[Federal Register Volume 68, Number 219 (Thursday, November 13, 2003)]
[Proposed Rules]
[Pages 64297-64314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27971]


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DEPARTMENT OF STATE

48 CFR Parts 601, 602, 603, 604, 605, 606, 609, 611, 612, 613, 616, 
617, 619, 622, 623, 625, 626, 628, 630, 632, 636, 637, 642, 651, 
652, 653

[Public Notice 4525]
RIN 1400-AB06


Department of State Acquisition Regulation (DOSAR)

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: This proposed rule makes various changes to the DOSAR. It 
updates the DOSAR to reflect the current acquisition organizational 
structure; provides information regarding electronic commerce 
initiatives as they relate to acquisition; outlines the Department's 
participation in the Defense Priorities Allocation System; incorporates 
a Small Business Administration (SBA) waiver regarding 8(a) competitive 
actions; establishes the Department's Mentor-Prot[eacute]g[eacute] 
Program; eliminates the requirement to collect data on minority 
business status; adds guidance and related clauses and provisions 
regarding overseas construction projects subject to the Foreign Service 
Buildings Act, as amended, and the Omnibus Diplomatic Security and 
Antiterrorism Act; adds guidance and a related provision regarding the 
acquisition of local guard services overseas; and, provides information 
regarding the Contractor Performance System. Finally, the proposed rule 
contains miscellaneous technical amendments and corrections needed to 
bring the DOSAR in line with recent changes in the Federal Acquisition 
Regulation.

DATES: Public comments must be received by January 12, 2004.

ADDRESSES: Comments may be sent to: Gladys Gines, Procurement Analyst, 
Department of State, Office of the Procurement Executive, 2201 C Street 
NW., Suite 603, State Annex Number 6, Washington, DC 20522-0602; e-mail 
address: [email protected]. Please cite Department of State Acquisition 
Regulation in all correspondence.

FOR FURTHER INFORMATION CONTACT: Gladys Gines, telephone (703) 516-1691 
or at the e-mail address specified above.

SUPPLEMENTARY INFORMATION:

Background

    As indicated in the Summary, the proposed rule makes numerous 
changes in a variety of areas. The more substantive changes are:
    [sbull] Revision to 601.603-70 to delete several acquisition 
offices that have been eliminated.
    [sbull] Addition of information in 604.502 regarding the posting of 
domestic solicitations on the Statebuy Interactive Platform (SIP). The 
SIP is Internet-based.
    [sbull] Extension of the waiver in 605.202-70 to March 12, 2004, as 
approved by the agency head. Numerous administrative changes are made 
to Part 605 and other parts of the DOSAR to change the references to 
the Commerce Business Daily (CBD) to the Governmentwide Point of Entry 
(GPE), in accordance with Federal Acquisition Circular (FAC) 97-26.
    [sbull] Addition of 609.404-70 to require that contracting 
officers, in addition to checking the Excluded Parties List, also check 
the list of entities on the Department of Treasury's Office of Foreign 
Asset Control List.
    [sbull] Removal of the class deviation in 609.405 regarding 
checking the Excluded Parties List (EPL). The class deviation waived 
the requirement for overseas contracting activities to check the EPL, 
as well as waived the requirement for domestic contracting activities 
for actions under the simplified acquisition threshold. This deviation 
was put in place when the EPL was available only in hard copy, and 
receipt by both domestic and overseas contracting activities was 
inconsistent. Now that the EPL is available on the Internet, the class 
deviation is no longer required.
    [sbull] Addition of a new Subpart 611.6. This reflects the 
Department's authority to use the Defense Priorities Allocation System 
(DPAS) for acquisitions related to the Department's Embassy Security 
Protection Program, as authorized by the Department of Commerce.
    [sbull] Addition of a new Part 612 to delegate to the Head of the 
Contracting Activity the approval of requests for waiver to tailor a 
commercial item clause or provision that is inconsistent with customary 
commercial practices.
    [sbull] Addition to 613.303-5 to allow for the placement of 
individual orders against blanket purchase agreements for commercial 
items that exceed the simplified acquisition threshold.
    [sbull] Addition of Bureau Executive Directors to 617.504-70(a) as 
signatories of Economy Act Interagency Acquisition Agreements.
    [sbull] Addition of HUBZone small, veteran-owned small, and 
service-disabled veteran-owned small businesses to the list of small 
business concerns in Part 619.
    [sbull] Addition of 619.202-70 to outline the Department's Mentor-
Prot[eacute]g[eacute]

[[Page 64298]]

Program. This program is similar to those established by other civilian 
agencies, such as the Department of Treasury. An associated 
solicitation provision and contract clause are added at 652.219-72 and 
652.219-73, respectively.
    [sbull] Addition at 619.805-2 of a waiver approved by the Small 
Business Administration regarding competitive 8(a) awards. The waiver 
allows the Department to acquire services exceeding $3 million and 
supplies exceeding $5 million on a non-competitive basis for 
acquisitions that supplement the security of U.S. diplomatic posts and 
protect the lives of Department personnel.
    [sbull] Addition of a new Subpart 622.15 regarding the referral of 
suspected violations under Executive Order 13126, Prohibition of 
Acquisition of Products Produced by Forced or Indentured Child Labor. 
Contracting officers shall refer suspected violations to the 
Department's Inspector General.
    [sbull] Elimination of Part 626 regarding the collection of 
minority business status information. There is no longer a need to 
collect this information.
    [sbull] Elimination of Subpart 623.1 to coincide with the 
elimination of FAR Subpart 23.1 as part of FAC 97-15.
    [sbull] Revision of Subpart 623.4 to align it with FAR Subpart 
23.4.
    [sbull] Elimination of Subpart 625.3. The Balance of Payments 
Program was eliminated from the FAR in FAC 2001-07.
    [sbull] Elimination of Subpart 625.7. The current FAR coverage is 
sufficient; no further implementation is required.
    [sbull] Elimination of Subpart 628.70 regarding indemnification. 
Existing FAR coverage is sufficient. The associated clause at 652.228-
70 is removed accordingly.
    [sbull] Addition of Part 630 to indicate that the Procurement 
Executive is the agency head's designee for the purposes of FAR 30.201-
5(a).
    [sbull] Addition of 636.104-70 regarding the Foreign Service 
Buildings Act, as amended (22 U.S.C. 302). This statute limits 
competition for the construction, alteration, or repair of buildings or 
grounds abroad exceeding $5 million to American-owned firms or firms of 
countries which permit or agree to permit substantially equal access to 
American firms for comparable diplomatic and consular building 
projects. This statute also provides for a ten (10) percent price 
reduction preference for American-owned firms. An associated 
certification is added at 652.236-71. The purpose of the certification 
is to determine a bidder/offeror's status as an American-owned firm in 
accordance with the requirements of the statute.
    [sbull] Addition of 636.104-71 regarding the Omnibus Diplomatic 
Security and Antiterrorism Act of 1986 (22 U.S.C. 4852). Section 402 of 
this statute limits construction or design projects abroad exceeding 
$10 million, or diplomatic construction projects that involve technical 
security, to United States persons or qualified United States joint 
venture persons. This statute also excludes organizations that have 
business arrangements with the Government of Libya. An associated 
certification is added at 652.236-72. The purpose of the certification 
is to determine a bidder/offeror's status as a United States person or 
qualified United States joint venture person, and its business 
relations with Libya, in accordance with the requirements of the 
statute.
    [sbull] Addition of 636.202 to designate the Director/Chief 
Operating Officer of the Bureau of Overseas Building Operations as the 
individual who may exempt a construction project from the general 
requirements as expressed in E.O. 13202, Preservation of Open 
Competition and Government Neutrality Towards Government Contractors' 
Labor Relations on Federal and Federally Funded Construction Projects.
    [sbull] Elimination of 636.602-4 regarding the selection 
authorities for architect-engineer contracts. This is internal 
information that does not affect the public and does not need to be in 
the codified version of the regulation.
    [sbull] Addition of 637.102-70 to provide guidance regarding the 
acquisition of local guard services overseas in accordance with Section 
136 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 
1991 (22 U.S.C. 4864), which has continuing effect. Section 136 
encourages the participation of United States persons and qualified 
United States joint venture persons in local guard contracts overseas 
under diplomatic security programs, and provides for a ten (10) percent 
price reduction preference for such firms. An associated certification 
is added at 652.237-73. The purpose of the certification is to 
determine a bidder/offeror's status as a United States person or 
qualified United States joint venture person in accordance with the 
requirements of the statute.
    [sbull] Addition of Subpart 637.6 to reflect the Department's 
policy for using performance-based service contracts for all new 
service contracts. Contracting activities must prepare a written 
justification that must be approved by the Departmental Competition 
Advocate when deviating from this policy.
    [sbull] Addition of Subpart 642.15 regarding the Contractor 
Performance System (CPS). The Department subscribes to the CPS 
maintained by the National Institutes of Health. Contracting officers 
must use the CPS to record their evaluation of a contractor's past 
performance for all contracts exceeding $100,000.
    [sbull] Revision of the clause at 652.216-70, Ordering--Indefinite-
Delivery Contract, to reflect a new form number for the Department's 
purchase order form. The form number OF-206 was changed to the DS-2076.
    [sbull] Revision of the provision at 652.219-70, Department of 
State Subcontracting Goals, to add HUBZone small and service-disabled 
veteran-owned small businesses to the list of organizations that have 
established subcontracting goals.
    [sbull] Revision of the clause at 652.236-70, Accident Prevention, 
to better clarify the situations under which the contracting officer 
must seek additional information in the contractor's written safety 
plan.
    [sbull] Revision of the clause at 652.237-71, Identification/
Building Pass, to provide more detailed information on what contractors 
must submit to receive a building pass to work on DOS facilities.
    [sbull] Revision of the clause at 652.237-72, Observance of Legal 
Holidays and Administrative Leave, to reflect the Monday holiday law.

II. Regulatory Flexibility Act

    The Department of State certifies that this regulation will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A 
Regulatory Flexibility Analysis has, therefore, not been performed.

III. Unfunded Mandates Act of 1995

    The Unfunded Mandates Act of 1995 requires agencies to prepare 
several analytical statements before proposing any rule that may result 
in annual expenditures of $100 million of State, local, and Indian 
tribal governments or the private sector. Since this proposed rule will 
not result in expenditures of this magnitude, the Department certifies 
that such statements are not necessary.

IV. Paperwork Reduction Act

    Information collection requirements have been approved under the 
Paperwork Reduction Act of 1980 by OMB, and have been assigned OMB 
control number 1405-0050. The Department is currently seeking approval 
for the information collection

[[Page 64299]]

requirements associated with Form DS-4053, Department of State Mentor-
Protege Program Application.

List of Subjects in 48 CFR Parts 601, 602, 603, 604, 605, 606, 609, 
611, 612, 613, 616, 617, 619, 622, 623, 625, 626, 628, 630, 632, 
636, 637, 642, 651, 652, 653

    Government procurement.

    Accordingly, title 48, chapter 6 of the Code of Federal Regulations 
is proposed to be amended as follows:
    1. The authority citation for 48 CFR Parts 601, 602, 603, 604, 605, 
606, 609, 611, 612, 613, 616, 617, 619, 622, 623, 625, 626, 628, 630, 
632, 636, 637, 642, 651, 652, and 653 continues to read as follows:

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

Subchapter A--General

PART 601--DEPARTMENT OF STATE ACQUISITION REGULATION

    2. Section 601.105-3 is revised to read as follows:


601.105-3  Copies.

    The DOSAR is available through the Department's Intranet system at 
http://aope.a.state.gov, or through the Internet from A/OPE's 
Acquisition Web site. The Internet address is: http://www.statebuy.gov/.
    3. Section 601.106 is amended by removing from the last sentence 
``225,302 hours'' and inserting ``225,503 hours'' in its place.
    4. Section 601.603-1 is added to read as follows:


601.603-1  General.

    Details of the Department's acquisition career management program 
are described in 6 FAH-6, the Acquisition Career Management Program 
Handbook, which is available on the Intranet from the A/OPE Web site 
(see 601.105-3 for address).
    5. Section 601.603-3 is amended by revising paragraph (d) to read 
as follows:


601.603-3  Appointment.

* * * * *
    (d) Personal services agreements. Individuals who may sign personal 
services agreements (PSAs) are limited to the following:
    (1) The Human Resources Officer;
    (2) The Human Resources/Financial Management Officer; or,
    (3) The Management Officer or an American Foreign Service Officer 
designated to perform human resource functions.
    6. In section 601.603-70, paragraph (a) is revised and a sentence 
is added at the end of paragraph (b)(6) to read as follows:


601.603-70  Delegations of authority.

