[Federal Register Volume 68, Number 233 (Thursday, December 4, 2003)]
[Rules and Regulations]
[Pages 67868-67903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29823]



[[Page 67867]]

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

Part II





Department of Homeland Security





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



48 CFR Chapter 30



Department of Homeland Security Acquisition Regulation; Interim Rule

  Federal Register / Vol. 68, No. 233 / Thursday, December 4, 2003 / 
Rules and Regulations  

[[Page 67868]]


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

DEPARTMENT OF HOMELAND SECURITY

48 CFR Chapter 30

[Docket Number USCG-2003-16571]
RIN 1601-AA16


Department of Homeland Security Acquisition Regulation

AGENCY: Office of the Chief Procurement Officer, Department of Homeland 
Security.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Department of Homeland Security (DHS) is issuing an 
interim rule to establish the Department of Homeland Security 
Acquisition Regulation (HSAR). The HSAR is intended as regulatory 
guidance. The HSAR reflects recent changes to the Federal Acquisition 
Regulation (FAR) and it establishes and encourages participation in the 
DHS Mentor-Proege Program.

DATES: This rule is effective on December 4, 2003. Comments must reach 
the Department of Homeland Security, Office of the Chief Procurement 
Officer, Acquisition Policy on or before January 5, 2004, to be 
considered in the formation of the final rule. Comments on collection 
of information sent to the Office of Management and Budget (OMB) must 
reach OMB on or before January 5, 2004.

ADDRESSES: Please submit written comments by one of the following 
means:
    (1) Electronically to [email protected].
    (2) By mail to the Department of Homeland Security, Office of the 
Chief Procurement Officer, Acquisition Policy and Oversight, ATTN: 
Kathy Strouss, 245 Murray Drive, Bldg. 410 (RDS), Washington, DC 20528.
    You must also mail comments on collection of information to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, 
DHS.

FOR FURTHER INFORMATION CONTACT: Kathy Strouss, Department of Homeland 
Security, Office of the Chief Procurement Officer, Acquisition Policy, 
at (202) 205-0141.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. Your comments will be considered for the 
final rule we plan to issue to replace this interim rule. If you choose 
to comment on this rule, please include your name and address, indicate 
the specific heading of this document to which each comment applies, 
and give the reason for each comment. Comments should be organized by 
HSAR Part, and address the specific section (e.g. (HSAR) 48 CFR 
3006.302-7) that is being commented on. You may submit your comments 
and material by mail or electronic means to the address under 
ADDRESSES. Please submit your comments and material by only one means. 
If you submit them by mail, submit them in an unbound format, no larger 
than 8\1/2\ by 11 inches, suitable for copying and electronic filing. 
If you submit them by mail and would like to know that they reached the 
Department of Homeland Security, Office of Chief Procurement Officer, 
please enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period. 
We may change this rule in view of them.

Background and Purpose

    DHS is issuing the Homeland Security Acquisition Regulation (HSAR) 
to establish a uniform departmentwide acquisition policy and 
regulation. The HSAR uses plain language for clarity and understanding; 
does not contain internal operating procedures that do not have a 
significant effect beyond DHS; and establishes the DHS Mentor-Protege 
Program.
    The Department formed a HSAR Work Group that included both 
acquisition and legal staff from both the Department and its 
organizational elements. The team's approach was to develop and issue a 
regulation that delegates authority, where appropriate, to the lowest 
levels, is concise, and is simple for contractor's, offerors, and DHS 
contracting personnel to use.

Discussion of Interim Rule

    The parts that contain no coverage and have been reserved are parts 
3007, 3008, 3010, 3012, 3014, 3018, 3020, 3021, 3025, 3026, 3029, 3034, 
3038, 3039, 3040, 3041, 3043, 3044, 3048, 3049, 3050, and 3051.
    Part 3001, Federal Acquisition System, sets forth basic policies 
and general information about the Department of Homeland Security 
Regulation system including purpose, guiding principles, applicability, 
issuance, arrangement, numbering, dissemination, publication and 
codification, deviations, career development, contracting authority, 
and policy regarding determinations, waivers, exceptions, approvals and 
reviews.
    Part 3002, Definitions and Abbreviations of Words and Terms, 
provides definitions and abbreviations for commonly used terms.
    Part 3003, Improper Business Practices and Personal Conflicts of 
Interest, lists the authorities for Standards of Conduct and defines 
the Federal Acquisition Regulation (FAR) term ``authorized official of 
an agency.'' The Part also contains procedures for reporting suspected 
violations of the Gratuities clause, and reports of suspected antitrust 
violations, Contingent Fees and subcontractor kickbacks.
    Part 3004, Administrative Matters, prescribes an Approval of 
Contract clause, and a Security Requirements for Unclassified 
Information Technology Resources clause. The Part also establishes when 
quick close out procedures can be used, as well as the applicable forms 
to be used in contract close out.
    Part 3005, Publicizing Contract Actions, includes a requirement 
that releases of information to the general public will follow Freedom 
of Information Act (FOIA) rules, and a United States Coast Guard (USCG) 
exemption for publicizing contract actions for personal medical 
services contracting.
    Part 3006, Competition Requirements, includes policies and 
procedures for establishing or maintaining alternative sources; 
circumstances permitting other than full and open competition, public 
interest; and Competition Advocates requirements, duties and 
responsibilities. The Part also includes a USCG exemption from 
competition requirements for personal medical services contracting.
    Part 3009, Contractor Qualifications, sets forth policy on 
responsible prospective contractors; debarment, suspension and 
ineligibility; and a solicitation provision for organizational and 
consultant conflicts of interest.
    Part 3011, Describing Agency Needs, includes a policy on selecting 
and developing requirements documents; solicitation and contract 
clauses for using and maintaining requirements documents; liquidated 
damages; and priorities and allocations.
    Part 3013, Simplified Acquisition Procedures, includes a 
solicitation provision, and contract and purchase order clauses for the 
USCG bar coding requirement. It also includes the implementation of DHS 
special streamlined acquisition authorities.
    Part 3015, Contracting By Negotiation, prescribes a Key Personnel 
or Facilities

[[Page 67869]]

clause that will be used when selection for award is substantially 
based on offeror's possession of special capabilities. A policy on 
handling proposals and information, payment of profit or fee, and 
unsolicited proposals is also included in this Part.
    Part 3016, Types of Contracts, includes a policy on fixed price, 
incentive, indefinite-delivery contracts, and a settlement of letter 
contract clause.
    Part 3017, Special Contracting Methods, includes guidance on use of 
options, leader company contracting, energy savings performance 
contracts, and USCG clauses for fixed price contracts for vessel 
repair, alteration or conversion.
    Part 3019, Small Business Programs, sets forth general policies for 
the small business and small business subcontracting program. This Part 
prescribes that a provision and clause be placed in all respective 
solicitations and contracts requiring a subcontracting plan. Also, two 
clauses are prescribed for DHS' Mentor-Protege Program, which assists 
qualified small businesses in receiving developmental assistance from 
DHS prime contractors in order to increase the base of small businesses 
eligible to perform DHS contracts and subcontracts.
    Part 3022, Application of Labor Laws to Government Acquisitions, 
sets forth DHS' policy on the admittance of union representatives to 
DHS installations. Prescriptions for HSAR 3052.222-70, Strikes or 
Picketing Affecting Timely Completion of the Contract Work, and HSAR 
3052.222-71, Strikes or Picketing Affecting Access to a DHS Facility, 
are included. Guidance on withholding from or suspension of contract 
payments is also included. This part sets forth the USCG policy, 
provision and clause for local hires in all solicitations and contracts 
for construction or services with regard to a State's unemployment 
rate.
    Part 3023, Environment, Energy and Water Efficiency, Renewable 
Energy Technologies, Occupational Safety, and Drug-Free Workplace, 
includes a provision and clause for removal or disposal of hazardous 
substances. It also includes drug-free workplace applicability guidance 
and sets forth approval authorities for a determination to suspend 
payments, terminate contracts or debar and suspend as it relates to 
this part. This Part also includes a requirement for Accident and Fire 
reporting when work will be performed on government-owned or leased 
property.
    Part 3024, Protection of Privacy and Freedom of Information, 
specifies where DHS policies and procedures for implementing the 
Privacy Act of 1974 and the FOIA are found.
    Part 3027, Patents, Data, and Copyrights, provides general guidance 
on patents, adjustment of royalties and use of patented technology 
under the North American Free Trade Agreements Act; patent rights 
clauses; and approval and justification requirements for administration 
of licensing background patent rights to third parties. Also, it 
includes guidance on use of an appropriate rights in data clause.
    Part 3028, Bonds and Insurance, includes a requirement for the 
contracting officer to furnish surety information, and it includes 
policy on execution and administration of bonds. There is a requirement 
for the USCG to insert a provision or clause on Notification of Miller 
Act Payment Bond Protection. There are also USCG clauses for the 
insurance requirements for contracts for lease of aircraft. An 
insurance provision or clause requirement is found in this part.
    Part 3030, Cost Accounting Standards Administration, provides that 
the Head of the Contracting Activity (HCA) is authorized to waive 
application of Cost Accounting Standards to individual commercial item, 
firm-fixed priced contracts.
    Part 3031, Contract Cost Principles and Procedures, includes policy 
for pre-contract costs.
    Part 3032, Contract Financing, provides guidance on contract 
financing for simplified acquisitions and specifies that the Chief 
Procurement Officer (CPO) is the DHS remedy coordination official. It 
also contains the Payment by Electronic Funds Transfer--Central 
Contractor Registration (CCR) requirement for all solicitations and 
contracts.
    Part 3033, Protests, Disputes, and Appeals includes the designation 
of Department of Transportation Board of Contract Appeals as the DHS 
BCA.
    Part 3035, Research and Development Contracting, includes policy on 
cost sharing and recoupment.
    Part 3036, Construction and Architect and Engineering Contracts, 
includes a policy on performance reports and a contract clause for 
special precautions for work at operating airports.
    Part 3037, Service Contracting, includes guidance on contract 
personnel access application, and conditional access to sensitive but 
unclassified information. The Part also provides policy for personal 
services contracts.
    Part 3042, Contract Administration and Audit Services, includes 
prescriptions for clauses for dissemination of contract information; 
contracting officer's technical representative, and a requirement to 
use the Contractor Performance System for evaluating contractor 
performance.
    Part 3045, Government Property, sets for reporting and auditing 
requirements, and a provision for a contract clause.
    Part 3046, Quality Assurance, includes definitions relative to 
warranties; criteria for use of warranties; and terms and conditions. 
The Part also includes additional requirements for the USCG.
    Part 3047, Transportation, sets forth the provisions for the 
transportation clauses for use, when applicable.
    Part 3052, Solicitation Provisions and Contract Clauses, provides 
the text of the provisions and clauses. It also includes the text for 
the USCG specific provisions and clauses.
    Part 3053, Forms, includes five forms that require completion by 
contractors or contract employees. The forms will be available and 
linked to the DHS website after they are approved by OMB, and upon 
publication of the final rule.
    The Matrix lists the provisions and clauses, and illustrates 
whether a provision or clause is required or to be used when 
applicable.

Regulatory Assessment

    This interim rule is not subject to review by the Office of 
Management and Budget (OMB) under Executive Order 12866, Regulatory 
Planning and Review, as supplemented by Executive Order 13132, 
Federalism, and is not a major rule under 5 U.S.C. 804. It therefore 
does not require an assessment of potential costs and benefits under 
section 6(a)(3) of that Order. The Office of Management and Budget has 
not reviewed it under Executive Order 12866. It is not significant 
under the regulatory policies and procedures of the Department of 
Homeland Security.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this interim rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. This interim rule is not expected to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act. An Initial Regulatory

[[Page 67870]]

Flexibility Analysis has not been performed.
    The Mentor-Prot[eacute]g[eacute] Program does apply to large 
business and small business firms that receive a form of incentive for 
assuming the role of mentor to small businesses, other small 
disadvantaged businesses, qualified HUBZone small businesses, small 
businesses owned and controlled by service disabled veterans, and small 
women-owned businesses. It is expected that the prot[eacute]g[eacute] 
entities would directly benefit from the forms of mentoring provided 
for in this rule. The interim regulation provides consistency with the 
FAR.

Collection of Information

    This interim rule contains information collection requirements 
subject to the Paperwork Reduction Act (44 U.S.C. 3501-3520) that are 
being submitted to OMB for approval. As defined in 5 CFR 1320.3(c), 
``collection of information'' comprises reporting, recordkeeping, 
monitoring, posting, labeling, and other, similar actions. DHS is 
awaiting approval from OMB for the five (5) forms that are referenced 
in the HSAR, and that can be found in Part 3053. DHS is also awaiting 
approval and the assignment of numbers for contract, solicitations and 
protests.
    This information will be shown in HSAR Section 3001.106 and Part 
3053, and will be published separately. This information is required by 
the Office of the Chief Procurement Officer in order to solicit, 
negotiate, award, and administer contracts in accordance with the 
Federal Acquisition Regulation, other regulations and statutes; in 
order to evaluate offers, ensure appropriate contract cost controls, 
and minimize conditions conducive to fraud, waste, and abuse; and in 
order to collect appropriate information from prospective contractors 
when protests are filed.
    Additionally, the collections of information in this rule in part 
3053 are for DHS Forms 0700-01 through 0700-05. These forms will be 
used when applicable for the following purposes: Cumulative Claim and 
Reconciliation Statement; Contractor's Assignment of Refunds, Rebates, 
Credits, and Other Amounts; Contractor's Release; Contractor Report of 
Government Property; and Employee Claim for Wage Restitution.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this interim rule to the Office 
of Management and Budget (OMB) for its review of the collection of 
information. Due to the circumstances surrounding this temporary rule, 
we asked for ``emergency processing'' of our request.
    We ask for public comment on the collection of information to help 
us determine how useful the information is; whether it can help us 
perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining burden are; how we can improve 
the quality, usefulness, and clarity of the information; and how we can 
minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OMB and to DHS at the address indicated under ADDRESSES, 
by the date under DATES.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. This rule is not subject to the 
requirements of Executive Order 13132. DHS has determined that this 
proposed rule does not contain federalism implications and would not 
preempt State laws.

Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Homeland Security that urgent and compelling reasons exist to 
publish an interim rule prior to affording the public an opportunity to 
comment. This interim rule implements Sections 833 and 835 of the 
Homeland Security Act (Public Law 107-296), signed on November 25, 
2002. The act provides authorities to be used in contracting for 
supplies and services required to accomplish the DHS mission of 
preventing and reducing terrorist attacks as well as minimizing damage 
and assisting in recovery from terrorist attacks for the Department and 
its organizational elements (OEs). Comments received in response to 
this interim rule will be considered in the formation of the final 
rule.
    Under 5 U.S.C. 553(b)(B), the Department of Homeland Security (DHS) 
finds that good cause exists for not publishing a general notice of 
proposed rulemaking (NPRM). DHS consists of agencies and other 
operating elements of Government that pre-existed the formation of DHS. 
Prior to DHS's formation, those agencies used supplemental acquisition 
regulations as a foundation for the conduct of their procurement and 
acquisition functions. For example, the Coast Guard utilized the 
Department of Transportation (DOT) Acquisition Regulations found at 48 
CFR Chapter 12. The Coast Guard can no longer rely on the DOT 
regulations since they no longer are a part of DOT. Similarly, 
organizations that used the Department of Treasury's or Department of 
Justice's acquisition supplements can no longer rely on those 
regulations.
    DHS finds that due to an urgent need for seamless continued 
acquisition and contracting operations of the previous agencies and 
organizations that now comprise DHS, it is impracticable to afford the 
public an opportunity to comment prior to issuing this interim rule. 
Currently, there are no Department-level acquisition regulations 
governing DHS's vital contracting business. Consequently, a delay in 
issuing this regulation would be contrary to the public interest. This 
regulation realigns contracting authority within the Department and 
provides uniform regulatory guidance for the acquisition of supplies 
and services required to accomplish DHS's mission of preventing and 
reducing terrorist attacks as well as minimizing damage and assisting 
in recovery from terrorist attacks.
    Under 5 U.S.C. 553(d)(3), DHS also finds that for the same reasons 
discussed above respecting 5 U.S.C. 553(b)(B), good cause exists for 
making this rule effective in less than 30 days after publication in 
the Federal Register.

List of Subjects in 48 CFR Parts 3001 Through 3053

    Government procurement.

    Dated: November 21, 2003.
Gregory D. Rothwell,
Chief Procurement Officer.

0
For the reasons discussed in the preamble, the Department of Homeland 
Security is adding chapter 30 of title 48 in the CFR to read as 
follows:

CHAPTER 30--DEPARTMENT OF HOMELAND SECURITY, HOMELAND SECURITY 
ACQUISITION REGULATION (HSAR)

SUBCHAPTER A--GENERAL

PART 3001--FEDERAL ACQUISITION REGULATIONS SYSTEM
PART 3002--DEFINITIONS OF WORDS AND TERMS
PART 3003--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST
PART 3004--ADMINISTRATIVE MATTERS
SUBCHAPTER B--ACQUISITION PLANNING

[[Page 67871]]

PART 3005--PUBLICIZING CONTRACT ACTIONS
PART 3006--COMPETITION REQUIREMENTS
PART 3007--ACQUISITION PLANNING--[RESERVED]
PART 3008--REQUIRED SOURCES OF SUPPLIES AND SERVICES--[RESERVED]
PART 3009--CONTRACTOR QUALIFICATIONS
PART 3010--MARKET RESEARCH--[RESERVED]
PART 3011--DESCRIBING AGENCY NEEDS
PART 3012--ACQUISITION OF COMMERCIAL ITEMS--[RESERVED]
SUBCHAPTER C--CONTRACT METHODS AND CONTRACT TYPES
PART 3013--SIMPLIFIED ACQUISITION PROCEDURES
PART 3014--SEALED BIDDING--[RESERVED]
PART 3015--CONTRACTING BY NEGOTIATION
PART 3016--TYPES OF CONTRACTS
PART 3017--SPECIAL CONTRACTING METHODS
PART 3018--[RESERVED]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 3019--SMALL BUSINESS PROGRAMS
PART 3020--[RESERVED]
PART 3021--[RESERVED]
PART 3022--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
PART 3023--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
PART 3024--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
PART 3025--FOREIGN ACQUISITION--[RESERVED]
PART 3026--OTHER SOCIOECONOMIC PROGRAMS--[RESERVED]
PART 3027--PATENTS, DATA AND COPYRIGHTS
PART 3028--BONDS AND INSURANCE
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 3029--TAXES--[RESERVED]
PART 3030--COST ACCOUNTING STANDARDS ADMINISTRATION
PART 3031--CONTRACT COST PRINCIPLES AND PROCEDURES
PART 3032--CONTRACT FINANCING
PART 3033--PROTESTS, DISPUTES, AND APPEALS
PART 3034--MAJOR SYSTEM ACQUISITION--[RESERVED]
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 3035--RESEARCH AND DEVELOPMENT CONTRACTING
PART 3036--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
PART 3037--SERVICE CONTRACTING
PART 3038--FEDERAL SUPPLY SCHEDULE CONTRACTING--[RESERVED]
PART 3039--ACQUISITION OF INFORMATION TECHNOLOGY--[RESERVED]
PART 3040--[RESERVED]
PART 3041--ACQUISITION OF UTILITY SERVICES--[RESERVED]
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 3042--CONTRACT ADMINISTRATION AND AUDIT SERVICES
PART 3043--CONTRACT MODIFICATIONS--[RESERVED]
PART 3044--SUBCONTRACTING POLICIES AND PROCEDURES--[RESERVED]
PART 3045--GOVERNMENT PROPERTY
PART 3046--QUALITY ASSURANCE
PART 3047--TRANSPORTATION
PART 3048--VALUE ENGINEERING--[RESERVED]
PART 3049--TERMINATION OF CONTRACTS--[RESERVED]
PART 3050--EXTRAORDINARY CONTRACTUAL ACTIONS--[RESERVED]
PART 3051--USE OF GOVERNMENT SOURCES BY CONTRACTORS--[RESERVED]
SUBCHAPTER H--CLAUSES AND FORMS
PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
PART 3053--FORMS
0
1. The authority citation for parts 3001 through 3053 reads as follows:


    Authority: 41 U.S.C. 418b (a) and (b).


0
2. The text of parts 3001 through 3053 reads as follows:

PART 3001--FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 3001.1--Purpose, Authority, Issuance
Sec.
3001.101 Purpose.
3001.102 Statement of Guiding Principles for the Federal Acquisition 
System.
3001.104 Applicability.
3001.105 Issuance.
3001.105-1 Publication and code arrangement.
3001.105-2 Arrangement of regulations.
3001.105-3 Copies.
3001.106 OMB Approval under the Paperwork Reduction Act.
Subpart 3001.3--Agency Acquisition Regulations
3001.301 Policy.
3001.301-70 Amendment of HSAR.
3001.301-71 Effective date.
3001.301-72 HSAC or HSAR Notice numbering.
3001.303 Publication and codification.
3001.304 Agency control and compliance procedures.
Subpart 3001.4--Deviations from the FAR
3001.403 Individual deviations.
3001.404 Class deviations.
Subpart 3001.6--Career Development, Contracting Authority, and 
Responsibilities
3001.601 General.
3001.602 Contracting Officers.
3001.602-3 Ratification of unauthorized commitments.
3001.603 Selection, appointment, and termination of appointment.
3001.603-1 General.
Subpart 3001.7--Determinations and Findings
3001.704 Content.
Subpart 3001.70--Other Determinations, Waivers, Exceptions, Approvals, 
Reviews, and Submittals.
3001.7000 Coordination and approval.
3001.7001 Content.

Subpart 3001.1--Purpose, Authority, Issuance


3001.101  Purpose.

    The Department of Homeland Security Acquisition Regulation (HSAR) 
establishes uniform acquisition policies and procedures, which 
implement and supplement the Federal Acquisition Regulation (FAR).


3001.102  Statement of Guiding Principles for the Federal Acquisition 
System.

    (d) The FAR and this supplement are to be interpreted permissively, 
if consistent with statutory and regulatory requirements, policy, and 
sound professional judgment.


3001.104  Applicability.

    (a) The following order of precedence applies to resolve any 
acquisition regulation or procedural inconsistency found within HSAR or 
the Homeland Security Acquisition Manual (HSAM):
    (1) Statute;
    (2) FAR or other applicable regulation or Executive Order;
    (3) HSAR;
    (4) Department of Homeland Security (DHS) Directives; and
    (5) HSAM.
    (b) The Transportation Security Administration (TSA) exception to 
this regulation is authorized by the Aviation and Transportation 
Security Act of 2001 (Section 101(a) of Public Law 107-71). However, 
see (HSAR) 48 CFR 3033.211, regarding Board of Contract Appeals (BCA).
    (c) For nonappropriated fund contracts, the FAR and HSAR will be 
followed to the maximum extent feasible excluding provisions determined 
by counsel not to apply to Nonappropriated Fund institutions (NAFIs). 
Contracting terms may provide for mutual agreement as to the Board of 
Contract Appeals jurisdiction but this policy will not confer court 
jurisdiction concerning NAFIs that does not otherwise exist.


3001.105  Issuance.


3001.105-1  Publication and code arrangement.

    (a) The HSAR is published in:
    (1) The Federal Register and
    (2) Cumulated form in the Code of Federal Regulations (CFR).


3001.105-2  Arrangement of regulations.

    (a) General. The HSAR, which encompasses both Department-wide and

[[Page 67872]]

organizational element-unique guidance, conforms to the arrangement and 
numbering system prescribed by (FAR) 48 CFR 1.105-2. Guidance that is 
unique to an organization with Head of the Contracting Activity (HCA) 
authority contains the organization's acronym directly preceding the 
cite. The following acronyms apply:

Bureau of Customs and Border Protection (CBP)
Bureau of Immigration and Customs Enforcement (ICE)
DHS Office of Procurement Operations (OPO)
Federal Emergency and Management Agency (FEMA) (Includes all elements 
of the Emergency Preparedness and Response Directorate)
Federal Law Enforcement Training Center (FLETC)
Transportation Security Administration (TSA)
U.S. Coast Guard (USCG)
U.S. Secret Service (Secret Service)


3001.105-3  Copies.

    The HSAR is available in the Federal Register and electronically at 
http://www.dhs.gov/dhspublic/.


3001.106  OMB Approval under the Paperwork Reduction Act.

    (a) The Office of Management and Budget (OMB) has assigned the 
following control numbers that must appear on the upper right-hand 
corner of the face page of each solicitation, contract, modification, 
and order:

OMB Control No. 1600-002 (Contract related forms)
OMB Control No. 1600-005 (Offeror submissions)
OMB Control No. 1600-003 (Contractor submissions)
OMB Control No. 1600-004 (Protests)

    (b) OMB regulations and OMB's approval and assignment of control 
numbers are conditioned upon not requiring more than three copies 
(including the original) of any document of information. OMB has 
granted a waiver to permit the Department to require up to eight copies 
of proposal packages, including proprietary data, for solicitations, 
provided that contractors who submit only an original and two copies 
will not be placed at a disadvantage.

