on the nature of 
the requirement, the PPRG may schedule a meeting with DOC officials to 
present the proposal. In such cases, a representative from the 
requiring activity may be requested to attend.
    (c) DOJ activities requesting rated orders that concern classified 
material shall call PPRG before submitting their request to ensure 
appropriate transmission and handling between the requesting activity 
and PPRG.

PART 2812--ACQUISITION OF COMMERCIAL ITEMS

Subpart 2812.3--Solicitation Provisions and Contract Clauses for the 
Acquisition of Commercial Items
2812.302  Tailoring of provisions and clauses for the acquisition of 
commercial items.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2812.3--Solicitation Provisions and Contract Clauses for 
the Acquisition of Commercial Items


2812.302  Tailoring of provisions and clauses for the acquisition of 
commercial items.

    Pursuant to FAR 12.302(c), the HCA or designee at a level not lower 
than the BPC is authorized to approve clauses or additional terms or 
conditions for inclusion in solicitations or contracts for commercial 
items that are inconsistent with customary commercial practices.

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

PART 2813--SIMPLIFIED ACQUISITION PROCEDURES

Subpart 2813.1--General

2813.103  Policy--Purchases at or below the micro-purchase 
threshold.

Subpart 2813.4--Imprest Fund

2813.401  General.

Subpart 2813.5--Purchase Orders

2813.505  Purchase order and related forms.

Subpart 2813.70--Certified Invoice Procedure

2813.7001  Policy.
2813.7002  Procedure.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2813.1--General


2813.103  Policy--Purchases at or below the micro-purchase threshold.

    To the maximum extent practicable, the Government Purchase Card 
shall be used as the primary method for transacting micro-purchases.

Subpart 2813.4--Imprest Fund


2813.401  General.

    Regulations governing the operation and procedures of the imprest 
fund shall be contained in internal bureau regulations. Individuals 
delegated the authority to withdraw from the imprest fund are further 
subject to the limitations contained in their delegation memorandum.

[[Page 1409]]

Subpart 2813.5--Purchase Orders


2813.505  Purchase order and related forms.

    (a) In accordance with FAR 13.505, for other than commercial items, 
bureaus may use order forms other than Standard Form (SF) 1449, OF 347 
and 348 and may print on those forms, clauses considered to be suitable 
for purchases.
    (b)(1) Contracting activities using the SF 44 will be responsible 
for instructing authorized users as to the limitations and procedures 
for use of the form as outlined in FAR 13.505.
    (2) Since the SF 44 is an accountable form, a record shall be 
maintained of: serial numbers of the forms; to whom issued; and, the 
date issued. SF 44s shall be kept securely under lock and key to 
prevent unauthorized use. A reservation of funds shall be established 
to cover total anticipated expenditures prior to use of the SF 44.

Subpart 2813.70--Certified Invoice Procedure


2813.7001  Policy.

    Under limited circumstances as described in this subpart, supplies 
or services directly related to mission accomplishment, may be acquired 
on the open market from local suppliers at the site of the work or use 
point, using vendor's invoices under the certified invoice procedure, 
instead of issuing purchase orders. Certified invoice procedures may 
not be used to place orders under established contracts.


2813.7002  Procedure.

    (a) Purchases utilizing the certified invoice procedure shall be 
effected only in accordance with FAR part 13 and this part 2813, 
subject to the following:
    (1) The amount of any one purchase does not exceed the micro-
purchase threshold;
    (2) A purchase order is not required by either the supplier or the 
Government;
    (3) Appropriate invoices can be obtained from the supplier; and,
    (4) The items to be purchased shall be domestic source end 
products, except as provided in FAR subpart 25.1.
    (b) Use of the certified invoice procedures does not eliminate the 
requirements in FAR part 13 or this part 2813 that are applicable to 
purchases of this dollar threshold.
    (c) The chief of the contracting office, as defined in 2802.101(c), 
shall delegate the authority to use the certified invoice procedure. 
Each delegation must specify any limitations placed on the individual's 
use of these procedures, such as limits on the amount of each purchase, 
or limits on the commodities, or services which can be procured.
    (d) Each individual using this purchasing technique shall require 
the supplier to immediately submit properly prepared invoices which 
itemized property or services furnished. Upon receiving the invoice, 
the individual making the purchase shall annotate the invoice with the 
date of receipt, verify the arithmetic accuracy of the invoiced amount 
and verify on the invoice that the supplies and/or services have been 
received and accepted. If the invoice is correct, the individual making 
the purchase shall sign the invoice indicating acceptance and 
immediately forward it to the appropriate administrative office. The 
invoice shall be approved by the appropriate administrative office and 
forwarded to the Finance Office for payment within 5 workdays after 
receipt of the invoice, or acceptance of supplies or services, 
whichever is later. Before forwarding the invoice to Finance, the 
administrative office shall place the following statement on the 
invoice, along with the accounting and appropriation data:

    I certify that these goods and/or services were received on 
________ (date) and accepted on ________ (date). Oral purchase was 
authorized and no confirming order has been issued.
----------------------------------------------------------------------
----------------------------------------------------------------------
Signature
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Date

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PART 2814--SEALED BIDDING

Subpart 2814.4--Opening of bids and award of contract

2814.407  Mistakes in bids.
2814.407-3  Other mistakes disclosed before award.
2814.407-4  Mistakes after awards.
2814.409  Information to bidders.
2814.409-2  Award of classified contracts.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2814.4--Opening of bids and award of contract


2814.407  Mistakes in bids.


2814.407-3  Other mistakes disclosed before award.

    (a) The authority to make determinations under paragraphs (a), (b), 
(c), and (d) of FAR 14.407-3 is delegated to the HCA or designee at a 
level not lower than the BPC.
    (b) The following procedures shall be followed when submitting 
doubtful cases of mistakes in bids to the Comptroller General for an 
advance decision.
    (1) Requests for advance decisions submitted to the Comptroller 
General in cases of mistakes in bids shall be made by the HCA.
    (2) Requests for advance decisions shall be in writing, dated, 
signed by the requestor, addressed to the Comptroller General of the 
United States, General Accounting Office, Washington, D.C. 20548, and 
contain the following:
    (i) The name and address of the party requesting the decision;
    (ii) A statement of the question to be decided, a presentation of 
all relevant facts, and a statement of the requesting party's position 
with respect to the question; and,
    (iii) Copies of all pertinent and supporting documentation.


2814.407-4  Mistakes after award.

    Proposed determinations under FAR 14.407 shall be coordinated with 
legal counsel in accordance with bureau procedures.


2814.409  Information to bidders.


2814.409-2  Award of classified contracts.