    (a) Delegations. As stated in 601.603-3(a), there is no contracting 
officer authority conferred by virtue of position. Pursuant to 601.602-
1(b), the Procurement Executive has designated the following as 
contracting activities as defined in FAR 2.101. These authorities are 
not redelegable. In addition, specific individuals are designated as 
heads of contracting activities (HCAs) (see FAR 2.101):
    (1) Overseas posts. Each overseas post shall be regarded as a 
contracting activity to enter into and administer contracts for the 
expenditure of funds involved in the acquisition of supplies, 
equipment, publications, and services. The Principal Officer, the 
Management Officer, or the Supervisory General Services Officer are 
designated as HCAs; provided, that he/she has a contracting officer's 
warrant issued by the Procurement Executive. The Procurement Executive 
(or authorized A/OPE staff) may delegate to a contracting officer, on a 
case-by-case basis, the authority to award a contract or modification 
which exceeds the contracting officer's warrant level.
    (i) No authority is delegated to enter into cost-reimbursement, 
fixed-price incentive, or fixed-price redeterminable contracts. Design/
build solicitations and contracts may only be entered into with the 
written approval of A/OPE and OBO. Proposed construction contracts 
exceeding $500,000 and any related architect-engineer contracts must 
have prior A/OPE approval.
    (ii) When expressly authorized by a U.S. Government agency which 
does not have a contracting officer at the post, the officers named in 
paragraph (a)(1) introductory text of this section may enter into 
contracts for that agency. Use of this authority is subject to the 
statutory authority of that agency and any special contract terms or 
other requirements necessary for compliance with any conditions or 
limitations applicable to the funds of that agency. The agency's 
authorization shall cite the statute(s) and state any special contract 
terms or other requirements with which the acquisition so authorized 
must comply. In view of the contracting officer's responsibility for 
the legal, technical, and administrative sufficiency of contracts, 
questions regarding the propriety of contracting actions that the post 
is required to take pursuant to this authority may be referred to the 
Department for resolution with the headquarters of the agency 
concerned.
    (2) Office of Logistics Management; Office of Acquisition 
Management (A/LM/AQM). The authority to enter into and administer 
contracts for the expenditure of funds involved in the acquisition of 
supplies and services, including construction, is delegated to the 
Director or designee as the HCA.
    (3) Foreign Service Institute. The authority to enter into and 
administer contracts pursuant to Chapter 7, Title I, of the Foreign 
Service Act of 1980, as amended (22 U.S.C. 4021 et seq.), is delegated 
to the Director of the Foreign Service Institute, the Executive 
Director, the Deputy Executive Director, and the Supervisory 
Contracting Officer as the HCA.
    (4) Office of Foreign Missions. The authority to enter into and 
administer contracts pursuant to Title II of the State Department Basic 
Authorities Act of 1956, as amended (22 U.S.C. 4301 et seq.), is 
delegated to the Director, Office of Foreign Missions, and the 
Administrative Officer as the HCA.
    (5) U.S. Mission to the United Nations. The authority to enter into 
and administer contracts pursuant to the United Nations Participation 
Act of 1945, as amended (22 U.S.C. 287), is delegated to the Counselor 
for Administration as the HCA.
    (6) Diplomatic Telecommunication Service--Program Office. The 
authority to enter into and administer contracts for the leasing or 
purchase of telecommunications services, circuits, subsystems, supplies 
and associated professional services is delegated to the Chief, 
Acquisition Branch as the HCA.
    (7) Regional Procurement Support Offices. The authority to enter 
into and administer contracts for the expenditure of funds involved in 
the acquisition of supplies, equipment, publications, and services on 
behalf of overseas posts is delegated to each Director, Regional 
Procurement Support Office (RPSO) as the HCA at the following 
locations:
    (i) RPSO Frankfurt in conjunction with Consulate General Frankfurt; 
and
    (ii) RPSO Florida in conjunction with the Florida Regional Center.
    (b) * * *
    (6) * * * These authorities extend to any acquisition performed by 
any Department of State contracting activity on behalf of INL.
* * * * *

PART 602--DEFINITIONS OF WORDS AND TERMS

    7. Section 602.101-70 is amended by adding, in alphabetical order, 
a definition of ``Chief of Mission''; and, by revising the definition 
of ``Despatch Agency'', as follows:

[[Page 64300]]

602.101-70  DOSAR definitions.

* * * * *
    Chief of Mission means the principal officer in charge of a 
diplomatic mission of the United States or of a United States office 
abroad which is designated by the Secretary of State as diplomatic in 
nature, including any individual assigned under section 502(c) of the 
Foreign Service Act of 1980 (Pub. L. 96-465) to be temporarily in 
charge of such a mission or office.
* * * * *
    Despatch Agency means the office responsible for the transportation 
of supplies between the U.S. and posts within its specific geographic 
area as assigned by the Office of Logistics Operations. There are six 
Despatch Agencies, one each in Iselin, New Jersey; Baltimore, Maryland; 
Miami, Florida; Seattle, Washington; Brownsville, Texas; and the 
European Logistical Support Office in Antwerp, Belgium.
* * * * *

PART 603--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

    8. Section 603.104-5 is redesignated as section 603.104-4.
    9. Section 603.104-10 is redesignated as section 603.104-7. New 
section 603.104-7 is amended in paragraph (d)(2)(ii)(B) by correcting 
the citation at the end of the paragraph to read ``FAR 3.104-
7(d)(2)(ii)(B).''
    10. Section 603.204 is amended by revising paragraph (b) to read as 
set forth below, and by removing paragraph (c):


603.204  Treatment of violations.

* * * * *
    (b) Upon completion of the investigation and/or prosecution or with 
the consent of the U.S. Department of Justice, the Assistant Inspector 
General for Investigations shall provide to the Procurement Executive a 
report, together with all pertinent documentation, concerning the 
suspected violation. The Office of the Procurement Executive shall 
provide to the contractor a written notice by certified mail, return 
receipt requested, presenting the findings, and shall establish a 
schedule, including location, for an investigative hearing for the 
purposes described in FAR 3.204(b).
* * * * *
    11. Section 603.601 is amended by adding the following sentence to 
the end of paragraph (a):


603.601  Policy.

    (a) * * * This policy also applies to individuals hired under 
personal services agreements and personal services contracts.
    12. A new Subpart 603.8, consisting of section 603.804, is added to 
read as follows:

Subpart 603.8--Limitations on the Payment of Funds To Influence 
Federal Transactions


603.804  Policy.

    (b) The contracting officer shall forward a copy of all contractor 
disclosures furnished pursuant to the clause at FAR 52.203-12 to the 
Office of the Legal Adviser, Employment Law, Senior Ethics Counsel (L/
EMP/Ethics).

PART 604--ADMINISTRATIVE MATTERS

    13. Subpart 604.5 is revised to read as follows:

Subpart 604.5--Electronic Commerce in Contracting


604.502  Policy.

    (b) The Assistant Secretary of State for Administration is the head 
of the agency for the purpose of FAR 4.502(b).
    (1)(i) Posting solicitations for domestic contracting activities. 
Contracting officers at domestic contracting activities shall post all 
open market competitive, unclassified Requests for Proposals and 
Invitations for Bids exceeding the simplified acquisition threshold on 
the Internet, unless an exception has been approved by the head of the 
contracting activity. Contracting officers may post Requests for 
Quotations and noncompetitive acquisitions if desired. Solicitations 
shall be posted through the Statebuy Interactive Platform at https://state.monmouth.army.mil/. If the SIP is temporarily unavailable (due 
either to problems with the SIP system or the Internet connections), 
the solicitation shall be posted on the Governmentwide point of entry 
(GPE), and immediately posted on the SIP when the SIP again becomes 
available.
    (ii) Materials not in automated format. For solicitations 
containing drawings or other materials that are not in an automated 
format, the contracting officer shall:
    (A) Post as much of the solicitation as possible on the Internet; 
and,
    (B) Make hard copies available for those parts of the solicitation 
that are not in an automated format.
    (iii) Posting solicitations for overseas contracting activities. 
Contracting officers at overseas contracting activities shall post 
competitive local guard solicitations on the Internet using the 
Statebuy Interactive Platform if U.S. firms may be competing. Posting 
of other solicitations is optional.

Subchapter B--Competition and Acquisition Planning

PART 605--PUBLICIZING CONTRACT ACTIONS

    14. Section 605.202-70 is amended--
    (a) By removing ``CBD'' in the first sentence of paragraph (a);
    (b) By adding the words ``in the Governmentwide point of entry 
(GPE)'' after the word ``notices'' in the first sentence of paragraph 
(a);
    (c) By removing ``CBD'' and inserting ``GPE'' in its place in the 
second sentence of paragraph (a);
    (c) By removing the date ``May 19, 2001'' and inserting the date 
``March 12, 2004'' in its place in the last sentence of paragraph (a);
    (d) By removing ``CBD'' and inserting ``GPE'' in its place in 
paragraph (b); and,
    (e) By revising paragraph (d) to read as follows:


605.202-70  Foreign acquisitions.

* * * * *
    (d) Policy exclusions. GPE waiver authority does not apply to local 
guard service contracts that exceed $250,000. Local guard service 
contracts that exceed $250,000 shall be published in the GPE, as well 
as any construction contracts exceeding $5 million. Option year prices 
shall be included when computing the applicability of this threshold.
    15. Section 605.207-70 is amended by removing the word ``synopsis'' 
and inserting the word ``notice'' in its place.
    16. Section 605.303 is amended by removing the word ``Office'' and 
inserting the word ``Bureau'' in its place in the first sentence of 
paragraph (a).

PART 606--COMPETITION REQUIREMENTS

    17. Section 606.302-6 is amended--
    a. By removing the words ``Commerce Business Daily'' and inserting 
``GPE'' in their place in paragraph (c)(1)(i);
    b. By removing the words ``CBD synopsis'' and inserting ``GPE 
notice'' in their place in paragraph (c)(1)(ii); and,
    c. By removing the words ``Commerce Business Daily'' and inserting 
``GPE'' in their place in paragraph (c)(2).
    18. Section 606.370 is amended by removing the word 
``Administrative'' and inserting the word ``Management'' in its place 
in the third sentence of paragraph (b).
    19. Section 606.501 is amended by inserting the following sentence 
after the first sentence in paragraph (b):

[[Page 64301]]

606.501  Requirement.

* * * * *
    (b) * * *

A/LM/AQM's competition advocate is also designated the contracting 
activity competition advocate for the Regional Procurement Support 
Offices. * * *
    20. Section 606.501-70 is amended by removing the word 
``Administrative'' and inserting the word ``Management'' in its place.

PART 609--CONTRACTOR QUALIFICATIONS

    21. A new section 609.404-70 is added to read as follows:


609.404-70  Specially Designated Nationals List.

    Contracting officers shall not award to any of the entities listed 
on the Specially Designated Nationals (SDN) List, available on the 
Department of Treasury's Office of Foreign Assets Control Web site at 
http://www.treas.gov/ofac/. Contracting officers shall consult this 
list prior to award for any dollar amount. This list may also be 
accessed through the EPLS Web site at http://epls.arnet.gov.
    22. Section 609.405 is amended--
    (a) By removing paragraphs (d) and (d)(1)(i);
    (b) By adding a new paragraph (d)(3) to read as indicated below; 
and, (c) By removing paragraphs (d)(4)(i) and (d)(4)(ii).


609.405  Effect of listing.

* * * * *
    (d)(3) The Procurement Executive is the agency head's designee for 
the purposes of FAR 9.405(d)(3).
    23. Section 609.406-3 is amended by revising the last two sentences 
of paragraph (a)(1) to read as follows:


609.406-3  Procedures.

    (a)(1) * * * The Office of the Inspector General shall investigate 
the matter, as appropriate, and provide a copy of its investigation 
report to the Procurement Executive for consideration of debarment 
action, if and when appropriate. The contracting officer shall provide 
to the Procurement Executive and the Office of the Inspector General a 
copy of his or her intended actions in response to the Office of the 
Inspector General report.
* * * * *

PART 611--DESCRIBING AGENCY NEEDS

    24. A new Subpart 611.6 is added to read as follows:
Subpart 611.6--Priorities and Allocations
Sec.
611.600 Scope of subpart.
611.602 General.
611.603 Procedures.

Subpart 611.6--Priorities and Allocations


611.600  Scope of subpart.

    On September 18, 2001, the Department of Commerce (DOC) authorized 
the Department of State to use the Defense Priorities and Allocations 
System (DPAS). This authority expires on October 1, 2006. The 
Department of Defense has approved the Department's Embassy Security 
Protection Program (DOSESPP) as a national defense program eligible for 
the priorities support under the DPAS.


611.602  General.

    (c)(1) Authority to use the DPAS is limited to the following 
circumstances:
    (i) The contract or order must be placed with a U.S. firm; and, 
(ii) The contract or order must be in support of the DOSESPP, which 
consists of work involving the security of overseas posts. The DOSESPP 
includes a wide range of elements of both physical and technical 
security, such as:
    (A) New Embassy/Consulate Compound (NEC/NCC) Program. This program 
involves the construction of new secure Embassies, Consulates, and 
related facilities, as well as renovations of newly acquired buildings 
when used as alternatives to the construction of new secure buildings.
    (B) Physical security upgrade. This includes installation of forced 
entry/ballistic resistant (FE/BR) windows and doors, walls/fences, 
active anti-ram barriers, bollards (concrete and steel barriers), and 
related items.
    (C) Forced entry/ballistic resistant (FE/BR) components. This 
includes doors, windows, and related facilities and items that can 
provide the necessary time to protect Government personnel from attack.
    (D) Armored vehicles. This includes passenger vehicles with 
appropriate armoring.
    (E) Entry control and building surveillance equipment. This 
includes walk-through metal detectors, X-ray equipment, surveillance 
cameras, explosive detection equipment, and other features to enhance 
the protection of Government personnel and facilities.
    (2) DOC has assigned the following priority rating to DOSESPP 
contracts or orders: DO-H8.


611.603  Procedures.

    (f) Department of State contracting officers are authorized to sign 
DO-H8 rated contracts or orders. It is the responsibility of the 
requirements office to determine which contracts or orders should be 
rated. All contracts with U.S. firms under the DOSESPP will not 
necessarily need to be assigned a priority rating.
    (g) The contracting officer should place a DO-H8 rating on any 
contract or order if there is any doubt as to whether a contractor 
doing work for Embassy security protection will be able to deliver on 
time. If an unrated contract or order is not completed on time, the 
contracting officer may modify the contract or order to add the rating; 
however, the rating shall only be effective for the newly established 
delivery date, not the original delivery date.
    (1) DOC can provide special assistance to implement the DPAS 
program in specific cases. For example, the Department may request a 
higher priority rating, or request that DOC issue a written directive 
to a contractor that is not complying with the DPAS regulations. In 
addition, although the DPAS program normally applies only to U.S. 
firms, if the Department has a prime contract with a foreign firm that 
will be awarding subcontracts with U.S. firms, the Department may 
request from DOC authorization to place a rating on the prime contract.
    (2) Contracting officers or requirements offices who wish to 
request special assistance from DOC must complete DOC Form BXA-999, 
Request for Special Priorities Assistance, and submit it to A/OPE, 
which will arrange for submission of the request to DOC.

PART 612--ACQUISITION OF COMMERCIAL ITEMS

    25. A new Part 612, consisting of Subpart 612.3 and section 
612.302, is added to subchapter B as follows:

PART 612--ACQUISITION OF COMMERCIAL ITEMS

Subpart 612.3--Solicitation Provisions and Contract Clauses for the 
Acquisition of Commercial Items


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

    (c) The head of the contracting activity shall approve any request 
for a waiver to tailor a clause or otherwise include any additional 
terms or conditions in a solicitation or contract in a manner that is 
inconsistent with customary commercial practice.

