[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Rules and Regulations]
[Pages 22990-23021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8571]



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Part III





Department of Labor





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48 CFR Part 2901, et al.



Revision to the Department of Labor Acquisition Regulations; Final Rule

  Federal Register / Vol. 69, No. 81 / Tuesday, April 27, 2004 / Rules 
and Regulations  

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DEPARTMENT OF LABOR

Office of the Secretary

48 CFR Parts 2901, 2902, 2903, 2904, 2905, 2906, 2907, 2908, 2909, 
2910, 2911, 2912, 2913, 2914, 2915, 2916, 2917, 2918, 2919, 2920, 
2921, 2922, 2923, 2924, 2925, 2926, 2927, 2928, 2929, 2930, 2931, 
2932, 2933, 2934, 2935, 2936, 2937, 2938, 2939, 2940, 2941, 2942, 
2943, 2944, 2945, 2946, 2947, 2948, 2949, 2950, 2951, 2952, and 
2953

RIN 1291-AA34


Revision to the Department of Labor Acquisition Regulations

AGENCY: Office of the Secretary, Labor.

ACTION: Final rule.

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SUMMARY: This document sets forth a revised Department of Labor 
Acquisition Regulation (DOLAR). The final rule reflects changes made to 
the proposed rules in response to the comments received during the 
comment period. The Department of Labor Acquisition Regulation 
implements and supplements the Federal Acquisition Regulation (FAR). 
The DOLAR was last revised in 1986, and is significantly out-of-date. 
The regulation has been substantially revised to: Update references to 
obsolete policies, procedures, and organizations; incorporate 
electronic links to references such as revised provisions of the FAR, 
U.S. Code, and the Code of Federal Regulations; incorporate Office of 
Federal Procurement Policy Letters and Executive Orders; and establish 
revised procedures that follow current established best practices. This 
final rule provides a definition for ``Agency Head'' which may not be 
consistent with the internal Department of Labor Manual Series (DLMS) 
Chapters 2-800 and 2-900 (establishing DOL procurement operating 
procedures and policies). The DLMS will be amended to comport with the 
definition in the DOLAR.

DATES: The effective date for this rule is May 27, 2004.

ADDRESSES: Jeffrey Saylor, Director, Division of Acquisition Management 
Services, 200 Constitution Ave., NW., Room S-1513, Washington, DC 
20210-0001.

FOR FURTHER INFORMATION CONTACT: Lawrence Murphy, Procurement Analyst, 
Division of Acquisition Management Services, telephone (202) 693-7285 
or by e-mail ([email protected]).

SUPPLEMENTARY INFORMATION: These comprehensive revisions to parts 2901 
through 2954 incorporate changes to the language and structure of the 
regulations and also update provisions to correspond with the current 
Federal Acquisition Regulation and Department of Labor policies.

Comments on the Proposed Rules

    We received one set of comments with fifteen elements from one 
member of the public.
    Comment: Five of these comments suggested that the language be 
updated to reflect changes made in the Federal Acquisition Regulation 
since publication of the Notice of Proposed Rulemaking (NPRM) on August 
15, 2003.
    Response: Agree. We have made changes necessary to comply with 
Federal Acquisition Circulars (FAC): 2001-15, 2001-16, 2001-17, and 
2001-18.
    Comment: Three comments suggested that references to Web site 
addresses for GSA's Excluded Party Listing System and the U.S. 
Department of Energy's Alternative Fuels Data Center be updated to 
reflect new Internet addresses.
    Response: Agree. The references to the Internet have been changed 
to reflect the current addresses for each Web site.
    Comment: Two comments suggested that the Department state a 
preference for the Standard Form SF-30 in executing contract and 
purchase order modifications, and the SF-1449 for executing commercial 
purchases.
    Response: Agree. The preference is so stated.
    Comment: One comment noted that 2916.6 misquotes FAR 16.505 to 
include a $25,000 threshold for a fair opportunity to compete task 
orders instead of the micro-purchase threshold (currently $2,500).
    Response: Agree. The reference has been corrected.
    Comment: One comment noted that the reference to ``OFPP Policy 
Letter 93-1'' should note that the Policy Letter has been reissued.
    Response: Agree. We have changed the reference to reflect the later 
date.
    Comment: Two comments suggest that references in 2942.1502 and 
2942.1503 reflect the Department of Labor's use of the National 
Institutes of Health's Past Performance Information Retrieval System 
(PPIRS) instead of the Contractor Performance System.
    Response: Agree. The PPIRS is the e-gov system, which includes as a 
subsystem the NIH's Contractor Performance System. The reference has 
been corrected.
    Comment: Finally, the commenter requested that additional clauses 
be incorporated into the DOLAR in order to reduce the proliferation of 
local clauses and to help DOL simplify its business processes.
    Response: This comment was not accepted, as there has not been 
evidence of a ``proliferation of local clauses.'' This comment will be 
considered for future revisions to the DOLAR.

Congressional Review Act

    Consistent with the Congressional Review Act, 5 U.S.C. 801, et 
seq., we will submit to Congress and the Comptroller General of the 
United States, a report regarding the issuance of this final rule prior 
to the effective date set forth at the beginning of this document.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires that, for 
each rule with a ``significant economic impact on a substantial number 
of small entities'', an analysis shall be prepared describing the 
rule's impact on small entities and identifying any significant 
alternatives to the rule that would minimize the economic impact on 
small entities. This rule revises and updates existing contracting 
procedures and does not make any major changes to the DOLAR that would 
have a significant economic impact on a substantial number of small 
businesses.

Executive Order 12866

    This rule is considered by the Department of Labor to be a 
significant regulatory action under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

Unfunded Reform Mandates Act of 1995

    The Unfunded Reform Mandates Act of 1995 (Pub. L. 104-4) requires 
agencies to prepare several analytic statements before proposing any 
rule that may result in annual expenditures of $100 million by State, 
local, Indian Tribal governments or the private sector. The changes to 
the DOLAR made by this rule do not result in expenditures of this 
magnitude.

Paperwork Reduction Act

    The changes to the DOLAR will not impose additional reporting or 
record-keeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. chapter 35). The DOL forms identified in 2953.1 are used for 
internal

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review and are not public use documents.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
804). This rule will not: result in an annual effect on the economy of 
$100 million or more; result in an increase in cost or prices; or have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Executive Order 13132: Federalism

    The changes to the DOLAR will not have substantial direct effects 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. Therefore, in accordance with section 
6 of Executive Order 13132, this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

List of Subjects in 48 CFR Parts 2901 through 2953

    Government procurement.