    In accordance with FAR 14.409-2, the contracting officer shall 
advise the unsuccessful bidders, including any who did not bid, to take 
disposition action in accordance with bureau procedures.

PART 2815--CONTRACTING BY NEGOTIATION

Subpart 2815.4--Solicitation and Receipt of Proposals and Quotations
2815.405  Solicitations for information or planning purposes.
2815.405-1  General.
2815.408  Issuing solicitations.
2815.411  Receipt of proposals and quotations.

Subpart 2815.5--Unsolicited Proposals

2815.506  Agency procedures.

Subpart 2815.8--Price Negotiation

2815.803  General.
2815.805  Proposal analysis.
2815.805-5  Field pricing support.
2815.810  Should-cost review.
2815.810-2  Program should-cost review.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2815.4--Solicitation and Receipt of Proposals and 
Quotations


2815.405  Solicitations for information or planning purposes.


2815.405-1  General.

    When a solicitation for informational or planning purposes is to be 
issued, the contracting officer shall make a written

[[Page 1410]]

determination that such solicitation is justified. This determination 
shall be approved at a level above the contracting officer.


2815.408  Issuing solicitations.

    Solicitations involving classified information shall be handled in 
accordance with the policies and procedures contained in Departmental 
regulations and other offices, boards, divisions, and bureaus (OBDB) 
prescribed policies and regulations that supplement Departmental 
regulations.


2815.411  Receipt of proposals and quotations.

    Classified proposals and quotations shall be handled in accordance 
with the current DOJ Order agency regulations and any supplemental 
directives or orders implemented by the OBDB. Such supplemental 
regulations must have the prior approval of the AAG/A before 
implementation in accordance with the Departmental regulations.

Subpart 2815.5--Unsolicited Proposals


2815.506  Agency procedures.

    (a) Each contracting activity shall designate a point of contact 
for the receipt and handling of unsolicited proposals. Generally, the 
official designated shall be the BPC or immediate subordinate.
    (b) The designated point of contact for each contracting activity 
shall provide for and coordinate receipt, review, evaluation, and final 
disposition of unsolicited proposals in accordance with FAR 15.506 
through 15.509.

Subpart 2815.8--Price Negotiation


2815.803  General.

    If a contractor insists on a price or demands a profit or fee that 
the contracting officer considers unreasonable and the contracting 
officer has taken all authorized actions to negotiate a reasonable 
price or profit or fee without success, the contracting officer shall 
then refer the contract action to the HCA or designee.


2815.805  Proposal analysis.


2815.805-5  Field pricing support.

    All requests for field pricing support shall be made by the 
contracting officer directly to the cognizant audit agency. A copy of 
the request for such services shall be sent to the Department of 
Justice Office of the Inspector General (OIG) at the address shown in 
this subsection at the time it is mailed to the cognizant audit agency. 
A copy of each report received shall also be sent to the OIG. Requests 
for other audit assistance may be made to the Assistant Inspector 
General for Audits, Suite 5000, 1425 New York Avenue, N.W., Washington, 
D.C. 20530.


2815.810  Should-cost review.


2815.810-2  Program should-cost review.

    In acquisitions for which a program should-cost review is 
conducted, the required should-cost review team report shall be 
prepared in accordance with bureau procedures.

PART 2816--TYPES OF CONTRACTS

Subpart 2816.5--Indefinite-Delivery Contracts

2816.505  Ordering.
Subpart 2816.6--Time and Materials, Labor-Hour, and Letter Contracts
2816.601  Time-and-material contracts.
2816.602  Labor-hour contracts.
2816.603  Letter contracts.
2816.603-2  Application.
2816.603-3  Limitations.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2816.5--Indefinite-Delivery Contracts


2816.505  Ordering.

    (a) In accordance with FAR 16.505(b)(4), the Department of Justice 
Task Order and Delivery Order Ombudsman is the DOJ Competition 
Advocate.
    (b) Heads of contracting activities shall designate a contracting 
activity Task Order and Delivery Order Ombudsman. This person may be 
the contracting activity competition advocate and must meet the 
qualification requirements of 2806.501(b).
    (c) Contracting activity ombudsmen shall review and resolve 
complaints from contractors concerning task or delivery orders placed 
by the contracting activity.
    (d) Contractors not satisfied with the resolution of a complaint by 
a contracting activity ombudsman may request the Departmental Ombudsman 
to review the complaint.

Subpart 2816.6--Time-and-Materials, Labor-Hour, and Letter 
Contracts


2816.601  Time-and-material contracts.

    In addition to the limitations listed in FAR 16.601(c), a time-and-
materials contract may be used only after the contracting officer 
receives written approval from the chief of the contracting office. 
When the contracting officer is also the chief of the contracting 
office, the approval to use a time-and-materials type contract will be 
made at a level above the contracting officer.


2816.602  Labor-hour contracts.

    The limitations set forth in 2816.601 for time-and-material 
contracts also apply to labor-hour contracts.


2816.603  Letter contracts.


2816.603-2  Application.

    In cases where the contracting officer and the contractor cannot 
negotiate the definitization of a letter contract within 180 days after 
the date of the letter contract, or before completion of 40 percent of 
the work to be performed, the contracting officer may, with the written 
approval of the PE, revise and extend the definitization schedule. 
However, in no event shall the extension of the definitization schedule 
extend beyond the lesser of an additional 180 day period or the 
completion of 80 percent of the work to be performed. If at the end of 
the extension, the contracting officer and the contractor cannot 
negotiate a definitive contract because of failure to reach an 
agreement on price or fee, the procedures set forth in FAR 52.216-25, 
16.603-2, 15.8, and part 31 shall be followed, as applicable.


2816.603-3  Limitations.

    A letter contract may be used only after the express written 
approval of the Procurement Executive. Requests for approval shall 
contain the rationale explaining why no other contract is suitable and 
shall include the approval of the HCA or designee. Under circumstances 
of compelling urgency which do not permit the time needed for written 
approval, oral approval must be obtained; however, written 
documentation to support the award and confirm the oral approval must 
be submitted as soon as practicable after award.

PART 2817--SPECIAL CONTRACTING METHODS

Subpart 2817.1--Multiyear Contracting

2817.108  Congressional notification.

Subpart 2817.6--Management and Operating Contracts

2817.605  Award, renewal, and extension.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j); and 
28 CFR 0.76(j).

Subpart 2817.1--Multiyear Contracting


2817.108  Congressional notification.

    Pursuant to FAR 17.198(a), the original congressional notification 
shall be submitted to PPRG, JMD, for concurrence, coordination to the 
Attorney General, and subsequent transmission to the appropriate 
congressional committees.