Subpart 3001.3--Agency Acquisition Regulations


3001.301  Policy.

    (a)(1) The HSAR is issued for Departmental guidance according to 
the policy cited in (FAR) 48 CFR 1.301. The HSAR establishes uniform 
Homeland Security policies and procedures for all acquisition 
activities within the Department of the Homeland Security, except the 
TSA. OE supplemental acquisition regulations to be inserted in the HSAR 
as a HSAR supplement regulation must be reviewed and approved by the 
Chief Procurement Officer (CPO) before the CPO submits the proposed 
coverage for publication in the Federal Register according to (FAR) 48 
CFR 1.501.
    (2)(i) The CPO is authorized to issue internal agency guidance at 
any organizational level. Department-wide procedures are contained in 
the HSAM. The HCA may implement internal procedures or supplement the 
FAR, HSAR, or HSAM as provided in HSAM 3001.3. The HCA may issue 
procedures or delegate this authority to any organizational level 
deemed appropriate. OE procedures may be more restrictive or require 
higher approval levels than those permitted by the HSAM, unless 
otherwise specified.
    (ii) Individuals granted authority in the HSAR may delegate that 
authority, unless the FAR or HSAR specifically state that the authority 
is not delegable.
    (b) The Under Secretary of Management established procedures 
through Management Directive (MD) 0490.1, entitled Federal Register 
Notice and Rules, to ensure that agency acquisition regulations are 
published for comment in the Federal Register in conformance with FAR 
procedures at (FAR) 48 CFR subpart 1.5.


3001.301-70  Amendment of HSAR.

    (a) Request for changes to the regulation may be recommended by DHS 
personnel, other Government agencies, or the public. Change requests 
are to be submitted in the following format to the Department of 
Homeland Security, Attn: Office of the Under Secretary of Management, 
Chief Procurement Officer, Washington, DC 20598.
    (1) Problem: Succinctly state the problem(s) created by current 
HSAR requirements or processes and describe the factual or legal 
reasons for requesting a regulatory change.
    (2) Recommendation: Identify the recommended change by using the 
current language and lining through the words to be deleted and 
inserting proposed language in brackets. If the change is extensive, 
deleted language may be displayed by forming a box with diagonal lines 
connecting the corners.
    (3) Discussion: Explain why the change is necessary and how the 
change will solve the problem. Address any cost or administrative 
impact on Government activities, offerors, and contractors. Provide any 
other helpful information and documents such as statutes, legal 
decisions, regulations, reports, etc.
    (4) Point of Contact: Provide a point of contact for answering 
questions regarding the recommendation, along with a telephone number, 
e-mail or other method of reaching the contact.
    (b) The HSAR is maintained by the CPO through the HSAR/HSAM change 
process (i.e., input from various OEs including representatives 
specifically designated to formulate Departmental acquisition policies 
and procedures).
    (1) Homeland Security Acquisition Circular (HSAC). HSAC (see (HSAR) 
48 Chapter 3001.301-72) will be used to amend (HSAR) 48 Chapter 30.
    (2) HSAR Notices will be issued (with a specified expiration date) 
when interim guidance is necessary under any of the following 
circumstances:
    (i) To promulgate, as rapidly as possible, selected material in a 
general or narrative manner, in advance of a HSAC issuance;
    (ii) To disseminate other acquisition related information; or
    (iii) To issue guidance that is expected to be effective for a 
period of 1 year or less.


3001.301-71  Effective date.

    Unless otherwise stated, the following applies--
    (a) Statements in HSACs or HSAR Notices that the content is ``upon 
a specified date,'' or that changes in the document are ``to be used 
upon receipt,'' mean that any new or revised provisions, clauses, 
procedures, or forms must be included in solicitations or contracts 
issued thereafter; and
    (b) Unless expressly directed by statute or regulation, if 
solicitations have been issued prior to the HSAC or HSAR notice receipt 
or publication, the new information (e.g., forms and clauses) need not 
be included if the Chief of the Contracting Office (COCO) determines, 
in writing, that including the new information would not be in the best 
interests of the Government.


3001.301-72  HSAC or HSAR Notice numbering.

    HSACs and HSAR Notices will be numbered consecutively on a fiscal 
year basis beginning with number ``01'' prefixed by the last two digits 
of the fiscal year (e.g., HSAR Notices 03-01 and 03-02 indicate the 
first two HSAR Notices issued in fiscal year 2003).


3001.303  Publication and codification.

    (a) The HSAR is issued as chapter 30 of Title 48 of the CFR.

[[Page 67873]]

    (1) The FAR numbering illustrations at (FAR) 48 CFR 1.105-2 apply 
to the HSAR.
    (2) Coverage within HSAR 48 CFR chapter 30 is identified by the 
prefix ``30'' followed by the complete FAR cite which may extend 
downward to the subparagraph level (e.g., (HSAR) 48 CFR 3001.101).
    (3) Coverage in HSAR Chapter 30 that supplements the FAR will use 
part, subpart, section and subsection numbers ending in ``70'' through 
``89''. A series of numbers beginning with ``70'' is used for 
provisions and clauses (e.g., (HSAR) 48 CFR 3001.301-70).
    (4) Coverage in HSAR 48 CFR chapter 30, other than that identified 
with a ``70'' or higher number, which implements the FAR uses the 
identical number sequence and caption of the FAR segment being 
implemented which may extend downward to the subparagraph level. 
Subparagraph numbers/letters may not be shown as sequential, but may be 
shown by the specific paragraph/subparagraph implemented from the FAR 
(e.g., (HSAR) 48 CFR 3003.301 contains subparagraphs (a) and (b) 
because only these subparagraphs, correlating to FAR, are being 
supplemented by (HSAR) 48 CFR chapter 30).
    (5) Organizational Element-unique guidance. Supplementary material 
for which there is no counterpart in the FAR or HSAR shall be 
identified using chapter, part, subpart, section, or subsection numbers 
of ``90'' and up (e.g., the U.S. Coast Guard's acronym is ``USCG''; an 
USCG-unique clause pertaining to ``Inspection and/or Acceptance'' would 
be designated ``USCG 3052.246-90'').
    (6) References and citations. Cross references to the FAR in the 
HSAR will be cited by ``FAR'' followed by the FAR numbered cite, and 
cross reference to the HSAM in the HSAR will be cited by ``HSAM'' 
followed by the HSAM numbered cite.
    (7) Department/agency and OE supplements must parallel the FAR and 
HSAR numbering, except department/agency supplemental numbering uses 
subsection numbering of 90 and up, instead of 70 and up.

                                           Table 1-1.--HSAR Numbering
----------------------------------------------------------------------------------------------------------------
                               FAR                                   Is implemented as      Is supplemented as
----------------------------------------------------------------------------------------------------------------
19..............................................................              3019                  3019.70
19.5............................................................              3019.5                3019.570
19.501..........................................................              3019.501              3019.501-70
19.501-1........................................................              3019.501-1            3019.501-170
----------------------------------------------------------------------------------------------------------------

3001.304  Agency control and compliance procedures.

    (a) The HSAR is under the direct oversight and control of the 
Homeland Security, Office of the Chief Procurement Officer (OCPO), 
which is responsible for evaluation, review, and issuance of all 
Department-wide acquisition regulations and guidance. Each HCA may 
supplement the HSAR with OE guidance. Supplementation should be kept to 
a minimum. OEs proposing to issue regulatory supplements or use 
solicitation or contract clauses on a repetitive basis must obtain 
legal review by the OE's legal counsel and forward supplements to the 
CPO for concurrence prior to publication in the Federal Register.
    (c) The CPO is responsible for evaluating all regulatory coverage 
in agency acquisition regulations to determine if the substance could 
apply to other agencies and to make recommendation for inclusion in the 
FAR.

Subpart 3001.4--Deviations from the FAR and HSAR


3001.403  Individual deviations.

    Unless precluded by law, executive order, or other regulation, the 
HCA is authorized to approve individual deviation (except with respect 
to (FAR) 48 CFR 30.201-3, 30.201-4; the requirements of the Cost 
Accounting Standards board rules and regulations at 48 CFR chapter 99 
(FAR appendix); and part 50). Submit requests per (HSAR) 48 CFR 
3001.7000(a), including complete documentation of the justification for 
the deviation (See HSAM 3001.403).


3001.404  Class deviations.

    (a) Unless precluded by law, executive order, or other regulation, 
the CPO is authorized to approve class deviations (except (FAR) 48 CFR 
30.201-3, 30.201-4; the requirements of the Cost Accounting Standards 
board rules and regulations at 48 CFR Chapter 99 (FAR Appendix); and 
Part 50). Submit requests per (HSAR) 48 CFR 3001.7000(a), including 
complete documentation of the justification for the deviation, and the 
number and type of contract actions affected. Include a copy of the 
approved deviation in each contract file. The CPO will transmit a copy 
of each approved deviation to the FAR Secretariat.

Subpart 3001.6--Career Development, Contracting Authority, and 
Responsibilities


3001.601  General.

    DHS Delegation Number 0200.1, Delegation to the Directorate of 
Management, delegates authority from the Secretary to the Under 
Secretary of Management to manage the acquisition function. DHS 
Delegation 0700, Delegation to the Chief Procurement Officer for 
Acquisition and Financial Assistance Management, delegates this 
authority from the Under Secretary of Management to the Chief 
Procurement Officer.


3001.602  Contracting officers.


3001.602-3  Ratification of unauthorized commitments.

    Department of Homeland Security (DHS) policy requires that 
acquisitions be made only by Government officials having authority to 
enter into such acquisitions. Acquisitions made by other than 
authorized personnel are contrary to Departmental policy and may be 
considered matters of serious misconduct on the part of an employee 
making an unauthorized commitment, and may result in disciplinary 
action being taken against an employee who makes an unauthorized 
commitment.


3001.603  Selection, appointment, and termination of appointment.


3001.603-1  General.

    Under DHS Delegations, the Heads of the Contracting Activity (HCA), 
with authority to redelegate no lower than the COCO, are authorized to 
select and appoint contracting officers and terminate their 
appointment.

Subpart 3001.7--Determinations and Findings


3001.704  Content.

    The following format shall be used for all determinations and 
findings (D&Fs), unless otherwise specified in the FAR or the HSAR. The 
contracting officer is responsible for preparing D&Fs, and

[[Page 67874]]

requirements and technical personnel are responsible for the accuracy 
and adequacy of the supporting factual information, which shall be 
furnished to the contracting officer.
    Insert specific information indicated in brackets.

Determination and Findings

    Under [insert citation for appropriate statutory and/or 
regulatory basis for D&F], the Department of Homeland Security, 
[insert contracting activity], is granted authority to [insert 
nature and/or description of the action being approved].

Findings

    [Findings that detail the particular circumstances, facts, or 
reasoning essential to support the determination.]

Determination

    [A determination, based on the findings, that the proposed 
action is justified under the applicable statute or regulation.] 
[Expiration date of the D&F, if required.]

[Signature of authorized official]

Name and Title

[month, day, and year]

Date

Subpart 3001.70--Other Determinations, Waivers, Exceptions, 
Approvals, Reviews, and Submittals


3001.7000  Coordination and approval.

    Documents requiring CPO approval. Requests shall be prepared in 
writing by the contracting officer and submitted through the HCA to the 
CPO for approval.


3001.7001  Content.

    The general format at (HSAR) 48 CFR 3001.704 shall be used to 
provide a justification to support the requested determination, waiver, 
exception or approval.

PART 3002--DEFINITIONS OF WORDS AND TERMS

Subpart 3002.1--Definitions
Sec.
3002.101 Definitions.
Subpart 3002.2--Abbreviations
3002.270 Abbreviations.

Subpart 3002.1--Definitions


3002.101  Definitions.

    Chief Information Officer (CIO) means the Director of the Office of 
the CIO.
    Chief of the Contracting Office (COCO) means the individual(s) 
responsible for managing the contracting office(s) within an 
organizational element (OE).
    Chief Procurement Officer (CPO) means the Senior Procurement 
Executive (SPE).
    Contracting activity includes all the contracting offices within an 
OE and is the same as the term ``procuring activity.''
    Contracting officer means an individual authorized by virtue of 
position or by appointment to perform the functions assigned by the 
Federal Acquisition Regulation and the Homeland Security Acquisition 
Regulation.
    Head of Contracting Activity (HCA) means the individual responsible 
for direct management of the entire acquisition function within an 
organizational element.
    Head of the Agency means the Secretary of the Department of 
Homeland Security, or, by delegation, the Under Secretary of 
Management. ``Legal counsel'' means the Department of Homeland Security 
Office of General Counsel or OE office providing legal services to the 
contracting organization.
    Legal review means review by legal counsel.
    Major system means an acquisition as defined in Management 
Directive Number 1400, Investment Review Process.
    Micro-purchase threshold means $2,500 (see (HSAR) 48 CFR 3013-70), 
except it means--
    (1) $2,000 for construction subject to the Davis-Bacon Act; and
    (2) $7,500 for acquisitions of supplies or services, except for 
construction subject to the Davis-Bacon, if the Secretary determines in 
writing that the mission of the Department (described in Pub. L. 107-
296, Sec. 101) would be seriously impaired without the use of such 
authorities, Act (Pub. L. 107-296, section 833).
    Organizational Element (OE) means the following entities for 
purposes of this chapter:
    (1) Bureau of Customs and Border Protection (CBP);
    (2) Bureau of Immigration and Customs Enforcement (ICE);
    (3) DHS Office of Procurement Operations (OPO);
    (4) Federal Emergency Management Agency (FEMA) (Includes all 
elements of the Emergency Preparedness and Response Directorate);
    (5) Federal Law Enforcement Training Center (FLETC);
    (6) Transportation Security Administration (TSA); (TSA is exempt 
from the HSAR and HSAM according to the ``Aviation and Transportation 
Security Act of 2001'');
    (7) U.S. Coast Guard (USCG); and
    (8) U.S. Secret Service (Secret Service).
    Senior Procurement Executive (SPE) for the Department of Homeland 
Security is the Chief Procurement Officer (CPO).
    Simplified acquisition threshold means $100,000 (see (HSAR) 48 CFR 
3013-70), except that for acquisitions of supplies or services that, if 
the Secretary determines in writing that the mission of the Department 
(described in Pub. L. 107-296, section 101) would be seriously impaired 
without the use of such authorities from November 25, 2002 to December 
30, 2007 (Pub. L. 107-296, section 833(c)), the term means--
    (1) $200,000 for any contract to be awarded and performed, or 
purchase to be made, inside the United States; and
    (2) $300,000 for any contract to be awarded and performed, or 
purchase to be made, outside the United States.

Subpart 3002.2--Abbreviations


3002.270  Abbreviations.

CFO Chief Financial Officer
CIO Chief Information Officer
COCO Chief of the Contracting Office
COR Contracting Officers Representative
COTR Contracting Officer's Technical Representative
CPO Chief Procurement Officer
D&F Determination and Findings
DOTBCA Department of Transportation Board of Contract Appeals
FOIA Freedom of Information Act
HCA Head of Contracting Activity
J & A Justification and Approval for Other than Full and Open 
Competition
KO Contracting officer
MD Management Directive
OCPO Office of the Chief Procurement Officer
OE Organizational Element
OIG Office of the Inspector General
OSDBU Office of Small and Disadvantaged Business Utilization
PCR SBA's Procurement Center Representative
RFP Request for Proposal
SBA Small Business Administration
SBS Small Business Specialist
SPE Senior Procurement Executive

PART 3003--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

Subpart 3003.1--Safeguards
Sec.
3003.101 Standards of conduct.
3003.101-3 Agency regulations.
Subpart 3003.2--Contractor Gratuities to Government Personnel
3003.203 Reporting suspected violations of the Gratuities clause.
3003.204 Treatment of violations.
Subpart 3003.3--Reports Of Suspected Antitrust Violations
3003.301 General.

[[Page 67875]]

Subpart 3003.4--Contingent Fees
3003.405 Misrepresentations or violations of the Covenant Against 
Contingent Fees.
Subpart 3003.5--Other Improper Business Practices
3003.502 Subcontractor kickbacks.
3003.502-2 Subcontractor kickbacks.
Subpart 3003.9--Whistleblower Protections for Contractor Employees
3003.901 Definitions.

Subpart 3003.1--Safeguards


3003.101  Standards of conduct.


3003.101-3  Agency regulations.

    (a) Government-wide and Department of Homeland Security regulations 
governing the conduct and responsibilities of employees are contained 
in 5 CFR parts 2635 and 3101, and MD 0480, Ethics/Standards of Conduct.

Subpart 3003.2--Contractor Gratuities to Government Personnel


3003.203  Reporting suspected violations of the Gratuities clause.

    (a) Suspected violations of the Gratuities clause shall be reported 
to the contracting officer responsible for the acquisition (or the COCO 
if the contracting officer is suspected of the violation). The 
contracting officer (or the COCO) shall obtain from the person 
reporting the violation, and any witnesses to the violation, the 
following information:
    (1) The date, time, and place of the suspected violation;
    (2) The name and title (if known) of the individual(s) involved in 
the violation; and
    (3) The details of the violation (e.g., the gratuity offered or 
intended) to obtain a contract or favorable treatment under a contract.
    (4) The person reporting the violation and witnesses (if any) shall 
be requested to sign and date the information certifying that the 
information furnished is true and correct.
    (b) The contracting officer shall submit the report to the COCO 
(unless the alleged violation was directly reported to the COCO) and 
the Head of the Contracting Activity (HCA) for further action. The COCO 
and HCA will determine, with the advice of OE legal counsel, whether 
the case warrants submission to the OIG, or other investigatory 
organization.


3003.204  Treatment of violations.

    (a) The HCA is the individual to determine whether a Gratuities 
clause violation has occurred. If the HCA has been personally and 
substantially involved in the specific procurement, the advice of 
Government legal counsel should be sought to determine whether an 
alternate decision maker should be designated.
    (b) The COCO shall ensure that the hearing procedures required by 
(FAR) 48 CFR 3.204(b) are afforded to the contractor. Government legal 
counsel shall be consulted regarding the appropriateness of the hearing 
procedures that are established.
    (c) If the HCA determines that the alleged gratuities violation 
occurred during the ``conduct of an agency procurement'' the COCO shall 
consult with Government legal counsel regarding the approach for 
appropriate processing of either the Procurement Integrity Act 
violation or the Gratuities violation.

Subpart 3003.3--Reports Of Suspected Antitrust Violations


3003.301   General.

    (b) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for 
suspected antitrust violations, except reports of suspected antitrust 
violations shall be coordinated with legal counsel for referral to the 
Department of Justice, if deemed appropriate.

Subpart 3003.4--Contingent Fees


3003.405  Misrepresentations or violations of the Covenant Against 
Contingent Fees.

    (a) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for 
misrepresentation or violations of the covenant against contingent 
fees.
    (b)(4) The procedures at (HSAR) 48 CFR 3003.203 shall be followed 
for misrepresentation or violations of the covenant against contingent 
fees, except reports of misrepresentation or violations of the covenant 
against contingent fees shall be coordinated with legal counsel for 
referral to the Department of Justice, if deemed appropriate.

Subpart 3003.5--Other Improper Business Practices


3003.502  Subcontractor kickbacks.


3003.502-2  Subcontractor kickbacks.

    (g) The DHS OIG shall receive the prime contractor or 
subcontractors written report.

Subpart 3003.9--Whistleblower Protections for Contractor Employees


3003.901  Definitions.

    Authorized official of an agency means the Department of Homeland 
Security's CPO.

PART 3004--ADMINISTRATIVE MATTERS

Subpart 3004.1--Contract Execution
Sec.
3004.103 Contract clause.
Subpart 3004.4--Contract Clause
3004.470-4 Contract clause.
Subpart 3004.8--Government Contract Files
3004.804 Closeout of contract files.
3004.804-1 Closeout by the office administering the contract.
3004.804-5 Procedures for closing out contract files.
3004.804-570 Supporting closeout documents.

Subpart 3004.1--Contract Execution


3004.103  Contract clause.

    Insert the clause at (FAR) 48 CFR 52.204-1, Approval of Contract, 
in each solicitation where approval to award the resulting contract is 
required above the contracting officer level.

Subpart 3004.4--Contract Clause


3004.470-4  Contract clause.

    The contracting officer shall insert a clause substantially the 
same as the clause at (HSAR) 48 CFR 3052.204-70, Security Requirements 
for Unclassified Information Technology Resources, in solicitations and 
contracts which require submission of an IT Security Plan.

Subpart 3004.8--Government Contract Files


3004.804  Closeout of contract files.


3004.804-1  Closeout by the office administering the contract.

    (b) The quick closeout procedures under (FAR) 48 CFR 42.708 may be 
used for the settlement of indirect costs under contracts when the 
estimated amount (excluding any fixed fee) of the contract is $3 
million or less if determined appropriate by the contracting officer.


3004.804-5  Procedures for closing out contract files.


3004.804-570  Supporting closeout documents.

    (a) When applicable and prior to contract closure, the contracting 
officer shall obtain the listed DHS and Department of Defense (DOD) 
forms from the contractor for closeout.
    (1) DHS Form 0700-03, Contractor's Release (e.g., see (FAR) 48 CFR 
52.216-7);
    (2) DHS Form 0700-02, Contractor's Assignment of Refunds, Rebates, 
Credits and Other Amounts (e.g., see (FAR) 48 CFR 52.216-7);

[[Page 67876]]

    (3) DHS Form 0700-01, Cumulative Claim and Reconciliation Statement 
(e.g., see (FAR) 48 CFR 4.804-5(a)(13); and
    (4) DD Form 882, Report of Inventions and Subcontracts (e.g., see 
(FAR) 48 CFR 52.227-14).
    (b) The forms listed in this section (see (HSAR) 48 CFR part 3053) 
are used primarily for the closeout of cost-reimbursement, time-and-
materials, and labor-hour contracts. The forms may also be used for 
closeout of other contract types to protect the Government's interest.

PART 3005--PUBLICIZING CONTRACT ACTIONS

Subpart 3005.4--Release of Information
Sec.
3005.402 General public.
Subpart 3005.90--Publicizing Contract Actions for Personal Services 
Contracting
3005.9000 Applicability (USCG).

Subpart 3005.4--Release of Information


3005.402  General public.

    Requests for other specific records information shall be processed 
according to the DHS Freedom of Information Act rules and regulations 
(HSAR) 48 CFR 3024.203.

Subpart 3005.90--Publicizing Contract Actions for Personal Services 
Contracting.


3005.9000  Applicability (USCG).

    Contracts awarded by the U.S. Coast Guard using the procedures in 
(HSAR) 48 CFR 3037.104-91 are expressly authorized under section 1091 
of Title 10 U.S.C. as amended by Public Law 107-296, for the Coast 
Guard and are exempt from the requirements of (FAR) 48 CFR part 5.

PART 3006--COMPETITION REQUIREMENTS

Subpart 3006.2--Full and Open Competition After Exclusion of Sources
Sec.
3006.202 Establishing or maintaining alternative sources.
Subpart 3006.3--Other Than Full and Open Competition
3006.302 Circumstances permitting other than full and open 
competition.
3006.302-7 Public interest.
Subpart 3006.5--Competition Advocates
3006.501 Requirement.
3006.502 Duties and responsibilities.
Subpart 3006.90--Competition Requirements for Personal Services 
Contracting
3006.9000 Applicability (USCG).

Subpart 3006.2--Full and Open Competition After Exclusion of 
Sources


3006.202  Establishing or maintaining alternative sources.

    (b)(1) The HCA is delegated authority to approve a D&F in support 
of a contract action award under the authority of (FAR) 48 CFR 
6.202(a). Submit D&F in the format per (HSAR) 48 CFR 3001.704.

Subpart 3006.3--Other Than Full and Open Competition


3006.302  Circumstances permitting other than full and open 
competition.


3006.302-7  Public interest.

    (c)(1)(ii) Requests shall be prepared in writing by the contracting 
officer, using the format found in (HSAR) 48 CFR 3001.704, and 
submitted through the HCA to the CPO for review and transmittal to the 
Secretary for approval.

Subpart 3006.5--Competition Advocates


3006.501  Requirement.

    The DHS Senior Competition Advocate (SCA) is located in the Office 
of the Chief Procurement Officer (OCPO).


3006.502  Duties and responsibilities.

    (a) OE competition advocates will submit an annual report to the 
Departmental Advocate for Competition.

Subpart 3006.90--Competition Requirements For Personal Services 
Contracting


3006.9000  Applicability (USCG).

    Contracts awarded by the U.S. Coast Guard using the procedures in 
(HSAR) 48 CFR 3037.104-91 are expressly authorized under Section 1091 
of Title 10 U.S.C. as amended, for the Coast Guard and are exempt from 
the competition requirements of (FAR) 48 CFR part 6.