0
For the reasons stated in the preamble, the Department of Labor revises 
48 CFR chapter 29, consisting of parts 2900 through 2953, to read as 
set forth below.

    Signed at Washington, DC, this 9th day of April, 2004.
Elaine L. Chao,
Secretary of Labor.

CHAPTER 29--DEPARTMENT OF LABOR

General Structure and Subparts

(Parts 2900 to 2999)

Subchapter A--General

PART 2901--DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM

PART 2902--DEFINITIONS OF WORDS AND TERMS

PART 2903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

Subchapter B--Acquisition Planning

PART 2904--ADMINISTRATIVE MATTERS



PART 2905--PUBLICIZING CONTRACT ACTIONS

PART 2906--COMPETITION REQUIREMENTS

PART 2907--ACQUISITION PLANNING

PART 2908--REQUIRED SOURCES OF SUPPLIES AND SERVICES

PART 2909--CONTRACTOR QUALIFICATIONS

PART 2910--SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE 
DESCRIPTIONS

PART 2911--DESCRIBING AGENCY NEEDS

PART 2912--ACQUISITION OF COMMERCIAL ITEMS

PART 2913--SIMPLIFIED ACQUISITION PROCEDURES

Subchapter C--Contracting Methods and Contract Types

PART 2914--SEALED BIDDING

PART 2915--CONTRACTING BY NEGOTIATION

PART 2916--TYPES OF CONTRACTS

PART 2917--SPECIAL CONTRACTING METHODS



Subchapter D--Socioeconomic Programs

PART 2918 [RESERVED]

PART 2919--SMALL BUSINESS PROGRAMS

PART 2920-2921 [RESERVED]

PART 2922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

PART 2923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND 
DRUG-FREE WORKPLACE

PART 2924-2927 [RESERVED]

Subchapter E--General Contracting Requirements

PART 2928--BONDS AND INSURANCE

PART 2929--TAXES



PART 2930--COST ACCOUNTING STANDARDS

PART 2931--CONTRACT COST PRINCIPLES AND PROCEDURES

PART 2932--CONTRACT FINANCING

PART 2933--PROTESTS, DISPUTES, AND APPEALS

PART 2934-2935 [RESERVED]

PART 2936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

PART 2937--SERVICE CONTRACTING

PARTS 2938-2941 [RESERVED]

Subchapter G--Contract Management

PART 2942--CONTRACT ADMINISTRATION AND AUDIT SERVICES

PART 2943--CONTRACT MODIFICATIONS

PART 2944--SUBCONTRACTING POLICIES AND PROCEDURES

PART 2945--GOVERNMENT PROPERTY

PARTS 2946-2951 [RESERVED]

Subchapter H--Clauses And Forms

PART 2952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

PART 2953--FORMS

SUBCHAPTER A--General

PART 2901--DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM


Subpart 2901.0--Scope of Subpart
Sec.
2901.001 Scope of subpart.
Subpart 2901.1--Purpose, Authority, Issuance
2901.101 Purpose.
2901.103 Authority.
2901.105-2 Arrangement of regulations.
2901.105-3 Copies.
Subpart 2901.2--Administration
2901.201-1 Maintenance of the FAR.
Subpart 2901.3--Agency Acquisition Regulations
2901.302 Limitations.
2901.304 Agency control and compliance procedures.

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Subpart 2901.4--Deviations From the FAR and DOLAR
2901.403 Individual deviations from the FAR.
2901.404 Class deviations.
2901.405 Deviations pertaining to treaties and executive agreements.
Subpart 2901.6--Career Development, Contracting Authority, and 
Responsibilities
2901.601 General.
2901.602 Contracting officers.
2901.602-1 Authority.
2901.602-3 Ratification of unauthorized commitments.
2901.603 Selection, appointment, and termination of Appointment.
2901.603-1 General.
2901.603-3 Appointment.
2901.603-4 Terminations.
2901.603-70 Responsibility of other government personnel.
2901.603-71 Contracting officer's technical representatives (COTR).
2901.603-72 Administrative procurement management reviews.
Subpart 2901.7--Determinations and Findings
2901.707 Signatory authority.

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

PART 2901--DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM.

Subpart 2901.0--Scope of Subpart


2901.001  Scope of part.

    This chapter may be referred to as the Department of Labor 
Acquisition Regulation or the DOLAR. This subpart sets forth 
introductory information about the Department of Labor Acquisition 
Regulation. This subpart explains the relationship of the DOLAR to the 
Federal Acquisition Regulation (FAR) and explains the DOLAR's purpose, 
authority, applicability, exclusions, and issuance.

Subpart 2901.1--Purpose, Authority, Issuance


2901.101  Purpose.

    (a) Chapter 29, Department of Labor Acquisition Regulation, is 
established within Title 48 of the Federal Acquisition Regulation 
System of the Code of Federal Regulations.
    (b) The purpose of the DOLAR is to implement the FAR, and to 
supplement the FAR when coverage is needed for subject matter not 
covered in the FAR. The DOLAR is not by itself a complete document, as 
it must be used in conjunction with the FAR.


2901.103  Authority.

    The DOLAR is issued pursuant to the authority of the Secretary of 
Labor under 5 U.S.C. 301 and 40 U.S.C. 486(c). This authority has been 
delegated to the Assistant Secretary for Administration and Management 
under Secretary's Order 4-76 in accordance with FAR 1.301(d)(3).


2901.105-2  Arrangement of regulations.

    (a) Numbering. Where DOLAR implements the FAR, the implementing 
part, subpart, section or subsection of the DOLAR is numbered and 
captioned, to the extent feasible, the same as the FAR part, subpart, 
section or subsection being implemented, except that the section or 
subsection being implemented is preceded with a 29 or a 290 such that 
there will always be four numbers to the left of the first decimal. For 
example, the DOLAR implementation of FAR l.105-l is shown as 290l.105-1 
and the DOLAR implementation of FAR subpart 24.1 is shown as DOLAR 
subpart 2924.1. Material which supplements the FAR is assigned the 
subsection numbers 70 and up. For example, the DOL regulation governing 
appointment and termination of contracting officers' technical 
representatives is identified as 2901.603-71.
    (b) References to FAR materials within the DOLAR will include the 
acronym FAR and the identifying number, for example, FAR l.104-2(c)(2). 
References to DOLAR materials within the DOLAR simply cite the 
identifying number, for example, 2901.104-2(c)(2).