[[Page 1411]]

Subpart 2817.6--Management and Operating Contracts


2817.605  Award, renewal, and extension.

    In accordance with FAR 17.605(b), the contracting officer, 
following bureau procedures, shall review each management and operating 
contract, at appropriate intervals and at least once every 5 years.

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

PART 2819--SMALL BUSINESS PROGRAMS

Subpart 2819.2--Policies

2819.201  General policy.

Subpart 2819.5--Set-Asides for Small Business

2819.506  Withdrawing or modifying set-asides.

Subpart 2819.6--Certificates of Competency and Determinations of 
Eligibility

2819.602  Procedures.
2819.602-1  Referral.

Subpart 2819.70--Forecasts of Expected Contract Opportunities

2819.7001  General.
2819.7002  Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2819.2--Policies


2819.201  General policy.

    (a) The Office of Small and Disadvantaged Business Utilization 
(OSDBU) is organizationally attached to the Office of the Deputy 
Attorney General in accordance with 28 CFR 0.18a, but is located in JMD 
for administrative purposes.
    (b) The Director, OSDBU is responsible for the administration of 
the DOJ small and disadvantaged business programs in accordance with 
the duties described in 28 CFR 0.18a.

Subpart 2819.5--Set-Asides for Small Business


2819.506  Withdrawing or modifying set-asides.

    (a) Before a contracting officer may withdraw or modify a small 
business set-aside, the contracting officer shall seek the concurrence 
of the Director, OSDBU.
    (b) If the contracting officer and the Director, OSDBU, are unable 
to agree on the proposed withdrawal or modification, the Director, 
OSDBU shall:
    (1) Forward the matter to the SBA procurement center representative 
assigned to the Department of Justice for resolution; or,
    (2) Forward the matter to the PE for resolution if an SBA 
procurement center representative is not assigned to the Department of 
Justice.

Subpart 2819.6--Certificates of Competency and Determinations of 
Eligibility


2819.602  Procedures.


2819.602-1  Referral.

    In accordance with FAR 19.602-1(a)(2), the matter shall be 
submitted to the Director, OSDBU, for subsequent referral to the 
cognizant SBA Regional Officer.

Subpart 2819.70--Forecasts of Expected Contract Opportunities


2819.7001  General.

    Section 501 of Public Law 100-656, the Business Opportunity 
Development Reform Act of 1988, requires executive agencies having 
contract actions in excess of $50 million in Fiscal Year 1988 or later 
to prepare an annual forecast of expected contract opportunities, or 
classes of contract opportunities that small business concerns, 
including those owned and controlled by socially and economically 
disadvantaged individuals, are capable of performing.


2819.7002  Procedures.

    The content and format of bureau annual forecasts of contract 
opportunities, as well as the updates to their contracting forecasts 
shall be as specified by the Director, OSDBU.

PART 2822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 2822.1--Basic Labor Policies

2822.101  Labor relations.
2822.101-1  General.
2822.101-3  Reporting labor disputes.
2822.103  Overtime.
2822.103-4  Approvals.

Subpart 2822.4--Labor Stardards for Contracts Involving Construction

2822.406 Administration and enforcement.
2822.406-8 Investigations.

Subpart 2822.13--Special Disabled and Vietnam Era Veterans

2822.1303 Waivers.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2822.1--Basic Labor Policies


2822.101  Labor relations.


2822.101-1  General.

    All matters regarding labor relations shall be handled in 
accordance with bureau procedures.


2822.101-3  Reporting labor disputes.

    The office administering the contract shall report, directly to the 
contracting officer, any potential or actual labor disputes that may 
interfere with performing any contracts under its cognizance.


2822.103  Overtime.


2822.103-4  Approvals.

    The inclusion of a dollar amount greater than zero in paragraph (a) 
of the FAR clause 52.222-2, Payment For Overtime Premiums, must be 
approved at a level above the contracting officer. Such approval shall 
be reflected by the signature of the approving official on the 
contracting officer's written determination made in accordance with FAR 
22.103-4.

Subpart 2822.4--Labor Standards for Contracts Involving 
Construction


2822.406  Administration and enforcement.


2822.406-8  Investigations.

    Pursuant to FAR 22.406-8(d), the contracting officer shall prepare 
and forward the report of violations to the HCA or designee at a level 
not lower than the BPC. That official shall be responsible for 
processing the report in accordance with FAR 22.406-8(d)(2).

Subpart 2822.13--Special Disabled and Vietnam Era Veterans


2822.1303  Waivers.

    In accordance with FAR 22.1303, all requests for waivers shall be 
forwarded from the HCA to PPRG, JMD, for processing to the Attorney 
General.

PART 2823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND 
DRUG-FREE WORKPLACE

Subpart 2823.1--Pollution Control and Clean Air and Water

2823.107 Compliance responsibilities.

Subpart 2823.3--Hazardous Material Identification and Material Safety 
Data

2823.303-70 Departmental contract clause.

Subpart 2823.4--Use of Recovered Materials

2823.403 Policy.
2823.404 Procedures.
2823.404-70 Affirmative Procurement Program for Recycled Materials.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2823.1--Pollution Control and Clean Air and Water


2823.107  Compliance responsibilities.

    If a contracting officer becomes aware of noncompliance with clean 
air, water

[[Page 1412]]

or other affected media standards in facilities used in performing 
nonexempt contracts, that contracting officer shall notify the 
Department of Justice Environmental Executive (DOJEE).

Subpart 2823.3--Hazardous Material Identification and Material 
Safety Data


2823.303-70  Departmental contract clause.

    The contracting officer shall insert the clause at 2852.223-70, 
Unsafe Conditions Due to the Presence of Hazardous Material, in all 
solicitations and contracts, as appropriate, if the contract will 
require the performance of services on Government-owned or Government-
leased facilities.

Subpart 2823.4--Use of Recovered Materials


2823.403  Policy.

    It is the policy of DOJ that its contracting activities and 
contractors that procedure on behalf of DOJ, acquire EPA designated 
items in accordance with EPA's Comprehensive Procurement Guideline For 
Products Containing Recovered Materials (CPG) (40 CFR part 247). The 
recommended minimum recovered materials content of EPA designated items 
is set forth in EPA's Recovered Materials Advisory Notices (RMANs) and 
in E.O. 12873 as amended. These publications are available from the 
DOJEE.


2823.404  Procedures.

    (a) The program office initiating the acquisition is responsible 
for determining if recovered materials should be included in the 
specification. Procurement offices are responsible for informing 
program offices of the requirement for writing specifications for 
designated items that include minimum content standards specified in 
the RMANs.
    (b) If the program office chooses to procure designated items 
containing less than the minimum content standards, the program office 
must justify that decision in writing and include a copy of the signed 
justification with the procurement request package. FAR 23.404(b)(3) 
sets forth the only accepted justifications for acquiring EPA 
designated items which do not meet the minimum content standard. The 
contracting officer is the approving official for justifications made 
pursuant to FAR 23.404(b)(3). Contracting officers are responsible for 
including a signed copy of the justification in the acquisition file 
and submitting a copy of the approved justification to the DOJEE.