PART 3007--ACQUISITION PLANNING [RESERVED]

PART 3008--REQUIRED SOURCES OF SUPPLIES AND SERVICES [RESERVED]

PART 3009--CONTRACTOR QUALIFICATIONS

Subpart 3009.1--Responsible Prospective Contractors
Sec.
3009.104-70 Prohibition on contracts with corporate expatriates.
3009.104-71 General.
3009.104-72 Definitions.
3009.104-73 Special rules.
3009.104-74 Waiver.
3009.104-75 Clause.
Subpart 3009.4--Debarment, Suspension, and Ineligibility
3009.470 Reserve Officer Training Corps and military recruiting on 
campus.
3009.470-1 Definition.
3009.470-2 Policy.
3009.470-3 Procedures.
3009.470-4 Contract clause.
Subpart 3009.5--Organizational and Consultant Conflicts of Interest
3009.507 Solicitation provisions.

Subpart 3009.1--Responsible Prospective Contractors


3009.104-70  Prohibition on contracts with corporate expatriates.


3009.104-71  General.

    DHS may not enter into any contract with a foreign incorporated 
entity, which is treated as an inverted domestic corporation under 
subsection (b) of section 835 of the Homeland Security Act, Pub. L. 
107-296.


3009.104-72  Definitions.

    As used in this subpart--
    Expanded Affiliated Group means an affiliated group as defined in 
section 1504(a) of the Internal Revenue Code of 1986 (without regard to 
section 1504(b) of such Code), except that section 1504 of such Code 
shall be applied by substituting `more than 50 percent' for `at least 
80 percent' each place it appears.
    Foreign Incorporated Entity means any entity which is, or but for 
subsection (b) of section 835 of the Homeland Security Act, Pub. L. 
107-296, would be, treated as a foreign corporation for purposes of the 
Internal Revenue Code of 1986.
    Inverted Domestic Corporation. A foreign incorporated entity shall 
be treated as an inverted domestic corporation if, pursuant to a plan 
(or a series of related transactions)--

[[Page 67877]]

    (1) The entity completes after the date of enactment of this Act, 
the direct or indirect acquisition of substantially all of the 
properties held directly or indirectly by a domestic corporation or 
substantially all of the properties constituting a trade or business of 
a domestic partnership;
    (2) After the acquisition at least 80 percent of the stock (by vote 
or value) of the entity is held--
    (i) In the case of an acquisition with respect to a domestic 
corporation, by former shareholders of the domestic corporation by 
reason of holding stock in the domestic corporation; or
    (ii) In the case of an acquisition with respect to a domestic 
partnership, by former partners of the domestic partnership by reason 
of holding a capital or profits interest in the domestic partnership; 
and
    (3) The expanded affiliated group which after the acquisition 
includes the entity does not have substantial business activities in 
the foreign country in which or under the law of which the entity is 
created or organized when compared to the total business activities of 
such expanded affiliated group.
    Person, domestic, and foreign have the meanings given such terms by 
paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue 
Code of 1986, respectively.


3009.104-73  Special rules.

    The following special rules shall apply when determining whether a 
foreign incorporated entity should be treated as an inverted domestic 
corporation.
    (a) Certain stock disregarded. For the purpose of treating a 
foreign incorporated entity as an inverted domestic corporation these 
shall not be taken into account in determining ownership:
    (1) Stock held by members of the expanded affiliated group which 
includes the foreign incorporated entity; or
    (2) Stock of such entity which is sold in a public offering related 
to the acquisition described in subsection (b)(1) of section 835 of the 
Homeland Security Act (the Act), Pub. L. 107-296.
    (b) Plan deemed in certain cases. If a foreign incorporated entity 
acquires directly or indirectly substantially all of the properties of 
a domestic corporation or partnership during the 4-year period 
beginning on the date which is after the date of enactment of this Act 
and which is 2 years before the ownership requirements of subsection 
(b)(2) of the Act are met, such actions shall be treated as pursuant to 
a plan.
    (c) Certain transfers disregarded. The transfer of properties or 
liabilities (including by contribution or distribution) shall be 
disregarded if such transfers are part of a plan a principal purpose of 
which is to avoid the purposes of this section.
    (d) Special rule for related partnerships. For purposes of applying 
subsection (b) to the acquisition of a domestic partnership, except as 
provided in regulations, all domestic partnerships which are under 
common control (within the meaning of section 482 of the Internal 
Revenue Code of 1986) shall be treated as a partnership.
    (e) Treatment of certain rights. (1) Certain rights shall be 
treated as stocks to the extent necessary to reflect the present value 
of all equitable interests incident to the transaction, as follows:
    (i) Warrants;
    (ii) Options;
    (iii) Contracts to acquire stock;
    (iv) Convertible debt instruments;
    (v) Others similar interests.
    (2) Rights labeled as stocks shall not be treated as stocks 
whenever it is deemed appropriate to do so to reflect the present value 
of the transaction or to disregard transactions whose recognition would 
defeat the purpose of section 835 of the Act.


3009.104-74  Waiver.

    (a) The Secretary shall waive subsection (a) of section 835 of Pub. 
L. 107-296 with respect to any specific contract if the Secretary 
determines that the waiver is required in the interest of homeland 
security, or to prevent the loss of any jobs in the United States or 
prevent the Government from incurring any additional costs that 
otherwise would not occur.
    (b) Contractors shall submit waiver requests to the CPO. If a 
waiver is granted, a copy of the approved waiver shall be attached with 
the bid or proposal.


3009.104-75  Clause.

    Insert the provision (HSAR) 48 CFR 3052.209-70, Prohibition on 
Contracts with Corporate Expatriates, in all solicitations and 
contracts.

Subpart 3009.4--Debarment, Suspension, and Ineligibility


3009.470  Reserve Officer Training Corps and military recruiting on 
campus.


3009.470-1  Definition.

    Institution of higher education as used in this section, means an 
institution that meets the requirements of 20 U.S.C. 1001 and includes 
all subelements of such an institution.


3009.470-2  Policy.

    (a) Except as provided in paragraph (b) of this subsection, 10 
U.S.C. 983 prohibits the Department of Homeland Security from providing 
funds by contract or grant to an institution of higher education if the 
Secretary of Defense determines that the institution has a policy or 
practice that prohibits or in effect prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) at that institution;
    (2) A student at that institution from enrolling in a unit of the 
Senior ROTC at another institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Homeland Security from gaining entry to campuses, or access to students 
on campuses, for purposes of military recruiting; or
    (4) Military recruiters from accessing certain information 
pertaining to students enrolled at that institution.
    (b) The prohibition in paragraph (a) of this subsection does not 
apply to an institution of higher education if the Secretary of Defense 
determines that--
    (1) The institution (and each subelement of that institution) has 
ceased the policy or practice described in paragraph (a) of this 
subsection; or
    (2) The institution involved has a long-standing policy of pacifism 
based on historical religious affiliation.


3009.470-3  Procedures.

    Whenever the Secretary of Defense determines that an institution of 
higher education (including any subelement of such institution) is 
ineligible and the provisions of 10 U.S.C. 983 apply:
    (a) The Secretary of Defense will list the institution on the List 
of Parties Excluded from Federal Procurement and Nonprocurement 
Programs published by the General Services Administration (also see 
(FAR) 48 CFR 9.404 and 32 CFR part 216); and
    (b) The Department of Homeland Security--
    (1) Shall not solicit offers from, award contracts to, or consent 
to subcontracts with the institution;
    (2) Shall make no further payments under existing contracts with 
the institution; and
    (3) Shall terminate existing contracts with the institution.


3009.470-4  Contract clause.

    Insert the clause at (HSAR) 48 CFR 3052.3009-71, Reserve Officer 
Training Corps and Military Recruiting on Campus, in all solicitations 
and

[[Page 67878]]

contracts with institutions of higher education.

Subpart 3009.5--Organizational and Consultant Conflicts of Interest


3009.507  Solicitation provisions.

    The contracting officer may insert the provision at (HSAR) 48 CFR 
3052.209-72, ``Disclosure of Conflicts of Interest'' in all 
solicitations for negotiated acquisitions, and when simplified 
acquisitions procedures in (FAR) 48 CFR Part 13, are not used. The 
contracting officer shall ensure the conditions enumerated in (FAR) 48 
CFR 9.507-2 warrant inclusion.

PART 3010--MARKET RESEARCH [RESERVED]

PART 3011--DESCRIBING AGENCY NEEDS

Subpart 3011.1--Selecting and Developing Requirements Documents
Sec.
3011.103 Market acceptance.
Subpart 3011.2--Using and Maintaining Requirements
3011.204-70 Solicitation provisions and contract clauses.
3011.204-90 Solicitation provisions and contract clause (USCG).
Subpart 3011.5--Liquidated Damages
3011.501 Policy.
Subpart 3011.6--Priorities and Allocations
3011.602 General.

Subpart 3011.1--Selecting and Developing Requirements Documents


3011.103  Market acceptance.

    (a) Contracting officers may act on behalf of the head of the 
agency in this subpart only. Contracting officers may, under 
appropriate circumstances, require offerors to make the required 
demonstrations.

Subpart 3011.2--Using and Maintaining Requirements Documents


3011.204-70  Solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at (HSAR) 48 CFR 
3052.211-70, Index for Specifications, when an index or table of 
contents may be furnished with the specification.


3011.204-90  Solicitation provision and contract clause (USCG).

    (a) For U.S. Coast Guard contracts, the contracting officer shall 
insert the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding 
Requirement, (also see (HSAR) 48 CFR 3013.302-70) when the bar coding 
of supplies is necessary.
    (b) See (HSAR) 48 CFR 3013.302-590 for a provision which is 
required when the USCG clause at HSAR 3052.211-90, Bar Coding 
Requirement, is used with simplified acquisition procedures.

Subpart 3011.5--Liquidated Damages


3011.501  Policy.

    (d) The HCA may reduce or waive the amount of liquidated damages 
assessed under a contract, if the Commissioner, Financial Management 
Service, or designee approves.

Subpart 3011.6--Priorities and Allocations


3011.602  General.

    (c) The following DHS OEs may assign priority ratings on contracts 
and orders placed with contractors to acquire products, materials, and 
services under the Defense Priorities and Allocations System (DPAS) 
regulations (15 CFR part 700):
    (1) The U.S. Coast Guard in support of certified national defense 
related programs; and
    (2) The Federal Emergency Management Agency in support of emergency 
preparedness activities.

PART 3012--ACQUISITION OF COMMERCIAL ITEMS [RESERVED]

PART 3013--SIMPLIFIED ACQUSITION PROCEDURES

Subpart 3013.1--Procedures
Sec.
3013.106 Soliciting competition, evaluation of quotations or offers, 
award and documentation.
3013.106-190 Soliciting competition (USCG).
Subpart 3013.3--Simplified Acquisition Methods
3013.302 Purchase orders.
3013.302-590 Clauses (USCG).
Subpart 3013.70--Special Streamlined Acquisition Authority
3013.7000 General.
3013.7001 Delegations.
3013.7002 Reporting requirements.
3013.7003 Micro-purchase authority.
3013.7004 Simplified acquisition authority.
3013.7005 Test program for certain commercial items.

Subpart 3013.1--Procedures


3013.106  Soliciting competition, evaluation of quotations or offers, 
award and documentation.


3013.106-190  Soliciting competition (USCG).

    For the U.S. Coast Guard, the contracting officer shall insert the 
USCG provision at (HSAR) 48 CFR 3052.213-90, Evaluation Factor for 
Coast Guard Performance of Bar Coding Requirement, in requests for 
quotations when the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar 
Coding Requirement, is used with simplified acquisition procedures.

Subpart 3013.3--Simplified Acquisition Methods


3013.302  Purchase orders.


3013.302-590  Clauses (USCG).

    For the U.S. Coast Guard, the contracting officer shall insert the 
USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding Requirement, in 
requests for quotations and purchase orders issued by the Inventory 
Control Points when bar coding of supplies is necessary.

Subpart 3013.70--Special Streamlined Acquisition Authority


3013.7000  General.

    (a) The Secretary may use special streamlined acquisition authority 
set forth in Public Law 107-296, section 833, with respect to any 
procurement made during the period beginning on November 25, 2002 and 
ending September 30, 2007 where if the Secretary determines in writing 
the mission of the Department (described in Pub. L. 107-296, section 
101) would be seriously impaired without the use of such authorities.
    (b) The Secretary may deem any item or service to be a commercial 
item for the purpose of federal procurement laws for procurements 
described in (HSAR) 48 CFR 3013.7005.


3013.7001  Delegations.

    The Secretary may delegate this authority to an officer of the 
Department who is appointed by the President with the advice and 
consent of the Senate. Delegations of this authority are discussed in 
HSAM 3013.


3013.7002  Reporting requirements.

    (a) The Secretary shall submit to the Committee on Government 
Reform of the House of Representatives and the Committee on 
Governmental Affairs of the Senate--
    (1) Notification of such determination; and
    (2) The justification for such determination.
    (b) This report shall be submitted no later than seven days after 
the date of any determination. Reporting requirements and procedures 
are discussed in HSAM 3013.

[[Page 67879]]

3013.7003  Micro-purchase authority.

    (a) When the streamlined acquisition authority is exercised, the 
micro-purchase threshold is raised to $7,500.
    (b) The authority in this section may be exercised only by 
individuals designated by the Secretary. The number of employees shall 
be--
    (1) Fewer than the number of employees of the Department that are 
authorized to make purchases without obtaining competitive quotations.
    (2) Sufficient to ensure the geographic dispersal of the 
availability of the use of the procurement authority under such 
paragraph at locations reasonably considered to be potential terrorist 
targets; and
    (3) Sufficiently limited to allow for careful monitoring of 
employees designated under each paragraph.
    (c) Procurements made under this authority shall be subject to 
review by a designated supervisor on not less than a monthly basis. The 
supervisor responsible for the review shall be responsible for no more 
than seven employees making procurements under this authority.


3013.7004  Simplified acquisition authority.

    When the streamlined acquisition authority is exercised, the 
simplified acquisition threshold shall be:
    (a) $200,000 in the case of a contract to be awarded and performed, 
or purchase to be made, within the United States; and
    (b) $300,000 in the case of a contract to be awarded and performed, 
or purchase to be made, outside of the United States.


3013.7005  Test program for certain commercial items.

    When the streamlined authority is exercised, the $5,000,000 
limitation provided in (FAR) 48 CFR subpart 13.5 is increased to 
$7,500,000.

PART 3014--SEALED BIDDING [RESERVED]

PART 3015--CONTRACTING BY NEGOTIATION

Subpart 3015.2--Solicitation and Receipt of Proposals andInformation
Sec.
3015.204-3 Contract clauses.
3015.207-70 Handling proposals and information.
Subpart 3015.4--Contract Pricing
3015.404-470 Payment of profit or fee.
Subpart 3015.6--Unsolicited Proposals
3015.602 Policy.
3015.603 General.
3015.604 Agency points of contact.
3015.606 Agency procedures.
3015.606-1 Receipt and initial review.
3015.606-2 Evaluation.

Subpart 3015.2--Solicitation and Receipt of Proposals and 
Information


3015.204-3  Contract clauses.

    The contracting officer shall insert clause (HSAR) 48 CFR 3052.215-
70, Key Personnel or Facilities, in solicitations and contracts when 
the selection for award is substantially based on the offeror's 
possession of special capabilities regarding personnel or facilities.


3015.207-70  Handling proposals and information.

    (b) Proposals and information may be released outside the 
Government for evaluation and similar purposes if qualified personnel 
are not available to thoroughly evaluate or analyze proposals or 
information. The contracting officer shall document the file in such 
cases.

Subpart 3015.4--Contract Pricing


3015.404-470  Payment of profit or fee.

    The contracting officer shall not pay profit or fee on 
undefinitized contracts or undefinitized contract modifications. Any 
profit or fee earned shall be paid after the contract or modification 
is definitized.

Subpart 3015.6--Unsolicited Proposals


3015.602  Policy.

    The Department of Homeland Security (DHS) encourages new and 
innovative proposals and ideas that will sustain or enhance the DHS 
mission, which is stipulated in the Homeland Security Act of 2002, Pub. 
L. 107-296.


3015.603  General.

    (a) Costs associated with the time and effort to prepare a proposal 
are solely the responsibility of and assumed by the offeror that is 
submitting the proposal.


3015.604  Agency points of contact.

    (a) The DHS does not have a central clearinghouse for distributing 
information or assistance regarding unsolicited proposals. Each HCA is 
responsible for disseminating the information required at (FAR) 48 CFR 
15.604(a). General information concerning DHS's scope of 
responsibilities and functions is available at http://www.dhs.gov/dhspublic/.


3015.606  Agency procedures.

    (a) The agency authority to establish procedures for receiving, 
reviewing and evaluating, and timely disposing of unsolicited 
proposals, consistent with the requirements of (FAR) 48 CFR 15.6 and 
this subpart, is delegated to each HCA.
    (b) The agency authority to establish points of contact (see (FAR) 
48 CFR 15.604) to coordinate the receipt and handling of unsolicited 
proposals is delegated to each HCA. Contracting offices are designated 
as the receiving point for unsolicited proposals. Persons within DHS 
(e.g., technical personnel) who receive proposals shall forward them to 
their cognizant contracting office.


3015.606-1  Receipt and initial review.

    (a) The agency contact point shall make an initial review 
determination within seven calendar days after receiving a proposal.
    (b) If the proposal meets the requirements at (FAR) 48 CFR 15.606-
1(a), the agency contact point shall acknowledge receipt within three 
calendar days after making the initial review determination and advise 
the offeror of the general timeframe for completing the evaluation.
    (c) If the proposal does not meet the requirements of (FAR) 48 CFR 
15.606-1(a), the agency contact point shall return the proposal within 
three calendar days after making the determination. The offeror shall 
be informed, in writing, of the reasons for returning the proposal.


3015.606-2  Evaluation.

    (a) Comprehensive evaluations should be completed within sixty 
calendar days after making the initial review determination. If 
additional time is needed, then the agency contact point shall advise 
the offeror accordingly and provide a new evaluation completion date. 
The evaluating office shall neither reproduce nor disseminate the 
proposal to other offices without the consent of the contracting office 
from which the proposal was received for evaluation. If the evaluating 
office requires additional information from the offeror, the evaluator 
shall convey this request to the responsible contracting office. The 
evaluator shall not directly contact the proposal originator.
    (b) If the evaluators recommend accepting the proposal, the 
responsible contracting officer shall ensure compliance with all of the 
requirements of (FAR) 48 CFR 15.607.

PART 3016--TYPES OF CONTRACTS

Subpart 3016.2--Fixed-Price Contracts
Sec.
3016.203 Fixed-price contracts with economic price adjustment.
3016.203-4 Contract clauses.
3016.203-470 Solicitation provision.

[[Page 67880]]

Subpart 3016.4--Incentive Contracts
3016.406 Contract clauses.
Subpart 3016.5--Indefinite-Delivery Contracts
3016.505 Ordering.
Subpart 3016.6--Time-and-Materials, Labor-Hour, and Letter Contracts
3016.603 Letter contracts.
3016.603-4 Contract clauses.

Subpart 3016.2--Fixed-Price Contracts


3016.203  Fixed price contracts with economic price adjustments.


3016.203-4  Contract clauses.

    (d)(2) Any clause using this method shall be prepared and approved 
by the contracting officer.


3016.203-470  Solicitation provision.

    The contracting officer shall insert a provision substantially the 
same as (HSAR) 48 CFR 3052.216-70, Evaluation of Offers Subject to an 
Economic Price Adjustment Clause, in solicitations containing an 
economic price adjustment clause.

Subpart 3016.4--Incentive Contracts


3016.406  Contract clauses.

    (e)(1)(i) The contracting officer shall insert a clause 
substantially the same as (HSAR) 48 CFR 3052.216-71, Determination of 
Award Fee, in solicitations and contracts that includes an award fee.
    (ii) The contracting officer shall insert a clause substantially 
the same as (HSAR) 48 CFR 3052.216-72, Performance Evaluation Plan, in 
all solicitations and contracts that includes an award fee.
    (iii) The contracting officer shall insert a clause substantially 
the same as (HSAR) 48 CFR 3052.216-73, Distribution of Award Fee, in 
all solicitations and contracts that includes an award fee.

Subpart 3016.5--Indefinite-Delivery Contracts


3016.505  Ordering.

    (b)(5) The OE Competition Advocate is designated as the OE Task and 
Delivery Order Ombudsman, unless otherwise provided in OE procedures.
    (i) If any corrective action is needed after reviewing complaints 
from contractors on task and delivery order contracts, the OE Ombudsman 
shall provide a written determination of such action to the contracting 
officer.
    (ii) Issues that cannot be resolved within the OE, shall be 
forwarded to the DHS Task and Delivery Order Ombudsman for review and 
resolution.

Subpart 3016.6--Time-and-Materials, Labor-Hour, and Letter 
Contracts


3016.603  Letter contracts.


3016.603-4  Contract clauses.

    The contracting officer shall insert a clause substantially the 
same as (HSAR) 48 CFR 3052.216-74, Settlement of Letter Contract, in 
all definitized letter contracts.

PART 3017--SPECIAL CONTRACTING METHODS

Subpart 3017.2--Options
Sec.
3017.202 Use of options.
Subpart 3017.4--Leader Company Contracting
3017.402 Limitations.
Subpart 3017.70--Energy Savings Performance Contracts
3017.7000 Policy.
Subpart 3017.90--Fixed Price Contracts for Vessel Repair, Alteration or 
Conversion
3017.9000 Clauses (USCG).

Subpart 3017.2--Options.


3017.202  Use of options.

    (a) Contracting officers shall not use unpriced options.

Subpart 3017.4--Leader Company Contracting


3017.402  Limitations.

    (a)(4) Submit requests per (HSAR) 48 CFR 3001.7000(a).

Subpart 3017.70--Energy Savings Performance Contracts


3017.7000  Policy.

    DHS and its OEs may enter into Energy Savings Performance Contracts 
under 42 U.S.C. 8287, as amended subject to the requirements of 10 CFR 
part 436. Proposed contracts under this section shall be coordinated 
with the CPO.

Subpart 3017.90--Fixed Price Contracts for Vessel Repair, 
Alteration or Conversion


3017.9000  Clauses (USCG).

    For the U.S. Coast Guard, the following clauses are to be used in 
specific solicitations and contracts:
    (a) The clauses in (HSAR) 48 CFR 3052.217-90 through (HSAR) 48 CFR 
3052.217-93 and (HSAR) 48 CFR 3052.217-95 through (HSAR) 48 CFR 
3052.217-99 shall be included and clause (HSAR) 48 CFR 3052.217-94 may 
be included in sealed bid fixed-price solicitations and contracts for 
vessel repair, alteration, or conversion which are to be performed 
within the United States, its possessions, or Puerto Rico. The 
contracting officer may, in whole or in part (such as after incidents), 
increase the dollar amounts in the clause at (HSAR) 48 CFR 3052.217-
95(b)(6) and (c)(1) consistent with contract size, inflation, and other 
circumstances.
    (b) Unless inappropriate, the clauses in (HSAR) 48 CFR 3052.217-90 
through (HSAR) 48 CFR 3052.217-93 and (HSAR) 48 CFR 3052.217-95 through 
(HSAR) 48 CFR 3052.217-99 should be included and (HSAR) 48 CFR 
3052.217-94 may be included in negotiated solicitations and contracts 
to be performed outside the United States. The contracting officer may, 
in whole or in part (such as after incidents), increase the dollar 
amounts in the clause at (HSAR) 48 CFR 3052.217-95(b)(6) and (c)(1) 
consistent with contract size, inflation, and other circumstances.
    (c) The clause at (HSAR) 48 CFR 3052.217-100, Guarantee, shall be 
used where general guarantee provisions are deemed desirable by the 
contracting officer.
    (1) When inspection and acceptance tests will afford full 
protection to the Government in ascertaining conformance to 
specifications and the absence of defects and deficiencies, no 
guarantee clause for that purpose shall be included in the contract.
    (2) The customary guarantee period, to be inserted in the first 
sentence of the clause at (HSAR) 48 CFR 3052.217-100, Guarantee, is 60 
days. However, in certain instances, the contracting officer may desire 
to include a clause in a contract for a guarantee period of more than 
60 days. In such instances:
    (i) Where, after full inquiry, it has been determined that such 
longer guarantee period will not involve increased costs, a longer 
guarantee period may be substituted by the contracting officer for the 
usual 60 days; or
    (ii) Where the full inquiry discloses that such longer guarantee 
period will involve, or is reasonably expected to involve, increased 
costs, such facts and the reasons for the need for such longer period 
shall be set forth in letter form to the COCO, requesting approval for 
use of guarantee period in excess of 60 days. Upon approval, the longer 
period may be inserted by the contracting officer in the first sentence 
of the clause at (HSAR) 48 CFR 3052.217-100, Guarantee.