[[Page 64302]]

Subchapter C--Contracting Methods and Contract Types

PART 613--SIMPLIFIED ACQUISITION PROCEDURES

    26. Section 613.303-5 is amended by adding a new paragraph (b) to 
read as follows:


613.303-5  Purchases under BPAs.

    (b) Individual purchases under BPAs for commercial items may exceed 
the simplified acquisition threshold; however, the higher threshold 
must be consistent with the requirements of FAR 13.303-5(b)(1) and (2).
* * * * *

PART 616--TYPES OF CONTRACTS

    27. Section 616.505 is amended by correcting the paragraph 
designation of ``(b)(4)'' to read ``(b)(5)''.

PART 617--SPECIAL CONTRACTING METHODS

    28. Section 617.204 is amended by adding the following sentence to 
the end of paragraph (e):


617.204  Contracts.

    (e) * * * The Procurement Executive may delegate this approval 
authority to individuals within the Office of the Procurement 
Executive.
    29. Section 617.504-70 is amended by adding the words ``and Bureau 
Executive Directors'' after the words ``deputy assistant secretaries'' 
in paragraph (a) and by removing the parenthetical ``(illustrated in 
part 653)'' in the first sentence of paragraph (b).

Subchapter D--Socioeconomic Programs

PART 619--SMALL BUSINESS PROGRAMS

    30. Section 619.201 is revised to read as follows:


619.201  General policy.

    (a) The Operations Director, Office of Small and Disadvantaged 
Business Utilization (A/SDBU), is responsible for performing all 
functions and duties prescribed in FAR 19.201(c) and (d).
    (b) In addition to the requirements of FAR 19.201(b), each head of 
the contracting activity, or designee, is responsible for establishing 
in coordination with the A/SDBU Operations Director annual goals for 
the DOS small business program.
    (c) The Assistant Secretary of State for Administration is the 
agency head for the purposes of FAR 19.201(c).
    (d) Pursuant to FAR 19.201(d), each Small and Disadvantaged 
Business Utilization Specialist (SDBUS) is responsible for--
    (1) Maintaining a program to locate capable small business, small 
disadvantaged business, women-owned small business, HUBZone small 
business, veteran-owned small business, and service-disabled veteran-
owned small business sources to fulfill DOS acquisition requirements;
    (2) Coordinating inquiries and requests for advice from small 
business, small disadvantaged business, women-owned small business, 
HUBZone small business, veteran-owned small business, and service-
disabled veteran-owned small business concerns on DOS contracting and 
subcontracting opportunities and other acquisition matters;
    (3) Advising contracting activities on new or revised small 
business policies, regulations, procedures, and other related 
information;
    (4) Assuring that small business, small disadvantaged business, 
women-owned small business, HUBZone small business, veteran-owned small 
business, and service-disabled veteran-owned small business concerns 
are provided adequate specifications or drawings by initiating, in 
writing, with appropriate technical and contracting personnel to ensure 
that all necessary specifications or drawings for current and future 
acquisitions, as appropriate, are available;
    (5) Reviewing all proposed acquisitions in excess of the simplified 
acquisition threshold, including commercial items using the simplified 
acquisition procedures of FAR Subpart 13.5, and task and delivery 
orders under multiple award contracts exceeding $2 million, to assure 
that small business, small disadvantaged business, women-owned small 
business, HUBZone small business, veteran-owned small business, and 
service-disabled veteran-owned small business concerns will be afforded 
an equitable opportunity to compete and, as appropriate, initiating 
recommendations for small business, 8(a), or HUBZone set-asides. This 
includes proposed contract modifications for new or additional 
requirements that do not fall within the original scope of the contract 
and which exceed the simplified acquisition limitation. This does not 
include the exercising of contract options;
    (6) Assuring that contract financing available under existing 
regulations is offered when appropriate and that requests by small 
business concerns for such financing are not treated as a handicap in 
the award of contracts;
    (7) Providing assistance to the contracting officer in making 
determinations concerning responsibility of prospective contractors 
whenever small business concerns are involved;
    (8) Participating in the evaluation of a prime contractor's small, 
small disadvantaged, woman-owned small, HUBZone small, veteran-owned 
small, and service-disabled veteran-owned small business subcontracting 
plans;
    (9) Assuring that the participation of small business, small 
disadvantaged business, women-owned small business, HUBZone small 
business, veteran-owned small business, and service-disabled veteran-
owned small business concerns is accurately reported;
    (10) Attending, as appropriate, debriefings to unsuccessful small 
business, small disadvantaged business, women-owned small business, 
HUBZone small business, veteran-owned small business, and service-
disabled veteran-owned small business concerns to assist those firms in 
understanding requirements for responsiveness and responsibility so 
that the firm may be able to qualify for future awards;
    (11) Making available to SBA copies of solicitations when so 
requested;
    (12) When a bid or offer from a small business, small disadvantaged 
business, women-owned small business, HUBZone small business, veteran-
owned small business, and service-disabled veteran-owned small business 
has been rejected for non-responsiveness or non-responsibility, upon 
request, aid, counsel, and assist that firm in understanding 
requirements for responsiveness and responsibility so that the firm may 
be able to qualify for future awards;
    (13) Participating in Government-industry conferences to assist 
small business concerns, including Business Opportunity/Federal 
Acquisition Conferences, Minority Business Enterprise Acquisition 
Seminars and Business Opportunity Committee meetings;
    (14) Maintaining a list of supplies and services that have been 
placed as repetitive small business set-asides;
    (15) Participating in the development, implementation, and review 
of automated source systems to assure that the interests of small 
business concerns are included;
    (16) Advising potential sources how they can obtain information 
about competitive acquisitions;
    (17) Providing small business, small disadvantaged business, women-
owned small business, HUBZone small business, veteran-owned small 
business, and service-disabled veteran-owned small business concerns 
information regarding assistance available from Federal agencies such 
as the Small

[[Page 64303]]

Business Administration, Minority Business Development Agency, Bureau 
of Indian Affairs, Economic Development Administration, National 
Science Foundation, Department of Labor and others, including State 
agencies and trade associations; and
    (18) Participating in interagency programs relating to small 
business matters as authorized by the A/SDBU Operations Director.
    (f)(1) The Procurement Executive is the agency designee for the 
purposes of FAR 19.201(f)(1). The written determination shall be 
forwarded to the Procurement Executive through the A/SDBU Operations 
Director.
    31. A new section 619.202, and subsection 619.202-70 are added to 
read as follows:


619.202  Specific policies.


619.202-70  The Department of State Mentor-Prot[eacute]g[eacute] 
Program.

    (a) Purpose. The Mentor-Prot[eacute]g[eacute] Program is designed 
to motivate and encourage firms to assist small businesses with 
business development, including small disadvantaged businesses, women-
owned small businesses, HUBZone small businesses, veteran-owned small 
businesses and service-disabled veteran-owned small businesses. The 
program is also designed to improve the performance of DOS contracts 
and subcontracts, foster the establishment of long-term business 
relationships between small businesses and prime contractors, and 
increase the overall number of small businesses that receive DOS 
contract and subcontract awards. The program is limited to non-
commercial item acquisitions.
    (b) Definitions. The definitions of small business (SB), HUBZone 
small business concern (HUBZone), small disadvantaged business (SDB), 
women-owned small business (WOSB), veteran-owned small business (VOSB), 
and service-disabled veteran-owned small business (SDVOSB) are the same 
as found in FAR 2.101.
    Mentor means a prime contractor that elects to promote and develop 
small business subcontractors by providing developmental assistance 
designed to enhance the business success of the prot[eacute]g[eacute].
    Prot[eacute]g[eacute] means a small business, HUBZone small 
business, small disadvantaged business, women-owned small business, 
veteran-owned small business, and service-disabled veteran-owned small 
business who is the recipient of developmental assistance pursuant to a 
mentor-prot[eacute]g[eacute] program.
    (c) Non-affiliation. For purposes of the Small Business Act, a 
prot[eacute]g[eacute] firm is not considered an affiliate of a mentor 
firm solely because the prot[eacute]g[eacute] firm is receiving 
developmental assistance from the mentor firm under the program.
    (d) General policy. (1) Eligible business prime contractors not 
included on the ``List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs'' that are approved as mentor firms may enter 
into agreements with eligible prot[eacute]g[eacute]s.
    (2) A firm's status as a prot[eacute]g[eacute] under a DOS contract 
shall not have an effect on the firm's ability to seek other prime 
contracts or subcontracts.
    (e) Incentives for prime contractor participation. (1) Under the 
Small Business Act (15 U.S.C. 637(d)(4)(E)), DOS is authorized to 
provide appropriate incentives to encourage subcontracting 
opportunities for small businesses consistent with the efficient and 
economical performance of the contract. This authority is limited to 
negotiated acquisitions.
    (2) Before awarding a contract that requires a subcontracting plan, 
the existence of a mentor-prot[eacute]g[eacute] arrangement, and 
performance, if any, under an existing arrangement, may be considered 
by the contracting officer in:
    (i) Evaluating the quality of a proposed subcontracting plan under 
FAR 19.704-5; and,
    (ii) Assessing the prime contractor's compliance with the 
subcontracting plans submitted in previous contracts as a factor in 
determining contractor responsibility under FAR 19.705-5(a)(1).
    (3) A non-monetary award may be presented annually (or as often as 
appropriate) to the mentoring firm providing the most effective 
developmental support of a prot[eacute]g[eacute]. The Mentor-
Prot[eacute]g[eacute] Program Manager will recommend an award winner to 
the Operations Director, A/SDBU.
    (f) Measurement of program success. The success of the DOS Mentor-
Prot[eacute]g[eacute] Program will be measured by:
    (1) The increase in the number and dollar value of contracts 
awarded to prot[eacute]g[eacute] firms under DOS contracts from the 
date the prot[eacute]g[eacute] enters the program;
    (2) The increase in the number and dollar value of contracts and 
subcontracts awarded to the prot[eacute]g[eacute] under other Federal 
agencies and commercial contracts; and,
    (3) The developmental assistance provided by the mentor firm and 
the resulting increase in the technical, managerial, financial or other 
capabilities of the prot[eacute]g[eacute] firm, as reported by the 
prot[eacute]g[eacute].
    (g) Eligibility of mentor firms. A mentor firm:
    (1) May be either a large or small business;
    (2) Must be eligible for award of U.S. Government contracts;
    (3) Must be able to provide developmental assistance that will 
enhance the ability of prot[eacute]g[eacute]s to perform as 
subcontractors; and,
    (4) Will be encouraged to enter into arrangements with 
prot[eacute]g[eacute]s and firms with whom they have established 
business relationships.
    (h) Eligibility of prot[eacute]g[eacute] firms. (1) A 
prot[eacute]g[eacute] firm must be:
    (i) A SB, HUBZone, SDB, WOSB, VOSB, or SDVOSB as those terms are 
defined in FAR 2.101;
    (ii) Small in the NAICS code for the services or supplies to be 
provided by the prot[eacute]g[eacute] to the mentor; and,
    (iii) Eligible for award of U.S. Government contracts.
    (2) Except for SDB and HUBZone firms, a prot[eacute]g[eacute] firm 
may self-certify to a mentor firm that it meets the requirements set 
forth in paragraph (h)(1) of this subsection. Mentors may rely in good 
faith on written representations by potential prot[eacute]g[eacute]s 
that they meet the specified eligibility requirements. SDB status 
eligibility and documentation requirements are determined by FAR 
19.304. HUBZone status eligibility and documentation requirements are 
determined by FAR 19.1303.
    (3) Prot[eacute]g[eacute]s may have multiple mentors. 
Prot[eacute]g[eacute]s participating in mentor-prot[eacute]g[eacute] 
programs in addition to DOS's program should maintain a system for 
preparing separate reports of mentoring activity for each agency's 
program.
    (i) Selection of prot[eacute]g[eacute] firms. (1) Mentor firms are 
solely responsible for selecting prot[eacute]g[eacute] firms. The 
mentor is encouraged to identify and select a broad base of 
prot[eacute]g[eacute] firms whose core competencies support DOS's 
mission.
    (2) Mentors may have multiple prot[eacute]g[eacute]s.
    (3) The selection of prot[eacute]g[eacute] firms by mentor firms 
may not be protested, except that any protest regarding the size or 
eligibility status of an entity selected by a mentor shall be handled 
in accordance with FAR and SBA regulations.
    (j) Application and agreement process for mentor-
prot[eacute]g[eacute] teams to participate in the program. (1) Firms 
interested in becoming a mentor firm must apply in writing to A/SDBU. 
The application (Form DS-4053, Department of State Mentor-
Prot[eacute]g[eacute] Program Application) shall be evaluated by the 
nature and extent of technical and managerial support proposed as well 
as the extent of financial assistance in the form of