2901.105-3  Copies.

    Copies of the DOLAR published in the Federal Register, CD-ROM, or 
Code of Federal Regulations may be purchased from the Superintendent of 
Documents, Government Printing Office, Washington, DC 20402, or from 
the Government Printing Office Web Page, http://www.gpo.gov/. Requests 
should reference the DOLAR as chapter 29 of title 48. The Code of 
Federal Regulations is printed in paperback edition with updates as 
needed. Additional information on DOL may be obtained on the Internet 
at www.dol.gov. Other DOL procurement policy documents referenced 
within the DOLAR may be available when appropriate by mail from the 
Division of Acquisition Management Services.

Subpart 2901.2--Administration


2901.201-1  Maintenance of the FAR.

    A member of the Division of Acquisition Management Services (DAMS), 
an organization within the Office of Acquisition and Management Support 
Services, the Business Operations Center, Office of the Assistant 
Secretary for Administration and Management (OASAM), represents the 
Department of Labor on the Civilian Agency Acquisition Council (CAAC). 
DAMS will be responsible for coordination with all interested DOL 
elements regarding proposed FAR revisions and advocating revisions 
sought by DOL.

Subpart 2901.3--Agency Acquisition Regulations


2901.302  Limitations.

    DOLAR System issuances are limited to published, codified, 
Department-wide regulations, which implement or supplement FAR policies 
and procedures and which affect organizations or individuals seeking to 
contract with the Department.


2901.304  Agency control and compliance procedures.

    (a) The DOLAR is under the direct oversight and control of the 
Department's Senior Procurement Executive. Procedures for review and 
approval of issuances under the DOLAR System comply with FAR subparts 
1.3 and 1.4. These procedures are contained in subpart 2901.6.
    (b) DOLAR issuances shall comply with the restrictions in FAR 
1.304(b).
    (c) Heads of Contracting Activity (HCAs) must submit all proposed 
instructions and materials that implement or supplement the DOLAR to 
the Director, DAMS. In conjunction with the Office of the Solicitor, 
DAMS will review all issuances whether or not they will be published in 
the Federal Register as a part of the DOLAR System. In the case of 
internal procurement policy instructions, the purpose of the review is 
to ascertain that such instructions are consistent with the FAR and the 
DOLAR and that they do not contain information which should be issued 
under the DOLAR.

Subpart 2901.4--Deviations From the FAR and DOLAR


2901.403  Individual deviations from the FAR.

    (a) The Senior Procurement Executive is authorized to approve 
deviations from FAR provisions (see FAR 1.403) or DOLAR provisions, 
which affect only one contracting action, unless FAR 1.405(e) is 
applicable. Requests for deviations shall be submitted through the 
Director, DAMS.
    (b) Requests for deviations under paragraph (a) of this section 
must be submitted by the HCA and include justification as to why the 
deviation is required.
    (c) A copy of the approved deviation must be included in the 
contract file.

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2901.404  Class deviations.

    (a) The Senior Procurement Executive is authorized to approve class 
deviations from FAR or DOLAR provisions which affect more than one 
contracting action, unless FAR 1.405(e) is applicable. The request for 
deviation is submitted through the Director, DAMS.
    (b) Requests for deviations under paragraph (a) of this section 
must be submitted by the HCA and include justification as to why the 
deviation is required and the number of contracting actions which will 
be affected.
    (c) For a FAR class deviation the Director, DAMS will consult with 
the Chair of the CAAC, as required in FAR 1.404(a)(1), before 
authorizing the deviation.
    (d) A copy of the approved class deviation must be included in each 
contract file.
    (e) Recommended revisions to the FAR and a copy of each approved 
class FAR deviation will be transmitted to the FAR Secretariat by the 
Director, DAMS as required in FAR 1.404.


2901.405  Deviations pertaining to treaties and executive agreements.

    (a) The Director, DAMS is responsible for transmitting to the FAR 
Secretariat the information required in FAR 1.405(d).
    (b) For deviations not authorized by FAR 1.405(b) or (c), the 
Director, DAMS, will process the request for deviation through the FAR 
Secretariat.

Subpart 2901.6--Career Development, Contracting Authority, and 
Responsibilities


2901.601  General.

    (a) This section deals with contracting authority and 
responsibilities of the head of the agency as described in 2902.1, FAR 
subpart 1.6 and this subpart.
    (1) The authority and responsibility vested in the Secretary to 
contract for authorized supplies and services is delegated to the 
Assistant Secretary for Administration and Management.
    (2) The Assistant Secretary for Administration and Management may 
delegate contracting authority to a bureau or agency within the 
Department of Labor as he/she delineates in writing.
    (b) The Assistant Secretary for Administration and Management, 
acting through the Senior Procurement Executive, may delegate 
additional procurement authority subject to the issuance of warrants by 
the Senior Procurement Executive, and reserves the right to rescind any 
acquisition authority, if it is determined that such action is in the 
best interest of the Government.


2901.602  Contracting officers.


2901.602-1  Authority.

    Contracting warrants, at all levels above the micro-purchase 
threshold, must be requested by the HCA in writing and signed by the 
Senior Procurement Executive. Warrants may be accompanied by letters of 
appointment that may provide requirements for maintaining the warrant 
(e.g., maintaining current documentation for the FAR, DOLAR, and other 
guidance, and recurrent training). Copies of the appointment shall be 
maintained in the Division of Acquisition Management Services. 
Contracting officers must display the original warrant (and its 
limitations) in their workspace. A listing of current contracting 
officers may be available for review on the Internet at http://www.dol.gov/oasam/grants/prgms.htm htm. To modify a contracting officer's 
authority, the present appointment must be revoked and a new 
certificate issued.


2901.602-3  Ratification of unauthorized commitments.