[[Page 67881]]

PART 3018--[RESERVED]

PART 3019--SMALL BUSINESS PROGRAMS

Subpart 3019.2--Policies
Sec.
3019.201 General policy.
Subpart 3019.7--The Small Business Subcontracting Program
3019.705 Responsibilities of the contracting officer under the 
subcontracting assistance program.
3019.705-1 General support for the program.
3019.708 Contract clauses.
3019.708-70 DHS solicitation and contract clauses.

Subpart 3019.2--Policies


3019.201  General policy.

    (d) The Director, Office of Small and Disadvantaged Business 
Utilization is responsible for the implementation and execution of the 
small and small disadvantaged business programs required by the Small 
Business Act.

Subpart 3019.7--The Small Business Subcontracting Program


3019.705  Responsibilities for the contracting officer under the 
subcontracting program.


3019.705-1  General support for the program.

    Contracting officers will consider making the submission of a 
subcontracting plan part of the evaluation criteria. Contracting 
officers may also consider an offerors past performance in previous 
subcontracting plan goals and efforts to achieve those goals.


3019.708  Contract clauses.


3019.708-70  DHS solicitation and contract clauses.

    (a) The contracting officer shall insert the clause at (HSAR) 48 
CFR 3052.219-70, Small Business and Small Disadvantaged Business 
Subcontracting Reporting, in solicitations and contracts containing the 
clause at (FAR) 48 CFR 52.219-9.
    (b) The contracting officer shall insert the clause at (HSAR) 48 
CFR 3052.219-71, DHS Mentor-Prot[eacute]g[eacute] Program in all 
solicitations that anticipate the need for a subcontracting plan.
    (c) The contracting officer shall insert the clause at (HSAR) 48 
CFR 3052.219-72, Evaluation of Prime Contractor Participation in the 
Mentor-Prot[eacute]g[eacute] Program, in all solicitations containing 
(HSAR) 48 CFR 3052.219-71, Mentor-Prot[eacute]g[eacute] Program and 
(FAR) 48 CFR 52.219-9 Small Business Subcontracting Plan.

PART 3020--[RESERVED]

PART 3021--[RESERVED]

PART 3022--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 3022.1--Basic Labor Policies
Sec.
3022.101 Labor relations.
3022.101-70 Admittance of union representatives to DHS 
installations.
3022.101-71 Contract clauses.
Subpart 3022.4--Labor Standards for Contracts Involving Construction
3022.406 Administration and enforcement.
3022.406-9 Withholding from or suspension of contract payments.
Subpart 3022.90-- Local Hire (USCG)
3022.9000 Policy (USCG).
3022.9001 Contract clause (USCG).

Subpart 3022.1--Basic Labor Policies


3022.101  Labor relations.


3022.101-70  Admittance of union representatives to DHS installations.

    (a) It is the policy of DHS to admit labor union representatives of 
contractor employees to DHS installations to visit work sites and 
transact labor union business with contractors, their employees, or 
union stewards pursuant to existing union collective bargaining 
agreements. Their presence shall not interfere with the contractor's 
work progress under a DHS contract nor violate safety or security 
regulations that may be applicable to persons visiting the 
installation. Union representatives will not be permitted to conduct 
meetings, collect union dues, or make speeches concerning union matters 
while visiting a work site.
    (b) Whenever a union representative is denied entry to a work site, 
the person denying entry shall make a written report to the DHS labor 
coordinator and OE labor advisor, if any, within two working days after 
the request for entry is denied. The report shall include the reason(s) 
for the denial, the name of the representative denied entry, the union 
affiliation and number, and the name and title of the person that 
denied the entry.


3022.101-71  Contract clauses.

    (a) The contracting officer, may, when applicable, insert the 
clause at (HSAR) 48 CFR 3052.222-70, Strikes or Picketing Affecting 
Timely Completion of the Contract Work, in solicitations and contracts.
    (b) The contracting officer may, when applicable, insert the clause 
at (HSAR) 48 CFR 3052.222-71, Strikes or Picketing Affecting Access to 
a DHS Facility, in solicitations and contracts.

Subpart 3022.4--Labor Standards for Contracts Involving 
Construction


3022.406  Administration and enforcement.


3022.406-9  Withholding from or suspension of contract payments.

    (c) Disposition of contract payments withheld or suspended.
    (1) Forwarding wage underpayments to the Comptroller General. The 
contracting officer shall ensure that a completed DHS Form 0700-04, 
Employee Claim for Wage Restitution, is obtained from each employee 
claiming restitution under the contract. The Comptroller General 
(Claims Division) shall receive this form with a completed SF 1093, 
Schedule of Withholding Under the Davis-Bacon Act and/or the Contract 
Work Hours and Safety Standards Act, before payment can be made to the 
employee.

Subpart 3022.90--Local Hire (USCG)


3022.9000  Policy (USCG).

    As required by 14 U.S.C. 666, the U.S. Coast Guard shall include a 
provision for local hire in each contract for construction or services 
to be performed in whole or in part in a State that has an unemployment 
rate in excess of the national average rate of unemployment as 
determined by the Secretary of Labor.


3022.9001  Contract clause (USCG).

    For the U.S. Coast Guard, the contracting officer shall insert the 
USCG clause at (HSAR) 48 CFR 3052.222-90, Local Hire Provision, in all 
solicitations and contracts as stated in (HSAR) 48 CFR 3022.9000.

PART 3023--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Subpart 3023.3--Hazardous Material Identification and Material Safety 
Data
Sec.
3023.303 Contract clause.
Subpart 3023.5--Drug-Free Workplace
3023.501 Applicability.

[[Page 67882]]

3023.506  Suspension of payments, termination of contract, and 
debarment and suspension actions.

Subpart 3023.10--Federal Compliance with Right-to-Know Laws and 
Pollution Prevention Requirements
3023.1002 Applicability.
Subpart 3023.90--Safety Requirements for USCG Contracts
3023.9000 Contract Clause (USCG).

Subpart 3023.3--Hazardous Material Identification and Material 
Safety Data


3023.303  Contract clause.

    The contracting officer shall insert the clause at (HSAR) 48 CFR 
3052.223-70, Removal or Disposal of Hazardous Substances--Applicable 
Licenses and Permits, in solicitations and contracts involving the 
removal or disposal of hazardous waste material.

Subpart 3023.5--Drug-Free Workplace


3023.501  Applicability.

    (d) The head of the law enforcement organizational element may 
determine that (FAR) 48 CFR 23.501 does not apply. This authority may 
not be redelegated.


3023.506  Suspension of payments, termination of contract, and 
debarment and suspension actions.

    (e) Submit requests per (HSAR) 48 CFR 3001.7000(b).

Subpart 3023.10--Federal Compliance With Right-to-Know Laws and 
Pollution Requirements


3023.1002  Applicability.

    DHS MD 5110, Environmental Compliance, provides guidance and 
direction for compliance with environmental laws.

Subpart 3023.90--Safety Requirements for USCG Contracts


3023.9000  Contract clause (USCG).

    For the U.S. Coast Guard, where all or part of a contract will be 
performed on Government-owned or leased property, the contracting 
officer shall insert the clause at (HSAR) 48 CFR 3052.223-90, Accident 
and Fire Reporting.

PART 3024--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

Subpart 3024.1--Protection of Individual Privacy
Sec.
3024.102-70 General.
Subpart 3024.2--Freedom of Information Act
3024.203 Policy.

Subpart 3024.1--Protection of Individual Privacy


3024.102-70  General.

    Procedures for implementing the Privacy Act of 1974 are contained 
in Departmental regulations under 6 CFR part 5, subpart B, Privacy Act.

Subpart 3024.2--Freedom of Information Act


3024.203  Policy.

    (a) The Department's implementation of the Freedom of Information 
Act is codified in regulations 6 CFR part 5, subpart B, FOIA. 
Information request concerning awards beyond those routinely handled by 
contracting officers (e.g., identification of successful offerors, 
public announcements, debriefings, surety notices under HSAR 3028.106-
6) shall be submitted to the FOIA Office of the Organizational Element 
making the award. The FOIA office for the DHS Office of Operations 
only, is Departmental Disclosure Officer (DDO), DHS, Washington, DC 
20528 or [email protected].
    (b) See (FAR) 48 CFR 15.207(b) on safeguarding proposals.

PART 3025--FOREIGN ACQUISITION--[RESERVED]

PART 3026--OTHER SOCIOECONOMIC PROGRAMS--[RESERVED]

PART 3027--PATENTS, DATA, AND COPYRIGHTS

Subpart 3027.2--Patents
Sec.
3027.205 Adjustment of royalties.
3027.208 Use of patented technology under the North American Free 
Trade Agreement.
Subpart 3027.3--Patent Rights Under Government Contracts
3027.304-1 General.
3027.304-5 Appeals.
3027.305-4 Administration of Patent Rights Clause.
3027.306 Licensing background patent rights to third parties.
Subpart 3027.4--Rights in Data and Copyrights
3027.404 Basic Rights in Data clause.
3027.409 Solicitation provisions and contract clauses.

Subpart 3027.2--Patents


3027.205  Adjustment of royalties.

    (a) Reports shall be made to OE legal counsel. Contracting Officers 
shall coordinate actions with the COCO and HCA.


3027.208  Use of patented technology under the North American Free 
Trade Agreements.

    (f) Contracting officers shall ensure compliance.

Subpart 3027.3--Patent Rights under Government Contracts


3027.304-1  General.

    Interim and final invention reports and notification of all 
subcontracts for experimental, developmental, or research work (FAR) 48 
CFR 27.304-1(e)(2)(ii) may be submitted on DD Form 882, Report of 
Inventions and Subcontracts.


3027.304-5  Appeals.

    (a) Contracting officers are authorized to take the specified 
actions.
    (b) Appeals shall be made to the CPO.


3027.305  Administration of Patent Rights Clauses.


3027.305-4  Conveyance of invention rights acquired by the Government.

    The contracting officer shall ensure that solicitations and 
contracts which include a patent rights clause include a means for the 
contractor to report inventions made in the course of contract 
performance and at contract completion. This requirement may be 
fulfilled by requiring the contractor to submit a DD Form 882, Report 
of Inventions and Subcontract.


3027.306  Licensing background patent rights to third parties.

    (b) The CPO shall make the required determinations and 
notifications under this subpart.

Subpart 3027.4--Rights in Data and Copyrights


3027.404  Basic rights in data clause.

    (f)(1)(iii) The DHS will use Alternate IV of the (FAR) 48 CFR 
clause 52.227-14 in all contracts containing the basic clause, unless 
the HCA approves an exclusion. Approval at a level above the 
contracting officer is required for the contract to exclude items or 
categories of data from Alternative IV.


3027.409  Solicitation provisions and contract clauses.

    Alternate IV of the (FAR) 48 CFR clause 52.227-14 shall be included 
in solicitations and contracts containing the basic clause unless the 
HCA approves an exclusion. Additional non-conflicting alternates may be 
used.

PART 3028--BONDS AND INSURANCE

Subpart 3028.1--Bonds and Other Financial Protections
Sec.

[[Page 67883]]

3028.106 Administration.
3028.106-6 Furnishing information.
3028.106-70 Execution and administration of bonds.
3028.106-490 Contract clause (USCG).
Subpart 3028.3--Insurance
3028.306 Insurance under fixed-price contracts.
3028.306-90 Contracts for lease of aircraft (USCG).
3028.307 Insurance under cost-reimbursement contracts.
3028.307-1 Group insurance plans.
3028.310 Contract clause for work on a Government installation.
3028.310-70 Contract clause.
3028.311 Solicitation provision and contract clause on liability 
insurance under cost-reimbursement contracts.
3028.311-1 Contract clause.

Subpart 3028.1--Bonds and Other Financial Protections


3028.106  Administration.


3028.106-6  Furnishing information.

    (b) The contracting officer shall, upon request, furnish the name 
and address of the prime contractor's surety or sureties to employees, 
suppliers, and subcontractors having a contractual or employment 
relationship with prime contractors, subcontractors or suppliers. When 
furnishing surety information, the inquirer may also be informed that:
    (1) Persons believing that they have legal remedies under the 
Miller Act are cautioned to consult their own legal advisor regarding 
the proper steps to take to obtain remedies.
    (2) On construction contracts exceeding $2,000, if the contracting 
officer is informed (through routine compliance checking, a complaint, 
or a request for information) that a laborer, mechanic, apprentice, 
trainee, watchman, or guard employed by the contractor or subcontractor 
at any tier may have been paid wages less than those required by the 
applicable labor standards provisions of the contract, the contracting 
officer shall promptly initiate an investigation in accordance with 
(FAR) 48 CFR Subpart 22.4, irrespective of the employee's rights under 
the Miller Act. When an employee's request for information is involved, 
the contracting officer shall inform the inquirer that such 
investigation will be made. Such investigation is required pursuant to 
the provisions of the Davis-Bacon Act, Contract Work Hours and Safety 
Standards Act, and Copeland (Anti-Kickback) Act for assuring proper 
payment to such employees.
    (c) When furnishing a copy of a payment bond and contract in 
accordance with (FAR) 48 CFR 28.106-6(c), the requirement for a copy of 
the contract may be satisfied by furnishing a machine-duplicate copy of 
the contractor's first pages which show the contract number and date, 
the contractor's name and signature, the contracting officer's 
signature, and the description of the contract work. The contracting 
officer furnishing the copies shall place the statement ``Certified to 
be a true and correct copy'' followed by a signature, title and name of 
the OE. The fee for furnishing the requested certified copies shall be 
determined according to the DHS Freedom of Information Act regulation, 
6 CFR part 5, subpart B, FOIA.


3028.106-70  Execution and administration of bonds.

    (a) The contracting officer shall notify the surety within 30 days, 
of the contractor's failure to perform in accordance with the terms of 
the contract.
    (b) When a partnership is a principal on a bond, the names of all 
the members of the firm shall be listed in the bond following the name 
of the firm, and the phrase ``a partnership composed of.'' If a 
principal is a corporation, the state of incorporation shall also 
appear on the bond.
    (c) Performance or payment bond(s) other than an annual bond shall 
not predate the contract to which it pertains.
    (d) Bonds may be filed with the original contract to which they 
apply, or all bonds can be separately maintained and reviewed quarterly 
for validity. If separately maintained, each contract file shall cross-
reference the applicable bonds.


3028.106-490  Contract clause (USCG).

    For the U.S. Coast Guard, the contracting officer shall insert the 
USCG clause at (HSAR) 48 CFR 3052.228-90. Notification of Miller Act 
Payment Bond Protection, in solicitation and contracts, and shall 
require its first-tier subcontractors to insert the clause in all of 
their subcontracts, when payment bonds are required.

Subpart 3028.3--Insurance


3028.306  Insurance under fixed-price contracts.


3028.306-90  Contracts for lease of aircraft (USCG).

    (a) For the U.S. Coast Guard, the contracting officer shall insert 
the clauses at (HSAR) 48 CFR 3052.228-91 through 3052.228-93, unless 
otherwise indicated by the specific instructions for their use, in any 
contract for the lease of aircraft (including aircraft used in out-
service flight training).
    (b) For the U.S. Coast Guard, the contracting officer shall insert 
the clause at (HSAR) 48 CFR 3052.228-91, Loss of or Damage to Leased 
Aircraft, in any contract for the lease of aircraft, except in the 
following circumstances:
    (1) When the hourly rental rate does not exceed $250 and the total 
rental cost for any single transaction is not in excess of $2,500:
    (2) When the cost of hull insurance does not exceed 10 percent of 
the contract rate; or
    (3) When the lessor's insurer does not grant a credit for uninsured 
hours, thereby preventing the lessor from granting the same to the 
Government.
    (c) For the U.S. Coast Guard, the contracting officer shall insert 
the clause at (HSAR) 48 CFR 3052.228-92, Fair Market Value of Aircraft, 
when fair market value of the aircraft can be determined.
    (d) 49 U.S.C. 44112, as amended, provides that no lessor of an 
aircraft under a bona fide lease of 30 days or more shall be liable by 
reason of his interest as lessor or title-holder of the aircraft for 
any injury to or death of persons, or damage to or loss of property, 
unless such aircraft is in the actual possession or control of such 
person at the time of such injury, death, damage or loss. On short-term 
or intermittent-use leases, however, the owner may be liable for damage 
caused by operation of the aircraft. It is usual for the aircraft owner 
to retain insurance covering this liability during the term of such 
lease. Such insurance can, often for little or no increase in premium, 
be made to cover the Government's exposure to liability as well. In 
order to take advantage of this coverage, the Risks and Indemnities 
clause at (HSAR) 48 CFR 3052.228-93 prescribed in paragraph (d)(1) of 
this section shall be used.
    (1) For the U.S. Coast Guard, the contracting officer shall insert 
the clause at (HSAR) 48 CFR 3052.228-93, Risk and Indemnities, in any 
contract for out-service flight training or for the lease of aircraft 
when the Government will have exclusive use of the aircraft for a 
period of less than thirty days.
    (2) For the U.S. Coast Guard, any contract for out-service flight 
training shall include a clause in the contract schedule stating 
substantially that the contractor's personnel shall at all times during 
the course of the training be in command of the aircraft and that at no 
time shall other personnel be permitted to take command of the 
aircraft.

[[Page 67884]]

3028.307  Insurance under cost-reimbursement contracts.


3028.307-1  Group insurance plans.

    Plans shall be submitted to the contracting officer, who must 
obtain the advice of legal counsel.


3028.310  Contract clause for work on a Government installation.


3028.310-70  Contract clause.

    Insert a clause substantially similar to (HSAR) 48 CFR 3052.228-70, 
``Insurance,'' in all solicitations and contracts that contain the 
clause at (FAR) 47 CFR 52.228-5.


3028.311  Solicitation provision and contract clause on liability 
insurance under cost-reimbursement contracts.


3028.311-1  Contract clause.

    Insert a clause substantially similar to (HSAR) 48 CFR 3052.228-70, 
``Insurance,'' in all solicitations and contracts that contain the 
clause at (FAR) 48 CFR 52.228-7, unless waived by an official one level 
above the contracting officer.

PART 3029--TAXES--[RESERVED]

PART 3030--COST ACCOUNTING STANDARDS ADMINISTRATION

Subpart 3030.2--CAS Program Requirements
Sec.
3030.201 Contract requirements.
3030.201-5 Waiver.

Subpart 3030.2--CAS Program Requirements


3030.201  Contract requirements.


3030.201-5  Waiver.

    (b)(1) The CPO is authorized to waive the application of the Cost 
Accounting Standards to individual firm fixed-price contracts for the 
acquisition of commercial items. This authority may not be redelegated.
    (2) Submit waiver requests per (HSAR) 48 CFR 3001.7000(a), for 
review and transmittal by the CPO to the Cost Accounting Standard 
Board.

PART 3031--CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 3031.2--Contracts with Commercial Organizations
Sec.
3031.205 Selected costs.
3031.205-32 Precontract costs.

Subpart 3031.2--Contracts with Commercial Organizations


3031.205  Selected costs.


3031.205-32  Precontract costs.

    (a) The decision to incur precontract costs is that of the 
contractor. DHS employees may not can authorize, demand, or require a 
contractor to incur precontract costs. The contracting officer must 
advise the prospective contractor that any costs incurred before 
contract award are incurred at the contractor's sole risk and that if 
negotiations fail to result in a binding contract, payment of these 
costs will not be made by the Government. See (HSAR) 48 CFR 3032.205-
32(b) regarding exception due to reconciliation of costs.
    (b) When the contracting officer determines that incurring 
precontract costs was necessary to meet the proposed contract delivery 
schedule of a cost-reimbursement contract, the clause at (HSAR) 48 CFR 
3052.231-70, Precontract Costs, may be inserted in the resultant 
contract.

PART 3032--CONTRACT FINANCING

Subpart 3032.000--Scope of Part
Sec.
3032.003 Simplified acquisition procedures financing.
3032.006 Reduction or suspension of contract payments upon finding 
of fraud.
3032.006-2 Definition.
3032.006-3 Responsibilities.
Subpart 3032.11--Electronic Funds Transfer


3032.1110  Solicitation provision and contract clauses.

Subpart 3032.000--Scope of Part


3032.003  Simplified acquisition procedures financing.

    Contract financing may be permitted for purchases made under the 
authority of (FAR) 48 CFR Part 13. This authority is delegated to COCO 
and may not be redelegated.


3032.006  Reduction or suspension of contract payments upon finding of 
fraud.


3032.006-2  Definition.

    The CPO is the DHS remedy coordination official (RCO).


3032.006-3  Responsibilities.

    (a) The CPO is authorized to establish specific procedures.
    (b) Reports shall be made through the HCA to the CPO.

Subpart 3032.11--Electronic Funds Transfer


3032.1110   Solicitation provision and contract clauses.

    (a)(1) Contracting officer shall insert FAR 48 CFR 52.232-33, 
Payment by Electronic Funds Transfer--Central Contractor Registration, 
in all proposed solicitations and contracts.

PART 3033--PROTESTS, DISPUTES, AND APPEALS

Subpart 3033.2--Disputes and Appeals
Sec.
3033.201 Definitions.
3033.211 Contracting officer's decision.
3033.214 Alternative disputes resolution (ADR).

Subpart 3033.2--Disputes and Appeals


3033.201   Definitions.

    Agency Board of Contract Appeals means the Department of 
Transportation Board of Contract Appeals (DOTBCA).


3033.211  Contracting officer's decision.

    For DHS contracts, the Board of Contract Appeals (BCA) noted in 
(FAR) 48 CFR 33.211 is the Department of Transportation Board of 
Contract Appeals (DOTBCA) (S-20), 400 7th Street, S.W., Washington, DC, 
20590. The DOTBCA Rules of Procedure are contained in 48 CFR Chapter 
63, Part 6301. TSA shall use the DOTBCA for only Contract Disputes Act 
(CDA) requirements.


3033.214  Alternative dispute resolution (ADR).

    (c) The Administrative Dispute Resolution Act (ADRA) of 1996, as 
amended, 5 U.S.C. 571, et seq., authorizes and encourages agencies to 
use mediation, conciliation, arbitration, and other techniques for the 
prompt and informal resolution of disputes, and for other purposes. The 
DOTBCA ADR procedures are contained in 48 CFR chapter 63, section 
6302.30, ADR Methods (Rule 30), and will be distributed to the parties, 
if ADR procedures are used. These procedures may be obtained from the 
DOTBCA upon request. ADR procedures may be used when--
    (1) There is mutual consent by the parties to participate in the 
ADR process (with consent being obtained either before or after an 
issue in controversy has arisen);
    (2) Prior to the submission of a claim; and
    (3) In resolution of a formal claim.

[[Page 67885]]

PART 3034--MAJOR SYSTEM ACQUISITION [RESERVED]

PART 3035--RESEARCH AND DEVELOPMENT CONTRACTING

Subpart 3035.000--Scope of Part
Sec.
3035.003 Policy.

Subpart 3035.000--Scope of Part


3035.003   Policy.

    (b) Cost sharing shall be determined on a case by case basis. OEs 
may establish procedures for cost sharing.
    (c) Recoupment shall be determined on a case-by-case basis. 
Recoupment not otherwise required by law should be structured to 
address factors such as recovering the Department's fair share of its 
investment in nonrecurring costs related to the items acquired. Advice 
of legal counsel shall be obtained prior to establishing cost sharing 
policies and recoupment mechanisms under (FAR) 48 CFR 35.003(b) and 
(c).

PART 3036--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

Subpart 3036.2--Special Aspects of Contracting for Construction
Sec.
3036.201 Evaluation of contractor performance.
Subpart 3036.5--Contract Clauses
3036-570 Special precautions for work at operating airports.

Subpart 3036.2--Special Aspects of Contracting for Construction


3036.201   Evaluation of contractor performance.

    (a)(2) Performance reports shall be prepared and entered into the 
Contractor Performance System (CPS) on an annual basis for contracts 
exceeding one year, or as otherwise required by (FAR) 48 CFR 36.201. 
Access to reports is through the CPS or the government-wide system, 
Past Performance Information Retrieval System (PPIRS).

Subpart 3036.5--Contract Clauses


3036.570   Special precautions for work at operating airports.

    Where any acquisition will require work at an operating airport, 
insert the clause at (HSAR) 48 CFR 3052.236-70, Special Precautions for 
Work at Operating Airports, in solicitations and contracts.

PART 3037--SERVICE CONTRACTING

Subpart 3037.1--Service Contracts--General
Sec.
3037.103 Contracting officer responsibility.
3037.103-70 Contractor personnel access application.
3037.103-71 Conditional access to sensitive but unclassified 
information.
3037.104 Personal services contracts.
3037.104-70 Personal services contracts.
3037.104-90 Personal services contracts (USCG).
3037.104-91 Personal services with individuals under the authority 
of 10 U.S.C. 1091 (USCG).
3037.110-70 Solicitation provisions and contract clauses.