2823.404-70  Affirmative Procurement Program for Recycled Materials.

    (a) Recovered materials preference program. Preference will be 
given to procuring and using products containing recovered materials 
rather than products made with virgin materials when adequate 
competition exists, and when price, performance and availability are 
equal.
    (b) Promotion program. The DOJEE has primary responsibility for 
actively promoting the acquisition of products containing recycled 
materials throughout DOJ. Technical and procurement personnel will 
cooperate with the DOJEE to actively promote DOJ's Affirmative 
Procurement Program (APP).
    (c) Procedures for vendor estimation, verification and 
certification. (1) Estimation. The contractor shall provide estimates 
of the total percentage(s) of recovered materials for EPA designated 
items to be used in products or services provided.
    (2) Certification. Contracting officers shall provide copies of all 
vendor and subcontractor certifications required by FAR 23.405(c) to 
the DOJEE.
    (3) Verification. The DOJEE is responsible for periodically 
reviewing vendor certification documents and waivers as part of the 
annual review and monitoring process to determine if DOJ is in 
compliance with the E.O. 12873 and subsequent amendments.

PART 2824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

Subpart 2824.2--Freedom of Information Act

2824.202  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2824.2--Freedom of Information Act


2824.202  Policy.

    Procedures for processing Freedom of Information Act requests are 
set forth in Departmental regulations and 28 CFR part 16.

PART 2825--FOREIGN ACQUISITION

Subpart 2825.2--Buy American Act--Construction Materials

2825.203  Evaluating offers.

Subpart 2825.3--Balance of Payments Program

2825.302  Policy.

Subpart 2825.9--Additional Foreign Acquisition Clauses

2825.901  Omission of audit clause.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2825.2--Buy American Act--Construction Materials


2825.203  Evaluating offers.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make the determination that using a 
particular domestic construction material would unreasonably increase 
the cost of the acquisition or would be impracticable.

Subpart 2825.3--Balance of Payments Program


2825.302  Policy.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make determinations under FAR 
25.302(b)(3), as well as authorize the use of a differential greater 
than 50 percent, as specified in FAR 25.302(c), for the evaluation of 
domestic and foreign offers under the Balance of Payments Program. All 
determinations made under this section shall be in writing and shall 
set forth the facts and circumstances supporting the determination. 
Determinations shall be reviewed and concurred in by the contracting 
activity's legal counsel.

Subpart 2825.9--Additional Foreign Acquisition Clauses


2825.901  Omission of audit clause.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make determinations under FAR 25.901(c). 
All determinations made under this authority shall be reviewed and 
concurred in by the contracting activity's legal counsel prior to being 
approved by the authorized agency official.

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

PART 2828--BONDS AND INSURANCE

Subpart 2828.1--Bonds

2828.106  Administration.
2828.106-6  Furnishing information.

Subpart 2828.2--Sureties

2828.204  Alternatives in lieu of corporate or individual sureties.

Subpart 2828.3--Insurance

2828.307-1  Group insurance plans.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

[[Page 1413]]

Subpart 2828.1--Bonds


2828.106  Administration.


2828.106-6  Furnishing information.

    In accordance with FAR 28.106-6(c), the HCA, or designee at a level 
not lower than the BPC, is the agency official authorized to furnish 
the certified copy of the bond and the contract.

Subpart 2828.2--Sureties


2828.204  Alternatives in lieu of corporate or individual sureties.

    When contractors submit any of the types of security described in 
FAR 28.204-1 through 28.204-3 in lieu of furnishing sureties, the 
contracting officer shall enter into an agreement with the contractor 
covering a bank account, and suitable covenants protecting the 
Government's interest, in which the securities will be deposited to 
protect against their loss during the period of the bond obligation.

Subpart 2828.3--Insurance


2828.307-1  Group insurance plans.

    Under cost-reimbursement contracts, before buying insurance under a 
group insurance plan, the contractor shall submit the plan to the 
contracting officer for review and approval. During review, the 
contracting office should utilize all sources of information available 
such as audit, industry practices, etc., to determine that acceptance 
of the group insurance plan, as submitted, is in the Government's best 
interest.

PART 2829--TAXES

Subpart 2829.3--State and Local Taxes

2829.302  Applications of State and local taxes to the Government.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2829.3--State and Local Taxes


2829.302  Application of State and local taxes to the Government.

    (a) It is DOJ policy that DOJ contracts shall not contain clauses 
expressly designating prime contractors as agents of the Government for 
the purpose of avoiding State and local taxes.
    (b) Although circumstances may exist under which a contractor is an 
agent of the Government, even in the absence of a contract clause 
expressly designating a contractor as such, these circumstances should 
be extremely rare. Before any DOJ contracting activity may contend that 
any of its contractors are agents of the Government for the purpose of 
claiming immunity from State and local sales and use taxes, the matter 
will be referred to the AAG/A for review, and approval to ensure that 
DOJ policy is complied with and that the contracting activity's 
contention is fully in accordance with the pertinent legal principles 
and precedents. Each case forwarded will be reviewed by the HCA before 
referral to the AAG/A. The referral will include all pertinent data on 
which the contracting activity's contention is based, together with a 
thorough analysis of all relevant legal precedents.
    (c) Whenever clauses, procedures, and business practices are cited 
by DOJ contracting activities to support the contention that a 
contractor is an agent of the Government for the purpose of immunity 
from a State or local sales or use tax, contracting activities should 
whenever possible, devise alternative clauses, procedures, and 
practices for future use which will accomplish their intended purpose 
without providing the basis for contention that the contractor is an 
agent of the Government for the purpose of immunity from State and 
local sales or use taxes. Any referral to the AAG/A for approval under 
this subpart shall include comments on the extent to which alternative 
clauses, procedures, or practices may be utilized to accomplish the 
intended purpose without providing the basis for the contention that 
the contractor is an agent of the Government for the purpose of 
immunity from State and local sales or use taxes.

PART 2830--COST ACCOUNTING STANDARDS ADMINISTRATION

Subpart 2830.2--CAS Program Requirements

2830.201-5  Waiver.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2830.2--CAS Program Requirements


2830.201-5  Waiver.

    A request for a waiver of the Cost Accounting Standards 
requirements shall be forwarded to the HCA after the contracting 
officer has made the determination required by FAR 30.201-5.