    (a) If the HCA agrees that the commitment appears to be without 
valid authorization, the Division of Acquisition Management Services 
must be notified by the HCA in accordance with the procedures outlined 
in this section.
    (b) Ratifications--Thresholds. The Department of Labor may only 
ratify acquisitions that were intended to fulfill a bona fide need and 
otherwise could have been authorized when made. If the action to be 
ratified is not approved, then the employee who authorized the work may 
be liable for the entire cost of the action. Requests received by 
contracting officers for ratification of commitments made by personnel 
lacking contracting authority must be processed as follows:

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                                           Must be approved by (Ratifying
            Dollar threshold                          official)                     Steps to be followed
----------------------------------------------------------------------------------------------------------------
Below the micro-purchase threshold......  Head of the Contracting Office..  1 through 5 & 7.
Between the micropurchase threshold and   Head of Contracting Activity....  1 through 5 & 7.
 the Simplified Acquisition Threshold.
Above the Simplified Acquisition          Assistant Secretary for           1 through 7.
 Threshold.                                Administration and Management,
                                           after review by the Procurement
                                           Review Board.
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Note: DOL procurement policies require review by the Procurement Review Board of advisory and assistance
  services acquisitions above $50,000 for competitive acquisitions and at any dollar amount for noncompetitive
  acquisitions, and waivers for contracts with employees and recently separated employees. Therefore, review by
  the PRB is required for unauthorized obligations at these lower thresholds.

Step--Instruction

    (1) The individual is placed on notice by the contracting officer, 
in writing, that the purchase may be inappropriate because he did not 
have a purchasing request, funding, or authority to obligate the 
Government to make an expenditure of funds.
    (i) The individual who made the unauthorized contractual commitment 
shall furnish the contracting officer all records and documents 
concerning the commitment and a complete written statement of the 
facts, including, but not limited to a statement as to why the 
acquisition office was not used, a description of work to be performed 
or products to be furnished, an estimated or agreed-upon contract 
price, citation of appropriation available, and a statement as to 
whether the contractor has commenced performance.
    (ii) In the absence of such an individual, the head of the 
applicable office will be responsible for providing such information, 
including an explanation of why the individual who made the 
unauthorized commitment is unavailable to provide this information.
    (2) The individual who made the unauthorized commitment or the head 
of the applicable office, as appropriate, shall provide a determination 
and finding (See FAR 1.704) to the contracting officer indicating that:
    (i) Supplies or services have been provided to and accepted by the 
Government, or the Government otherwise has obtained or will obtain a 
benefit resulting from performance of the unauthorized commitment;
    (ii) A procurement request and/or accompanying documentation 
including a statement signed by the individual that explains why normal 
acquisition procedures were not followed, explains why the source was 
selected, lists other sources considered, describes the work,

[[Page 22994]]

and estimates or states the agreed upon price. (If the DOL employee who 
made the unauthorized commitment is no longer available, appropriate 
program personnel must provide the information described in this 
paragraph); and
    (iii) Funds are available and were available at the time of the 
unauthorized commitment.
    (3) The contracting officer reviewing the unauthorized commitment 
shall determine whether the price is fair and reasonable and if payment 
is recommended to the ratifying official. (The contracting officer may 
rely upon written documentation submitted by managing staff above the 
individual who made the unauthorized commitment, in making his/her 
determination.)
    (4) Legal review is required before ratification by the ratifying 
official.
    (5) The ratifying official shall make an affirmative determination 
and finding that:
    (i) The resulting purchase order or contract would otherwise have 
been proper if made by an appropriate contracting officer.
    (ii) The contracting officer reviewing the unauthorized commitment 
has determined that the price is fair and reasonable and payment is 
recommended.
    (6) For cases over the simplified acquisition threshold, all 
documentation for steps (1) through (5) must be forwarded to the 
Director, Division of Acquisition Management Services, for submission 
to the Procurement Review Board. However, the ratifying official is 
responsible for directing the receipt and acceptance for all products 
and deliverables received by the Government as a result of an 
unauthorized commitment.
    (7) The supervisor of the individual who made the unauthorized 
commitment shall prepare a corrective action plan to preclude further 
unauthorized commitments (e.g., ethics, purchase card, or 
administrative procedures training, or other appropriate action). The 
ratifying official may approve the corrective action plan. The 
individual shall report to the ratifying official in writing when the 
corrective action has been initiated and again after it has been fully 
implemented.


2901.603  Selection, appointment, and termination of appointment.


2901.603-1  General.

    (a) The Senior Procurement Executive will develop and manage an 
acquisition career management program for contracting personnel. 
Training requirements must conform to Office of Federal Procurement 
Policy Letters 92-3, 97-01, and the Federal Acquisition Institute's 
curriculum. These references are available at:

http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL97-01.html html,
http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL92-3.html html, and through the Federal Acquisition Institute (FAI) at:
http://www.faionline.com/fai/campus/index4.htm htm.

    (b) The program must cover all contracting personnel in the 
following categories:
    (1) General Schedule (GS-1102) Contracting Series (See also FAR 
1.603);
    (2) Contracting officers, regardless of General Schedule Series, 
with contracting authority above the simplified acquisition threshold;
    (3) Purchasing Series (GS-1105), other individuals performing 
purchasing duties and individuals with contracting authority between 
the micro-purchase and simplified acquisition thresholds.
    (4) All Contracting Officer Technical Representatives as identified 
in 2901.603-71.


2901.603-3  Appointment.