Subpart 3037.1--Service Contracts--General


3037.103   Contracting officer responsibility.


3037.103-70  Contractor personnel access application.

    Contractor personnel who will require recurring access to DHS 
facilities as part of contract performances shall complete HSIF Form 
3237, Contractor Personnel Access Application, before starting work 
under the contract. The completed form shall be submitted to the 
appropriate DHS office as designated in the contract. Contractor 
personnel may be required to complete additional forms, as necessary.


3037.103-71  Conditional access to sensitive but unclassified 
information.

    Contractor personnel who will require access to sensitive but 
unclassified information as part of contract performances shall 
complete HSIF Form 4024, Sensitive Information Non-Disclosure 
Agreement, before starting work under the contract. The completed form 
shall be submitted to the appropriate DHS office as designated in the 
contract. Additional requirements are established in clause (HSAR) 48 
CFR 3052.237-71, Information Technology Systems Access for Contractors.


3037.104  Personal services contracts.


3037.104-70  Personal services contracts.

    (b)(i) Authorization to acquire the personal services of experts 
and consultants is included in Public Law 107-296, sections 832(1) and 
(2). This section includes authority to use personal service contracts 
without regard to the pay limitation of 5 U.S.C. 3109 when the services 
are necessary due to an urgent homeland security need.
    (A) Prepare each D&F in accordance with (FAR) 48 CFR 1.7 and 
include a determination that--
    (1) The duties are of a temporary or intermittent nature and not to 
exceed one year;
    (2) DHS personnel with necessary skills are not available;
    (3) Excepted appointment cannot be obtained;
    (4) A nonpersonal services contract is not practicable;
    (5) Statutory authority, Public Law 107-297, section 832(1) or 
section 832(2) and other legislation, apply;
    (6) If the pay limitation of 5 U.S.C. 3109 is exceeded, the D&F 
supports the rationale; and
    (7) Any other determination required by statues has been made.
    (B)(1) Except as provided in paragraph (b)(i)(B)(2) of this 
subsection, the COCO shall approve the D&F required by paragraph 
(b)(i)(A).
    (2) The HCA shall approve the D&F for personal service contracts 
for experts and consultant services that are acquired without regard to 
the pay limitation of 5 U.S.C. 3109. This determination shall include a 
finding that the services are necessary due to urgent homeland security 
needs.
    (i) The contract may provide for the same per diem and travel 
expenses authorized for a Government employee, including actual 
transportation and per diem in lieu of subsistence for travel between 
home or place of business and official duty station and only for travel 
outside the local area in support of the statement of work.
    (ii) Coordinate benefits, taxes, personnel ceilings, and 
maintenance of records with the appropriate office(s).


3037.104-90  Personal services contracts (USCG).

    (a) The U.S. Coast Guard HCA may enter into medical personal 
services contracts according to 10 U.S.C. 1091.
    (b) The authority of 10 U.S.C. 1091(a)(2) expires December 31, 
2003.


3037.104-91   Personal services contracts with individuals under the 
authority of 10 U.S.C. 1091 (USCG).

    (a) Health care personal services contracts awarded to individuals 
shall be selected through procedures established in this section. 
Selections made using the procedures in this section are exempt by 
statute from (HSAR) 48 CFR part 3006 competition requirements (see 
(HSAR) 48 CFR 3006.9000 (USCG)) and from (FAR) 48 CFR Part 6 
competition requirements.
    (b) The contracting officer shall provide adequate advance notice 
of contracting opportunities to individuals residing in the area of the 
facility. The notice should include the qualification criteria against 
which individuals

[[Page 67886]]

responding shall be evaluated. Contracting officers shall solicit 
offerors through the most effective means of seeking competition, such 
as a local publication, which serves the area of the facility. 
Acquisitions of health care services using personal services contracts 
are exempt from posting and synopsis requirements of (FAR) 48 CFR Part 
5.
    (c) The contracting officer shall provide the qualifications of 
individuals responding to the notice to the representative(s) 
responsible for evaluation and ranking according to the evaluation 
procedures. Individuals shall be considered solely on the professional 
qualifications established for the particular health care services 
being acquired and the Government's estimate of reasonable rates, fees, 
or costs. The representative(s) responsible for the evaluation and 
ranking shall provide the contracting officer with rationale for the 
ranking of the individuals consistent with the required qualifications.
    (d) Upon receipt of the ranked listing of offerors, the contracting 
officer shall either:
    (1) Enter into negotiations with the highest ranked offeror. If a 
mutually satisfactory contract cannot be negotiated, the contracting 
officer shall terminate negotiations with the highest ranked offeror 
and enter into negotiations with the next highest, or;
    (2) Enter into negotiations with all qualified offerors and select 
on the basis of qualifications and rates, fees, or other costs.
    (e) In the event only one individual responds to an advertised 
requirement, the contracting officer is authorized to negotiate the 
contract award. In this case, the individual must still meet the 
minimum qualifications of the requirement and the contracting officer 
must be able to make a determination that the price is fair and 
reasonable.
    (f) If a fair and reasonable price cannot be obtained from a 
qualified individual, the requirement should be canceled and acquired 
using procedures other than those set forth in this section.
    (g) The total amount paid to an individual in any year for health 
care services under a personal services contract shall not exceed the 
paycap in COMDTINST M4200.19 (series), Coast Guard Acquisition 
Procedures.
    (h) The contract may provide for the same per diem and travel 
expenses authorized for a Government employee, including actual 
transportation and per diem in lieu of subsistence for travel between 
home or place of business and official duty station and only for travel 
outside the local area in support of the statement of work.
    (i) Coordinate benefits, taxes and maintenance of records with the 
appropriate office(s).
    (j) The contracting officer shall insure that contract funds are 
sufficient to cover all contingency items that may be cited in the 
statement of work for health care services.


3037.110-70  Solicitation provisions and contract clauses.

    (a) Contracting officers shall insert the clause at (HSAR) 48 CFR 
3052.237-70, Qualifications of Contractor Employees, in all 
solicitations and contracts for services, which require contract 
employees to have recurring access to Government facilities, sensitive 
information, including proprietary data or resources. This may include 
Information Technology (IT) requirements for design, development, or 
operation and maintenance of sensitive application in non-DHS or DHS 
facilities.
    (b) In addition to the (HSAR) clause 48 CFR 3052.237-70, the 
contracting officer shall also include the contract clauses, (HSAR) 
clause 48 CFR 3052.237-71, ``Information Systems Access for 
Contractors'' and (HSAR) clause 48 CFR 3052.237-72, ``Contractor 
Personnel Screening for Unclassified Information Technology''.
    (c) The contracting officer shall also include (HSAR) clause 48 CFR 
3052.204-70, ``Information Technology Security Plan'' in solicitations 
and contracts when the prescription at paragraph (a) above applies.

PART 3038--FEDERAL SUPPLY SCHEDULE CONTRACTING--[RESERVED]

PART 3039--ACQUISITION OF INFORMATION TECHNOLOGY--[RESERVED]

PART 3040--[RESERVED]

PART 3041--ACQUISITION OF UTILITY SERVICES--[RESERVED]

PART 3042--CONTRACT ADMINISTRATION AND AUDIT SERVICES

Subpart 3042.2--Contract Administration Services
Sec.
3042.202 Assignment of contract administration.
3042.202-70 Contract clauses.
Subpart 3042.15--Contractor Performance Information
3042.1502 Policy.
Subpart 3042.70--Contracting Officer's Technical Representative
3042.7000 Contract clause.

Subpart 3042.2--Contract Administration Services


3042.202   Assignment of contract administration.


3042.202-70  Contract clauses.

    (a) The contracting officer may use the clause at (HSAR) 48 CFR 
3052.242-70, Dissemination of Information--Educational Institutions, in 
lieu of the clause at (HSAR) 48 CFR 3052.242-71, Dissemination of 
Contract Information, in DHS research contracts with educational 
institutions, except contracts that require the release or coordination 
of information.
    (b) The contracting officer may insert the clause at (HSAR) 48 CFR 
3052.242-71, Dissemination of Contract Information, in all DHS 
contracts except contracts that require the release or coordination of 
information.

Subpart 3042.15--Contractor Performance Information


3042.1502  Policy.

    (a) OEs shall use the Contractor Performance System (CPS) for 
evaluating contractor performance in accordance with (FAR) 48 CFR 
42.1502 and part 1503.

Subpart 3042.70--Contracting Officer's Technical Representative


3042.7000  Contract clause.

    The contracting officer shall insert the clause at (HSAR) 48 CFR 
3052.242-72, Contracting Officer's Technical Representative, in 
solicitations and contracts when it is intended that a representative 
will be assigned to the contract to perform functions of a technical 
nature.

PART 3043--CONTRACT MODIFICATIONS--[RESERVED]

PART 3044--SUBCONTRACTING POLICIES AND PROCEDURES--[RESERVED]

PART 3045--GOVERNMENT PROPERTY

Subpart 3045.5--Management of Government Property in the Possession of 
Contractors
Sec.
3045.505 Records and reports of Government property.
3045.505-14 Reports of Government property.
3045.505-70 Solicitation provisions and contract clauses.
3045.508 Physical inventories.

[[Page 67887]]

3045.508-2 Reporting results of inventories.
3045.508-3 Quantitative and monetary control.
3045.511 Audit of property control system.

Subpart 3045.5--Management of Government Property in the Possession 
of Contractors


3045.505   Records and reports of Government property.


3045.505-14  Reports of Government property.

    (a) When Government property is furnished to or acquired by the 
contractor to perform the contract, the contract shall require the 
contractor to submit annual reports (see (FAR) 48 CFR 45.505-14) to the 
contracting officer not later than September 15 of each year. The 
contractor's report shall be submitted on DHS Form 0700-05, Contractor 
Report of Government Property.


3045.505-70  Solicitation provisions and contract clauses.

    Contracting officers shall insert the clause at (HSAR) 48 CFR 
3052.245-70 in solicitations and contracts when the contract will 
require Government provided or contractor acquired property.


3045.508  Physical inventories.


3045.508-2  Reporting results of inventories.

    The inventory report shall also include the following:
    (a) Name and title of the individual(s) that performed the physical 
inventory;
    (b) An itemized, categorized listing of all property capitalized:
    (1) Land and rights therein;
    (2) Other real property;
    (3) Plant equipment;
    (4) Special test equipment; and
    (5) Special tooling;
    (c) An itemized listing of the property lost, damaged, destroyed, 
or stolen, the circumstances surrounding each incident, and the 
resolution of the incident; and
    (d) Any discrepancies between the physical inventory and the 
contractor's record of Government property.


3045.508-3  Quantitative and monetary control.

    Contracting officers shall require the contractor to provide the 
quantity and unit cost of each item of Government property reported 
under (HSAR) 48 CFR 3045.508-2(b) and (c).


3045.511  Audit of property control system.

    (a) The property administrator (or other Government official 
authorized by the contracting officer) shall audit the contractor's 
property control system whenever there are indications that the 
contractor's property control system may be deficient. Examples of 
deficiencies are:
    (1) Failure of the contractor to acknowledge receipt of GFP;
    (2) Failure of the contractor to submit the annual property reports 
required by (HSAR) 48 CFR 3045.505-14;
    (3) Failure of the contractor to reconcile its physical inventory 
with its property control record; or
    (4) Failure of the contractor to submit a Government property 
listing when requested by the property administrator.
    (b) When it is determined that the contractor's property control 
system is deficient, the property administrator, in coordination with 
the contracting officer, shall discuss the deficiencies with the 
contractor. If the contractor does not take action to correct the 
deficiencies, the contracting officer shall provide the contractor with 
a written notice of the deficiencies and the date all deficiencies 
shall be corrected.

PART 3046--QUALITY ASSURANCE

Subpart 3046.7--Warranties
Sec.
3046.702 General.
3046.702-70 Additional definitions.
3046.703 Criteria for use of warranties.
3046.705 Limitations.
3046.706 Warranty terms and conditions.
3046.790 Additional USCG definitions (USCG).
3046.791 Use of warranties in major systems acquisitions by the USCG 
(USCG).
3046.791-1 Policy (USCG).
3046.791-2 Tailoring warranty terms and conditions. (USCG).
3046.791-3 Warranties on Government-furnished property (USCG).
3046.792 Cost benefit analysis (USCG).
3046.793 Waiver and notification procedures (USCG).

Subpart 3046.7--Warranties


3046.702  General.


3046.702-70   Additional definitions.

    At no additional cost to the Government, means without an increase 
in price for firm-fixed-price contracts, without an increase in target 
or ceiling price for fixed price incentive contracts (see (FAR) 48 CFR 
46.707), or without an increase in estimated cost or fee for cost-
reimbursement contracts.
    Defect means any condition or characteristic in any supplies or 
services furnished by the contractor under the contract that is not in 
compliance with the requirements of the contract.
    Design and manufacturing requirements means structural and 
engineering plans and manufacturing particulars, including precise 
measurements, tolerances, materials and finished product tests for the 
major system being produced.
    Major system means a system or major subsystem used directly by the 
Department of Homeland Security (DHS) to carry out its mission(s), as 
defined by HSAM Chapter 1234, Major Acquisition Policies and Procedures 
(for dollar threshold applicable to U.S. Coast Guard, See Coast Guard 
guidance at (HSAR) 48 CFR 3046.701-90). The term does not include:
    (1) Related support equipment, such as ground-handling equipment, 
training devices and accessories thereto, unless a cost effective 
warranty for the system would require inclusion of such items; or
    (2) Commercial items sold in substantial quantities to the general 
public as described in (FAR) 48 CFR part 2.
    Performance requirements means the operating capabilities, 
maintenance, and reliability characteristics of a system that are 
determined to be necessary for it to fulfill the requirement for which 
the system is designed.


3046.703  Criteria for use of warranties.

    (a) Major Systems. The use of warranties in the procurement of 
major systems by the USCG is mandatory, unless waived (see USCG 
guidance at (HSAR) 48 CFR 3046.792). Other OEs may use the procedures 
in USCG guidance in this part as a guideline for major systems 
acquisitions.


3046.705  Limitations.

    (a) The following restrictions are applicable to DHS contracts:
    (1) The USCG is required to include a warranty in cost 
reimbursement contracts for the production of major systems 
acquisitions.
    (2) Any warranty on major system acquisitions shall not apply in 
the case of any system or component thereof which has been furnished by 
the Government to a contractor except as indicated in the USCG guidance 
at (HSAR) 48 CFR 3046.791-3.
    (3) Any warranty obtained shall specifically exclude coverage of 
damage in time of war or national emergency.


3046.706  Warranty terms and conditions.

    (a) The contracting officer, in developing the warranty terms and 
conditions, shall consider the following, and, where appropriate and 
cost beneficial, shall:
    (1) Identify the affected line item(s) and the applicable 
specification(s);
    (2) Require that the line item's design and manufacture will 
conform to:
    (i) An identified revision of a top-level drawing; and/or

[[Page 67888]]

    (ii) An identified specification or revision thereof;
    (3) Require that the system conform to the specified Government 
performance requirements;
    (4) Require that all systems and components delivered under the 
contract will be free from defects in materials and workmanship;
    (5) State that in the event of failure due to nonconformance with 
specification and/or defects in material and workmanship, the 
contractor will bear the cost of all work necessary to achieve the 
specified performance requirements, including repair and/or replacement 
of all parts;
    (6) Require the timely replacement/repair of warranted items and 
specify lead times for replacement/repair where possible;
    (7) Identify the specific paragraphs containing Government 
performance requirements which must be met;
    (8) Ensure that any performance requirements identified as goals or 
objectives in excess of specification requirements are excluded from 
the warranty provision;
    (9) Define what constitutes the start of the warranty period (e.g., 
delivery, acceptance, in-service date), the ending of the warranty 
(e.g., passing a test or demonstration, or operation without failure 
for a specified time period), and circumstances requiring an extension 
of warranty duration (e.g., extending the warranty period as a result 
of mass defect correction during warranty period);
    (10) Identify what transportation costs will be paid by the 
contractor in conjunction with warranty coverage;
    (11) Identify any conditions which will not be covered by the 
warranty, other than the exclusion of combat damage; and
    (12) Identify any limitation on the total dollar amount of the 
contractor's warranty exposure, or agreement to share costs after a 
certain dollar threshold to avoid unnecessary warranty returns.
    (b) Any contract that contains a warranty clause shall contain 
warranty implementation procedures, including warranty notification 
content and procedures, and identify the individuals responsible for 
implementation of warranty provisions. The contract may also permit the 
contractor's participation in investigation of system failures, 
providing that the contractor is reimbursed at established rates for 
fault isolation work, and that the Government receives credit for any 
payments where equipment failure is covered by warranty provisions.


3046.790  Additional USCG definitions (USCG).

    For the USCG, in accordance with Public Law 99-190, the dollar 
threshold as it pertains to the inclusion of a warranty in major 
systems acquisitions is $10 million.


3046.791  Use of warranties in major systems acquisitions by the USCG 
(USCG).

    This subpart provides the policy for the USCG to use in obtaining 
warranties from contractors when contracting for the acquisition of a 
major system.


3046.791-1  Policy (USCG).

    The USCG shall include a warranty in all contracts for major 
systems acquisitions. When drafting warranty provisions/clauses for 
major systems acquisitions, the contracting officer shall ensure that 
the items listed at (HSAR) 48 CFR 3046.706 have been considered. The 
warranty shall also meet the following requirements:
    (a) For systems or components which are commercially available, 
such warranty as is normally provided by the manufacturer or supplier 
shall be obtained in accordance with (FAR) 48 CFR 46.703(d) and (FAR) 
48 CFR 46.710(b)(2).
    (b) For systems or components provided in accordance with either 
design and manufacturing or performance requirements as specified in 
the contract or any modification to that contract, a warranty of 
compliance with the stated requirements shall be obtained.
    (c) The warranty provided under paragraph (b) of this section shall 
provide that in the event the major system or any component thereof 
fails to meet the terms of the warranty provided, the contracting 
officer may:
    (1) Require the contractor to promptly take such corrective action 
as the contracting officer determines to be necessary at no additional 
cost to the Government, including repairing or replacing all parts 
necessary to achieve the requirements set forth in the contract;
    (2) Require the contractor to pay costs reasonably incurred by the 
United States in taking necessary corrective action; or
    (3) Equitably reduce the contract price.
    (d) Any warranty shall specifically exclude coverage of combat 
damage.


3046.791-2  Tailoring warranty terms and conditions (USCG).

    (a) As the objectives and circumstances vary considerably among 
major systems acquisition programs, contracting officers shall 
appropriately tailor the warranty on a case-by-case basis, including 
remedies, exclusions, limitations and durations, provided the tailoring 
is consistent with the specific requirements of this subpart and (FAR) 
48 CFR 46.706.
    (b) Contracting officers of major systems acquisitions may exclude 
from the terms of the warranty certain defects for specified supplies 
(exclusions) and may limit the contractor's liability under the terms 
of the warranty (limitations), as appropriate, if necessary to derive a 
cost-effective warranty in light of the technical risk, contractor 
financial risk, or other program uncertainties.
    (c) Contracting officers are encouraged to structure a broader and 
more comprehensive warranty where such is advantageous. Likewise, the 
contracting officer may narrow the scope of a warranty when appropriate 
(e.g., where it would be inequitable to require a warranty of all 
performance requirements because a contractor had not designed the 
system).
    (d) Contracting officers shall not include in a warranty clause any 
terms that require the contractor to incur liability for loss, damage, 
or injury to third parties.


3046.791-3  Warranties on Government-furnished property (USCG).

    A contractor for a major systems acquisition shall not be required 
to provide the warranties specified in (HSAR) 48 CFR 3046.790-1 on any 
property furnished to that contractor by the Government except for:
    (a) Defects in installation; and
    (b) Installation or modification in such a manner that invalidates 
a warranty provided by the manufacturer of the property.


3046.792  Cost benefit analysis (USCG).

    If a specific warranty is considered not to be cost beneficial by 
the contracting officer, a waiver request shall be initiated in 
accordance with guidance at (HSAR) 48 CFR 3046.793.


3046.793  Waiver and notification procedures (USCG).

    (a) The Secretary of Homeland Security, without delegation, may 
waive the requirement for a warranty for USCG major system acquisitions 
when the waiver is in the interest of national defense or if the 
warranty obtained would not be cost beneficial. A waiver may be granted 
provided that the Committees on Appropriations of the Senate and the 
House of Representatives, the Committee on Commerce, Science and 
Transportation of the Senate, and the Committee on

[[Page 67889]]

Merchant Marine and Fisheries of the House of Representatives are 
notified, in writing, of the Secretary's intention to waive the 
warranty requirements and the reasons supporting such a determination 
prior to granting the waiver. The request for Secretarial waiver shall 
include, as a minimum:
    (1) A brief description of the major system and its stage of 
production (e.g., the number of units delivered and anticipated to be 
delivered during the life of the program);
    (2) The specific waiver requested, the duration of the waiver if it 
is to involve more than one contract, and the rationale for the waiver; 
and
    (3) All documentation supporting the request for waiver, such as a 
cost-benefit analysis.
    (b) The waiver request shall be forwarded to the Secretary, via the 
CPO. The USCG shall maintain a written record of each waiver granted 
and the Congressional notification and report made, together with 
supporting documentation.

PART 3047--TRANSPORTATION

Subpart 3047.3--Transportation in Supply Contracts
Sec.
3047.305 Solicitation provisions, contract clauses, and 
transportation factors.
3047.305-70 Solicitation provision.

Subpart 3047.3--Transportation in Supply Contracts


3047.305  Solicitation provisions, contract clauses, and transportation 
factors.


3047.305-70  Solicitation provisions.

    The contracting officer shall insert the following provisions in 
solicitations, as applicable:
    (a) (HSAR) 48 CFR 3052.247-70, F.o.b. Origin Information, with 
Alternates I or II, as applicable, shall be inserted in accordance with 
(FAR) 48 CFR 47.305-3(b);
    (b) (HSAR) 48 CFR 3052.247-71, F.o.b. Origin Only, shall be 
inserted in accordance with (FAR) 48 CFR 47.305-3(e); and
    (c) (HSAR) 48 CFR 3052.247-72, F.o.b. Destination Only, shall be 
inserted in accordance with (FAR) 48 CFR 47.305-4(b).

PART 3048--VALUE ENGINEERING--[RESERVED]

PART 3049--TERMINATION OF CONTRACTS--[RESERVED]

PART 3050--EXTRAORDINARY CONTRACTUAL ACTIONS--[RESERVED]

PART 3051--USE OF GOVERNMENT SOURCES BY CONTRACTORS--[RESERVED]

PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 3052.1--Instructions for Using Provisions and Clauses
Sec.
3052.101 Using part 3052.
Subpart 3052.2--Texts of Provisions and Clauses
3052.204-70 Security requirements for unclassified information 
technology resources.
3052.209-70 Prohibition on contracts with corporate expatriates.
3052.209-71 Reserve Officer Training Corps and military recruiting 
on campus.
3052.209-72 Disclosure of conflicts of interest.
3052.211-70 Index for specifications.
3052.211-90 Bar coding requirement (USCG).
3052.213-90 Evaluation factor for Coast Guard performance of bar 
coding requirement (USCG).
3052.215-70 Key personnel or facilities.
3052.216-70 Evaluation of offers subject to an economic price 
adjustment clause.
3052.216-71 Determination of award fee.
3052.216-72 Performance evaluation plan.
3052.216-73 Distribution of award fee.
3052.216-74 Settlement of letter contract.
3052.217-90 Delivery and shifting of vessel (USCG).
3052.217-91 Performance (USCG).
3052.217-92 Inspection and manner of doing work (USCG).
3052.217-93 Subcontracts (USCG).
3052.217-94 Lay days (USCG).
3052.217-95 Liability and insurance (USCG).
3052.217-96 Title (USCG).
3052.217-97 Discharge of liens (USCG).
3052.217-98 Delays (USCG).
3052.217-99 Department of Labor safety and health regulations for 
ship repair (USCG).
3052.217-100 Guarantee (USCG).
3052.219-70 Small business subcontracting program reporting.
3052.219-71 DHS mentor-prot[eacute]g[eacute] program.
3052.219-72 Evaluation of prime contractor participation in the DHS 
mentor-prot[eacute]g[eacute] program.
3052.222-70 Strikes or picketing affecting timely completion of the 
contract work.
3052.222-71 Strikes or picketing affecting access to a DHS facility.
3052.222-90 Local hire (USCG).
3052.223-70 Removal or disposal of hazardous substances--applicable 
licenses and permits.
3052.223-90 Accident and fire reporting (USCG).
3052.228-70 Insurance.
3052.228-90 Notification of Miller Act payment bond protection 
(USCG).
3052.228-91 Loss of or damage to leased aircraft (USCG).
3052.228-92 Fair Market value of aircraft (USCG).
3052.228-93 Risk and indemnities (USCG).
3052.231-70 Precontract costs.
3052.236-70 Special provisions for work at operating airports.
3052.237-70 Qualifications of contractor employees.
3052.237-71 Information technology systems access for contractors.
3052.237-72 Contractor personnel screening for unclassified 
information technology access.
3052.242.70 Dissemination of information--educational institutions.
3052.242-71 Dissemination of contract information.
3052.242-72 Contracting officer's technical representative.
3052.245-70 Government property reports.
3052.247-70 F.o.b. origin information.
3052.247-71 F.o.b. origin only.
3052.247-72 F.o.b. destination only.