[[Page 64304]]

equity investment, loans, joint-venture support, and traditional 
subcontracting support proposed.
    (2) A proposed mentor shall submit the application form and 
associated information to A/SDBU.
    (k) A/SDBU review of application. (1) A/SDBU shall review the 
information to ensure the mentor and prot[eacute]g[eacute] are eligible 
and the information provided is complete. A/SDBU shall consult with the 
contracting officer on the adequacy of the proposed mentor-
prot[eacute]g[eacute] arrangement, and its review shall be complete no 
later than 30 calendar days after receipt of the application by A/SDBU.
    (2) Upon completion of the review, A/SDBU will advise the mentor if 
its application is acceptable. The mentor may then implement the 
developmental assistance program in accordance with the approved 
agreement.
    (3) The agreement defines the relationship between the mentor and 
prot[eacute]g[eacute] firms only. The agreement itself does not create 
any privity of contract between the mentor or prot[eacute]g[eacute] and 
the DOS.
    (l) Developmental assistance. The forms of developmental assistance 
a mentor can provide to a prot[eacute]g[eacute] include:
    (1) Management guidance relating to:
    (i) Financial management;
    (ii) Organizational management;
    (iii) Overall business management/planning;
    (iv) Business development; and,
    (v) Technical assistance.
    (2) Loans;
    (3) Rent-free use of facilities and/or equipment;
    (4) Property;
    (5) Temporary assignment of personnel to prot[eacute]g[eacute] for 
purpose of training; and
    (6) Any other types of permissible, mutually beneficial assistance.
    (m) Obligation. (1) A mentor or prot[eacute]g[eacute] firm may 
voluntarily withdraw from the program. However, in no event shall such 
withdrawal impact the program mission and contractual requirements 
under the prime contract.
    (2) Mentor and prot[eacute]g[eacute] firms shall submit to A/SDBU 
annual reports on program progress of the mentor-prot[eacute]g[eacute] 
agreements. Large business mentors may submit these reports as part of 
their SB, HUBZone, SDB, WOSB, VOSB, and SDVOSB plan submission in 
accordance with the due date on the SF-295. DOS shall consider the 
following in evaluating these reports:
    (i) Specific actions taken by the contractor, during the evaluation 
period, to increase the participation of prot[eacute]g[eacute]s as 
suppliers to the U.S. Government and to commercial entities;
    (ii) Specific actions taken by the mentor, during the evaluation 
period, to develop the technical and corporate administrative expertise 
of a prot[eacute]g[eacute] as defined in the agreement;
    (iii) To what extent the prot[eacute]g[eacute] has met the 
developmental objectives in the agreement; and,
    (iv) To what extent the mentor firm's participation in the Mentor-
Prot[eacute]g[eacute] Program resulted in the prot[eacute]g[eacute] 
receiving contract(s) and subcontract(s) from private firms and 
agencies other than the DOS.
    (3) The DOS A/SDBU shall submit the annual reports to the cognizant 
contracting officer regarding participating prime contractor(s) 
performance in the program.
    (4) Mentor and prot[eacute]g[eacute] firms shall submit an 
evaluation to the A/SDBU at the conclusion of the mutually agreed upon 
program period, the conclusion of the contract, or the voluntary 
withdrawal by either party from the program, whichever comes first.
    (n) Internal controls. (1) A/SDBU shall oversee the program and 
shall work with the cognizant contracting officer to achieve program 
objectives.
    (2) DOS may rescind approval of an existing Mentor-
Prot[eacute]g[eacute] agreement if it determines that such an action is 
in the Department's best interest. The recission shall be in writing 
and sent to the mentor and prot[eacute]g[eacute] firms after approval 
by the A/SDBU Operations Director. Recission of an agreement does not 
change the terms of the subcontract between the mentor and the 
prot[eacute]g[eacute] or the prime contractor's obligations under its 
subcontracting plan.
    (o) Solicitation provision and contract clause. (1) The contracting 
officer shall insert the provision at 652.219-72, Department of State 
Mentor-Prot[eacute]g[eacute] Program, in all unrestricted solicitations 
exceeding $500,000 ($1,000,000 for construction) that offer 
subcontracting opportunities.
    (2) The contracting officer shall insert the clause at 652.219-73, 
Mentor Requirements and Evaluation, in all contracts where the prime 
contractor has signed a Mentor-Prot[eacute]g[eacute] Agreement with the 
Department of State.
    32. Subpart 619.7 is amended by revising the Subpart heading to 
read as follows:

Subpart 619.7--The Small Business Subcontracting Program

    33. Section 619.705-1 is revised to read as follows:


619.705-1  General support of the program.

    It is the Department's policy to incorporate its current fiscal 
year goals as negotiated with the SBA into all pertinent Department 
solicitations, in addition to the standard subcontract clauses. 
Incorporation of the goals does not require that large prime 
contractors must subcontract, but does require that to the extent they 
plan to subcontract, specific goals be established for doing business 
with small, small disadvantaged, women-owned small, HUBZone small, 
veteran-owned small, and service-disabled veteran-owned small business 
firms. Where funds are available, an incentive clause such as that 
found in FAR 52.219-10, Incentive Subcontracting Program, is 
encouraged.
    34. Section 619.705-3 is revised to read as follows:


619.705-3  Preparing the solicitation.

    To further promote the use of small, disadvantaged, women-owned 
small, HUBZone small, veteran-owned small, and service-disabled 
veteran-owned small business firms by large prime contractors, 
contracting officers are encouraged to consider the adequacy of the 
subcontracting plans, and/or past performance in achieving negotiated 
subcontract goals, as part of the overall evaluation of the technical 
proposals.
    35. Section 619.705-4 is revised to read as follows:


619.705-4  Reviewing the subcontracting plan.

    A/SDBU shall review subcontracting plans to determine if small 
business, small disadvantaged, women-owned small, HUBZone small, 
veteran-owned small, and service-disabled veteran-owned small business 
concerns are afforded the maximum practicable opportunity to 
participate as subcontractors. A/SDBU shall recommend to the 
contracting officer changes needed to subcontracting plans found to be 
deficient.
    36. Section 619.705-6-70 is amended by revising the first sentence 
in paragraph (b) to read as follows:


619.705-6-70  Reporting responsibilities.

* * * * *
    (b) Contracting officers shall collect subcontracting data from 
contractors required to establish subcontracting plans in support of 
small, small disadvantaged, women-owned small, HUBZone small, veteran-
owned small, and service-disabled veteran-owned small business 
concerns.
* * * * *
    37. Section 619.708-70 is amended by removing the words ``and Small 
Disadvantaged Business''.
    38. Section 619.801 is removed.
    39. Section 619.805-2 is amended by adding a new paragraph (a)(2) 
to read as follows:

[[Page 64305]]

619.805-2  Procedures.

    (a) * * *
    (2) In accordance with a waiver approved by SBA, contract actions 
for services exceeding $3 million and supplies exceeding $5 million 
that supplement the security of U.S. diplomatic posts and protect the 
lives of Department personnel may be awarded non-competitively. 
Contracting officers do not need to compete 8(a) acquisitions as stated 
above when those acquisitions exceed the 8(a) competition thresholds. 
This waiver is in effect for the duration of the national state of 
emergency as declared by the President of the United States. If a 
contracting officer has a question as to whether a particular action 
falls under this waiver, the contracting officer should contact A/SDBU.
* * * * *

PART 622--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

    40. Subpart 622.13 is amended by revising the Subpart heading to 
read as follows:

Subpart 622.13--Special Disabled Veterans, Veterans Of The Vietnam 
Era, And Other Eligible Veterans

    41. Section 622.1303 is redesignated as section 622.1305. Newly 
designated 622.1305 is amended by revising the citation ``FAR 22.1303'' 
at the end of the sentence to read ``FAR 22.1305.''
    42. Section 622.1308 is redesignated as section 622.1310. Newly 
designated 622.1310 is amended by revising the citation ``FAR 22.1308 
(a) (2) and (c)'' at the end of the sentence to read ``FAR 
22.1310(a)(1)(ii) and (a)(2).''
    43. A new Subpart 622.15, consisting of section 622.1503, is added 
to read as follows:

Subpart 622.15--Prohibition Of Acquisition Of Products Produced By 
Forced Or Indentured Child Labor


622.1503  Procedures for acquiring end products on the List of Products 
Requiring Contractor Certification as to Forced or Indentured Child 
Labor.

    (e) The contracting officer shall refer to the DOS Inspector 
General for Investigation any instances where the contracting officer 
has reason to believe that forced or indentured child labor was used to 
mine, produce, or manufacture an end product furnished pursuant to a 
contract awarded subject to the certification required in FAR 
22.1503(c).

PART 623--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

    44. Part 623 is amended by revising the heading to read as set 
forth above.
    45. Subpart 623.1, consisting of sections 623.104 and 623.107, is 
removed and reserved.
    46. Section 623.400 is amended by removing the words ``made and/or 
performed'' and inserting the word ``awarded'' in their place in the 
second sentence.
    47. Section 623.404 is revised to read as follows:


623.404  Agency affirmative procurement programs.

    (a) The Department's affirmative procurement program has been 
established by A/OPE. It is available on the A/OPE Internet and 
Intranet Web sites at http://www.statebuy.gov/green.htm and http://aope.a.state.gov/green2.htm, respectively.

PART 625--FOREIGN ACQUISITION

    48. Section 625.102 is removed.
    49. A new section 625.103 is added to read as follows:


625.103  Exceptions.

    (a) The authority to make the determination prescribed in FAR 
25.103(a) is delegated, without power of redelegation, to the head of 
the contracting activity.
    50. Section 625.105 is revised to read as follows:


625.105  Determining reasonableness of cost.

    (a)(1) The authority to make the determinations prescribed in FAR 
25.105(a)(1) is delegated, without power of redelegation, to the head 
of the contracting activity.
    51. Section 625.108 is removed.
    52. Section 625.202 is revised to read as follows:


625.202  Exceptions.

    (a)(1) The authority to make the determination prescribed in FAR 
25.202(a)(1) is delegated, without power of redelegation, to the head 
of the contracting activity.
    53. Section 625.203 is removed.
    54. Section 625.204 is revised to read as follows:


625.204  Evaluating offers of foreign construction material.

    (b) The head of the contracting activity is the agency head for the 
purposes of FAR 25.204(b).
    55. Subpart 625.3, consisting of sections 625.300, 625.300-70, 
625.302, and 625.304 is removed and reserved.
    56. Subpart 625.7, consisting of section 625.703, is removed.

PART 626--OTHER SOCIOECONOMIC PROGRAMS

    57. Part 626, consisting of Subpart 626.2 and section 626.200-70, 
is removed.

Subchapter E--General Contracting Requirements

PART 628--BONDS AND INSURANCE

    58. Section 628.203 is amended in paragraph (g) by removing the 
words ``Office of the Inspector General'' and inserting the words 
``Assistant Inspector General for Investigations'' in their place.
    59. Subpart 628.70, consisting of section 628.7001, is removed.

PART 630--COST ACCOUNTING STANDARDS ADMINISTRATION

    60. A new Part 630 is added to read as follows:

PART 630--COST ACCOUNTING STANDARDS ADMINISTRATION

Subpart 630.2--CAS Program Requirements


630.201  Contract requirements.


630.201-5  Waiver.

    (a) The Procurement Executive is the head of the agency for the 
purposes of FAR 30.201-5(a) and (b).

PART 632--CONTRACT FINANCING

    61. Section 632.006-2 is amended by removing the words ``Assistant 
Inspector General for Investigations'' and inserting the words 
``Procurement Executive'' in their place.
    62. Subpart 632.4 is amended by revising the Subpart heading to 
read as follows:

Subpart 632.4--Advance Payments for Non-Commercial Items

    63. Section 632.903 is removed.
    64. A new section 632.906 is added to read as follows:


632.906  Making payments.

    (a) General. The authority to make the determination prescribed in 
FAR 32.906(a) is delegated, without power of redelegation, to the head 
of the contracting activity. Before making this determination, the head 
of the contracting activity shall consult with the appropriate 
financial office.

[[Page 64306]]

Subchapter F--Special Categories of Contracting

PART 636--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    65. Section 636.101-70 is revised to read as follows:


636.101-70  Exception.

    Contracts for overseas construction, including capital 
improvements, alterations, and major repairs, may be excepted where 
necessary from the provisions of the FAR (48 CFR Chapter 1) under the 
authority of section 3 of the Foreign Service Buildings Act of 1926, as 
amended (22 U.S.C. 294). The Director/Chief Operating Officer of the 
Bureau of Overseas Buildings Operations is authorized to approve such 
exceptions.
    66. Sections 636.104, 636.104-70 and 636.104-71, are added to read 
as follows:


636.104  Policy.


636.104-70  Foreign Service Buildings Act of 1926, as amended.

    (a) Policy. Section 11 of the Foreign Service Buildings Act of 
1926, as amended (22 U.S.C. 302) limits competition for the 
construction, alteration, or repair of buildings or grounds abroad 
exceeding $5 million to:
    (1) American-owned firms; or
    (2) Firms from countries which permit or agree to permit 
substantially equal access to American firms for comparable diplomatic 
and consular building projects.
    (b) Limitation. This participation may be permitted by or limited 
to:
    (1) Host-country firms where required by international agreement; 
or
    (2) By the laws of the host country; or
    (3) Where determined by the Secretary of State to be necessary in 
the interest of bilateral relations or necessary to carry out the 
construction project.
    (c) Evaluation preference. For purposes of determining competitive 
status, American-owned firms shall receive a ten (10) percent price 
preference reduction, provided that two prospective responsible 
bidders/offerors submit a bid/offer.


636.104-71  Omnibus Diplomatic Security and Antiterrorism Act.

    (a) Preference for United States contractors. The Omnibus 
Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399; 22 
U.S.C. 4852) limits certain construction projects abroad to United 
States persons or qualified United States joint venture persons. The 
Omnibus Diplomatic Security and Antiterrorism Act of 1986 applies to 
the following, as determined by the Assistant Secretary for Diplomatic 
Security:
    (1) Diplomatic construction or design projects abroad exceeding $10 
million; or,
    (2) Diplomatic construction projects abroad at any dollar amount 
that involve technical security, unless the project involves low-level 
technology.
    (b) Exception. This preference shall not apply with respect to any 
diplomatic construction or design project in a foreign country whose 
statutes prohibit the use of United States contractors on such 
projects.
    (c) Subcontracting limitation. With respect to a diplomatic 
construction project, a prime contractor may not subcontract more than 
50 percent of the total value of the contract for that project.
    67. Section 636.202 is added to read as follows:


636.202  Specifications.

    (d) The Director/Chief Operating Officer of the Bureau of Overseas 
Building Operations is the head of the agency for the purposes of FAR 
36.202(d)(3) and (4).
    68. Section 636.513 is amended by adding the following sentence to 
the end of paragraph (a):


636.513  Accident prevention.

    (a) * * * The contracting officer shall confer with OBO/OM/SHEM if 
there are any questions on any factors listed in paragraph (4) of the 
clause, or if the contracting officer has any questions regarding 
construction safety issues.
    69. Section 636.570 is added to read as follows:


636.570  Additional DOSAR provisions.

    (a) The contracting officer shall insert the provision at 652.236-
71, Foreign Service Buildings Act, As Amended, in all contracts 
exceeding $5,000,000 for the construction, alteration, or repair of 
buildings and grounds overseas, unless:
    (1) An international agreement with or laws of the host country 
government permits or limits the participation to host-country firms; 
or,
    (2) The Secretary of State determines that it is necessary to the 
interest of bilateral relations or to carry out the project to either 
permit or limit the participation to host-country firms; or,
    (3) The provision at DOSAR 652.236-72 applies.
    (b) The contracting officer shall insert the provision at 652.236-
72, Statement of Qualifications for the Omnibus Diplomatic Security and 
Antiterrorism Act, in all diplomatic construction or design 
solicitations exceeding $10 million; or, diplomatic construction 
projects abroad at any dollar amount that involve technical security, 
unless the project involves low-level technology, as determined by the 
Assistant Secretary of Diplomatic Security.
    70. Section 636.602-4 is removed.