    General. In accordance with FAR 1.603-3, appointments will be made 
in writing on an SF 1402 for all warrants above the micro-purchase 
threshold. In addition, appointments may be made for specific functions 
unrelated to dollar threshold, such as indirect cost negotiation, debt 
management, and closeout functions.
    (a) Purchase Cards (micro-purchase threshold). Purchase cardholders 
will be appointed in accordance with the DOL Guidelines for Purchase 
Card Use and the Agency/Office procedures approved by the HCA. Agency/
Organization Purchase Card Coordinators requesting issuance of a 
purchase card must be responsible for ensuring that the purchase 
cardholder has taken an orientation course before issuance and/or use 
of the purchase card. A list of purchase cardholders is available at: 
http://www.dol.gov/oasam/foia/hotfoia/citibank-list.htm htm.
    (b) Simplified Acquisition Threshold (currently $100,000). The HCA 
may request a delegation of procurement authority not to exceed the 
simplified acquisition threshold based on education, training, and 
experience in the acquisition field. Effective July 26, 2004, all new 
appointments must comply with training requirements listed in ``OFPP 
Policy Letter No. 92-3, Procurement Professionalism Program Policy-
Training for Contracting Personnel'', dated June 24, 1992.
    (c) $500,000. The HCA may request a delegation of procurement 
authority not to exceed $500,000 based on the individual's education, 
training and experience in contracting. Although primarily reserved for 
those in the GS-1102 series, the HCA may consider business acumen, 
education, training, and experience. Effective May 27, 2004, all new 
appointments must comply with training requirements listed in ``OFPP 
Policy Letter No. 92-3, Procurement Professionalism Program Policy-
Training for Contracting Personnel'', dated June 24, 1992.
    (d) Unlimited. The HCA may request a delegation of procurement 
authority on an unlimited basis for individuals whose education, 
training, and experience in contracting warrant such authority. 
Although primarily reserved for those in the GS-1102 series, the HCA 
may consider length of service, training, and experience. Effective May 
27, 2004, all new appointments must comply with training requirements 
listed in ``OFPP Policy Letter No. 92-3, Procurement Professionalism 
Program Policy-Training for Contracting Personnel'', dated June 24, 
1992.


2901.603-4  Terminations.

    Termination of a contracting officer's appointment will be made in 
writing unless the warrant contains the basis for the termination 
(i.e., retirement, reassignment). Terminations may be immediate, but 
must not operate retroactively.


2901.603-70  Responsibility of other government personnel.

    (a) Only DOL personnel with contracting authority shall obligate 
DOL to any type of contractual obligation and only to the extent of 
their delegated authority. Responsibility for determining how to buy, 
the conduct of the buying process, and execution of the contract rests 
with the contracting officer.
    (b) Personnel responsible for determining agency needs should 
maintain a close and continuous relationship with their contracting 
officer to ensure that acquisition personnel are made aware of 
contemplated acquisition actions. This will be mutually beneficial in 
terms of better planning for acquisition action and more timely, 
efficient and economical acquisition.
    (c) Personnel not delegated contracting authority or insufficient 
contracting authority may not commit the Government, formally or 
informally, to any type of contractual obligation. However, DOL 
personnel who must use the contracting process to accomplish

[[Page 22995]]

their programs must support the contracting officer to ensure that:
    (1) Requirements are clearly defined and specified without being 
overly restrictive in accordance with FAR 11.002;
    (2) Competitive sources are solicited, evaluated, and selected as 
appropriate;
    (3) The FAR and the Competition in Contracting Act requirements for 
full and open competition are satisfied to the maximum extent 
practicable. Sole source purchases may only be permitted in accordance 
with FAR Subpart 6.3 or other applicable provisions of the FAR (e.g. 
FAR Part 8) or federal law;
    (4) Quality standards are prescribed, and met;
    (5) Performance or delivery is timely;
    (6) Files are documented to substantiate the judgments, decisions, 
and actions taken, including compliance with paragraphs (c)(2) and (3) 
of this section;
    (7) Requirements are written so as to encourage competition and to 
comply with regulations and federal policy for meeting acquisition 
goals such as performance-based contracting, HUBZone contractors, etc. 
The contracting officer will identify these programs to the program 
office.


2901.603-71  Contracting Officer's Technical Representatives (COTR).

    (a) At the time a COTR is to become responsible for a contract, 
task order, or delivery order, the contracting officer must issue a 
written letter of delegation informing the individual by name of his or 
her authority, including a delineation of applicable limitations and 
responsibilities. This applies to contracts awarded by the Department 
of Labor and those awarded by other agencies, such as Federal Supply 
Schedule Contracts or Economy Act transactions. Only the contracting 
officer cognizant of the contract action may make a COTR delegation. 
However, a contracting officer at any level above the cognizant 
contracting officer may sign the delegation letter, following his or 
her determination of its accuracy, completeness, and sufficiency.
    (b) The functions of a COTR typically may include such actions as 
inspecting, testing, and accepting contract line items, monitoring the 
contractor's performance, controlling Government-furnished property, 
reviewing and approving and/or recommending to the contracting officer 
approval/disapproval of vouchers/invoices, etc. An individual COTR may 
have only the duties specifically identified in a written delegation to 
him or her by name (i.e., COTR duties may not be delegated to a 
position) and has no authority to exceed them.
    (c) Contracting officers may not delegate to the COTR the following 
authorities:
    (1) The authority to issue task or delivery orders against a 
contract or any of the agreements defined under FAR 16.7;
    (2) The authority to change any of the terms and conditions of a 
contract or any of the agreements defined under FAR 16.7;
    (3) The authority to sign contracts or contract modifications;
    (4) The authority to write letters to the contractor that will 
affect the cost or schedule of the contract. The authority to otherwise 
write letters to a contractor must require the COTR to send a copy of 
the letters to the contracting officer for the contract file;
    (5) The authority to approve contractors' final invoices under 
cost-reimbursement contracts. However, the COTR must make a final 
payment recommendation to the contracting officer; or
    (6) The authority to commit the Government to any adjustments to 
the price or cost of the contract or order (e.g., the contracting 
officer must sign all pre-negotiation and price negotiation memoranda 
including those which may be combined into one document for those 
adjustments valued at $100,000 or less).
    (d) The contracting officer's delegation must include the 
admonition that the COTR may be personally liable for unauthorized 
commitments. Contracting officer authority to sign or authorize 
contractual instruments must not be delegated through a COTR 
designation or by any means other than a contracting officer warrant.
    (e) The contractor must be notified of the COTR designation in 
writing and a copy of the COTR letter of appointment also must be 
provided to the contractor. The contracting officer must provide the 
COTR with a copy of the COTR designation notification that was sent to 
the contractor.
    (f) The letter delegating COTR authority must include the contract 
number, and must include the following information, at a minimum:
    (1) Contracting officer's and contract specialist's/administrator's 
name and telephone number;
    (2) COTR's specific authority and responsibilities;
    (3) COTR's specific limitations, including the admonition that the 
COTR may be personally liable for unauthorized commitments;
    (4) Detailed description of the types of files and the content of 
the files to be maintained by the COTR;
    (5) Reference to meeting applicable requirements for ethics, 
procurement integrity, no conflict of interest, and proper standards of 
conduct, including a copy of FAR Part 3, and other regulations, 
statutes, or directives governing these topics (e.g., 5 CFR Part 2635 
Standards of Conduct);
    (6) A requirement that the COTR acknowledge receipt and acceptance 
of the letter and return it to the contracting officer;
    (7) A description of the training required and information on 
obtaining such training.
    (g) Applicability. The eligibility requirements of this subpart 
must apply to all individuals who are designated by the contracting 
officer as COTRs.
    (h) Eligibility standards. To be determined eligible for an 
appointment as a DOL COTR, the following standards must be met:
    (1) The candidate must attend and successfully complete a minimum 
of a 16-hour basic COTR course; and
    (2) The candidate must attend a minimum of 1 hour of training 
specifically in procurement ethics, either through courses offered 
periodically by the Department of Labor, another federal agency's 
program, or a commercial vendor.
    (i) Limitations. Effective May 27, 2004, each COTR appointment made 
by the contracting officer must clearly state that the representative 
is not an authorized contracting officer and does not have the 
authority under any circumstances to:
    (1) Award, agree to award, or execute any contract, contract 
modification, notice of intent, or other form of binding agreement;
    (2) Obligate, in any manner, the payment of money by the 
Government;
    (3) Make a final decision on any contract matter which is subject 
to the clause at FAR 52.233-1, Disputes; or
    (4) Terminate, suspend, or otherwise interfere with the 
contractor's right to proceed, or direct any changes in the 
contractor's performance that are inconsistent with or materially 
change the contract specifications.
    (j) Termination. (1) Termination of the COTR's appointment must be 
made in writing by a contracting officer and must give the effective 
date of the termination. The contracting officer must promptly modify 
the contract once a COTR termination notice has been issued. A 
termination notice is not required when the COTR's appointment 
terminates upon expiration of the contract.