PART 2831--CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 2831.1--Applicability

2831.101  Objectives.
2831.109  Advance agreements.

Subpart 2831.2--Contracts With Commercial Organizations

2831.205  Selected costs.
2831.205-32  Precontract costs.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2831.1--Applicability


2831.101  Objectives.

    (a) The PE is the official authorized to grant individual 
deviations from the cost principles of FAR part 31. All requests for 
individual deviations must cite the facts and circumstances surrounding 
the request as well as attempts to negotiate contractor compliance.
    (b) Requests for class deviation from the cost principles set forth 
in FAR part 31 will be forwarded through the PE prior to submission to 
the Civilian Agency Acquisition Counsel. Requests must contain the 
information required in paragraph (a) of this section.


2831.109  Advance agreements.

    (a) The DOJ and bureau contracting officers are encouraged to 
negotiate advance agreements concerning the treatment of special or 
unusual costs to avoid possible subsequent disputes or disallowance of 
costs based upon unreasonableness or nonallowability. All such 
agreements shall be negotiated in accordance with FAR 31.109 prior to 
the contractor incurring such costs. Contracting officers are not 
authorized to agree to a treatment of costs which would be inconsistent 
with FAR part 31.
    (b) Prior to negotiating an advance agreement, contracting officers 
shall make a written determination setting forth the reasons and 
rationale for entering into such agreements. In addition, the 
determination will set forth the nature, the duration, and which 
contract or contracts are covered by the proposed agreement. All 
determinations required by this subpart will be reviewed and approved 
at a level above the contracting officer prior to negotiation of the 
proposed agreement. The approved determination will be placed in the 
contract file.
    (c) All advance agreements shall be in writing and shall set forth 
the nature, duration, and contract or contracts covered by the 
agreements. Advance agreements will be signed by both the contractor 
and the contracting officer, and made a part of the contract file. 
Copies of executed advance agreements will be distributed to the 
cognizant audit office when applicable.
    (d) All advance agreements will be incorporated in full in the 
subsequent contract(s) to which they pertain, prior to award.

[[Page 1414]]

Subpart 2831.2--Contracts With Commercial Organizations


2831.205  Selected costs.


2831.205-32  Precontract costs.

    (a) Precontract cost authorizations shall be used only on cost 
reimbursement contracts, contain no provisions for payment of fees, and 
be treated as advance agreements in accordance with the provisions of 
FAR 31.109 and 2831.109.
    (b) The following limitations apply to the execution of precontract 
cost authorizations.
    (1) Contracts which are estimated to be greater than the simplified 
acquisition threshold may contain a precontract cost authorization 
providing the authorization is for a period of 60 days or less and the 
dollar amount does not exceed the lesser of the simplified acquisition 
threshold or one-third of the total estimated costs (including fee if 
any) of the contract.
    (2) The limitation expressed under paragraph (b) of this section 
may be increased in unusual circumstances as appropriate, with the 
written approval of the HCA, but in no event shall they exceed one-
third of the total estimated costs (including fee if any) of the 
contract or be for periods of time which exceed 90 days.

PART 2832--CONTRACT FINANCING

Subpart 2832.1--Non-Commercial Item Purchase Financing

2832.114  Unusual contract financing.

Subpart 2832.4--Advance Payments for Non-Commercial Items

2831.402  General.
2831.407  Interest.

Subpart 2832.9--Prompt Payment

2831.903  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2832.1--Non-Commercial Item Purchase Financing


2832.114  Unusual contract financing.

    The HCA, or designee at a level not lower than the BPC, is the 
official authorized to approve unusual contract financing as set forth 
in FAR 31.114.

Subpart 2832.4--Advance Payments for Non-Commercial Items


2832.402  General.

    (a) The authority to sign written determinations and findings with 
respect to making advance payments is vested in the HCA.
    (b) Prior to awarding a contract which contains provisions for 
making advanced payments, the contract terms and conditions concerning 
advance payments must be approved at a level above the contracting 
officer, with advice and consent of the bureau's legal counsel.
    (c) The contracting officer shall coordinate with the activity that 
is to provide contract financing for advance payments, the bureau's 
disbursing or finance office, or the Treasury Department, as 
appropriate, to ensure that all FAR and departmental requirements are 
met.


2832.407  Interest.

    In cases where advance payments may be made on an interest free 
basis (FAR 32.407(d)), the intent to make such interest free advance 
payments, and the circumstance permitting interest free advance 
payments, shall be set forth in the original determination and findings 
and be approved in accordance with 2832.402.

Subpart 2832.9--Prompt Payment


2832.903  Policy.

    The HCA is responsible for promulgating policies and procedures to 
implement FAR 32.9 and to ensure that, when specifying due dates, full 
consideration will be given to the time reasonably required by 
Government officials to fulfill their administrative responsibilities 
under the contract.

PART 2833--PROTESTS, DISPUTES, AND APPEALS

Subpart 2833.1--Protests

2833.101  Definitions.
2833.102  General.
2833.103  Protests to the Agency.

Subpart 2833.2--Disputes and Appeals

2833.209  Suspected fraudulent claims.
2833.211  Contracting officer's decision.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2833.1--Protests


2833.101  Definitions.

    (a) Agency Protest Official means the official, other than the 
contracting officer, designated to review and decide procurement 
protests filed with a contracting activity of the Department of 
Justice.
    (1) This person will be at a level above that of the Contracting 
Officer, will be knowledgeable about the acquisition process in general 
and will have no programmatic interest in the procurement.
    (2) This official shall be an individual designated by the head of 
the contracting activity and may be the Competition Advocate.
    (b) Deciding Official means the person chosen by the protestor to 
decide the agency protest; it may be either the Contracting Officer or 
the Agency Protest Official.
    (c) Interested Party means an actual or prospective offeror whose 
direct economic interest would be affected by the award of a contract 
or by the failure to award a contract.


22833.102  General.

    (a) This part prescribes policies and procedures for processing 
protests to the Department of Justice in accordance with Executive 
Order 12979, Agency Procurement Protests, dated October 25, 1995 and 
FAR 33.103. They are intended to be flexible and to provide for fair, 
quick, and inexpensive resolution of agency protests.
    (b) Interested parties have the option of protesting to the 
Contracting Officer or to the Agency Protest Official.
    (c) Contracting officers and potential protestors are encouraged to 
use their best efforts to resolve concerns through frank and open 
discussion, as required by FAR 33.103(b). In resolving concerns and/or 
protests, consideration should be given to the use of alternative 
dispute resolution techniques where appropriate.
    (d) Responsibilities. (1) Contracting Officers:
    (i) Include the provision at 2852.233-70 in all solicitations that 
are expected to exceed the simplified acquisition threshold.
    (ii) If the protestor requests that the Contracting Officer decide 
the protest, or if the protest is silent on this issue, the Contracting 
Officer decides the protest using the procedures in this subpart and 
FAR 33.103.
    (iii) If the protestor requests that the Agency Protest Official 
decide the protest, the Contracting Officer must ensure that the Agency 
Protest Official receives a copy of the materials served on the 
Contracting Officer within one business day after the filing date.
    (2) Agency Protest Official: If the protestor requests that the 
Agency Protest Official decide the protest, the Official must use the 
procedures in this subpart and FAR 33.103 to provide an independent 
review of the issues raised in the protest.