PART 637--SERVICE CONTRACTING

    71. Section 637.102, and section 637.102-70 are added to read as 
follows:


637.102  Policy.


637.102-70  Special requirements for the acquisition of local guard 
services overseas.

    (a) Policy. Section 136 of the Foreign Relations Authorization Act, 
Fiscal Years 1990 and 1991 (22 U.S.C. 4864) encourages the 
participation of United States persons and qualified United States 
joint venture persons in local guard contracts overseas under 
diplomatic security programs.
    (b) Evaluation preference. For purposes of determining competitive 
status, proposals of United States persons and qualified United States 
joint venture persons shall receive a ten (10) percent price preference 
reduction.
    72. Section 637.104-70 is amended by removing the words ``Office of 
Foreign Buildings'' and inserting the words ``Bureau of Overseas 
Buildings Operations'' in their place, and by removing the words ``and 
the Moscow Embassy Buildings Control Office'' in paragraph (f).
    73. Section 637.110 is amended by adding a new paragraph (d) to 
read as follows:


637.110  Solicitation provisions and contract clauses.

* * * * *
    (d) The contracting officer shall insert the provision at 652.237-
73, Statement of Qualifications for Preference as a U.S. Person, in all 
overseas local guard solicitations.
    74. A new Subpart 637.6, consisting of section 637.601, is added to 
read as follows:

Subpart 637.6--Performance-Based Contracting


637.601  General.

    It is the Department's policy that all new service contracts be 
performance-based, with clearly defined deliverables and performance 
standards. Any deviations from this policy shall be fully justified in 
writing and approved by the Departmental Competition Advocate.

[[Page 64307]]

Subchapter G--Contract Management

PART 642--CONTRACT ADMINISTRATION AND AUDIT SERVICES

    75. Section 642.271 is redesignated as section 642.272. A new 
section 642.271 is added to read as follows:


642.271  Government Technical Monitor (GTM).

    (a) Policy. The contracting officer may appoint a Government 
Technical Monitor (GTM) to assist the Contracting Officer's 
Representative (COR) in monitoring a contractor's performance. The 
contracting officer may appoint a GTM because of physical proximity to 
the contractor's work site, or because of special skills or knowledge 
necessary for monitoring the contractor's work. The contracting officer 
may also appoint a GTM to represent the interests of another 
requirements office or post concerned with the contractor's work. A GTM 
shall be a direct-hire U.S. Government employee.
    76. Subpart 642.15, consisting of sections 642.1503 and 642.1503-
70, is added to read as follows:

Subpart 642.15--Contractor Performance Information 642.1503 
Procedures.


642.1503-70  Contractor Performance System (CPS).

    (a) The Department of State subscribes to the Contractor 
Performance System (CPS) maintained by the National Institutes of 
Health. CPS is an Internet-based tool allowing contracting officers to 
input past performance information and view past performance 
information input by other contracting officers in other locations and 
agencies.
    (b) All DOS contracting officers with access to the Internet shall 
use CPS to evaluate contractor's past performance for all contracts 
exceeding $100,000, including options. Contracting officers shall also 
use the CPS to evaluate the past performance of offerors on all 
competitive negotiated acquisitions exceeding $100,000, including 
options, unless the contracting officer documents in the contract file 
why past performance is not an appropriate evaluation factor. The CPS 
may also be used for evaluating acquisitions not exceeding $100,000 to 
conform to the general principle of considering past performance in all 
acquisitions.
    (c) Form DS-1771, Contractor Past Performance Evaluation, shall be 
used only:
    (1) When the CPS is temporarily unavailable. When the CPS becomes 
available, data from any DS-1771 created in the interim shall be 
promptly entered into the CPS; or
    (2) At overseas locations where access to the Internet is not 
practicable.
    (d) Heads of contracting activities shall send a list of the names, 
work addresses, and phone numbers of all acquisition personnel whom 
they wish to have access to the CPS to A/LM/AQM.

PART 651--USE OF GOVERNMENT SOURCES BY CONTRACTORS

    77. Section 651.701 is amended by removing the last sentence of 
paragraph (c).

Subchapter H--Clauses and Forms

PART 652--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    78. Section 652.216-70 is amended by revising the clause date and 
by revising paragraph (b) to read as follows:


652.216-70  Ordering--Indefinite-Delivery Contract.

* * * * *

Ordering--Indefinite-Delivery Contract (MO/YR)

* * * * *
    (b) The DS-2076, Purchase Order, Receiving Report and Voucher, 
and DS-2077, Continuation Sheet.

    79. Section 652.219-70 is revised to read as follows:


652.219-70   Department of State Subcontracting Goals.

    As prescribed in 619.708-70, insert a provision substantially the 
same as follows:

Department of State Subcontracting Goals (MO/YR)

    (a) The offeror shall provide a Small, Small Disadvantaged, 
Woman-Owned Small, HUBZone Small, and Service-Disabled Veteran-Owned 
Small Enterprise Subcontracting Plan that details its approach to 
selecting and using Small, Small Disadvantaged, Woman-Owned Small, 
HUBZone Small, and Service-Disabled Veteran-Owned Small Business 
Enterprises.
    (b) For the fiscal year [insert appropriate fiscal year], the 
Department's subcontracting goals are as follows:

(1) Goal for subcontracting to SB:
-----------------------------------------------------------------------

(2) Goal for subcontracting to SDB:
-----------------------------------------------------------------------

(3) Goal for subcontracting to SWB:
-----------------------------------------------------------------------

(4) Goal for subcontracting to HUBZone Firms:
-----------------------------------------------------------------------

(5) Goal for subcontracting to SDVO:
-----------------------------------------------------------------------

(6) Omnibus goals (if applicable):
    (i) 10% to minority business
    (ii) 10% to small business

(End of provision)

    80. Section 652.219-72 is added to read as follows:


652.219-72  Department of State Mentor-Prot[eacute]g[eacute] Program.

    As prescribed in 619.202-70(o)(1), insert the following provision:

Department of State Mentor-Prot[eacute]g[eacute] Program (MO/YR)

    (a) Large and small businesses are encouraged to participate in 
the Department of State Mentor-Prot[eacute]g[eacute] Program. Mentor 
firms provide eligible small business prot[eacute]g[eacute]s with 
developmental assistance to enhance their business capabilities and 
ability to obtain Federal contracts.
    (b) Mentor firms are large prime contractors or eligible small 
businesses capable of providing developmental assistance. 
Prot[eacute]g[eacute] firms are small businesses, as defined in 13 
CFR parts 121, 124, and 126.
    (c) Developmental assistance is technical, managerial, 
financial, and other mutually beneficial assistance that aids 
prot[eacute]g[eacute]s. Firms interested in participating in the 
program are encouraged to contact the Department of State OSDBU for 
further information.

(End of provision)

    81. Section 652.219-73 is added to read as follows:


652.219-73  Mentor Requirements and Evaluation.

    As prescribed in 619.202-70(o)(2), insert the following clause:

Mentor Requirements and Evaluation (MO/YR)

    (a) Mentor and prot[eacute]g[eacute] firms shall submit an 
evaluation to the Department of State's OSDBU at the conclusion of 
the mutually agreed upon program period, the conclusion of the 
contract, or the voluntary withdrawal by either party from the 
program, whichever occurs first. At the conclusion of each year in 
the mentor-prot[eacute]g[eacute] program, the prime contractor and 
prot[eacute]g[eacute] will formally brief the Department of State 
Mentor-Prot[eacute]g[eacute] Program Manager regarding program 
accomplishments under their mentor-prot[eacute]g[eacute] agreement.
    (b) A mentor or prot[eacute]g[eacute] shall notify the OSDBU and 
the contracting officer, in writing, at least 30 calendar days in 
advance of the effective date of the firm's withdrawal from the 
program. A mentor firm shall notify the OSDBU and the contracting 
officer upon receipt of a prot[eacute]g[eacute]'s notice of 
withdrawal from the program.

(End of clause)

    82. Section 652.226-70 is removed.
    83. Section 652.228-70 is removed and reserved.
    84. Section 652.236-70 is amended--
    a. By revising the date of the clause;
    b. By revising paragraph (a)(4) to read as set forth below; and
    c. By revising paragraph (d)(1) to read as set forth below:

[[Page 64308]]

652.236-70  Accident Prevention.

* * * * *

Accident Prevention (MO/YR)

    (a) * * *
    (4) For overseas construction projects, the contracting officer 
shall specify in writing additional requirements regarding safety if 
the work involves:
    (i) Scaffolding;
    (ii) Work at heights above two (2) meters;
    (iii) Trenching or other excavation greater than one (1) meter 
in depth;
    (iv) Earth moving equipment;
    (v) Temporary wiring, use of portable electric tools, or other 
recognized electrical hazards. Temporary wiring and portable 
electric tools require the use of a ground fault circuit interrupter 
(GFCI) in the affected circuits; other electrical hazards may also 
require the use of a GFCI;
    (vi) Work in confined spaces (limited exits, potential for 
oxygen less than 19.5 percent or combustible atmosphere, potential 
for solid or liquid engulfment, or other hazards considered to be 
immediately dangerous to life or health such as water tanks, 
transformer vaults, sewers, cisterns, etc.);
    (vii) Hazardous materials--a material with a physical or health 
hazard including but not limited to flammable, explosive, corrosive, 
toxic, reactive or unstable, or any operations which create any kind 
of contamination inside an occupied building such as dust from 
demolition activities, paints, solvents, etc.; or
    (viii) Hazardous noise levels.
* * * * *
    (d) * * *
    (1) Submit a written plan to the contracting officer for 
implementing this clause. The plan shall include specific management 
or technical procedures for effectively controlling hazards 
associated with the project; and
* * * * *
    85. Section 652.236-71 is added to read as follows:


652.236-71  Foreign Service Buildings Act, As Amended.

    As prescribed in 636.570(a), insert the following provision:

Foreign Service Buildings Act, As Amended (MO/YR)

    (a) This solicitation is subject to Section 11 of the Foreign 
Service Buildings Act of 1926, as amended (22 U.S.C. 302). This 
statute limits competition under this solicitation to:
    (1) American-owned firms, as described in paragraph (b) of this 
provision; and
    (2) Firms from countries that permit or agree to permit 
substantially equal access to American firms for comparable 
diplomatic and consular building projects.
    (b) To qualify as an American-owned firm for purposes of this 
solicitation, the bidder/offeror must demonstrate evidence of:
    (1) Performance of similar construction work in the United 
States; and
    (2) Either--
    (i) Ownership in excess of 50% by U.S. citizens or permanent 
residents; or
    (ii) Incorporation in the United States for more than three (3) 
years and employment of U.S. citizens or permanent residents in more 
than half of the company's permanent full-time professional and 
managerial positions in the United States.
    (c) For purposes of determining competitive status, offers 
submitted by American-owned firms shall be reduced by ten (10) 
percent, provided that two responsible bidders/offerors submit a 
bid/offer.
    (d) Evidence of qualification. (1) Performance of similar 
construction work in the United States. The bidder/offeror must 
describe below one or more similar projects completed in the United 
States. For each project, provide the following information:

 Location:-------------------------------------------------------------
 (city and State)------------------------------------------------------
-----------------------------------------------------------------------

 Complexity:-----------------------------------------------------------
-----------------------------------------------------------------------
(office building, etc.)

 Type of construction:-------------------------------------------------
-----------------------------------------------------------------------
 Value of project:-----------------------------------------------------
-----------------------------------------------------------------------
 Location:-------------------------------------------------------------
-----------------------------------------------------------------------
(city and State)

 Complexity:-----------------------------------------------------------
-----------------------------------------------------------------------
(office building, etc.)

 Type of construction:-------------------------------------------------
-----------------------------------------------------------------------
 Value of project:-----------------------------------------------------
-----------------------------------------------------------------------
 Location:-------------------------------------------------------------
-----------------------------------------------------------------------
(city and State)

 Complexity:-----------------------------------------------------------
-----------------------------------------------------------------------
(office building, etc.)

 Type of construction:-------------------------------------------------
-----------------------------------------------------------------------
Value of project:
-----------------------------------------------------------------------

If the bidder/offeror's participation was as a partner or co-
venture, indicate the percentage of the project performed by the 
bidder/offeror: ---- %
    (2) Corporate location or ownership.
    (i) The bidder/offeror certifies that it [ballot] is [ballot] is 
not owned in excess of fifty (50) percent by United States citizens 
or permanent residents.
    (ii) The bidder/offeror certifies that it [ballot] has [ballot] 
has not been incorporated in the United States for more than three 
years and that it [ballot] employs [ballot] does not employ United 
States citizens or permanent residents in more than half of its 
permanent full-time professional and managerial positions in the 
United States.
    (e) By signing this bid/offer, the bidder/offeror certifies to 
the best of its knowledge, all of the representations and 
certifications provided in this provision are accurate, current and 
complete.

(End of provision)

    86. Section 652.236-72 is added to read as follows:


652.236-72,  Statement of Qualifications for the Omnibus Diplomatic 
Security and Antiterrorism Act.

    As prescribed in 636.570(b), insert the following provision:

Statement of Qualifications for the Omnibus Diplomatic Security and 
Antiterrorism Act (MO/YR)

    (a) This solicitation is subject to Section 402 and Section 
406(c) of the Omnibus Diplomatic Security and Antiterrorism Act of 
1986 (P.L. 99-399; 22 U.S.C. 4852). The Act limits certain 
construction projects abroad to United States persons or United 
States joint venture persons, and excludes organizations that have 
business arrangements with Libya. This Statement of Qualifications 
shall be used to determine if a bidder/offeror meets the definition 
of a ``United States person'' or a ``United States joint venture 
person'' and whether they have any business arrangements with Libya 
that may disqualify them from participating in this solicitation.
    (b) Definition. As used in this provision--
    U.S. person means a company, partnership, or joint venture that 
the Government determines, after consideration of all available 
information, including but not limited to that provided by the 
bidder/offeror in response to this solicitation, to be qualified 
pursuant to Section 402.
    (c) Representation. The bidder/offeror represents as part of its 
bid/offer that it [ballot] does, [ballot] does not meet the 
qualifications as a U.S. person as set forth in Section 402 of the 
Act.