[[Page 22996]]

    (2) COTRs may be terminated for reasons (not an exhaustive listing) 
such as exceeding their authorities and limitations, conflicts of 
interest, unethical conduct, failure to perform, reassignment/
resignation/retirement, and upon completion of the contract to which 
assigned.
    (k) Waivers. No individual may serve as a COTR on any contract 
without the requisite training and signed COTR certificate for the 
file. In the rare event that there is an urgent requirement for a 
specific individual to serve as a COTR and the individual has not 
successfully completed the required training, the HCA may waive the 
training requirements and authorize the individual to perform the COTR 
duties.


2901.603-72  Administrative procurement management reviews.

    (a) The Senior Procurement Executive is responsible for performing 
administrative procurement reviews for each procurement office in the 
Department of Labor, except the Office of the Inspector General (OIG). 
The purpose of these reviews is to audit internal controls to ensure 
compliance with established procurement law, regulations, policies, 
procedures and applicable directives. The reviews are to emphasize the 
development and improvement of managerial controls and best practices.
    (b) The administrative procurement review system is a three-pronged 
approach that includes self-assessment, statistical data for 
validation, and flexible quality reviews and assessment techniques. 
This system is required to:
    (1) Evaluate the effectiveness and efficiency of office acquisition 
systems;
    (2) Assess the adequacy of policies, procedures and regulations 
governing the acquisition process; and
    (3) Identify and implement changes necessary to improve the 
systems.
    (c) The Senior Procurement Executive shall establish procurement 
review procedures, which will focus on:
    (1) Conformance with policies of the FAR, DOLAR and the Department 
of Labor Manual Series 2-800 and 2-900.
    (2) Conformance with federal reporting requirements for the 
Department of Labor.
    (3) Understanding of new department-wide or government-wide 
initiatives (e.g., E-Procurement).
    (4) Government-wide procedures established by the Office of 
Management and Budget.
    (d) HCAs are responsible for ensuring contracting activity 
compliance with law and regulations through the review and oversight 
process.

Subpart 2901.7--Determinations and Findings


2901.707  Signatory authority.

    A class justification for other than full and open competition must 
be approved in writing by the same approval authority as for individual 
justifications in accordance with FAR 6.304(a). The approval level must 
be determined by the estimated total value of the class.

PART 2902--DEFINITIONS OF WORDS AND TERMS

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

Subpart 2.1--Definitions


2902.101  Definitions.

    (a) Commonly used words and terms are defined in FAR subpart 2.1. 
This part 2902 gives DOL-specific meanings for some of these words and 
terms and defines other words and terms commonly used in the DOL 
acquisition process.
    (b) The following words and terms are used as defined in this 
subpart unless the context in which they are used clearly requires a 
different meaning, or a different definition is prescribed for a 
particular part or portion of a part:
    Competition Advocate The Competition Advocate for the Department of 
Labor is appointed by the Assistant Secretary for Administration and 
Management and is defined in FAR 6.5 and 2906.5. If the appointee is 
recused from a procurement action, the Assistant Secretary for 
Administration and Management may designate another official to act in 
that capacity.
    Contracting Activity means an agency or component office within the 
Department of Labor with specific responsibility for managing contract 
functions pursuant to one or more warrants signed by the Senior 
Procurement Executive (or the Office of the Inspector General for its 
contracting activity).
    Contracting Officer's Technical Representative means the individual 
appointed by the contracting officer to represent the Department of 
Labor's programmatic interests on a Department of Labor contract, task 
order, or delivery order. This individual is responsible to the 
contracting officer for overseeing receipt and acceptance of goods/
services by the Government, reporting on the contractor's performance, 
and approving/disapproving payment to the contractor. Authority is 
otherwise limited to giving technical direction to the contractor 
within the framework of the contract (see 2901.603-71). This position 
may go by other titles, such as: a technical point of contact (TPOC) or 
Contacting Officer's Representative (COR).
    Head of Agency (also called agency head), for the FAR and DOLAR 
only, means the Assistant Secretary for Administration and Management; 
except that the Secretary of Labor is the Head of Agency for 
acquisition actions, which by the terms of a statute or delegation must 
be performed specifically by the Secretary of Labor; the Inspector 
General is the Head of Agency in all cases for the Office of the 
Inspector General. Authority to act as the Head of Agency has been 
delegated to the Assistant Secretary for Employment and Training and 
the Assistant Secretary for Mine Safety and Health for their respective 
agencies. For purposes of the Economy Act (determinations and 
interagency agreements under FAR 17.5) only, the Employee Benefits 
Security Administration, Employment Standards Administration, Women's 
Bureau, Office of the Solicitor, Bureau of Labor Statistics, Office of 
Disability Employment Policy, and the Occupational Safety and Health 
Administration are delegated contracting authority.
    Head of Contracting Activity (HCA) means the official who has 
overall responsibility for managing the contracting activity, when the 
contracting activity has more than one person with a warrant issued by 
the Senior Procurement Executive. In the Department of Labor the 
following officials are the HCA for their respective organization:
    (i) For the Mine Safety and Health Administration, the Director, 
Administration and Management, MSHA.
    (ii) For the Employment and Training Administration, the Director, 
Office of Grants and Contract Management, ETA.
    (iii) For the Office of the Inspector General, the Director, 
Division of Finance and Administration, OIG.
    (iv) For the Bureau of Labor Statistics, the Director, Division of 
Administrative Services, BLS.
    (v) For the Office of the Assistant Secretary for Administration 
and Management and all other agencies not listed in this definition, 
the Director, Business Operations Center, OASAM.
    Senior Procurement Executive means the Deputy Assistant Secretary 
for Administration and Management as defined at FAR 2.101.