Subpart 3052.1--Instructions for Using Provisions and Clauses


3052.101  Using part 3052.

    (b) Numbering.
    (2)(i) Provisions or clauses that supplement the FAR.
    (A) Agency-prescribed provisions and clauses permitted by HSAR and 
used on a standard basis (i.e., normally used in two or more 
solicitations or contracts regardless of contract type) shall be 
prescribed and contained in the HSAR. OEs desiring to use a provision 
or a clause on a standard basis shall submit a request containing a 
copy of the clause(s), justification for its use, and evidence of legal 
counsel review to the CPO in accordance with (HSAR) 48 CFR 3001.304 for 
possible inclusion in the HSAR.
    (B) Provisions and clauses used on a one-time basis (i.e., non-
standard provisions and clauses) may be approved by the contracting 
officer, unless a higher level is designated by the OE. This authority 
is subject to:
    (1) Evidence of legal counsel review in the contract file;
    (2) Inserting these clauses in the appropriate sections of the 
uniform contract format; and
    (3) Ensuring the provisions and clauses do not deviate from the 
requirements of the FAR and HSAR.

[[Page 67890]]

Subpart 3052.2--Text of Provisions and Clauses


3052.204-70   Security requirements for unclassified information--
technology resources.

    As prescribed in (HSAR) 48 CFR 3004.470-4 Contract clauses, and 
(HSAR) 48 CFR 3037.110-70 (a) and (b), insert a clause substantially 
the same as follows:

Security Requirements for Unclassified Information Technology 
Resources (Dec. 2003)

    (a) The Contractor shall be responsible for Information 
Technology (IT) security for all systems connected to a DHS network 
or operated by the Contractor for DHS, regardless of location. This 
clause applies to all or any part of the contract that includes 
information technology resources or services for which the 
Contractor must have physical or electronic access to sensitive 
information contained in DHS unclassified systems that directly 
support the agency's mission. The security requirements include, but 
are not limited to, how the Department of Homeland Security's 
sensitive information is to be handled and protected at the 
Contractor's site, (including any information stored, processed, or 
transmitted using the Contractor's computer systems), the background 
investigation and/or clearances required, and the facility security 
required. This requirement includes information technology, 
hardware, software, and the management, operation, maintenance, 
programming, and system administration of computer systems, 
networks, and telecommunications systems. Examples of tasks that 
require security provisions include--
    (1) Acquisition, transmission or analysis of data owned by DHS 
with significant replacement cost should the contractor's copy be 
corrupted; and
    (2) Access to DHS networks or computers at a level beyond that 
granted the general public, (e.g. such as bypassing a firewall).
    (b) At the expiration of the contract, the contractor shall 
return all sensitive DHS information and IT resources provided to 
the contractor during the contract, and a certification that all DHS 
information has been purged from any contractor-owned system used to 
process DHS information. Organizational elements shall conduct 
reviews to ensure that the security requirements in the contract are 
implemented and enforced.
    (c) The Contractor shall provide, implement, and maintain an IT 
Security Plan. This plan shall describe the processes and procedures 
that will be followed to ensure appropriate security of IT resources 
that are developed, processed, or used under this contract. The plan 
shall describe those parts of the contract to which this clause 
applies. The Contractor's IT Security Plan shall be compliant with 
Federal laws that include, but are not limited to, the Computer 
Security Act of 1987 (40 U.S.C. 1441 et seq.), and the Government 
Information Security Reform Act of 2000, and the Federal Information 
Security Management Act of 2002. The plan shall meet IT security 
requirements in accordance with Federal policies and procedures that 
include, but are not limited to OMB Circular A-130, Management of 
Federal Information Resources, Appendix III, and Security of Federal 
Automated Information Resources;
    (d) Within----days after contract award, the contractor shall 
submit for approval an IT Security Plan. This plan shall be 
consistent with and further detail the approach contained in the 
offeror's proposal or quote that resulted in the award of this 
contract and in compliance with the requirements stated in this 
clause. The plan, as approved by the Contracting Officer, shall be 
incorporated into the contract as a compliance document.
    (e) Within 6 months after contract award, the contractor shall 
submit written proof of IT Security accreditation to DHS for 
approval by the DHS Contracting Officer. Accreditation will be 
according to the criteria of the Homeland Security Information 
Technology Security program Publication, DHS MD 4300.Pub., Volume I, 
Policy Guide, Part A, Sensitive Systems, which is available from the 
Contracting Officer upon request. This accreditation will include a 
final security plan, risk assessment, security test and evaluation, 
and disaster recovery plan/continuity of operations plan. This 
accreditation, when accepted by the Contracting Officer, shall be 
incorporated into the contract as a compliance document, and shall 
include a final security plan, a risk assessment, security test and 
evaluation, and disaster recovery/continuity of operations plan. The 
contractor shall comply with the approved accreditation 
documentation.

(End of clause)


3052.209-70  Prohibition on contracts with corporate expatriates.

    As prescribed at (HSAR) 48 CFR 3009.104-75, insert the following 
clause:

Prohibition on Contracts With Corporate Expatriates (Dec. 2003)

    (a) Prohibitions.
    Section 835 of Public Law 107-296, prohibits the Department of 
Homeland Security from entering into any contract with a foreign 
incorporated entity after November 25, 2002, which is treated as an 
inverted domestic corporation as defined in this clause.
    The Secretary shall waive the prohibition with respect to any 
specific contract if the Secretary determines that the waiver is 
required in the interest of homeland security, or to prevent the 
loss of any jobs in the United States or prevent the Government from 
incurring any additional costs that otherwise would not occur.
    (b) Definitions. As used in this clause:
    Expanded Affiliated Group means an affiliated group as defined 
in section 1504(a) of the Internal Revenue Code of 1986 (without 
regard to section 1504(b) of such Code), except that section 1504 of 
such Code shall be applied by substituting `more than 50 percent' 
for `at least 80 percent' each place it appears.
    Foreign Incorporated Entity means any entity which is, or but 
for subsection (b) of section 835 of the Homeland Security Act, 
Public Law 107-296, would be, treated as a foreign corporation for 
purposes of the Internal Revenue Code of 1986.
    Inverted Domestic Corporation. A foreign incorporated entity 
shall be treated as an inverted domestic corporation if, pursuant to 
a plan (or a series of related transactions)--
    (1) The entity completes after November 25, 2002, the direct or 
indirect acquisition of substantially all of the properties held 
directly or indirectly by a domestic corporation or substantially 
all of the properties constituting a trade or business of a domestic 
partnership;
    (2) After the acquisition at least 80 percent of the stock (by 
vote or value) of the entity is held--
    (i) In the case of an acquisition with respect to a domestic 
corporation, by former shareholders of the domestic corporation by 
reason of holding stock in the domestic corporation; or
    (ii) In the case of an acquisition with respect to a domestic 
partnership, by former partners of the domestic partnership by 
reason of holding a capital or profits interest in the domestic 
partnership; and
    (3) The expanded affiliated group which after the acquisition 
includes the entity does not have substantial business activities in 
the foreign country in which or under the law of which the entity is 
created or organized when compared to the total business activities 
of such expanded affiliated group.
    Person, domestic, and foreign have the meanings given such terms 
by paragraphs (1), (4), and (5) of section 7701(a) of the Internal 
Revenue Code of 1986, respectively.
    (c) Special rules. The following definitions and special rules 
shall apply when determining whether a foreign incorporated entity 
should be treated as an inverted domestic corporation.
    (1) Certain stock disregarded. For the purpose of treating a 
foreign incorporated entity as an inverted domestic corporation 
these shall not be taken into account in determining ownership:
    (i) stock held by members of the expanded affiliated group which 
includes the foreign incorporated entity; or
    (ii) stock of such entity which is sold in a public offering 
related to the acquisition described in subsection (b)(1) of Section 
835 of the Homeland Security Act, Public Law 107-296.
    (2) Plan deemed in certain cases. If a foreign incorporated 
entity acquires directly or indirectly substantially all of the 
properties of a domestic corporation or partnership during the 4-
year period beginning on the date which is after the date of 
enactment of this Act and which is 2 years before the ownership 
requirements of subsection (b)(2) are met, such actions shall be 
treated as pursuant to a plan.
    (3) Certain transfers disregarded. The transfer of properties or 
liabilities (including by contribution or distribution) shall be 
disregarded if such transfers are part of a plan a principal purpose 
of which is to avoid the purposes of this section.
    (d) Special rule for related partnerships. For purposes of 
applying section 835(b) of Public Law 107-296 to the acquisition of 
a

[[Page 67891]]

domestic partnership, except as provided in regulations, all 
domestic partnerships which are under common control (within the 
meaning of section 482 of the Internal Revenue Code of 1986) shall 
be treated as a partnership.
    (e) Treatment of Certain Rights.
    (1) Certain rights shall be treated as stocks to the extent 
necessary to reflect the present value of all equitable interests 
incident to the transaction, as follows:
    (i) Warrants;
    (ii) Options;
    (iii) Contracts to acquire stock;
    (iv) Convertible debt instruments;
    (v) Others similar interests.
    (2) Rights labeled as stocks shall not be treated as stocks 
whenever it is deemed appropriate to do so to reflect the present 
value of the transaction or to disregard transactions whose 
recognition would defeat the purpose of section 835.
    (f) Disclosure. By signing and submitting its offer, an offeror 
under this solicitation represents that it not a foreign 
incorporated entity that should be treated as an inverted domestic 
corporation pursuant to the criteria of Section 835 of the Homeland 
Security Act, Public Law 107-296 of November 25, 2002.
    (g) If a waiver has been granted, a copy of the approved waiver 
shall be attached to the bid or proposal.

(End of provision)


3052.209-71  Reserve Officer Training Corps and military recruiting on 
campus.

    As prescribed in (HSAR) 48 CFR 3009.470-4, use the following 
clause:

Reserve Officer Training Corps and Military Recruiting on Campus 
(Dec 2003)

    (a) Definitions. Institution of higher education, as used in 
this clause, means an institution that meets the requirements of 20 
U.S.C. 1001 and includes all subelements of such an institution.
    (b) Limitation on contract award. Except as provided in 
paragraph (c) of this clause, an institution of higher education is 
ineligible for contract award if the Secretary of Defense determines 
that the institution has a policy or practice (regardless of when 
implemented) that prohibits or in effect prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) (in accordance with 10 U.S.C. 654 and other 
applicable Federal laws) at that institution;
    (2) A student at that institution from enrolling in a unit of 
the Senior ROTC at another institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Homeland Security from gaining entry to campuses, or access to 
students (who are 17 years of age or older) on campuses, for 
purposes of military recruiting; or
    (4) Military recruiters from accessing, for purposes of military 
recruiting, the following information pertaining to students (who 
are 17 years of age or older) enrolled at that institution:
    (i) Name.
    (ii) Address.
    (iii) Telephone number.
    (iv) Date and place of birth.
    (v) Educational level.
    (vi) Academic major.
    (vii) Degrees received.
    (viii) Most recent educational institution enrollment.
    (c) Exception. The limitation in paragraph (b) of this clause 
does not apply to an institution of higher education if the 
Secretary of Defense determines that--
    (1) The institution has ceased the policy or practice described 
in paragraph (b) of this clause; or
    (2) The institution has a long-standing policy of pacifism based 
on historical religious affiliation.
    (d) Agreement. The Contractor represents that it does not now 
have, and agrees that during performance of this contract it will 
not adopt, any policy or practice described in paragraph (b) of this 
clause, unless the Secretary of Defense has granted an exception in 
accordance with paragraph (c)(2) of this clause.
    (e) Notwithstanding any other clause of this contract, if the 
Secretary of Defense determines that the Contractor misrepresented 
its policies and practices at the time of contract award or has 
violated the agreement in paragraph (d) of this clause--
    (1) The Contractor will be ineligible for further payments under 
this and any other contracts with the Department of Homeland 
Security; and
    (2) The Government will terminate this contract for default for 
the Contractor's material failure to comply with the terms and 
conditions of award.

(End of clause)


3052.209-72  Disclosure of conflicts of interest.

    As prescribed in (HSAR) 48 CFR 3009.507, insert the following 
provision:

Disclosure of Conflicts of Interest (Dec 2003)

    The Department of Homeland Security (DHS) will award contracts 
only to those offerors whose objectivity is not impaired by 
conflicting interests. Based on this policy--
    (a) The offeror shall provide a statement in its proposal which 
describes in a concise manner all past, present or planned 
organizational, financial, contractual or other interest(s) with an 
organization whose interests may be substantially affected by 
Departmental activities, and which is related to the work under this 
solicitation. The interest(s) described shall include those of the 
proposer, its affiliates, proposed consultants, proposed 
subcontractors for more than 20% of the work and key personnel of 
the offeror and any subcontractor accounting for more than 20% of 
the contract. Past interest shall be limited to within one year of 
the date of the offeror's technical proposal. Key personnel, for 
purposes of this clause, shall include any person owning more than 
20% interest in the company, and the company's corporate officers, 
its senior managers and any employees responsible for making a 
decision or taking an action on this contract where the decision or 
action can have an economic or other impact on the interests of a 
regulated or affected organization.
    (b) The offeror shall describe in detail why it believes, in 
light of the interest(s) identified in (a) above, that performance 
of the proposed contract can be accomplished in an impartial and 
objective manner.
    (c) In the absence of any relevant interest identified in (a) 
above, the offeror shall submit in its proposal a statement 
certifying that to its best knowledge and belief no affiliation 
exists relevant to possible conflicts of interest. The offeror must 
obtain the same information from potential subcontractors prior to 
award of a subcontract.
    (d) The Contracting Officer will review the statement submitted 
and may require additional relevant information from the offeror. 
All such information, and any other relevant information known to 
DHS, will be used to determine whether an award to the offeror may 
create a conflict of interest. If any such conflict of interest is 
found to exist, the Contracting Officer may (1) disqualify the 
offeror, or (2) determine that it is otherwise in the best interest 
of the United States to contract with the offeror and include 
appropriate provisions to mitigate or avoid such conflict in the 
contract awarded.
    (e) The refusal to provide the disclosure or representation, or 
any additional information required, may result in disqualification 
of the offeror for award. If nondisclosure or misrepresentation is 
discovered after award, the resulting contract may be terminated. 
If, after award, the Contractor discovers a conflict of interest 
with respect to the contract awarded as a result of this 
solicitation, which could not reasonably have been known prior to 
award, an immediate and full disclosure shall be made in writing to 
the Contracting Officer. The disclosure shall include a full 
description of the conflict, a description of the action the 
contractor has taken, or proposes to take, to avoid or mitigate such 
conflict. The Contracting Officer may, however, terminate the 
contract for convenience if he or she deems that termination is in 
the best interest of the Government.

(End of clause)


3052.211-70  Index for specifications.

    As prescribed in (HSAR) 48 CFR 3011.204-70 insert the following 
clause:

Index for Specifications (Dec 2003)

    If an index or table of contents is furnished in connection with 
specifications, it is understood that such index or table of 
contents is for convenience only. Its accuracy and completeness is 
not guaranteed, and it is not to be considered as part of the 
specifications. In case of discrepancy between the index or table of 
contents and the specifications, the specifications shall govern.

(End of clause)


3052.211-90  Bar coding requirement (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3011.204-90(a) and 
3013.302-590, insert the following clause:

Bar Coding Requirements (Dec 2003)


[[Page 67892]]


    Item markings shall include bar coding in accordance with MIL-
STD-1189 as clarified below:
    (a) The stock number shall be bar coded with no prefixes, 
dashes, spaces, or suffixes encoded. The contract number, the 
delivery order, or call order number, when used, shall be bar coded 
with no spaces or dashes encoded.
    (b) Prefixes and suffixes to the stock number may be included in 
the OCR-A in-the-clear markings, but not in the bar code.
    (c) Preferred Bar Code Density (characters per inch as defined 
in MIL-STD-1189) is ``standard,'' but densities from ``standard'' to 
``low'' are acceptable.
    (d) OCR-A characters do not have to be machine-readable.
    (e) Bar coding shall be machine-readable.
    (f) Unless otherwise specified herein, minimum bar code height 
shall be 0.25 inch (6.4 mm) or 15 percent of the bar code length, 
whichever is greater.
    (g) The preferred position of the OCR-A characters is below the 
bar codes, but the OCR-A characters may be above the bar codes.
    (h) On outer containers contractors shall either:
    (1) Encode the stock numbers and contract number in one line of 
bar code with the stock number appearing first; or
    (2) Encode the item stock number and contract number on two 
labels, with the top label containing the stock number and the lower 
label containing the contract number.
    (i) On unit and intermediate containers, the item stock number 
in bar code with OCR-A below may be on the same label as the other 
data (identification markings) required by MIL-STD-129H. However, 
the bar code stock number shall appear on the top line with OCR-A 
characters on the second line; the OCR-A characters may include the 
stock number prefix and suffix, or alternatively, the complete stock 
number including any prefix and suffix, shall be repeated as part of 
the identification markings.
    (j) Exclusions from bar code markings are:
    (1) Multi-packs/consolidation containers (containers with two or 
more different stock numbers within).
    (2) Reusable shipping containers used for multiple/ different 
stock number applications.
    (3) Items consigned to a prime contractor's plant for 
installation in production.

(End of clause)


3052.213-90  Evaluation factor for Coast Guard performance of bar 
coding requirement (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3013.106-190, 
insert the following provision:

Evaluation Factor for Coast Guard Performance of Bar Coding 
Requirement (Dec 2003)

    If a small business cannot provide the bar coding requirement, 
as indicated elsewhere in the schedule, the contracting officer will 
apply the following formula to the quoted amounts:
    (a) Unit price quoted by small business $------
    (b) Add unit cost to the USCG to provide bar coding $------
    (c) Adjusted unit price (add lines a. and b.) $------

The line (c) amount will become the amount the contracting officer 
considered when determining the lowest quoted amount.

(End of provision)


3052.215-70  Key personnel or facilities.

    As prescribed in (HSAR) 48 CFR 3015.204-3, insert the following 
clause:

Key Personnel or Facilities. (Dec 2003)

    (a) The personnel or facilities specified below are considered 
essential to the work being performed under this contract and may, 
with the consent of the contracting parties, be changed from time to 
time during the course of the contract by adding or deleting 
personnel or facilities, as appropriate.
    (b) Before removing or replacing any of the specified 
individuals or facilities, the Contractor shall notify the 
Contracting Officer, in writing, before the change becomes 
effective. The Contractor shall submit sufficient information to 
support the proposed action and to enable the Contracting Officer to 
evaluate the potential impact of the change on this contract. The 
Contractor shall not remove or replace personnel or facilities until 
the Contracting Officer approves the change.
    The Key Personnel or Facilities under this Contract:

(specify key personnel or facilities)

(End of clause)


3052.216-70  Evaluation of offers subject to an economic price 
adjustment clause.

    As prescribed in (HSAR) 48 CFR 3016.203-470, insert a provision 
substantially the same as the following:

Evaluation of Offers Subject to an Economic Price Adjustment Clause 
(Dec 2003)

    Offers shall be evaluated without adding an amount for an 
economic price adjustment. Offers will be rejected which: (1) 
Increase the stipulated ceiling; (2) limit the downward adjustment; 
or (3) delete the economic price adjustment clause. If the offer 
stipulates a ceiling lower than that included in the solicitation, 
the lower ceiling will be incorporated into any resulting contract.

(End of provision)


3052.216-71  Determination of award fee.

    As prescribed in (HSAR) 48 CFR 3016.406(e)(1)(i), insert a clause 
substantially the same as the following:

Determination of Award Fee (Dec 2003)

    (a) The Government shall evaluate contractor performance at the 
end of each specified evaluation period(s) to determine the amount 
of award. The contractor agrees that the amount of award and the 
award fee methodology are unilateral decisions to be made at the 
sole discretion of the Government.
    (b) Contractor performance shall be evaluated according to a 
Performance Evaluation Plan. The contractor shall be periodically 
informed of the quality of its performance and areas in which 
improvements are expected.
    (c) The contractor shall be promptly advised, in writing, of the 
determination and reasons why the award fee was or was not earned. 
The contractor may submit a performance self-evaluation for each 
evaluation period. The amount of award is at the sole discretion of 
the Government but any self-evaluation received within ------ 
(insert number) days after the end of the current evaluation period 
will be given such consideration, as may be deemed appropriate by 
the Government.
    (d) The Government may specify that a fee not earned during a 
given evaluation period may be accumulated and be available for 
allocation to one or more subsequent periods. In that event, the 
distribution of award fee shall be adjusted to reflect such 
allocations.

(End of clause)


3052.216-72  Performance evaluation plan.

    As prescribed in (HSAR) 48 CFR 3016.406(e)(i)(ii), insert a clause 
substantially the same as the following:

Performance Evaluation Plan (Dec 2003)

    (a) A Performance Evaluation Plan shall be unilaterally 
established by the Government based on the criteria stated in the 
contract and used for the determination of award fee. This plan 
shall include the criteria used to evaluate each area and the 
percentage of award fee (if any) available for each area. A copy of 
the plan shall be provided to the contractor ------ (insert number) 
calendar days prior to the start of the first evaluation period.
    (b) The criteria contained within the Performance Evaluation 
Plan may relate to: (1) Technical (including schedule) requirements 
if appropriate; (2) Management; and (3) Cost.
    (c) The Performance Evaluation Plan may, consistent with the 
contract, be revised unilaterally by the Government at any time 
during the period of performance. Notification of such changes shall 
be provided to the contractor ------ (insert number) calendar days 
prior to the start of the evaluation period to which the change will 
apply.

(End of clause)


3052.216-73  Distribution of award fee.

    As prescribed in (HSAR) 48 CFR 3016.406(e)(1)(iii), insert a clause 
substantially the same as the following:

Distribution of Award Fee (Dec 2003)

    (a) The total amount of award fee available under this contract 
is assigned according to the following evaluation periods and 
amounts:

Evaluation Period:
Available Award Fee:
(insert appropriate information)

    (b) Payment of the base fee and award fee shall be made, 
provided that after payment of 85 percent of the base fee and 
potential award fee, the Government may withhold further payment of 
the base fee and award fee until a reserve is set aside in an amount 
that

[[Page 67893]]

the Government considers necessary to protect its interest. This 
reserve shall not exceed 15 percent of the total base fee and 
potential award fee or $100,000, whichever is less.
    (c) In the event of contract termination, either in whole or in 
part, the amount of award fee available shall represent a pro rata 
distribution associated with evaluation period activities or events 
as determined by the Government.
    (d) The Government will promptly make payment of any award fee 
upon the submission by the contractor to the contracting officer's 
authorized representative, of a public voucher or invoice in the 
amount of the total fee earned for the period evaluated. Payment may 
be made without using a contract modification.

(End of clause)


3052.216-74  Settlement of letter contract.

    As prescribed in (HSAR) 48 CFR 3016.603-4, insert a clause 
substantially the same as the following:

Settlement of Letter Contract (Dec 2003)

    (a) This contract constitutes the definitive contract 
contemplated by letter contract ------ (insert number) issued on --
---- (insert effective date). It supersedes the letter contract and 
its modification numbered ------ (insert number(s)). To the extent 
there are inconsistencies between the definitive contract and the 
letter contract, the former governs.
    (b) The cost(s) and fee(s), or price(s), established in this 
definitive contract represents full and complete settlement of 
letter contract ------ (insert number) and modification numbered --
---- (insert number(s)). Payment of the fee agreed upon or profit 
withheld pending definitization of the letter contract, may start 
immediately at the rate and times stated within this contract.

(End of clause)


3052.217-90  Delivery and Shifting of Vessel (USCG).