[Complete a Statement of Qualifications for Purposes of Determining 
Status as a U.S. Person if the offeror represents that it is 
eligible. See paragraph (d) of this provision.]

    Warning: Any material misrepresentation made in the Statement of 
Qualifications may be the basis for disqualification of a bidder/
offeror and reference for consideration of suspension or debarment 
or for prosecution under Federal law (cf. 18 U.S.C. 1001). Bidder/
offeror qualifications will be determined primarily on the basis of 
information submitted in the Statement of Qualifications, including 
attachments thereto, but the Government may, at its discretion, rely 
on information contained elsewhere in the bidder's/offeror's bid/
proposal or obtained from other sources.
    (d) Statement of Qualifications for Purposes of Determining 
Status as a U.S. Person (22 U.S.C. 4852). A bidder/offeror that 
represents that it is a U.S. person must provide the following 
information.

Statement of Qualifications for Purposes of Determining Status as a 
U.S. Person (22 U.S.C. 4852)

    Name and address of U.S. person organization providing this 
information:

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

    Introduction. Section 402 of the Omnibus Diplomatic Security and 
Antiterrorism Act (Pub. L. 99-399) provides that a ``United States 
person'' or a ``qualified United States joint venture'' must meet 
certain requirements, listed in sections 402(c)(2) and

[[Page 64309]]

(3) of the Act, to be eligible to compete. To assist business 
entities to determine whether they qualify as a U.S. person or U.S. 
joint venture person, guidance is hereby provided. For ease of 
reference, the statutory language is quoted immediately before the 
definitions that apply to it. Space for the required information is 
provided immediately following each definition.

    Note: The Statement of Qualifications shall provide information 
correctly applicable to the U.S. person whose qualifications are 
being certified, and shall not include information pertaining to 
corporate affiliates or subsidiaries. Organizations that wish to use 
the experience or financial resources of any other legally dependent 
organization or individual, including parent companies, 
subsidiaries, or other related organizations, must do so by way of a 
joint venture. A prospective bidder/offeror may be an individual 
organization or firm, a formal joint venture in which the co-
venturers have reduced their arrangement to writing, or a de facto 
joint venture where no formal agreement has been reached, but the 
offering entity relies upon the experience of a related U.S. firm 
that guarantees performance. To be considered a ``qualified United 
States joint venture person,'' the joint venture must have at least 
one firm or organization that itself meets all the requirements of a 
U.S. person listed in Section 402. By signing this bid/proposal, the 
U.S. person co-venturer agrees to be individually responsible for 
performance of the contract, notwithstanding the terms of any joint 
venture agreement.

    1. Section 402(c)(2)(A): ``The term ``United States person'' 
means a person which--(A) is incorporated or legally organized under 
the laws of the United States, including the District of Columbia, 
and local laws.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Incorporated means the successful de jure incorporation of a 
business organization pursuant to the laws of any United States 
jurisdiction or component thereof.
    Legally organized means the legally recognized existence of an 
organization other than a de jure corporation (e.g., a partnership) 
under the laws of any United States jurisdiction or component 
thereof. Only organizations that have a legal status, including the 
right to bring suit, to sign contracts, and to hold property under 
the law of the jurisdiction where they are doing business will 
qualify as legally organized. A natural person who is a United 
States citizen acting in her or her entrepreneurial capacity will be 
deemed to be a ``person legally organized'' within the scope of this 
definition, provided that the prospective bidder/offeror holds all 
required licenses to do business in the jurisdiction where he or she 
is located.
    United States means any jurisdiction that is one of the fifty 
States, the District of Columbia, a United States territory, a 
United States possession, or the Commonwealths of Puerto Rico and 
the Northern Marinara Islands.
    Question 1. The organization seeking eligibility under Section 
402 is [ballot] incorporated or is [ballot] legally organized under 
the laws of what jurisdiction?
-----------------------------------------------------------------------

    2. Section 402(c)(2)(B): ``The term `United States person' means 
a person which--(B) has its principal place of business in the 
United States.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Principal place of business means the main location of the 
prospective bidder/offeror. For purposes of this section, a 
prospective bidder/offeror shall identify only one principal place 
of business, and such location shall include at least the offices of 
the chief operating officer and headquarters staff. The named 
location must be a United States jurisdiction from which a tax 
return has been filed or will be filed during the calendar year in 
which the prospective bidder/offeror submits this bid/offer.
    United States means any jurisdiction that is one of the fifty 
States, the District of Columbia, a United States territory, a 
United States possession, or the Commonwealths of Puerto Rico and 
the Northern Mariana Islands.
    Question 2(a). The organization seeking eligibility has its 
principal place of business in what city and state?
-----------------------------------------------------------------------

    Question 2(b). What kind of tax return was or will be filed, and 
in what jurisdiction, during the current calendar year?
    (i) Jurisdiction: ---------- (e.g., federal, state, city)
 (ii) Type of return (e.g., income tax, franchise tax, etc.). Include 
all that apply:--------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------

    3. Section 402(c)(2)(C): `The term ``United States person' means 
a person which has been incorporated or legally organized in the 
United States--
    (i) for more than 5 (five) years before the issuance date of the 
invitation for bids or request for proposals with respect to a 
construction project under subsection (a)(1); and,
    (ii) for more than 2 (two) years before the issuance date of the 
invitation for bids or request for proposals with respect to a 
construction or design project abroad that involves technical 
security under subsection (a)(2).''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Has been incorporated or legally organized means that the 
organization can show continuity as an ongoing business. 
Organizations that have changed only their names meet the continuity 
requirement of this subsection. Organizations that have been bought, 
sold, merged, or otherwise substantially altered or enlarged their 
principal business activities will have the burden of proving that 
there have been ongoing operations by the same business entity for 
the required period of time. If the successor entity has acquired 
all of the assets and liabilities of the predecessor business and 
the predecessor business has no further existence, the successor may 
claim the incorporation date of the predecessor. In any other 
circumstance, the prospective bidder/offeror must show that the law 
of the jurisdiction in which it operates regards the prospective 
bidder/offeror as the complete successor in interest of the 
predecessor business for purpose of contractual obligations.
    Issuance date means the date in Block 3 of the Standard Form 
1442 accompanying this solicitation.
    Years means calendar years measured from day of the month to day 
of the month. For example, January 1, 2002 through December 31, 2002 
is one calendar year, as is July 1, 2002 through July 1, 2003.
    Question 3:
    (i) On what date was the organization seeking eligibility 
incorporated or legally organized? --------
    (ii) If this date is less than the required number of years 
before the issuance date, on the basis of what documentation does 
the organization seeking eligibility claim that it has been in 
business for the requisite period of time?---------- (Identify, and 
forward copies as an Attachment to this Statement. This material may 
include such items as certificates of incorporation, partnership 
agreements, resolutions of boards of directors, etc.).
    4. Section 402(c)(2)(D): ``The term `United States person' means 
a person which has performed within the United States or at a United 
States diplomatic or consular establishment abroad administrative 
and technical, professional, or construction services similar in 
complexity, type of construction, and value to the contract being 
bid.''
    Definitions for purposes of Section 402 determination of 
eligibility--
    Administrative and technical, professional, or construction 
services means the kind of work in which the prospective bidder/
offeror is interested. If the proposed contract is for construction 
management services, the prospective bidder/offeror will be expected 
to demonstrate construction management expertise. In general, 
`administrative' means the capacity or ability to manage; 
`technical' means the specific skills peculiar to the type of work 
required; `professional' means expert services resulting from 
advanced training in the type of work required; and `construction' 
experience if it has not directly performed all of the actual 
construction activities. Thus, an entity whose only construction 
work experience was performed by its legally distinct subsidiary or 
parent will not be considered to have construction experience.
    Complexity means the physical size and technical size and 
demands of the project.
    Performed means projects that have been fully completed by the 
prospective bidder/offeror and accepted by the owner or other party 
to the transaction. Projects still in progress have not yet been 
performed for purposes of this definition.
    Type of construction means the overall nature of the facilities 
to be built, including the kinds of materials to be used. Thus, if 
the contract will require the construction of a multi-story office 
building, the prospective bidder/offeror will be expected to 
demonstrate experience with facilities of this type.
    Value means the total contract price of the project, not to the 
profit or loss to the bidder/offeror.
    Within the United States means a United States jurisdiction that 
is the place where the

[[Page 64310]]

subject matter of the contract or other arrangement was in fact 
completed. It does not mean the place where the contract or other 
arrangement was negotiated or signed. The term ``United States'' 
means any jurisdiction that is one of the 50 states, the District of 
Columbia, a United States territory, a United States possession, or 
the Commonwealth of Puerto Rico and the Northern Mariana Islands.
    Question 4: List on this page, and an attachment (if necessary), 
one or more similar projects completed by the prospective bidder/
offeror. For each project, provide the following information:

Location:--------------------------------------------------------------
 (city and state, or country)
Type of service:-------------------------------------------------------
 (administrative, etc.)
Complexity:------------------------------------------------------------
 (office building, etc.)
Type of construction:--------------------------------------------------
Value of project:------------------------------------------------------

    If the prospective bidder/offeror's participation was as a 
partner or co-venturer, indicate the percentage of the project 
performed by the prospective offeror: ----------%
    5. Section 402(c)(2)(E): ``The term `United States person' means 
a person which--with respect to a construction project under 
subsection (a)(1)--has achieved a total business volume equal to or 
greater than the value of the project being bid in 3 years of the 5-
year period before the date specified in subparagraph (C)(i).''
    Definitions of purposes of Section 402 determination of 
eligibility--
    3 years of the 5-year period before the date specified in 
subparagraph (C)(i) means the three to five calendar year period 
immediately preceding the issuance date of this solicitation.
    Total business volume means the U.S. dollar value of the gross 
income or receipts reported by the prospective bidder/offeror on its 
annual federal income tax returns.
    Years means the business year of the prospective bidder/offeror, 
as reflected on its annual federal income tax returns.
    Question 5: Please complete the information below for at least 
three of the five listed years.

The gross receipts for the business year: (list year and amount)
The gross receipts for the business year: (list year and amount)
The gross receipts for the business year: (list year and amount)
The gross receipts for the business year: (list year and amount)
The gross receipts for the business year: (list year and amount)

    6. Section 402(c)(2)(F): ``The term `United States person' means 
a person which--(i) Employs United States citizens in at least 80 
percent of its principal management positions in the United States; 
(ii) employs United States citizens in more than half of its 
permanent, full-time positions in the United States; and (iii) will 
employ United States citizens in at least 80 percent of the 
supervisory positions on the foreign buildings office project 
site.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    In the United States refers to those positions that the 
prospective bidder/offeror maintains within all jurisdictions which 
are one of the 50 states, the District of Columbia, a United States 
territory, a United States possession, or the Commonwealths of 
Puerto Rico and the Northern Mariana Islands.
    Permanent, full-time positions means positions with the 
prospective bidder/offeror that are intended to be indefinite, as 
opposed to limited, seasonal, or project-duration periods. The term 
``full-time'' refers to positions in which the occupants are 
expected to and ordinarily work 40 hours a week. The term 
``permanent, full-time positions'' covers the portion of the 
prospective bidder's/offeror's workforce that continues to be 
employed without regard to the fluctuating requirements of 
production or projects.
    Principal management positions refers to chief operating officer 
and those management officials reporting directly to him or her. In 
the case of a partnership, the term refers to every general partner. 
In the case of a corporation, the term refers to those officers of 
the corporation who are active in running its day-to-day operations. 
Members of corporation boards of directors who do not have 
operational responsibilities do not occupy ``principal management 
positions'' simply by virtue of their service on the board. In all 
cases, the term ``principal management positions'' also includes the 
position or positions held by the individual or individuals who will 
have primary corporate management oversight responsibility for this 
contract if the prospective bidder/offeror is awarded the contract. 
Each prospective bidder/offeror is responsible for listing all of 
its principal management positions and identifying their current 
occupants by name and citizenship.
    Supervisory positions means all positions with significant 
authority to direct the work of others as well as those for which 
access to classified or controlled documents is required. Such 
positions will be identified in each contract.
    United States citizen means natural persons with United States 
citizenship by virtue either of birth or of naturalization.
    Question 6(a): The bidder/offeror has the following staff:
    (i) Principal management positions in the United States:

Chief Operating Officer:
-----------------------------------------------------------------------
 (name)
-----------------------------------------------------------------------
 (citizenship)

    (ii) For each individual reporting directly to the above-named 
Chief Operating Officer, list position, name, and citizenship:

Position Name Citizenship

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

    (iii) Individual(s) expected to have primary management 
oversight responsibility for contract if it is awarded:

-----------------------------------------------------------------------
 (name)
-----------------------------------------------------------------------
 (citizenship)

    Question 6(b): Number of permanent, full-time positions in the 
United States:----------------
    Question 6(c): Number of United States citizens currently 
employed in permanent, full-time positions in the United States:----
------------
    Question 6(d): Certification of intent to employ U.S. citizens 
in a minimum of 80 percent of the supervisory positions identified 
by the Government on this project:

I so certify:----------------------------------------------------------
 (signature)
-----------------------------------------------------------------------
 (name typed or printed)
-----------------------------------------------------------------------
 (position)
-----------------------------------------------------------------------
 (date)

    7. Section 402(c)(2)(G): ``The term ``United States person'' 
means a person which has the existing technical and financial 
resources in the United States to perform this contract.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Existing technical and financial resources means the capability 
of the prospective bidder/offeror to mobilize adequate staffing and 
monetary arrangements from within the United States sufficient to 
perform the contract. Adequate staffing levels may be demonstrated 
by presenting the resumes of current United States citizens and 
resident aliens with skills and expertise necessary for the work in 
which the prospective bidder/offeror is interested or some other 
indication of available United States citizen or permanent legal 
resident human resources. Demonstration of adequate financial 
resources must be issued by entities that are subject to the 
jurisdiction of United States courts and have agents located within 
the United States for acceptance of service of process.
    Question 7: Submit, as an Attachment to this Statement, 
materials demonstrating existing technical and financial resources 
in the United States.
    8. Section 402(c)(3): ``The term ``qualified United States joint 
venture person'' means a joint venture in which a United States 
person or persons owns at least 51 percent of the assets of the 
joint venture.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Assets means tangible and intangible things of value conveyed or 
made available to the joint venture by the co-venturers.
    Joint venture means a formal or de facto arrangement by and 
through which two or more persons or entities associate for the 
purpose of carrying out the prospective contract. Prospective 
bidders/offerors are advised that a joint venture may not be 
acceptable to projects requiring a Department of Defense facility 
security clearance because each co-venturer may post particular 
problems in obtaining security clearances. To be acceptable, all 
members of a joint venture must be individually and severally liable 
for the full performance of and resolution of any and all matters 
arising out of the contract, notwithstanding any provision of the 
joint venture agreement of law of the jurisdiction under which the 
joint venture was created.