2833.103  Protests to the Agency.

    (a) The filing time frames in FAR 33.103(e) apply. An agency 
protest is filed when the protest complaint is received at the location 
the solicitation designates for serving protests.
    (b) An interested party filing an agency protest has the choice of 
requesting either that the contracting

[[Page 1415]]

Officer or the Agency Protest Official decide the protest.
    (c) In addition to the information required by FAR 33.103(d)(2), 
the protest must:
    (1) Indicate that it is a protest to the agency.
    (2) Be filed with the Contracting Officer.
    (3) State whether the protestor chooses to have the Contracting 
Officer or the Agency Protest Official decide the protest. If the 
protest is silent on this matter, the Contracting Officer will decide 
the protest.
    (4) Indicate whether the protestor prefers to make an oral or 
written presentation of arguments in support of the protest to the 
deciding official.
    (d) The decision by the Agency Protest Official is an alternative 
to a decision by the Contracting Officer on a protest. The Agency 
Protest Official will not consider appeals from a Contracting Officer's 
decision on an agency protest.
    (e) The deciding official must conduct a scheduling conference with 
the protestor within five (5) days after the protest is filed. The 
scheduling conference will establish deadlines for oral or written 
arguments in support of the agency protest and for agency officials to 
present information in response to the protest issues. The deciding 
official may hear oral arguments in support of the agency protest at 
the same time as the scheduling conference, depending on availability 
of the necessary parties.
    (f) Oral conferences may take place either by telephone or in 
person. Other parties may attend at the discretion of the deciding 
official.
    (g) The protestor has only one opportunity to support or explain 
the substance of its protest. Department of Justice procedures do not 
provide for any discovery. The deciding official has discretion to 
request additional information from either the agency or the protestor. 
However, the deciding official will normally decide protests on the 
basis of information provided by the protestor and the agency.
    (h) The preferred practice is to resolve protests through informal 
oral discussion.
    (i) An interested party may represent itself or be represented by 
legal counsel. The Department of Justice will not reimburse the 
protestor for any legal fees related to the agency protest.
    (j) If an agency protest is received before contract award, the 
Contracting Officer must not make award unless the Head of the 
Contracting Activity makes a determination to proceed under FAR 
33.103(f)(1). Similarly, if an agency protest is filed within ten (10) 
days after award, the Contracting Officer must stay performance unless 
the Head of the Contracting Activity makes a determination to proceed 
under FAR 33.103(f)(3). Any stay of award or suspension of performance 
remains in effect until the protest is decided, dismissed, or 
withdrawn.
    (k) The deciding official must make a best effort to issue a 
decision on the protest within twenty (20) days after the filing date. 
The decision may be oral or written. If oral, the deciding official 
must send a confirming letter within three (3) days after the decision 
using a means that provides receipt. The confirming letter must include 
the following information:
    (1) State whether the protest was denied, sustained or dismissed.
    (2) Indicate the date the decision was provided.
    (l) If the deciding official sustains the protest, relief may 
consist of any of the following:
    (1) Recommendation that the contract be terminated for convenience 
or cause.
    (2) Recompeting the requirement.
    (3) Amending the solicitation.
    (4) Refraining from exercising contract options.
    (5) Awarding a contract consistent with statute, regulation, and 
the terms of the solicitation.
    (6) Other action that the deciding official determines is 
appropriate.
    (m) If the Agency Protest Official sustains a protest, then within 
30 days after receiving the Official's recommendations for relief, the 
Contracting Officer must either:
    (1) Fully implement the recommended relief; or
    (2) Notify the Agency Protest Official in writing if any 
recommendations have not been implemented and explain why.
    (n) Proceedings on an agency protest may be dismissed or stayed if 
a protest on the same or similar basis is filed with a protest forum 
outside of the Department of Justice.

Subpart 2833.2--Disputes and Appeals


2833.209  Suspected fraudulent claims.

    Contracting officers shall report suspected fraudulent claims to 
the Office of the Inspector General.


2833.211  Contracting officer's decision.

    (a) The Agency Board of Contract Appeals (BCA), which will hear 
appeals from the decisions of bureau contracting officers, is the 
Department of Transportation BCA. The procedures set forth in 48 CFR 
chapter 63 shall apply.
    (b) Pursuant to 28 CFR 0.45(i), the contact for all appeals of 
decisions of DOJ contracting officers which will be forwarded to the 
BCA under paragraph (a) of this section, is the Deputy Assistant 
Attorney General, Commercial Litigation Branch, Civil Division.

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

PART 2834--MAJOR SYSTEM ACQUISITION

Subpart 2834.0--General

2834.002  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2834.0--General


2834.002  Policy.

    In accordance with Pub. L. 98-577, the Small Business and Federal 
Procurement Competition Enhancement Act of 1984, an executive agency 
may establish a dollar threshold for the designation of a major system. 
Accordingly, dollar thresholds for a major system under Office of 
Management and Budget Circular A-109 are designated in this section.
    (a) Major Automated Information System. Within the Department of 
Justice, a major automated information system is one whose life-cycle 
cost is in excess of $100 million.
    (b) Major Real Property System. (1) By purchase, when the assessed 
value of the property exceeds $60 million.
    (2) By lease, when the annual rental charges, including basic 
services (e.g., cleaning, guards, maintenance), exceed $1.8 million.
    (3) By transfer from another agency at no cost when the assessed 
value of the property exceeds $12 million.
    (c) Research and Development (R&D) System. Any R&D activity 
expected to exceed $0.5 million, for the R&D phase is subject to OMB 
Circular A-109, unless exempted by the HCA.
    (d) Any other system or activity. The HCA responsible for the 
system may designate any system or activity as a Major System under OMB 
Circular A-109 as a result of Departmental review, e.g., selected 
systems designed to support more than one principal organizational 
unit.
    (e) Exemption. The AAG/A, upon recommendation by the HCA 
responsible for the system, may determine that because of the routine 
nature of the acquisition, the system (e.g., an information system 
utilizing only off-the-shelf hardware or software) will be exempt from 
the OMB Circular A-109 process, although by virtue of the life cycle 
costs, it would otherwise be identified as ``major'' in response to OMB 
Circular A-109.