    As prescribed in the USCG guidance at (HSAR) 48 CFR 3017.9000(a) 
and (b), insert the following clause:

Delivery and Shifting of Vessel (Dec 2003)

    The Government shall deliver the vessel to the Contractor at his 
place of business. Upon completion of the work, the Government shall 
accept delivery of the vessel at the Contractor's place of business. 
The Contractor shall provide, at no additional charge, upon 24 
hours' advance notice, a tug or tugs and docking pilot, acceptable 
to the Contracting Officer, to assist in handling the vessel between 
(to and from) the Contractor's plant and the nearest point in a 
waterway regularly navigated by vessels of equal or greater draft 
and length. While the vessel is in the hands of the Contractor, any 
necessary towage, cartage, or other transportation between ship and 
shop or elsewhere, which may be incident to the work herein 
specified, shall be furnished by the Contractor without additional 
charge to the Government.

(End of clause)


3052.217-91  Performance (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Performance (Dec 2003)

    (a) Upon the award of the contract, the Contractor shall 
promptly start the work specified and shall diligently prosecute the 
work to completion. The Contractor shall not start work until the 
contract has been awarded except in the case of emergency work 
ordered by the Contracting Officer in writing.
    (b) The Government shall deliver the vessel described in the 
contract at the time and location specified in the contract. Upon 
completion of the work, the Government shall accept delivery of the 
vessel at the time and location specified in the contract.
    (c) The Contractor shall without charge,--
    (1) Make available to personnel of the vessel while in dry dock 
or on a marine railway, sanitary lavatory and similar facilities at 
the plant acceptable to the Contracting Officer;
    (2) Supply and maintain suitable brows and gangways from the 
pier, dry dock, or marine railway to the vessel;
    (3) Treat salvage, scrap or other ship's material of the 
Government resulting from performance of the work as items of 
Government-furnished property, in accordance with the Government 
Property (Fixed Price Contracts) clause;
    (4) Perform, or pay the cost of, any repair, reconditioning or 
replacement made necessary as the result of the use by the 
Contractor of any of the vessel's machinery, equipment or fittings, 
including, but not limited to, winches, pumps, rigging, or pipe 
lines; and
    (5) Furnish suitable offices, office equipment and telephones at 
or near the site of the work for the Government's use.
    (d) The contract will state whether dock and sea trials are 
required to determine whether or not the Contractor has 
satisfactorily performed the work.
    (1) If dock and sea trials are required, the vessel shall be 
under the control of the vessel's commander and crew.
    (2) The Contractor shall not conduct dock and sea trials not 
specified in the contract without advance approval of the 
Contracting Officer. Dock and sea trials not specified in the 
contract shall be at the Contractor's expense and risk.
    (3) The Contractor shall provide and install all fittings and 
appliances necessary for dock and sea trials. The Contractor shall 
be responsible for care, installation, and removal of instruments 
and apparatus furnished by the Government for use in the trials.

(End of clause)


3052.217-92  Inspection and manner of doing work (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Inspection and Manner of Doing Work (Dec 2003)

    (a) The Contractor shall perform work in accordance with the 
contract, any drawings and specifications made a part of the job 
order, and any change or modification issued under the Changes 
clause.
    (b)(1) Except as provided in paragraph (b)(2) of this clause, 
and unless otherwise specifically provided in the contract, all 
operational practices of the Contractor and all workmanship, 
material, equipment, and articles used in the performance of work 
under this contract shall be in accordance with the best commercial 
marine practices and the rules and requirements of all appropriate 
regulatory bodies including, but not limited to the American Bureau 
of Shipping, the U.S. Coast Guard, and the Institute of Electrical 
and Electronic Engineers, in effect at the time of Contractor's 
submission of offer, and shall be intended and approved for marine 
use.
    (2) When Navy specifications are specified in the contract, the 
Contractor shall follow Navy standards of material and workmanship.
    (c) The Government may inspect and test all material and 
workmanship at any time during the Contractor's performance of the 
work.
    (1) If, prior to delivery, the Government finds any material or 
workmanship is defective or not in accordance with the contract, in 
addition to its rights under the Guarantee clause, the Government 
may reject the defective or nonconforming material or workmanship 
and require the Contractor to correct or replace it at the 
Contractor's expense.
    (2) If the Contractor fails to proceed promptly with the 
replacement or correction of the material or workmanship, the 
Government may replace or correct the defective or nonconforming 
material or workmanship and charge the Contractor the excess costs 
incurred.
    (3) As specified in the contract, the Contractor shall provide 
and maintain an inspection system acceptable to the Government.
    (4) The Contractor shall maintain complete records of all 
inspection work and shall make them available to the Government 
during performance of the contract and for 90 days after the 
completion of all work required.
    (d) The Contractor shall not permit any welder to work on a 
vessel unless the welder is, at the time of the work, qualified to 
the standards established by the U.S. Coast Guard, American Bureau 
of Shipping, or Department of the Navy for the type of welding being 
performed. Qualifications of a welder shall be as specified in the 
contract.
    (e) The Contractor shall--
    (1) Exercise reasonable care to protect the vessel from fire;
    (2) Maintain a reasonable system of inspection over activities 
taking place in the vicinity of the vessel's magazines, fuel oil 
tanks, or storerooms containing flammable materials.
    (3) Maintain a reasonable number of hose lines ready for 
immediate use on the vessel at all times while the vessel is berthed 
alongside the Contractor's pier or in dry dock or on a marine 
railway;
    (4) Unless otherwise provided in the contract, provide 
sufficient security patrols to reasonably maintain a fire watch for

[[Page 67894]]

protection of the vessel when it is in the Contractor's custody;
    (5) To the extent necessary, clean, wash, and steam out or 
otherwise make safe, all tanks under alteration or repair.
    (6) Furnish the Contracting Officer a ``gas-free'' or ``safe-
for-hotwork'' certificate before any hot work is done on a tank;
    (7) Treat the contents of any tank as Government property in 
accordance with the Government Property (Fixed-Price Contracts) 
clause; and
    (8) Dispose of the contents of any tank only at the direction, 
or with the concurrence, of the Contracting Officer.
    (9) Be responsible for the proper closing of all openings to the 
vessel's underwater structure upon which work has been performed. 
The contractor additionally must advise the COTR of the status of 
all valves closures and openings for which the contractor's workers 
were responsible.
    (f) Except as otherwise provided in the contract, when the 
vessel is in the custody of the Contractor or in dry dock or on a 
marine railway and the temperature is expected to go as low as 35 
Fahrenheit, the Contractor shall take all necessary steps to--
    (1) Keep all hose pipe lines, fixtures, traps, tanks, and other 
receptacles on the vessel from freezing; and
    (2) Protect the stern tube and propeller hubs from frost damage.
    (g) The Contractor shall, whenever practicable--
    (1) Perform the required work in a manner that will not 
interfere with the berthing and messing of Government personnel 
attached to the vessel; and
    (2) Provide Government personnel attached to the vessel access 
to the vessel at all times.
    (h) Government personnel attached to the vessel shall not 
interfere with the Contractor's work or workers.
    (i)(1) The Government does not guarantee the correctness of the 
dimensions, sizes, and shapes set forth in any contract, sketches, 
drawings, plans, or specifications prepared or furnished by the 
Government, unless the contract requires that the Contractor perform 
the work prior to any opportunity to inspect.
    (2) Except as stated in paragraph (i)(1) of this clause, and 
other than those parts furnished by the Government, and the 
Contractor shall be responsible for the correctness of the 
dimensions, sizes, and shapes of parts furnished under this 
agreement.
    (j) The Contractor shall at all times keep the site of the work 
on the vessel free from accumulation of waste material or rubbish 
caused by its employees or the work. At the completion of the work, 
unless the contract specifies otherwise, the Contractor shall remove 
all rubbish from the site of the work and leave the immediate 
vicinity of the work area ``broom clean.''

(End of clause)


3052.217-93  Subcontracts (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Subcontracts (Dec 2003)

    (a) Nothing contained in the contract shall be construed as 
creating any contractual relationship between any subcontractor and 
the Government. The divisions or sections of the specifications are 
not intended to control the Contractor in dividing the work among 
subcontractors or to limit the work performed by any trade.
    (b) The Contractor shall be responsible to the Government for 
acts and omissions of its own employees, and of subcontractors and 
their employees. The Contractor shall also be responsible for the 
coordination of the work of the trades, subcontractors, and material 
men.
    (c) The Contractor shall, without additional expense to the 
Government, employ specialty subcontractors where required by the 
specifications.
    (d) The Government or its representatives will not undertake to 
settle any differences between the Contractor and its 
subcontractors, or between subcontractors.

(End of clause)


3052.217-94  Lay days (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Lay Days (Dec 2003)

    (a) Lay day time will be paid by the Government at the 
Contractor's stipulated bid price for this item of the contract when 
the vessel remains on the dry dock or marine railway as a result of 
any change that involves work in addition to that required under the 
basic contract.
    (b) No lay day time shall be paid until all items of the basic 
contract for which a price was established by the Contractor and for 
which docking of the vessel was required have been satisfactorily 
completed and accepted.
    (c) Days of hauling out and floating, whatever the hour, shall 
not be paid as lay day time, and days when no work is performed by 
the Contractor shall not be paid as lay day time.
    (d) Payment of lay day time shall constitute complete 
compensation for all costs, direct and indirect, to reimburse the 
Contractor for use of dry dock or marine railway.

(End of clause)


3052.217-95  Liability and insurance (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Liability and Insurance (Dec 2003)

    (a) The Contractor shall exercise its best efforts to prevent 
accidents, injury, or damage to all employees, persons, and 
property, in and about the work, and to the vessel or part of the 
vessel upon which work is done.
    (b) Loss or damage to the vessel, materials, or equipment. (1) 
Unless otherwise directed or approved in writing by the Contracting 
Officer, the Contractor shall not carry insurance against any form 
of loss or damage to the vessel(s) or to the materials or equipment 
to which the Government has title or which have been furnished by 
the Government for installation by the Contractor. The Government 
assumes the risks of loss of and damage to that property.
    (2) The Government does not assume any risk with respect to loss 
or damage compensated for by insurance or otherwise or resulting 
from risks with respect to which the Contractor has failed to 
maintain insurance, if available, as required or approved by the 
Contracting Officer.
    (3) The Government does not assume risk of and will not pay for 
any costs of the following:
    (i) Inspection, repair, replacement, or renewal of any defects 
in the vessel(s) or material and equipment due to--
    (A) Defective workmanship performed by the Contractor or its 
subcontractors;
    (B) Defective materials or equipment furnished by the Contractor 
or its subcontractors; or
    (C) Workmanship, materials, or equipment which do not conform to 
the requirements of the contract, whether or not the defect is 
latent or whether or not the nonconformance is the result of 
negligence.
    (ii) Loss, damage, liability, or expense caused by, resulting 
from, or incurred as a consequence of any delay or disruption, 
willful misconduct or lack of good faith by the Contractor or any of 
its representatives that have supervision or direction of--
    (A) All or substantially all of the Contractor's business; or
    (B) All or substantially all of the Contractor's operation at 
any one plant.
    (4) As to any risk that is assumed by the Government, the 
Government shall be subrogated to any claim, demand or cause of 
action against third parties that exists in favor of the Contractor. 
If required by the Contracting Officer, the Contractor shall execute 
a formal assignment or transfer of the claim, demand, or cause of 
action.
    (5) No party other than the Contractor shall have any right to 
proceed directly against the Government or join the Government as a 
codefendant in any action.
    (6) Notwithstanding the foregoing, the Contractor shall bear the 
first $5,000 of loss or damage from each occurrence or incident, the 
risk of which the Government would have assumed under the provision 
of this paragraph (b).
    (c) Indemnification. The Contractor indemnifies the Government 
and the vessel and its owners against all claims, demands, or causes 
of action to which the Government, the vessel or its owner(s) might 
be subject as a result of damage or injury (including death) to the 
property or person of anyone other than the Government or its 
employees, or the vessel or its owner, arising in whole or in part 
from the negligence or other wrongful act of the Contractor, or its 
agents or employees, or any subcontractor, or its agents or 
employees.
    (1) The Contractor's obligation to indemnify under this 
paragraph shall not exceed the sum of $300,000 as a consequence of 
any single occurrence with respect to any one vessel.
    (2) The indemnity includes, without limitation, suits, actions, 
claims, costs, or demands of any kind, resulting from death, 
personal injury, or property damage occurring during the period of 
performance of work on the vessel or within 90 days after redelivery 
of the vessel. For any claim, etc.,

[[Page 67895]]

made after 90 days, the rights of the parties shall be as determined 
by other provisions of this contract and by law. The indemnity does 
apply to death occurring after 90 days where the injury was received 
during the period covered by the indemnity.
    (d) Insurance. (1) The Contractor shall, at its own expense, 
obtain and maintain the following insurance--
    (i) Casualty, accident, and liability insurance, as approved by 
the Contracting Officer, insuring the performance of its obligations 
under paragraph (c) of this clause.
    (ii) Workers Compensation Insurance (or its equivalent) covering 
the employees engaged on the work.
    (2) The Contractor shall ensure that all subcontractors engaged 
on the work obtain and maintain the insurance required in paragraph 
(d)(1) of this clause.
    (3) Upon request of the Contracting Officer, the Contractor 
shall provide evidence of the insurance required by paragraph (d) of 
this clause.
    (e) The Contractor shall not make any allowance in the contract 
price for the inclusion of any premium expense or charge for any 
reserve made on account of self-insurance for coverage against any 
risk assumed by the Government under this clause.
    (f) The Contractor shall give the Contracting Officer written 
notice as soon as practicable after the occurrence of a loss or 
damage for which the Government has assumed the risk.
    (1) The notice shall contain full details of the loss or damage.
    (2) If a claim or suit is later filed against the Contractor as 
a result of the event, the Contractor shall immediately deliver to 
the Government every demand, notice, summons, or other process 
received by the Contractor or its employees or representatives.
    (3) The Contractor shall cooperate with the Government and, upon 
request, shall assist in effecting settlements, securing and giving 
evidence, obtaining the attendance of witnesses, and in the conduct 
of suits. The Government shall reimburse the Contractor for expenses 
incurred in this effort, other than the cost of maintaining the 
Contractor's usual organization.
    (4) The Contractor shall not, except at its own expense, 
voluntarily make any payments, assume any obligation, or incur any 
expense other than what would be imperative for the protection of 
the vessel(s) at the time of the event.
    (g) In the event of loss of or damage to any vessel(s), 
material, or equipment which may result in a claim against the 
Government under the insurance provisions of this contract, the 
Contractor shall promptly notify the Contracting Officer of the loss 
or damage. The Contracting Officer may, without prejudice to any 
right of the Government, either--
    (1) Order the Contractor to proceed with replacement or repair, 
in which event the Contractor shall effect the replacement or 
repair;
    (i) The Contractor shall submit to the Contracting Officer a 
request for reimbursement of the cost of the replacement or repair 
together with whatever supporting documentation the Contracting 
Officer may reasonably require, and shall identify the request as 
being submitted under the Insurance clause of this contract.
    (ii) If the Government determines that the risk of the loss or 
damage is within the scope of the risks assumed by the Government 
under this clause, the Government will reimburse the Contractor for 
the reasonable allowable cost of the replacement or repair, plus a 
reasonable profit (if the work or replacement or repair was 
performed by the Contractor) less the deductible amount specified in 
paragraph (b) of this clause.
    (iii) Payments by the Government to the Contractor under this 
clause are outside the scope of and shall not affect the pricing 
structure of the contract, and are additional to the compensation 
otherwise payable to the Contractor under this contract; or
    (2) Decide that the loss or damage shall not be replaced or 
repaired and in that event, the Contracting Officer shall--
    (i) Modify the contract appropriately, consistent with the 
reduced requirements reflected by the unreplaced or unrepaired loss 
or damage; or
    (ii) Terminate the repair of any part or all of the vessel(s) 
under the Termination for Convenience of the Government clause of 
this contract.

(End of clause)


3052.217-96  Title (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Title (Dec 2003)

    (a) Unless otherwise provided, title to all materials and 
equipment to be incorporated in a vessel in the performance of this 
contract shall vest in the Government upon delivery at the location 
specified for the performance of the work.
    (b) Upon completion of the contract, or with the approval of the 
Contracting Officer during performance of the contract, all 
Contractor-furnished materials and equipment not incorporated in, or 
placed on, any vessel, shall become the property of the Contractor, 
unless the Government has reimbursed the Contractor for the cost of 
the materials and equipments.
    (c) The vessel, its equipment, movable stores, cargo, or other 
ship's materials shall not be considered Government-furnished 
property.

(End of clause)


3052.217-97  Discharge of liens (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Discharge of Liens (Dec 2003)
    (a) The Contractor shall immediately discharge or cause to be 
discharged, any lien or right in rem of any kind, other than in 
favor of the Government, that exists or arises in connection with 
work done or materials furnished under this contract.
    (b) If any such lien or right in rem is not immediately 
discharged, the Government, at the expense of the Contractor, may 
discharge, or cause to be discharged, the lien or right.

(End of clause)


3052.217-98  Delays (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Delays (Dec. 2003)

    When during the performance of this contract the Contractor is 
required to delay work on a vessel temporarily, due to orders or 
actions of the Government respecting stoppage of work to permit 
shifting the vessel, stoppage of hot work to permit bunkering, 
stoppage of work due to embarking or debarking passengers and 
loading or discharging cargo, and the Contractor is not given 
sufficient advance notice or is otherwise unable to avoid incurring 
additional costs on account thereof, an equitable adjustment shall 
be made in the price of the contract pursuant to the ``Changes'' 
clause.

(End of clause)


3052.217-99  Department of Labor safety and health regulations for ship 
repairing (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and 
(b), insert the following clause:

Department of Labor Safety and Health Regulations for Ship Repair 
(Dec. 2003)

    Nothing contained in this contract shall relieve the Contractor 
of any obligations it may have to comply with--
    (a) The Occupational Safety and Health Act of 1970 (29 U.S.C. 
651, et seq.);
    (b) The Safety and Health Regulations for Ship Repairing (29 CFR 
part 1915); or
    (c) Any other applicable Federal, State, and local laws, codes, 
ordinances, and regulations.

(End of clause)


3052.217-100  Guarantee (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(c), 
insert the following clause:

Guarantee (Dec. 2003)

    (a) In the event any work performed or materials furnished by 
the contractor prove defective or deficient within 60 days from the 
date of redelivery of the vessel(s), the Contractor, as directed by 
the Contracting Officer and at its own expense, shall correct and 
repair the deficiency to the satisfaction of the Contracting 
Officer.
    (b) If the Contractor or any subcontractor has a guarantee for 
work performed or materials furnished that exceeds the 60 day 
period, the Government shall be entitled to rely upon the longer 
guarantee until its expiration.
    (c) With respect to any individual work item identified as 
incomplete at the time of redelivery of the vessel(s), the guarantee 
period shall run from the date the item is completed.
    (d) If practicable, the Government shall give the Contractor an 
opportunity to correct the deficiency.
    (1) If the Contracting Officer determines it is not practicable 
or is otherwise not

[[Page 67896]]

advisable to return the vessel(s) to the Contractor, or the 
Contractor fails to proceed with the repairs promptly, the 
Contracting Officer may direct that the repairs be performed 
elsewhere, at the Contractor's expense.
    (2) If correction and repairs are performed by other than the 
Contractor, the Contracting Officer may discharge the Contractor's 
liability by making an equitable deduction in the price of the 
contract.
    (e) The Contractor's liability shall extend for an additional 
90-day guarantee period on those defects or deficiencies that the 
Contractor corrected.
    (f) At the option of the Contracting officer, defects and 
deficiencies may be left uncorrected. In that event, the Contractor 
and Contracting Officer shall negotiate an equitable reduction in 
the contract price. Failure to agree upon an equitable reduction 
shall constitute a dispute under the Disputes clause of this 
contract.

(End of clause)


3052.219-70  Small Business subcontracting program reporting.

    As prescribed in (HSAR) 48 CFR 3019.708-70(a), insert the following 
clause:

The Small Business Subcontracting Program Reporting (Dec. 2003)

    (a) The Contractor shall submit the Summary Subcontract Report 
(Standard Form 295 (SF-295)) to the Department of Homeland Security, 
Office of Small and Disadvantaged Business Utilization, Washington, 
DC, 20528.
    (b) The Contractor shall include this clause in all subcontracts 
that include the clause at (FAR) 48 CFR 52.219-9.

(End of Clause)


3052.219-71  DHS mentor-prot[eacute]g[eacute] program.

    As prescribed in (HSAR) 48 CFR 3019.708-70(b), insert the following 
clause:

DHS Mentor-Prot[eacute]g[eacute] Program (Dec. 2003)

    (a) Large businesses are encouraged to participate in the DHS 
Mentor-Prot[eacute]g[eacute] program for the purpose of providing 
developmental assistance to eligible small business 
prot[eacute]g[eacute] entities to enhance their capabilities and 
increase their participation in DHS contracts.
    (b) The program consists of:
    (1) Mentor firms, which are large prime contractors capable of 
providing developmental assistance;
    (2) Prot[eacute]g[eacute] firms, which are small businesses, 
veteran-owned small businesses, service-disabled veteran-owned small 
businesses, HUBZone small businesses, small disadvantaged 
businesses, and women-owned small business concerns; and
    (3) Mentor-Prot[eacute]g[eacute] agreements, approved by the DHS 
OSDBU.
    (c) Mentor participation in the program means providing business 
developmental assistance to aid Prot[eacute]g[eacute]s in developing 
the requisite expertise to effectively compete for and successfully 
perform DHS contracts and subcontracts.
    (d) Large business prime contractors, serving as mentors in the 
DHS mentor-prot[eacute]g[eacute] program, are eligible for a post-
award incentive for subcontracting plan credit by recognizing costs 
incurred by a mentor firm in providing assistance to a 
prot[eacute]g[eacute] firm and using this credit for purposes of 
determining whether the mentor firm attains a subcontracting plan 
participation goal applicable to the mentor firm under a DHS 
contract. The amount of credit given to a mentor firm for these 
prot[eacute]g[eacute] developmental assistance costs shall be 
calculated on a dollar for dollar basis and reported via the SF-295; 
for example, the mentor/large business prime contractor reports a 
$10,000 subcontract to the prot[eacute]g[eacute]/small business 
subcontractor and $5,000 of developmental assistance to the 
prot[eacute]g[eacute]/small business subcontractor as $15,000 
($10,000 traditional subcontract plus $5,000 in developmental 
assistance for a total of $15,000).
    (e) Contractors interested in participating in the program are 
encouraged to contact the DHS OSDBU for more information.

(End of clause)


3052.219-72  Evaluation of prime contractor participation in the DHS 
mentor-prot[eacute]g[eacute] program.

    As prescribed in (HSAR) 48 CFR 3019.708-70(c), insert the following 
clause:

Evaluation of Prime Contractor Participation in the DHS Mentor-
Prot[eacute]g[eacute] Program (Dec 2003)

    This solicitation contains a source selection factor or 
subfactor regarding participation in the DHS Mentor-
Prot[eacute]g[eacute] Program. In order to receive credit under the 
source selection factor or subfactor, the offeror shall provide a 
signed letter of mentor-prot[eacute]g[eacute] agreement approval 
from the DHS OSDBU.

(End of clause)


3052.222-70  Strikes or picketing affecting timely completion of the 
contract work.

    As prescribed in (HSAR) 48 CFR 3022.101-71(a), insert the following 
clause:

Strikes or Picketing Affecting Timely Completion of the Contract 
Work (Dec 2003)

    Notwithstanding any other provision hereof, the Contractor is 
responsible for delays arising out of labor disputes, including but 
not limited to strikes, if such strikes are reasonably avoidable. A 
delay caused by a strike or by picketing which constitutes an unfair 
labor practice is not excusable unless the Contractor takes all 
reasonable and appropriate action to end such a strike or picketing, 
such as the filing of a charge with the National Labor Relations 
Board, the use of other available Government procedures, and the use 
of private boards or organizations for the settlement of disputes.

(End of clause)


3052.222-71  Strikes or picketing affecting access to a DHS facility.

    As prescribed in (HSAR) 48 CFR 3022.101-71(b), insert the following 
clause:

Strikes or Picketing Affecting Access to a DHS Facility (Dec 2003)

    If the Contracting Officer notifies the Contractor in writing 
that a strike or picketing: (a) is directed at the Contractor or 
subcontractor or any employee of either; and (b) impedes or 
threatens to impede access by any person to a DHS facility where the 
site of the work is located, the Contractor shall take all 
appropriate action to end such strike or picketing, including, if 
necessary, the filing of a charge of unfair labor practice with the 
National Labor Relations Board or the use of other available 
judicial or administrative remedies.

(End of clause)


3052.222-90  Local hire (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3022.9001, insert 
the following clause:

Local Hire (Dec 2003)

    (a) When performing a contract in a State with an unemployment 
rate in excess of the national average determined by the Secretary 
of Labor, the Contractor shall employ individuals who are local 
residents and who, in the case of any craft or trade, possess or 
would be able to acquire promptly, the necessary skills.
    (b) Local resident defined. As used in this section, ``local 
resident'' means a resident of, or an individual who commutes daily 
to a State described in subsection (a).
    (c) The Secretary of Homeland Security may waive the 
requirements of this subsection in the interest of national security 
or economic efficiency.