[[Page 22997]]

PART 2903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

Subpart 2903.1--Safeguards
Sec.
2903.101 Standards of conduct.
2903.101-1 General.
2903.104 Procurement integrity.
2903.104-3 Definitions.
2903.104-5 Disclosure, protection, and marking of contractor bid or 
proposal information and source selection information.
2903.104-7 Violations or possible violations of standards of 
conduct.
Subpart 2903.2--Contractor Gratuities to Government Personnel
2903.203 Reporting suspected violations of the Gratuities clause.
2903.204 Treatment of violations.
Subpart 2903.6--Contracts With Government Employees or Organizations 
Owned or Controlled by Them
2903.601 Policy.
2903.602 Exceptions.

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

Subpart 2903.1--Safeguards


2903.101  Standards of conduct.


2903.101-1  General.

    The statutory prohibitions and their application to DOL personnel 
are discussed in the Standards of Ethical Conduct for Employees of the 
Executive Branch, 5 CFR part 2635 and the supplemental DOL standards of 
conduct, 5 CFR part 5201. All DOL personnel involved in acquisitions 
must become familiar with these statutory prohibitions. Any questions 
concerning them must be referred to an Agency Ethics Official in the 
Office of the Solicitor. In addition to criminal penalties, the 
statutes provide that transactions entered into in violation of these 
prohibitions are voidable (18 U.S.C. 218). Any suspected violations 
must be reported promptly to the Office of the Inspector General.


2903.104  Procurement integrity.


2903.104-3  Definitions.

    Agency ethics official means the Solicitor or the Associate 
Solicitor for Legislation and Legal Counsel.


2903.104-5  Disclosure, protection, and marking of contractor bid or 
proposal information and source selection information.

    (a) Government employees serving in the following positions are 
authorized access to proprietary or source selection information, but 
only to the extent necessary to perform their official duties:
    (1) Personnel participating in technical evaluation panels (i.e., 
source selection board) or personnel evaluating an offeror's or 
bidder's technical or cost proposal under other competitive procedures, 
and personnel evaluating protests.
    (2) Personnel assigned to the contracting office.
    (3) The initiator of the procurement request (to include the 
official having principal technical cognizance over the requirement).
    (4) Small business specialists.
    (5) Personnel assigned to the Office of the Solicitor.
    (6) Personnel assigned to the Department of Labor's Division of 
Cost Determination and the Defense Contract Audit Agency.
    (7) Personnel assigned to the Division of Acquisition Management 
Services.
    (8) Members of the Procurement Review Board.
    (9) The Office of the Inspector General.
    (10) Other Government employees authorized by the contracting 
officer.
    (11) Supervisors, at any level, of the personnel listed in this 
paragraph (a).
    (b) The originator of information that may be source selection 
information must consult with the contracting officer or the 
procurement officer, who must determine whether the information is 
source selection information. DOL personnel responsible for preparing 
source selection information as defined in FAR 2.101 must assure that 
the material is marked with the legend in FAR 3.104-4 at the time the 
material is prepared.
    (c) Unless marked with the legend ``SOURCE SELECTION INFORMATION--
SEE FAR 3.104-4,'' draft specifications, purchase descriptions, and 
statements of work could erroneously be released during a market survey 
in order to determine the capabilities of potential competitive sources 
(see FAR 7.1 and FAR 10).


2903.104-7  Violations or possible violations of standards of conduct.

    (a) The Senior Procurement Executive is the individual designated 
to receive the contracting officer's report of violations.
    (b) The HCA or designee must refer all information describing an 
actual or possible violation to the Associate Solicitor for Legislation 
and Legal Counsel, the Senior Procurement Executive, and Inspector 
General staff.

Subpart 2903.2--Contractor Gratuities to Government Personnel


2903.203  Reporting suspected violations of the Gratuities clause.

    Contractor gratuities offered to Government personnel are subject 
to the restriction under the Standards of Ethical Conduct for Employees 
of the Executive Branch, 5 CFR part 2635.


2903.204  Treatment of violations.

    Any suspected violations of FAR subpart 3.2 and the clause at FAR 
52.203-3, Gratuities, must be reported to the Office of the Inspector 
General. The authority to determine whether a violation of the 
Gratuities clause by the contractor, its agent, or another 
representative, has occurred and the appropriate remedies are delegated 
to the HCA.

Subpart 2903.6--Contracts With Government Employees or 
Organizations Owned or Controlled by Them


2903.601  Policy.

    In addition to restrictions placed on current Federal government 
employees, 18 U.S.C. 207 places some restrictions on contracting with 
former officers, employees, and elected officials of the executive and 
legislative branches. Under these prohibitions, contracts with former 
employees are prohibited for a period of one year from the date of 
severance of duties, unless an exception is granted as set forth in 
2903.602.