[[Page 1416]]

SUBCHAPTER G--CONTRACT MANAGEMENT

PART 2842--CONTRACT ADMINISTRATION

Subpart 2842.15--Contractor Performance Information

2842.1502  Policy.
2842.1503  Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2842.15--Contractor Performance Information


2842.1502  Policy.

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


2842.1503  Procedures.

    Past performance evaluation procedures and systems shall include, 
to the greatest practical extent, the evaluation and performance rating 
factors set forth in the Office of Federal Procurement Policy best 
practices guide for past performance.

PART 2845--GOVERNMENT PROPERTY

Subpart 2845.1--General

2845.105  Records of Government property.
Subpart 2845.5--Management of Government Property in the Possession of 
Contractors
2845.505-14  Reports of Government Property.
Subpart 2845.6--Reporting, Redistribution, and Disposal of Contractor 
Inventory
2845.603  Disposal methods.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2845.1--General


2845.105  Records of Government property.

    If departmental elements maintain the Government's official 
property management records, the contract records may be kept as a 
separate account in the bureau's internal property management system, 
in which case the contracting officer or formally designated property 
administrator shall serve as custodian of the account.

Subpart 2845.5--Management of Government Property in the Possession 
of Contractors


2845.505-14  Report of Government Property.

    (a) In compliance with FAR 45.505-14, by January 31 of each year, 
DOJ contractors shall furnish the cognizant contracting officer an 
annual report of the DOJ property for which they are accountable as of 
the end of the calendar year.
    (b) By March 1 of each year, bureaus shall submit a summary report 
of Departmental property furnished under each contract, as of the end 
of the calendar year, to the Facilities and Administrative Services 
Staff, Justice Management Division. The report shall be categorized in 
accordance with FAR 45.505 and shall include contracts for which the 
bureau maintains the official government records.

Subpart 2845.6--Reporting, Redistribution, and Disposal of 
Contractor Inventory


2845.603  Disposal methods.

    Policies pertaining to reutilization and disposal of DOJ property, 
including requirements for internal screening, waivers, and disposal 
reporting, are prescribed in the Justice Property Management 
Regulations Subpart 128-43. Unless otherwise specified, the ``plant 
clearance officer'' shall be a designated utilization and disposal 
representative of a bureau's property management office.

PART 2846--QUALITY ASSURANCE

Subpart 2846.6--Material Inspection and Receiving Reports

Subpart 2846.7--Warranties

2845.704  Authority for use of warranties.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2846.6--Material Inspection and Receiving Reports

    Bureaus shall prescribe procedures and instructions for the use, 
preparation, and distribution of material inspection and receiving 
reports and commercial shipping document/packing lists to evidence 
Government inspection.

Subpart 2846.7--Warranties


2846.704  Authority for use of warranties.

    The use of a warranty in an acquisition shall be approved at a 
level above the contracting officer.

Subchapter H--Clauses and Forms

PART 2852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 2852.1--Instructions for Using Provisions and Clauses

2852.102  Incorporating provisions and clauses.
2852.102-270  Incorporation in full text.

Subpart 2852.2--Text of Provisions and Clauses

2852.201-70  Contracting Officer's Technical Representative (COTR).
2852.211-70  Brand-name or Equal.
2852.223-70  Unsafe Conditions Due to the Presence of Hazardous 
Material.
2852.233-70  Protests Filed Directly with the Department of Justice.

    Authority: 28 U.S.C. 510; 49 U.S.C. 486(c); 28 CFR 0.75(j) and 
28 CFR 0.76(j).

Subpart 2852.1--Instructions for Using Provisions and Clauses


2852.102  Incorporating provisions and clauses.


2852.102-270  Incorporation in full text.

    JAR provisions or clauses shall be incorporated in solicitations 
and contracts in full text.

Subpart 2852.2--Text of Provisions and Clauses


2852.201-70  Contracting Officer's Technical Representative (COTR).

    As prescribed in subpart 2801.70, insert the following clauses:

Contracting Officer's Technical Representative (COTR) (JAN 1985)

    (a) Mr./Ms. (Name) of (Organization) (Room No.), (Building), 
(Address), (Area Code & Telephone No.), is hereby designated to act 
as Contracting Officer's Technical Representative (COTR) under this 
contract.
    (b) The COTR is responsible, as applicable, for: receiving all 
deliverables, inspecting and accepting the supplies or services 
provided hereunder in accordance with the terms and conditions of 
this contract; providing direction to the contractor which clarifies 
the contract effort, fills in details or otherwise serves to 
accomplish the contractual Scope of Work; evaluating performance; 
and certifying all invoices/vouchers for acceptance of the supplies 
or services furnished for payment.
    (c) The COTR does not have the authority to alter the 
contractor's obligations under the contract, and/or modify any of 
the expressed terms, conditions, specifications, or cost of the 
agreement. If as a result of technical discussions it is desirable 
to alter/change contractual obligations or the Scope of Work, the 
Contracting Officer shall issue such changes.

(End of Clause)


2852.211-70  Brand-name or Equal.

    As prescribed in 2811.104-70, insert the following clause:

BRAND-NAME OR EQUAL (JAN 1985)

    (a) The terms ``bid'' and ``bidder'', as used in this clause, 
include the terms ``proposal'' and ``offerors''. The terms 
``invitation for bids'' and ``invitation'', as used in this clause 
include the terms ``request for proposal'' and ``request''.
    (b) If items called for by this invitation for bids have been 
identified in the schedule by a ``brand name or equal'' description, 
such identification is intended to be descriptive

[[Page 1417]]

but not restrictive, and is to indicate the quality and 
characteristics of products that will be satisfactory. Bids offering 
``equal'' products (including products of a brand name manufacturer 
other than the one described by brand name) will be considered for 
award if such products are clearly identified in the bids and are 
determined by the Government to meet fully the salient 
characteristics and requirements listed in the invitation.
    (c) Unless the bidder clearly indicates in his/her bid that he/
she is offering an ``equal'' product, his/her bid shall be 
considered as offering the brand name product referenced in the 
invitation for bids.
    (d)(1) If the bidder proposes to furnish an ``equal'' products, 
brand name, if any, of the product to be furnished shall be inserted 
in the space provided in the invitation for bids, or such product 
shall be otherwise clearly identified in the bid. The evaluation of 
bids and the determinations to equality of the product offered shall 
be the responsibility of the Government and will be based on 
information furnished by the bidder or identified in his/her bid as 
well as other information reasonably available to the purchasing 
activity. To ensure that sufficient information is available, the 
bidder must furnish as a part of his/her bid all descriptive 
material (such as cuts, illustrations, drawings, or other 
information) necessary for the purchasing activity to: (i) determine 
whether the product offered meets the salient characteristics 
requirements of the invitation for bids, and (ii) establish exactly 
what the bidder proposed to furnish and what the Government would be 
binding itself to purchase by making an award. The information 
furnished may include specific references to information previously 
furnished or information otherwise available to the purchasing 
activity.
    (2) If the bidder proposes to modify a product so as to make it 
conform to the requirements of the invitation for bids, he/she 
shall: (i) include in his/her bid a clear description of such 
proposed modifications, and (ii) clearly mark any descriptive 
material to show the proposed modifications.
    (3) Modifications proposed after the bid opening to make a 
product conform to a brand name product referenced in the invitation 
for bids will not be considered.