[[Page 64311]]

    Question 8(a): The bidder/offeror [ballot] is [ballot] is not a 
joint venture.
    Question 8(b): If the bidder/offeror is a joint venture, the 
U.S. person participant is:

(name)-----------------------------------------------------------------
(address)--------------------------------------------------------------

    Question 8(c): If the bidder/offeror is a joint venture, the 
names and countries of citizenship for all co-venturers are as 
follows:
(name) ------------
(citizenship) ------------
(name) ------------
(citizenship) ------------
(name) ------------
(citizenship) ------------
    Question 8(d): If the bidder/offeror is a joint venture, the 
U.S. person will own at least 51 percent of the assets of the joint 
venture.

 I so certify:---------------------------------------------------------
 (signature)
-----------------------------------------------------------------------
 (name typed printed)
-----------------------------------------------------------------------
 (position)
-----------------------------------------------------------------------
 (title)

    9. Libya. Section 406(c) states ``No person doing business with 
Libya may be eligible for any contract awarded pursuant to this 
Act.''
    Definitions for purposes of section 406 eligibility--
    Contract awarded establishes a time frame for the bar on doing 
business with Libya. The time during which a relationship with Libya 
is prohibited begins on the date the section 406 information is 
submitted. For bidders/offerors not selected for contract award, the 
prohibition ceases on the date of award. For the bidder/offeror that 
is awarded the contract, the bar continues through the life of the 
contract, ending on the date of final acceptance of the work.
    Doing business means all transactions of any kind agreed to or 
performed after the earlier of the date on which a bid/proposal is 
submitted to the Department of State under this solicitation or on 
which the contract, subcontract, program, or other arrangement with 
the Department of State is awarded or becomes effective. Any 
transaction commenced prior to the date of submittal or award and 
not yet completed must be reported. Transactions that call for 
continued or future performance shall be disqualifying. Transactions 
that have been completely performed but for which payment has not 
yet been made must be reported, but shall not be disqualifying 
unless any event other than payment of a previously-agreed upon sum 
occurs. Examples of disqualifying actions include any pending 
litigation arising out of business transactions with Libya, 
renegotiation of the terms of a loan, and refinancing an amount owed 
or owing.
    Person means any individual or legal entity, whether U.S. or 
foreign. Subcontractors and others who do not have a direct 
contractual relationship with the United States are not covered by 
this section.
    With Libya means transactions between any person and the 
Government of Libya, government entities of Libya, or any other 
organization wholly owned or effectively controlled by the 
Government of Libya. It is the responsibility of the entity 
submitting section 406 information to disclose existing 
relationships with the entities that it has reasonable grounds to 
believe are or may be Libyan. In case of doubt or dispute, the 
Department of State shall determine, at its sole discretion, whether 
any organization is a governmental entity of Libya, wholly owned by 
the Government of Libya, or effectively controlled by the Government 
of Libya.

Certification

    Based on the foregoing, I hereby certify on behalf of this 
organization that it [ballot] is [ballot] is not doing business with 
Libya as those terms are used in section 406(c) of the Omnibus 
Diplomatic Security and Antiterrorism Act of 1986.
    (e) Signature: By signing this document, the offeror indicates 
that to the best of his or her knowledge, all of the representations 
and certifications provided in response to the questions contained 
in this Statement of Qualifications are accurate, current, and 
complete and that the offeror is aware of the penalty prescribed in 
18 U.S.C. 1001 for making false statements.

(End of provision)

    87. Section 652.237-71 is revised to read as follows:


652.237-71  Identification/Building Pass.

    As prescribed in 637.110(b), insert the following clause.

Identification/Building Pass (MO/YR)

    (a) Contractors working in domestic facilities who already 
possess a security clearance.
    (1) The contractor shall obtain a Department of State building 
pass for all employees performing under this contract who require 
frequent and continuing access to Department of State facilities. 
The Bureau of Diplomatic Security, Office of Domestic Facilities 
Protection, shall issue passes. They shall be used for the purpose 
of facility access only, and shall not be used for any other 
purpose.
    (2) The contractor shall submit a Visitor Authorization Request 
(VAR) Letter to the Bureau of Diplomatic Security, Information 
Security Programs Division, Industrial Security Branch (DS/ISP/INB) 
on its cleared employees containing the following information:
    (i) Contractor employee's full name, social security number, and 
date of birth;
    (ii) Contractor's company name;
    (iii) Security clearance level;
    (iv) Date the clearance was granted;
    (v) Name of the contractor's Facility Security Officer;
    (vi) Contracting Officer's Representative (COR); and
    (vii) Contract number.
    (3) DS/ISP/INB shall process and approve the VAR letter, if 
appropriate. The approved VAR letter shall be forwarded to the 
contractor for their records.
    (4) The contractor employee shall hand-carry the following 
documentation to the Building Pass Office, Department of State, 520 
23rd Street, NW., Courtyard of Columbia Plaza, Washington, DC:
    (i) A Department of State sponsorship letter from the COR, 
addressing the following:
    (A) The purpose for which the pass is being requested;
    (B) The employee's valid security clearance level (reflected on 
the VAR);
    (C) Contract number and period of performance;
    (D) Type of access (24/7, normal business hours, escort 
authority or no escort authority granted); and
    (E) Expiration date of building pass (1 year or 3 years);
    (ii) Letter on company letterhead to accompany the application, 
containing the following information:
    (A) The purpose for which the pass is being requested;
    (B) Verification of employment;
    (C) The employee's valid security clearance level; and
    (D) Contract number and period of performance;
    (iii) The DS-1838, Request for Building Pass Identification 
Card.
    (b) Contractors working in domestic facilities where security 
clearances are not required.
    (1) The contractor shall obtain a Department of State building 
pass for all employees performing under this contract who require 
frequent and continuing access to Department of State facilities. 
The Bureau of Diplomatic Security, Office of Domestic Facilities 
Protection, shall issue passes. They shall be used for the purpose 
of facility access only, and shall not be used for any other 
purpose.
    (2) The contractor shall submit the following paperwork, in 
original, to the Bureau of Diplomatic Security, Information Security 
Programs Division, Industrial Security Branch (DS/ISP/INB):
    (i) SF-85P, Questionnaire for Public Trust Positions;
    (ii) SF-85P/S, Supplemental Questionnaire for Selected 
Positions; and
    (iii) DOS Credit Release, which may be obtained from DS/ISP/INB 
via mail or facsimile.
    (3) DS/ISP/INB shall conduct a preliminary background check. If 
the background check is favorable, DS/ISP/INB will forward a letter 
to the company Facility Security Officer (FSO) notifying them that 
the individual may proceed to the Building Pass Office to continue 
the badging process. DS/ISP/INB will forward a copy of this letter 
to the Building Pass Office.
    (4) When a contractor employee is approved to receive a building 
pass, he/she shall hand-carry the following documentation to the 
Contractor Building Pass Office, Department of State, 520 23rd 
Street, NW., courtyard of Columbia Plaza, Washington, DC. :
    (i) A Department of State sponsorship letter from the COR, 
addressing the following:
    (A) The purpose for which the pass is being requested;
    (B) Whether or not the employee has a valid security clearance;
    (C) Contract number and period of performance;
    (D) Type of access (24/7, normal business hours, escort 
authority or no escort authority granted); and

[[Page 64312]]

    (E) Expiration date of building pass (1 year or 3 years);
    (ii) DS Form 1838, Request for Building Pass Identification 
Card;
    (iii) Letter on company letterhead to accompany the application, 
containing the following information:
    (A) The purpose for which the pass is being requested;
    (B) Verification of employment;
    (C) Whether or not the applicant has a valid security clearance; 
and,
    (D) Contract number and period of performance;
    (iv) Original SF-85P or a copy of the SF-85P, with an original 
signature and current date;
    (v) Original SF-85P/S or a copy of the SF-85P/S, with an 
original signature and current date;
    (vi) Copy of the DOS Credit Release, with an original signature 
and current date; and,
    (vii) Original proof of U.S. citizenship, such as a birth 
certificate or valid U.S. passport. Non-U.S. citizens must submit a 
valid photo Immigration and Naturalization Service Employment 
Authorization Document (INS EAD).
    (5) Applicants shall be fingerprinted at the Building Pass 
Office and the process for a building pass shall be initiated. The 
approval process shall take at least 48 hours. Applicants shall not 
return to the Building Pass Office until they receive notification 
from DS/ISP/INB that the process is complete. Once DS/ISP/INB 
receives notification from the Building Pass Office that a building 
pass can be issued, DS/ISP/INB shall notify the FSO and the COR that 
the applicant has been approved for initial contract performance.
    (c) Contractors working in overseas facilities. Contractors 
shall submit appropriate documentation to obtain building passes as 
specified in the contract.
    (d) All contractor employees, both domestic and overseas, shall 
wear the passes in plain sight at all times while in Department of 
State buildings. All contractor employees shall show their passes, 
where appropriate, when entering these buildings and upon request of 
uniformed guards or any other authorized personnel.
    (e) All passes shall be returned to the COR upon separation of 
the employee, or expiration or termination of the contract. Final 
payment under this contract shall not be made until all passes are 
returned to the COR.

(End of clause)

    88. Section 652.237-72 is amended by revising the date of the 
clause and by removing the words ``the preceding Friday is observed; 
when any such day falls on a Sunday'' and by inserting the words ``or 
Sunday'' in their place in the first sentence of paragraph (b).
    89. Section 652.237-73 is added to read as follows:


652.237-73  Statement of Qualifications for Preference as a U.S. 
Person.

    As prescribed in 637.110(d), insert the following provision:

Statement of Qualifications for Preference as a U.S. Person (MO/YR)

    (a) This solicitation is subject to section 136 of the Foreign 
Relations Authorization Act, Fiscal Years 1990 and 1991 (22 U.S.C. 
4864). The Act encourages the participation of United States persons 
and qualified United States joint venture persons in the provision 
of local guard services overseas, and provides for a preference for 
eligible offers.
    (b) Definitions. As used in this provision--
    Eligible offer means an offer that (1) Is otherwise responsive 
to the solicitation; and (2) contains a fully prepared Statement of 
Qualifications (see paragraph (d) of this provision), which upon 
review is determined by the Government to meet the requirements of 
Section 136 for assignment of preference as a U.S. person.
    Preference means subtraction by the Government of ten percent 
(10%) from the total evaluated price of an offer.
    U.S. person means a company, partnership, or joint venture that 
the Government determines, after consideration of all available 
information, including but not limited to that provided by the 
offeror in response to the solicitation, to be qualified for 
assignment of preference pursuant to Section 136.
    (c) Representation. The offeror represents as part of its offer 
that it [ballot] is, [ballot] is not eligible for preference as a 
U.S. person. [Complete a Statement of Qualifications for Purposes of 
Obtaining Preference as a U.S. Person if the offeror represents that 
it is eligible. See paragraph (d) of this provision.]
    Warning: Any material misrepresentation made in the Statement of 
Qualifications may be the basis for disqualification of an offeror 
and reference for consideration of suspension or debarment or for 
prosecution under Federal law (cf. 18 U.S.C. 1001). Offeror 
qualifications will be determined primarily on the basis of 
information submitted in the Statement of Qualifications, including 
Attachments thereto, but the Government may, at its discretion, rely 
on information contained elsewhere in the offeror's proposal or 
obtained from other sources.
    (d) Statement of Qualifications for Purposes of Obtaining 
Preference as a U.S. Person (22 U.S.C. 4864). An offeror that 
represents that it is eligible for preference as a U.S. person must 
provide the following information. This Statement of Qualifications 
must be a complete and certified document, and submitted as a 
separate Volume 5, with all necessary attachments, as defined in 
Section L of this solicitation.

STATEMENT OF QUALIFICATIONS FOR PURPOSES OF OBTAINING PREFERENCE AS A 
U.S. PERSON (22 U.S.C. 4864)

    Name and address of U.S. person organization providing this 
information:
-----------------------------------------------------------------------

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

    Introduction. Section 136 of the Foreign Relations Authorization 
Act for Fiscal Years 1990 and 1991, Public Law 101-246 (22 U.S.C. 
4864), as amended, provides that a ``United States person'' or a 
``qualified United States joint venture'' must meet certain 
requirements, listed in the Act, to be eligible for the statutory 
preference. To assist business entities to determine whether they 
qualify as a U.S. person or U.S. joint venture person entitled to 
preference under section 136, guidance is hereby provided. Only 
those prospective offerors submitting a properly completed and 
certified Volume 5 with their initial proposals will be considered 
in the determination of eligibility for assignment of preference as 
a U.S. person or U.S. joint venture person. For ease of reference, 
statutory language is quoted immediately before the definitions that 
apply to it. Space for the required information is provided 
immediately following each definition.

    Note: The Statement of Qualifications shall provide information 
correctly applicable to the U.S. person whose qualifications are 
being certified, and shall not include information pertaining to 
corporate affiliates or subsidiaries. Organizations that wish to use 
the experience or financial resources of another organization or 
individual, including parent companies, subsidiaries, or local 
national or offshore organizations, must do so by way of a joint 
venture. The contract resulting from this solicitation shall not 
allow subcontracting. A prospective offeror may be a sole 
proprietorship, a formal joint venture in which the co-venturers 
have reduced their arrangement to writing, or a de facto joint 
venture with no written agreement. To be considered a ``qualified 
joint venture person,'' the joint venture must have at least one 
firm or organization that itself meets all the requirements of a 
U.S. joint venture person listed in Section 136. By signing this 
proposal, the U.S. person co-venturer agrees to be individually 
responsible for performance of the contract, notwithstanding the 
terms of any joint venture agreement.