(End of clause)


3052.223-70  Removal or disposal of hazardous substances--applicable 
licenses and permits.

    As prescribed in (HSAR) 48 CFR 3023.303, insert the following 
clause:

Removal or Disposal of Hazardous Substances--Applicable Licenses and 
Permits (Dec 2003)

    The Contractor certifies that it has ---- does not have ---- all 
licenses and permits required by Federal, State, and local laws to 
perform hazardous substance(s) removal or disposal services. If the 
Contractor does not currently possess these documents, it shall 
obtain all requisite licenses and permits within ---- days after 
date of award. The Contractor shall provide evidence of said 
documents to the Contracting Officer or designated Government 
representative prior to commencement of work under the contract.

(End of clause)


3052.223-90  Accident and fire reporting (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3023.9000(a), 
insert the following clause:


[[Page 67897]]


Accident and Fire Reporting (Dec 2003)

    (a) The Contractor shall report to the Contracting Officer any 
accident or fire occurring at the site of the work that causes:
    (1) A fatality or the loss of at least one lost workday on the 
part of any employee of the Contractor or subcontractor at any tier;
    (2) Damage of $1,000 or more to Federal real or personal 
property; either real or personal;
    (3) Damage of $1,000 or more to Contractor or subcontractor 
owned or leased motor vehicles or mobile equipment; or
    (4) Damage for which a contract time extension may be requested.
    (b) Accident and fire reports required by paragraph (a) above 
shall be accomplished by the following means:
    (1) Accidents or fires resulting in a death, hospitalization of 
five or more persons, or destruction of Federal real or personal 
property, the total value of which is estimated at $100,000 or more, 
shall be reported immediately by telephone to the Contracting 
Officer or his/her authorized representative and shall be confirmed 
by telegram, facsimile or e-mail transmission within 24 hours to the 
Contracting Officer. Such telegram or facsimile transmission shall 
state all known facts as to extent of injury and damage and as to 
cause of the accident or fire.
    (2) Other accident and fire reports required by paragraph (a) 
above may be reported by the Contractor using a state, private 
insurance carrier, or Contractor accident report form which provides 
for the statement of:
    (i) The extent of injury; and
    (ii) The damage and cause of the accident or fire.
    Such report shall be mailed or otherwise delivered to the 
Contracting Officer within 48 hours of the occurrence of the 
accident or fire.
    (c) The Contractor shall assure compliance by subcontractors at 
all tiers with the requirements of this clause.

(End of clause)


3052.228-70  Insurance.

    As prescribed in (HSAR) 48 CFR 3028.310-70 and 3028.311-1, insert a 
clause substantially the same as follows. The contracting officer may 
specify additional kinds (e.g., aircraft public and passenger 
liability, vessel liability) or increased amounts of insurance.

Insurance (Dec 2003)

    In accordance with the clause entitled ``Insurance--Work on a 
Government Installation'' [or Insurance--Liability to Third Persons] 
in Section I, insurance of the following kinds and minimum amounts 
shall be provided and maintained during the period of performance of 
this contract:
    (a) Worker's compensation and employer's liability. The 
contractor shall, as a minimum, meet the requirements specified at 
(FAR) 48 CFR 28.307-2(a).
    (b) General liability. The contractor shall, as a minimum, meet 
the requirements specified at (FAR) 48 CFR 28.307-2(b).
    (c) Automobile liability. The contractor shall, as a minimum, 
meet the requirements specified at (FAR) 48 CFR 28.307-2(c).

(End of clause)


3052.228-90  Notification of Miller Act payment bond protection (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3028.106-490, 
insert the following clause:

Notification of Miller Act Payment Bond Protection (Dec 2003)

    This notice clause shall be inserted by first tier 
subcontractors in all their subcontracts and shall contain 
information pertaining to the surety that provided the payment bond 
under the prime contract.
    (a) The prime contract is subject to the Miller Act (40 U.S.C. 
270), under which the prime contractor has obtained a payment bond. 
This payment bond may provide certain unpaid employees, suppliers, 
and subcontractors a right to sue the bonding surety under the 
Miller Act for amounts owned for work performed and materials 
delivery under the prime contract.
    (b) Persons believing that they have legal remedies under the 
Miller Act should consult their legal advisor regarding the proper 
steps to take to obtain these remedies. This notice clause does not 
provide any party any rights against the Federal Government, or 
create any relationship, contractual or otherwise, between the 
Federal Government and any private party.
    (c) The surety which has provided the payment bond under the 
prime contract is:
-----------------------------------------------------------------------
(Name)
-----------------------------------------------------------------------
(Street Address)
-----------------------------------------------------------------------
(City, State, Zip Code)
-----------------------------------------------------------------------
(Contact & Tel. No.)
-----------------------------------------------------------------------
(End of clause)



3052.228-91  Loss of or damage to leased aircraft (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and 
(b), insert the following clause:

Loss of or Damage to Leased Aircraft (Dec 2003)

    (a) The Government assumes all risk of loss of, or damage 
(except normal wear and tear) to, the leased aircraft during the 
term of this lease while the aircraft is in the possession of the 
Government.
    (b) In the event of damage to the aircraft, the Government, at 
its option, shall make the necessary repairs with its own facilities 
or by contract, or pay the Contractor the reasonable cost of repair 
of the aircraft.
    (c) In the event the aircraft is lost or damaged beyond repair, 
the Government shall pay the Contractor a sum equal to the fair 
market value of the aircraft at the time of such loss or damage, 
which value may be specifically agreed to in clause 3052.228-92, 
``Fair Market Value of Aircraft,'' less the salvage value of the 
aircraft. However, the Government may retain the damaged aircraft or 
dispose of it as it wishes. In that event, the Contractor will be 
paid the fair market value of the aircraft as stated in the clause.
    (d) The Contractor agrees that the contract price does not 
include any cost attributable to hull insurance or to any reserve 
fund it has established to protect its interest in the aircraft. If, 
in the event of loss or damage to the leased aircraft, the 
Contractor receives compensation for such loss or damage in any form 
from any source, the amount of such compensation shall be:
    (1) Credited to the Government in determining the amount of the 
Government's liability; or
    (2) For an increment of value of the aircraft beyond the value 
for which the Government is responsible.
    (e) In the event of loss of or damage to the aircraft, the 
Government shall be subrogated to all rights of recovery by the 
Contractor against third parties for such loss or damage and the 
Contractor shall promptly assign such rights in writing to the 
Government.

(End of clause)


3052.228-92  Fair market value of aircraft (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and 
(c), insert the following clause:

Fair Market Value of Aircraft (Dec 2003)

    For purposes of the clause entitled ``Loss of or Damage to 
Leased Aircraft,'' the fair market value of the aircraft to be used 
in the performance of this contract shall be the lesser of the two 
values set out in paragraphs (a) and (b) below:
    (a) $------; or
    (b) If the contractor has insured the same aircraft against loss 
or destruction in connection with other operations, the amount of 
such insurance coverage on the date of the loss or damage for which 
the Government may be responsible under this contract.

(End of clause)


3052.228-93  Risk and indemnities (USCG).

    As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and 
(d), insert the following clause:

Risk and Indemnities (Dec 2003)

    The Contractor hereby agrees to indemnify and hold harmless the 
Government, its officers and employees from and against all claims, 
demands, damages, liabilities, losses, suits and judgments 
(including all costs and expenses incident thereto) which may be 
suffered by, accrue against, be charged to or recoverable from the 
Government, its officers and employees by reason of injury to or 
death of any person other than officers, agents, or employees of the 
Government or by reason of damage to property of others of 
whatsoever kind (other than the property of the Government, its 
officers, agents or employees) arising out of the operation of the 
aircraft. In the event the Contractor holds or obtains insurance in 
support of this covenant, evidence of insurance shall be delivered 
to the Contracting Officer.


[[Page 67898]]


(End of clause)


3052.231-70  Precontract costs.

    As prescribed in (HSAR) 48 CFR 3031.205-32, insert the following 
clause:

Precontract Costs (Dec 2003)

    The Contractor shall be entitled to reimbursement for pre-
contract costs incurred on or after ------ in an amount not to 
exceed $------ that, if incurred after this contract had been 
entered into, would have been reimbursable under this contract.

(End of clause)


3052.236-70  Special precautions for work at operating airports.

    As prescribed in (HSAR) 48 CFR 3036.570, insert the following 
clause:

Special Precautions for Work at Operating Airports (Dec 2003)

    (a) When work is to be performed at an operating airport, the 
Contractor must arrange its work schedule so as not to interfere 
with flight operations. Such operations will take precedence over 
construction convenience. Any operations of the Contractor which 
would otherwise interfere with or endanger the operations of 
aircraft shall be performed only at times and in the manner directed 
by the Contracting Officer. The Government will make every effort to 
reduce the disruption of the Contractor's operation.
    (b) Unless otherwise specified by local regulations, all areas 
in which construction operations are underway shall be marked by 
yellow flags during daylight hours and by red lights at other times. 
The red lights along the edge of the construction areas within the 
existing aprons shall be the electric type of not less than 100 
watts intensity placed and supported as required. All other 
construction markings on roads and adjacent parking lots may be 
either electric or battery type lights. These lights and flags shall 
be placed so as to outline the construction areas and the distance 
between any two flags or lights shall not be greater than 25 feet. 
The Contractor shall provide adequate watch to maintain the lights 
in working condition at all times other than daylight hours. The 
hour of beginning and the hour of ending of daylight will be 
determined by the Contracting Officer.
    (c) All equipment and material in the construction areas or when 
moved outside the construction area shall be marked with airport 
safety flags during the day and when directed by the Contracting 
Officer, with red obstruction lights at nights. All equipment 
operating on the apron, taxiway, runway, and intermediate areas 
after darkness hours shall have clearance lights in conformance with 
instructions from the Contracting Officer. No construction equipment 
shall operate within 50 feet of aircraft undergoing fuel operations. 
Open flames are not allowed on the ramp except at times authorized 
by the Contracting Officer.
    (d) Trucks and other motorized equipment entering the airport or 
construction area shall do so only over routes determined by the 
Contracting Officer. Use of runways, aprons, taxiways, or parking 
areas as truck or equipment routes will not be permitted unless 
specifically authorized for such use. Flag personnel shall be 
furnished by the Contractor at points on apron and taxiway for safe 
guidance of its equipment over these areas to assure right of way to 
aircraft. Areas and routes used during the contract must be returned 
to their original condition by the Contractor. Airport management 
shall establish the maximum speed allowed at the airport. Vehicles 
shall be operated so as to be under safe control at all times, 
weather and traffic conditions considered. Vehicles must be equipped 
with head and taillights during the hours of darkness.

(End of clause)


3052.237-70  Qualifications of contractor employees.

    As prescribed in (HSAR) 48 CFR 3037.110-70(a), insert the following 
clause:

Qualifications of Contractor Employees (Dec 2003)

    (a) ``Sensitive Information'' is any information or proprietary 
data which if subject to unauthorized access, modification, loss, or 
misuse could adversely affect the national interest, the conduct of 
Federal programs, or the privacy to which individuals are entitled 
under 5 U.S.C. 552a (The Privacy Act), but that has not been 
specifically authorized under criteria established by an Executive 
Order or an Act of Congress to be kept classified in the interest of 
national defense or foreign policy.
    (b) Work under this contract may involve access to sensitive 
information. Therefore, the Contractor shall not disclose, orally or 
in writing, any sensitive information to any person unless 
authorized in writing by the Contracting Officer. For those 
contractor employees authorized access to sensitive information, the 
contractor shall ensure that these persons receive training 
concerning the protection and disclosure of sensitive information 
both during and after contract performance.
    (c) Contractor employees working on this contract must complete 
such forms, as may be necessary for security or other reasons, 
including the conduct of background investigations to determine 
suitability. Completed forms shall be submitted as directed by the 
Contracting Officer. Upon the Contracting Officer's request, the 
Contractor's employees shall be fingerprinted, or subject to other 
investigations as required.
    (d) The Contracting Officer may require dismissal from work 
those employees deemed incompetent, careless, insubordinate, or 
otherwise objectionable, or whose continued employment is deemed 
contrary to the public interest or inconsistent with the best 
interest of national security.
    (e) Each employee of the Contractor shall be a citizen of the 
United States of America, or an alien who has been lawfully admitted 
for permanent residence as evidenced by an Alien Registration 
Receipt Card Form I-151. An alien authorized to work shall present 
evidence from the Bureau of Citizenship and Immigration Services 
that employment will not affect his or her immigration status.
    (f) The Contractor shall include the substance of this clause in 
all subcontracts at any tier where the subcontractor may have access 
to Government facilities, sensitive information, or resources.

(End of clause)


3052.237-71  Information technology systems access for contractors.

    As prescribed in (HSAR) 48 CFR 3037.110-70(a) and (b), insert a 
clause substantially as follows. The contracting officer may specify 
additional IT security requirements unique to an OE.

Information Technology Systems Access for Contractors (Dec 2003)

    (a) No contractor personnel shall start work under this contract 
that involves actual or potential access to sensitive information 
until (1) approved for access, (2) they have received a security 
briefing, or current refresher, about Information Technology (IT) 
security, from the appropriate Organizational Element (OE) 
Information Systems Security Officer (ISSO); and (3) have signed a 
non-disclosure agreement form. This user security agreement is 
provided as an Attachment to this solicitation. By signing the user 
security agreement, the individual will be acknowledging their 
responsibility to properly use and safeguard all DHS OE information 
technology resources and information related thereto. The 
Contracting Officer Technical Representative (COTR) for this 
contract shall arrange the aforementioned security briefing. The 
ISSO is responsible for retaining the non-disclosure documents 
signed and submitted by the contractor employees as well evidence of 
security training.
    (b) The contractor shall have access only to those areas of DHS 
OE information technology resources explicitly stated in this 
contract or approved by the COTR in writing as necessary for 
performance of the work under this contract. Information technology 
assets includes computer equipment, networking equipment, 
telecommunications equipment, cabling, network drives, computer 
drives, network software, computer software, software programs, 
intranet sites, and Internet sites. Any attempts by contractor 
personnel to gain access to any information technology resources not 
expressly authorized by the statement of work, other terms and 
conditions in this contract, or as approved in writing by the COTR, 
is strictly prohibited. In the event of violation of this provision, 
DHS will take appropriate actions with regard to the contract.
    (c) Contractor access to DHS networks from a remote location is 
a temporary privilege for mutual convenience while the contractor 
performs business for the DHS OE. It is not a right, a guarantee of 
access, a condition of the contract, nor is it Government Furnished 
Equipment (GFE).
    (d) Contractor access will be terminated for unauthorized use. 
The contractor agrees to hold and save DHS harmless from any 
unauthorized use and agrees not to request additional time or money 
under the contract for any delays resulting from unauthorized use or 
access.

(End of clause)

[[Page 67899]]

3052.237-72  Contractor personnel screening for unclassified 
information technology access.

    As prescribed in 3037.110-70(a) and (b), insert a clause 
substantially as follows:

Contractor Personnel Screening for Unclassified Information 
Technology Access (Dec 2003)

    (a) Contractor personnel requiring privileged access or limited 
risk assessment level. Guidance for selecting the appropriate level 
of screening is based on the risk of adverse impact to DHS missions, 
as indicated in FIPS PUB 199, Standards for Security Categorization 
of Federal Information and Information Systems (Initial Public 
Draft).
    (b) The Contractor shall afford DHS, including the Office of 
Inspector General, access to the Contractor's and subcontractors' 
facilities, installations, operations, documentation, databases and 
personnel used in performance of the contract. Access shall be 
provided to the extent required to carry out a program of IT 
inspection, investigation and audit to safeguard against threats and 
hazards to the integrity, availability and confidentiality of DHS 
data or to the function of computer systems operated on behalf of 
DHS, and to preserve evidence of computer crime.
    (c) The Contractor shall incorporate the substance of this 
clause in all subcontracts that meet the conditions in paragraph (a) 
of this clause.

(End of clause)


3052.242-70  Dissemination of information--educational institutions.

    As prescribed in (HSAR) 48 CFR 3042.203-70(a), insert the following 
clause:

Dissemination of Information--Educational Institutions (Dec 2003)

    (a) The Department of Homeland Security (DHS) desires widespread 
dissemination of the results of funded non-sensitive research. The 
Contractor, therefore, may publish (subject to the provisions of the 
``Data Rights'' and ``Patent Rights'' clauses of the contract) 
research results in professional journals, books, trade 
publications, or other appropriate media (a thesis or collection of 
theses should not be used to distribute results because 
dissemination will not be sufficiently widespread). All costs of 
publication pursuant to this clause shall be borne by the Contractor 
and shall not be charged to the Government under this or any other 
Federal contract.
    (b) Any copy of material published under this clause shall 
contain acknowledgment of DHS's sponsorship of the research effort 
and a disclaimer stating that the published material represents the 
position of the author(s) and not necessarily that of DHS. Articles 
for publication or papers to be presented to professional societies 
do not require the authorization of the Contracting Officer prior to 
release. However, a printed or electronic copy of each article shall 
be transmitted to the Contracting Officer at least two weeks prior 
to release or publication.
    (c) Press releases concerning the results or conclusions from 
the research under this contract shall not be made or otherwise 
distributed to the public without prior written approval of the 
Contracting Officer.
    (d) Publication under the terms of this clause does not release 
the Contractor from the obligation of preparing and submitting to 
the Contracting Officer a final report containing the findings and 
results of research, as set forth in the schedule of the contract.

(End of clause)


3052.242-71  Dissemination of contract information.

    As prescribed in (HSAR) 48 CFR 3042.203-70(b), insert the following 
clause:

Dissemination of Contract Information (Dec. 2003)

    The Contractor shall not publish, permit to be published, or 
distribute for public consumption, any information, oral or written, 
concerning the results or conclusions made pursuant to the 
performance of this contract, without the prior written consent of 
the Contracting Officer. An electronic or printed copy of any 
material proposed to be published or distributed shall be submitted 
to the Contracting Officer.

(End of clause)


3052.242-72  Contracting officer's technical representative.

    As prescribed in (HSAR) 48 CFR 3042.7000, insert the following 
clause:

Contracting Officer's Technical Representative (Dec. 2003)

    (a) The Contracting Officer may designate Government personnel 
to act as the Contracting Officer's Technical Representative (COTR) 
to perform functions under the contract such as review or inspection 
and acceptance of supplies, services, including construction, and 
other functions of a technical nature. The Contracting Officer will 
provide a written notice of such designation to the Contractor 
within five working days after contract award or for construction, 
not less than five working days prior to giving the contractor the 
notice to proceed. The designation letter will set forth the 
authorities and limitations of the COTR under the contract.
    (b) The Contracting Officer cannot authorize the COTR or any 
other representative to sign documents, such as contracts, contract 
modifications, etc., that require the signature of the Contracting 
Officer.

(End of clause)

3052.245-70  Government property reports.

    As prescribed in (HSAR) 48 CFR 3045.505-70, insert the following 
clause:

Government Property Reports (Dec. 2003)

    (a) The Contractor shall prepare an annual report of Government 
property in its possession and the possession of its subcontractors.
    (b) The report shall be submitted to the Contracting Officer not 
later than September 15 of each calendar year on Form DHS F 4220.43, 
Contractor Report of Government Property.

(End of clause)


3052.247-70  F.o.b. origin information.

    As prescribed in (HSAR) 48 CFR 3047.305-70(a), insert the following 
provision:

F.O.B. Origin Information (Dec. 2003)

    The offeror shall furnish information with the offer:
    (a) Location of the offeror's actual shipping point(s) (street 
address, city, state, and zip code) from which supplies will be 
delivered to the Government;
    (b) Whether the offered shipping point has a private railroad 
siding, and the name of the rail carrier serving it;
    (c) When the offered shipping point does not have a private 
siding, the names and addresses of the nearest public rail siding 
and of the carrier serving it; and
    (d) The quantity of supplies to be shipped from each shipping 
point.

(End of provision)

Alternate I (Dec. 2003)

    If delivery is ``f.o.b. origin, contractor's facility,'' and the 
designated facility is not covered by the line-haul transportation 
rate, add the following paragraph to the basic provision:
    (e) The charges required to deliver the shipment to the point 
where the line-haul rate is applicable.

Alternate II (Dec. 2003)

    When delivery is ``f.o.b. origin, freight allowed,'' add the 
following paragraph to the basic provision:
    (e) The basis on which transportation charges will be allowed, 
including the origin and destination from and to which 
transportation charges will be allowed.


3052.247-71  F.o.b. origin only.

    As prescribed in (HSAR) 48 CFR 3047.305-70(b), insert the following 
provision:

F.O.B. Origin Only (Dec. 2003)

    Offers are invited on the basis of f.o.b. origin only. Offers 
submitted on any other basis will be rejected as nonresponsive.

(End of provision)


3052.247-72  F.o.b. destination only.

    As prescribed in (HSAR) 48 CFR 3047.305-70(c), insert the following 
provision:

F.O.B. Destination Only (Dec. 2003)
    Offers are invited on the basis of f.o.b. destination only. 
Offers submitted on any other basis will be rejected as 
nonresponsive.

PART 3053--FORMS

Subpart 3053.1--General
Sec.
3053.101 Requirements for use of forms.
3053.103 Exceptions.
Subpart 3053.2--Prescription of Forms
3053.204-70 Administrative matters.

[[Page 67900]]

3053.222-70 Application of labor laws to Government acquisitions.
3053.227-70 Conveyance of invention rights acquired by the 
Government.
3053.245-70 Contractor report of government property.
Subpart 3053.3--Illustrations of Forms
3053.303 Agency forms.

Subpart 3053.1--General


3053.101  Requirements for use of forms.

    Unless excepted, forms prescribed in (FAR) 48 CFR part 53 and 
(HSAR) 48 CFR part 3053 are required for use by all OEs.


3053.103  Exceptions.

    Requests for exceptions to forms contained in (FAR) 48 CFR part 53 
and to DHS forms in (HSAR) 48 CFR part 3053 shall be submitted, as 
prescribed in (FAR) 48 CFR 53.103, to the CPO.

Subpart 3053.2--Prescription of Forms


3053.204-70  Administrative matters.

    The following forms are prescribed for use in the closeout of 
applicable contracts, as specified in (HSAR) 48 CFR 3004.804-570:
    (a) DHS Form 0700-01, Cumulative Claim and Reconciliation 
Statement. (See (HSAR) 48 CFR 3004.804-570(a)(1).)
    (b) DHS Form 0700-02, Contractor's Assignment of Refunds, Rebates, 
Credits and Other Amounts. (See (HSAR) 48 CFR 3004.570(a)(2).)
    (c) DHS Form 0700-03, Contractor Release. (See (HSAR) 48 CFR 
3004.804-570(a)(3).)


3053.222-70  Application of labor laws to Government acquisitions.

    The following form is prescribed for use in connection with the 
application of labor laws, as specified in (HSAR) 48 CFR 3022.406-9: 
DHS Form 0070-04, Employee's Claim for Wage Restitution.


3053.227-70  Conveyance of invention rights acquired by the Government.

    The following form is prescribed for including a means for 
contractors to report inventions made in the course of contract 
performance, as specified in (HSAR) 48 CFR 3027.305-4: DD Form 882, 
Report of Inventions and Subcontracts.


3053.245-70  Report of Government property.

    The following form is prescribed for use by contractors to report 
Government property, as specified in (HSAR) 48 CFR 3045.505-14: DHS 
Form 0070-05, Contractor's Report of Government Property.

Subpart 3053.3--Illustrations of Forms


3053.303  Agency forms.

    This section illustrates agency-specified forms. To access these 
forms go to: http://www.dhs.gov/dhspublic/ display?theme=37.

------------------------------------------------------------------------
              Form name                             Form No.
------------------------------------------------------------------------
Cumulative Claim and Reconciliation    DHS Form 0070-01
 Statement.
Contractor's Assignment of Refunds,    DHS Form 0070-02
 Rebates, Credits and Other Amounts.
Contractor Release...................  DHS Form 0070-03
Employee's Claim for Wage Restitution  DHS Form 0070-04
Contractor's Report of Government      DHS Form 0070-05
 Property.
Report of Inventions and Subcontract.  DD 882
------------------------------------------------------------------------

Appendix--HSAR Matrix

    Note: This appendix will not appear in the Code of Federal 
Regulations.

BILLING CODE 4410-10-P

[[Page 67901]]

[GRAPHIC] [TIFF OMITTED] TR04DE03.000


[[Page 67902]]


[GRAPHIC] [TIFF OMITTED] TR04DE03.001


[[Page 67903]]


[GRAPHIC] [TIFF OMITTED] TR04DE03.002

[FR Doc. 03-29823 Filed 11-28-03; 8:45 am]
BILLING CODE 4410-10-C