(End of Clause)


2852.223-70  Unsafe Conditions Due to the Presence of Hazardous 
Material

    As prescribed in 2823.303-70, insert the following clause:

UNSAFE CONDITIONS DUE TO THE PRESENCE OF HAZARDOUS MATERIAL (JUNE 1996)

    (a) ``Unsafe condition'' as used in this clause means the actual 
or potential exposure of contractor or Government employees to a 
hazardous material as defined in Federal Standard No. 313, and any 
revisions thereto during the term of this contract, or any other 
material or working condition designated by the Contracting 
Officer's Technical Representative (COTR) as potentially hazardous 
and requiring safety controls.
    (b) The Occupational Safety and Health Administration (OSHA) is 
responsible for issuing and administering regulations that require 
contractors to apprise its employees of all hazards to which they 
may be exposed in the course of their employment; proper conditions 
and precautions for safe use and exposure; and related symptoms and 
emergency treatment in the event of exposure.
    (c) Prior to commencement of work, contractors are required to 
inspect for and report to the contracting officer or designee the 
presence of, or suspected presence of, any unsafe condition 
including asbestos or other hazardous materials or working 
conditions in areas in which they will be working.
    (d) If during the performance of the work under this contract, 
the contractor or any of its employees, or subcontractor employees, 
discovers the existence of an unsafe condition, the contractor shall 
immediately notify the contracting officer, or designee (with 
written notice provided not later than three (3) working days 
thereafter), of the existence of an unsafe condition. Such notice 
shall include the contractor's recommendations for the protection 
and the safety of Government, contractor and subcontractor personnel 
and property that may be exposed to the unsafe condition.
    (e) When the Government receives notice of an unsafe condition 
from the contractor, the parties will agree on a course of action to 
mitigate the effects of that condition and, if necessary, the 
contract will be amended. Failure to agree on a course of action 
will constitute a dispute under the Disputes clause of this 
contract.
    (f) Nothing contained in this clause shall relieve the 
contractor or subcontractors from complying with applicable Federal, 
State, and local laws, codes, ordinances and regulations (including 
the obtaining of licenses and permits) in connection with hazardous 
material including but not limited to the use, disturbance, or 
disposal of such material.

(End of Clause)


2852.233-70  Protests Filed Directly With the Department of Justice.

    As prescribed in 2833.102(d), insert a clause substantially as 
follows:

PROTESTS FILED DIRECTLY WITH THE DEPARTMENT OF JUSTICE (JAN 1998)

    (a) The following definitions apply in this provision:
    (1) ``Agency Protest Official'' means the official, other than 
the contracting officer, designated to review and decide procurement 
protests filed with a contracting activity of the Department of 
Justice.
    (2) ``Deciding Official'' means the person chosen by the 
protestor to decide the agency protest; it may be either the 
Contracting Officer or the Agency Protest Official.
    (3) ``Interested Party'' means an actual or prospective offeror 
whose direct economic interest would be affected by the award of a 
contract or by the failure to award a contract.
    (b) A protest filed directly with the Department of Justice 
must:
    (1) Indicate that it is a protest to the agency.
    (2) Be filed with the Contracting Officer.
    (3) State whether the protestor chooses to have the Contracting 
Officer or the Agency Protest Official decide the protest. If the 
protest is silent on this matter, the Contracting Officer will 
decide the protest.
    (4) Indicate whether the protestor prefers to make an oral or 
written presentation of arguments in support of the protest to the 
deciding official.
    (5) Include the information required by FAR 33.103(d)(2):
    (i) Name, address, fax number and telephone number of the 
protestor.
    (ii) Solicitation or contract number.
    (iii) Detailed statement of the legal and factual grounds for 
the protest, to include a description of resulting prejudice to the 
protestor.
    (iv) Copies of relevant documents.
    (v) Request for a ruling by the agency.
    (vi) Statement as to the form of relief requested.
    (vii) All information establishing that the protestor is an 
interested party for the purpose of filing a protest.
    (viii) All information establishing the timeliness of the 
protest.
    (c) An interest party filing a protest with the Department of 
Justice has the choice of requesting either that the Contracting 
Officer of the Agency Protest Official decide the protest.
    (d) The decision by the Agency Protest Official is an 
alternative to a decision by the Contracting Officer. The Agency 
Protest Official will not consider appeals from the Contracting 
Officer's decision on an agency protest.
    (e) The deciding official must conduct a scheduling conference 
with the protestor within five (5) days after the protest is filed. 
The scheduling conference will establish deadlines for oral or 
written arguments in support of the agency protest and for agency 
officials to present information in response to the protest issues. 
The deciding official may hear oral arguments in support of the 
agency protest at the same time as the scheduling conference, 
depending on availability of the necessary parties.
    (f) Oral conferences may take place either by telephone or in 
person. Other parties may attend at the discretion of the deciding 
official.
    (g) The protestor has only one opportunity to support or explain 
the substance of its protest. Department of Justice procedures do 
not provide for any discovery. The deciding official may request 
additional information from either the agency or the protestor. The 
deciding official will resolve the protest through informal 
presentations or meetings to the maximum extent practicable.
    (h) An interested party may represent itself or be represented 
by legal counsel. The Department of Justice will not reimburse the 
protester for any legal fees related to the agency protest.
    (i) The Department of Justice will stay award or suspend 
contract performance in accordance with FAR 33.103(f). The stay or 
suspension, unless over-ridden, remains in effect until the protest 
is decided, dismissed, or withdrawn.
    (j) The deciding official will make a best effort to issue a 
decision on the protest within twenty (20) days after the filing 
date. The decision may be oral or written.

[[Page 1418]]

    (k) The Department of Justice may dismiss or stay proceeding on 
an agency protest if a protest on the same or similar basis is filed 
with a protest forum outside the Department of Justice.

(End of Clause)

[FR Doc. 98-380 Filed 1-8-98; 8:45 am]
BILLING CODE 4410-01-M