    1. Section 136(d)(1): ``The term `United States person' means a 
person which--(A) is incorporated or legally organized under the 
laws of the United States, including the laws of any State, 
locality, or the District of Columbia.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Incorporated means the state of legal recognition as an 
artificial person that may be afforded to a business entity pursuant 
to the laws of any United States jurisdiction or component thereof.
    Legally organized means the state of legal recognition that may 
be afforded to a business entity that is other than a corporation 
pursuant to the laws of any United States jurisdiction or component 
thereof. This is the least form of legal recognition that will 
qualify an offeror for this preference. Only those prospective 
offerors that have legal status, including the right to bring suit, 
to sign contracts, and to hold property under the law of the 
jurisdiction under which they are doing business will qualify as 
legally organized. A natural person who is a United States citizen 
acting in her or her entrepreneurial capacity will be deemed to be a 
``person legally organized'' within the scope of this definition, 
provided that the prospective offeror holds all required licenses to 
do business in the jurisdiction he or she is located.
    United States means any jurisdiction that is one of the fifty 
States, the District of

[[Page 64313]]

Columbia, a United States territory, a United States possession, or 
the Commonwealth of Puerto Rico and the Northern Mariana Islands.
    Question 1. The organization seeking eligibility under Section 
136 is [ballot] incorporated or is [ballot] legally organized under 
the laws of what jurisdiction?

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

    2. Section 136(d)(1): ``The term `United States person' means a 
person that--(B) has its principal place of business in the United 
States.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    ``Principal place of business'' means the geographic location of 
the main office or seat of management of the prospective offeror. 
For purposes of this Statement, a prospective offeror shall identify 
only one principal place of business, and such location shall 
include at least the offices of the chief operating officer and 
headquarters staff. The named location must be a United States 
jurisdiction in which the prospective offeror may bring suit and be 
sued and in which service of process shall be accepted.
    Question 2(a). The organization seeking eligibility has its 
principal office in what city and state?

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

    Question 2(b). What kind of tax return was or will be filed, and 
in what jurisdiction, during the current calendar year? The 
jurisdiction identified herein need not be the same jurisdiction 
identified in Question 2(a).
    (i) Jurisdiction: ----------
    (ii) Type of return (e.g., income tax, franchise tax, etc.). 
Include all that apply:
-----------------------------------------------------------------------

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

    3. Section 136(d)(1): ``The term `United States person' means a 
person which--(C) has been incorporated or legally organized in the 
United States--(i) for more than 2 (two) years before the issuance 
date of the invitation for bids or request for proposals with 
respect to the contract under subsection (c) of this section.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Has been incorporated or legally organized means that the 
organization can show continuity as an ongoing business. 
Organizations that have changed only their names meet the continuity 
requirement of this subsection. Organizations that have been bought, 
sold, merged, or otherwise substantially altered or enlarged their 
principal business activities will have the burden of proving that 
there have been ongoing operations by the same business entity for 
the required period of time. If the successor entity has acquired 
all of the assets and liabilities of the predecessor entity and the 
predecessor entity has no further existence, the successor may claim 
the incorporation or legal organization date of the predecessor. In 
any other circumstance, the prospective offeror must show that the 
law of the jurisdiction in which it operates regards the prospective 
offeror as the complete successor in interest of the predecessor 
entity for the purpose of contractual obligations.
    Issuance date means the date in Block 5 of the Standard Form 33 
accompanying this solicitation.
    Years means calendar years measured from day of the month to day 
of the month. For example, January 1, 2002 through December 31, 2002 
is one calendar year, as is July 1, 2002 through July 1, 2003.
    Question 3:
    (i) On what date was the organization seeking eligibility 
incorporated or legally organized? ----------
    (ii) If this date is less than two years before the issuance 
date, on the basis of what documentation does the organization 
seeking eligibility claim that it has been in business for the 
requisite period of time? ---------- (Identify, and forward copies 
as an Attachment to this Statement).
    4. Section 136(d)(1): ``The term `United States person' means a 
person which--(D) has performed within the United States or overseas 
security services similar in complexity to the contract being bid.''
    Definitions for purposes of Section 136 determination of 
eligibility--
    Complexity means the physical size or extent of the effort, as 
described in Section B and Exhibit A of this solicitation; combined 
with the required quality of the effort as described in Sections C 
and H of this solicitation.
    Overseas means within any jurisdiction that is not a part of the 
United States as defined below.
    Performed means contracts that have been fully completed by the 
prospective offeror and accepted by the other party to the 
transaction. Contracts still in progress have been performed for 
purposes of this definition if performance in complexity to the 
contract being bid has been ongoing for at least one year. Contracts 
need not have been with the U.S. Government.
    Security services means work of a kind as to fall within or 
compare closely with those described in the Statement of Work in 
Section C of this solicitation. An entity whose only security 
services experience was performed by its legally distinct parent or 
subsidiary organization will not be considered to have security 
services experience.
    Within the United States means within the legal geographic 
boundaries of a United States jurisdiction that is the place where 
the subject matter (e.g., services) of the contract or other 
arrangement was in fact completed. The place where the contract or 
other arrangement was negotiated or signed is not relevant to this 
definition.
    Question 4: Describe in an Attachment to this Statement (see 
L.1.3.5), the qualifying similar contracts or other arrangements 
performed by the prospective offeror. Provide required information 
on a sufficient number of arrangements to show that similar services 
have been performed overseas or in the United States. The 
description must consist of the following information on each 
arrangement, which shall be submitted as an Attachment to this 
Statement:

Location: (city and state or country)

    Type of service: (for example, stationary guards, roving patrol, 
quick-reaction force, etc.)
    Complexity: (type of facilities guarded, and number or extent of 
facilities, number of guards, etc.)
    5. Section 136(d)(1): ``The term `United States person' means a 
person which--(E) with respect to the contract under subsection (c) 
of this section, has achieved a total business volume equal to or 
greater than the value of the project being bid in 3 years of the 5-
year period before the date specified in subparagraph (C).''
    Definitions of purposes of Section 136 determination of 
eligibility--
    3 years of the 5-year period before the date specified in 
subparagraph (C) means the three to five calendar year period 
immediately preceding the issuance date of this solicitation.
    Total business volume means the U.S. dollar value of the gross 
income or receipts reported by the prospective offeror on its annual 
federal income tax returns.
    Years means calendar years.
    Question 5: Describe in an Attachment to this Statement (see 
L.1.3.5), for at least three of the five twelve-month income tax 
periods (fiscal years) defined below, the gross receipts of the 
organization seeking eligibility.
    (i) The fiscal year ending during the calendar year that 
includes the date of this solicitation.
    (ii) The fiscal year ending in the calendar year immediately 
prior to the calendar year that includes the date of this 
solicitation.
    (iii) The fiscal year ending in the calendar year two years 
before the calendar year that includes the date of this 
solicitation.
    (iv) The fiscal year ending in the calendar year three years 
before the calendar year that includes the date of this 
solicitation.
    (v) The fiscal year ending in the calendar year four years 
before the calendar year that includes the date of this 
solicitation.
    An entity will be deemed to have met this requirement if the 
total cumulative business volume for the three years presented 
exceeds the contract price at time of award under this solicitation 
for the full term for which prices are solicited, including any 
option periods.
    6. Section 136(d)(1): ``The term `United States person' means a 
person which--(F)(i) employs United States citizens in at least 80 
percent of its principal management positions in the United States; 
and (F)(ii) employs United States citizens in more than half of its 
permanent full-time positions in the United States.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Full-time (positions) means those personnel positions in which 
the occupants are expected to and ordinarily work for 40 or more 
hours per week.
    In the United States refers to those personnel positions that 
are encumbered as of the date of this solicitation and that the 
prospective offeror maintains in geographic locations within the 
jurisdictions defined above as constituting the United States.
    Permanent (positions) means personnel positions that are 
intended to be indefinite as to length of employment, as opposed to 
limited, seasonal, or project-length personnel appointments.
    Permanent, full-time positions means that portion of the 
prospective offeror's workforce

[[Page 64314]]

that continues to be employed without regard to the ordinary 
fluctuations of production or projects.
    Principal management positions means those personnel positions 
including at least the chief executive officer (if any) and the 
chief operating officer (whether by title or by function) of the 
organization seeking eligibility, together with all those management 
officials who constitute the highest levels of management authority 
within the organization. In the case of a partnership, all general 
partners are deemed to hold principal management positions. In the 
case of a corporation, those officers of the corporation who are 
principally responsible for the day-to-day operation of the 
corporation. Members of corporation boards of directors do not 
occupy ``principal management positions'' simply by virtue of their 
service on the board. In all cases, the term ``principal management 
positions'' also includes the position or positions held by the 
individual or individuals in the United States who will have primary 
corporate management oversight responsibility for this contract if 
the prospective contractor is awarded the contract.
    United States citizen means natural persons with United States 
citizenship by virtue either of birth or of naturalization.
    Question 6(a): The organization seeking eligibility shall list 
all of its principal management positions and identify the current 
occupant of each listed position by name and citizenship. Provide 
the information as an Attachment to this Statement in the following 
format:
    (i) Principal management positions in the United States

Chief Executive Officer (if any):

-----------------------------------------------------------------------
 (name)
-----------------------------------------------------------------------
 (citizenship)

Chief Operating Officer:

-----------------------------------------------------------------------
 (name)
-----------------------------------------------------------------------
 (citizenship)

    (ii) For each additional corporate officer having principal 
responsibility for the day-to-day operations of the corporation, 
list position, name, and citizenship.

Position Name Citizenship

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

    (iii) Individual(s) in the United States expected to have 
primary management oversight responsibility for contract if it is 
awarded:

-----------------------------------------------------------------------
 (name)
-----------------------------------------------------------------------
 (citizenship)

    Question 6(b): Number of permanent, full-time, currently 
encumbered personnel positions that are located in the United States 
(good faith estimates acceptable): ----------------
    Question 6(c): Number of United States citizens currently 
employed in permanent, full-time positions that are located in the 
United States (good faith estimates acceptable): ----------
    7. Section 136(d)(1): ``The term `United States person' means a 
person which--(G) has the existing technical and financial resources 
in the United States to perform the contract.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Existing technical and financial resources means technical and 
financial capability within the United States to mobilize adequate 
staffing, equipment and organizational arrangements to perform the 
contract. Adequate technical resources may be demonstrated by 
presenting an organization chart, and resumes of current officers 
and employees in the United States who possess skills and expertise 
necessary to provide management and oversight of the work. Other 
indicia will be considered if offered to demonstrate that the 
prospective offeror has available resources in the United States 
adequate to provide home office management and oversight of the 
work. Adequate financial resources may be demonstrated by proof of 
possession of a combination of net worth, bank lines of credit, or 
bank guarantees. If lines of credit or bank guarantees are used to 
demonstrate adequate financial resources, they must be from entities 
within the United States.
    Question 7: Submit, as an Attachment to this Statement, 
materials demonstrating existing technical and financial resources 
in the United States (see L.1.3.5).
    8. Section 136(d)(2): ``The term `qualified `United States joint 
venture person' means a joint venture in which a United States 
person or persons owns at least 51 percent of the assets of the 
joint venture.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Assets means tangible and intangible things of value conveyed or 
made available to the joint venture by the co-venturers. To be 
qualified for U.S. preference, 51 percent of the assets of the joint 
venture must be owned by the U.S. person co-venturer(s).
    Joint venture means a formal or de facto association of two or 
more persons or entities to carry out a single business enterprise 
for profit, for which purpose they combine their property, money, 
effects, skills, and knowledge. To be acceptable, all members of a 
joint venture must be jointly and severally liable for full 
performance and resolution of matters arising out of the contract.
    Question 8(a): The prospective offeror [ballot] is [ballot] is 
not a joint venture.
    Question 8(b): If the prospective offeror is a joint venture, 
the U.S. person participant is:

(name)-----------------------------------------------------------------
(address)--------------------------------------------------------------

    Question 8(c): If the prospective offeror is a joint venture, 
the names and countries of citizenship for all co-venturers are as 
follows:

(name) --------------
(citizenship) ----------
(name) --------------
(citizenship) ----------
(name) --------------
(citizenship) ----------

    Question 8(d): If the prospective offeror is a joint venture, 
the U.S. person will own at least 51 percent of the assets of the 
joint venture.

I so certify: (name)---------------------------------------------------
(position)-------------------------------------------------------------
(title)----------------------------------------------------------------

    (e) Signature: By signing this document, the offeror indicates 
that to the best of his or her knowledge, all of the representations 
and certifications provided in response to the questions contained 
in this Statement of Qualifications are accurate, current, and 
complete and that the offeror is aware of the penalty prescribed in 
18 U.S.C. 1001 for making false statements.

(End of provision)

    90. Section 652.242-70 is amended by removing ``642.271'' and 
inserting ``642.272(a)'' in its place in the clause prescription.
    91. Section 652.242-73 is amended by removing ``642.271(b)'' and 
inserting ``642.272(b)'' in its place in the clause prescription and in 
Alternate 1.

PART 653--FORMS

    92. Section 653.101-70 is amended by adding a sentence at the end 
reading as follows: ``The State Department forms are available through 
the Department's intranet Web site at http://arpsdir.a.state.gov/eforms.html.''
    93. Section 653.219-71 is added to read as follows:


653.219-71  DOS form DS-4053, Department of State Mentor-
Prot[eacute]g[eacute] Program Application.

    As prescribed in 619.102-70(i), DS-4053 is prescribed for use in 
applying for an agreement under the Department of State Mentor-Protege 
Program.
    94. Subpart 653.3, consisting of sections 653.300 and 653.303, is 
removed.

    Dated: October 17, 2003.
Corey M. Rindner,
Procurement Executive, Department of State.
[FR Doc. 03-27971 Filed 11-12-03; 8:45 am]
BILLING CODE 4710-05-P