2903.602  Exceptions.

    (a) In accordance with FAR 3.602, only when there is a most 
compelling reason to do so, is the Assistant Secretary for 
Administration and Management authorized to except a contract from the 
policy in FAR 3.601, after the Procurement Review Board and the agency 
ethics official have reviewed and recommended approval of the 
exception. However, when time does not permit, the Assistant Secretary 
for Administration and Management may unilaterally approve an 
exception. The exception and information supporting the exception must 
be provided to the contracting officer for their official records.
    (b) When an exception under this subpart is requested, it is 
submitted through the director of the cognizant program office to the 
HCA. In the procurement request, the director must describe the basis 
for the exception from the restrictions of FAR 3.601.
    (c) Except as allowed in paragraph (a) of this section, the 
Department of Labor may enter into a negotiated contract or an 
amendment to an existing contract

[[Page 22998]]

with former employees of DOL within one year of separation (or with 
firms in which former employees are known to have a substantial 
interest) only after review and recommendation for approval by the 
agency ethics official, the Procurement Review Board, and written 
approval by the Assistant Secretary for Administration and Management.
    (d) Approval of a decision to grant an exception as provided in 
this section must be documented by a written findings and determination 
prepared by the requesting official for signature by the Assistant 
Secretary for Administration and Management. The determination and 
findings must document compliance with FAR 3.603, FAR 9.5 and DOLAR 
2909.5; specify the compelling reason(s) for award; and be placed in 
the contract files and the files of the Policy Review Board.

PART 2904--ADMINISTRATIVE MATTERS

Subpart 2904.8--Government Contract Files
Sec.
2904.800-70 Contents of contract files.
Appendix A to Part 2904.

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

Subpart 2904.8--Government Contract Files


2904.800-70  Contents of contract files.

    (a) The reports listed in appendix A to this part are applicable to 
the Department of Labor.
    (b) HCAs must be responsible for establishing standard contract 
files for their contracting activities. The HCA must provide one or 
more representative contract files to the Director, Division of 
Acquisition Management Services, as requested for comment.

                                             Appendix A to Part 2904
----------------------------------------------------------------------------------------------------------------
           Title of report                    Reference                 Date due               Submitted to
----------------------------------------------------------------------------------------------------------------
Report of Proposed Federal             29 CFR 1.4.............  Annually; 20-Aug.......  ESA Davis Bacon.
 Construction*.
Contractor Report of Government        FAR Chapter 45;........  Annually; 31-Oct.......  Business Operations
 Property*.                                                                               Center.
Major Preference Program Goals and     DLMS 2 1000............  By the 20th of each      Office of Small
 Achievements Report*.                                           month.                   Business Programs.
A-76 & FAIR Act Inventory............  FAIR ACT & OMB MEMO....  June 30th of each year.  Office of Competitive
                                                                                          Sourcing.
SF 294, Subcontracting Report for      FAR Subpart 19.7;......  Semi-annually;.........  Contracting Officer.
 Individual Contracts.
                                       SF 294.................  April 30; 30-Oct.......  Office of Small
                                                                                          Business Programs.
SF 295, Summary Subcontract Report...  FAR Subpart 19.7;......  Semi-annually March 30;  Contracting Officer.
                                                                 September 30.
Value Engineering Report*............  OMB Circular A-131.....  Annually; 7-Dec........  Office of Acquisition
                                                                                          and Management Support
                                                                                          Services.
Report on Federal Support to           Section 3(a)(7) of the   Annually; O/A 15-May...  Upon request From
 Universities, Colleges, and            National Science                                  National Science
 Nonprofit Institutions.                Foundation (NSF) Act.                             Foundation.
Procurement Forecast Initial and       Pub. L. 100-656;.......  Sept 15 (Init.) and Apr  Division of Acquisition
 Update.                                                         15 (Update).             Management Services.
----------------------------------------------------------------------------------------------------------------
For those reports with an (*), if there was no activity for the period being reported, a negative response for
  the period must be submitted to the requisitioning office.

SUBCHAPTER B--ACQUISITION PLANNING

PART 2905--PUBLICIZING CONTRACT ACTIONS

Subpart 2905.1--Dissemination of Information
Sec.
2905.101 Methods of disseminating information.
Subpart 2905.2--Synopsis of Proposed Contract Actions
2905.202 Exceptions.
Subpart 2905.4--Release of Information
2905.402 General public.
2905.403 Requests from Members of Congress.
2905.404 Release procedures.
Subpart 2905.5--Paid Advertisements
2905.501 Scope.
2905.502 Authority.
2905.503 Procedures.

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

Subpart 2905.1--Dissemination of Information


2905.101  Methods of disseminating information.

    Contracting officers may only use the Government Point of Entry 
(GPE) for synopsis and dissemination of information concerning 
procurement actions. The Division of Acquisition Management Services 
manages the DOL account.

Subpart 2905.2--Synopsis of Proposed Contract Actions


2905.202  Exceptions.

    The Assistant Secretary for Administration and Management is 
authorized to make the determination prescribed in FAR 5.202(b). A 
written determination documenting the reasons why advance notice is not 
appropriate or reasonable must be submitted by the HCA for appropriate 
action including communication with the officials listed in FAR 
5.202(b).

Subpart 2905.4--Release Of Information


2905.402  General public.

    (a) Unless the HCA determines that disclosure would be prejudicial 
to the interests of DOL, if a list of interested parties is collected 
in reference to a solicitation, it may be released upon request.
    (b) Any request for release of information is subject to the 
Freedom of Information Act and FAR 24.2.


2905.403  Requests from Members of Congress.

    All proposed responses to Congressional inquiries must be prepared 
and forwarded for coordination with the Office of the Solicitor and the 
Office of Congressional and Intergovernmental Affairs to determine 
whether circumstances exist that will allow the release of additional 
information. In such instances, the Congressional requestor must be 
furnished an interim reply providing the

[[Page 22999]]

information that is releasable. The interim reply must describe the 
problem that precludes release of any requested materials and describe 
generally what steps, if any, are being taken to make such information 
available.


2905.404  Release procedures.

    HCAs are authorized to release long-range acquisition estimates 
under the conditions in FAR 5.404-1.

Subpart 2905.5--Paid Advertisements


2905.501  Scope.

    This subpart provides policies and procedures for the procurement 
of paid advertising as covered by 5 U.S.C. 302, and 44 U.S.C. 3701, 
3702, and 3703.


2905.502  Authority.

    When it is deemed necessary to use paid advertisements in 
newspapers and trade journals, written authority for such publication 
may be obtained from the HCA or designee.


2905.503  Procedures.

    (a) Prior to obtaining HCA approval, an agency should seek legal 
review to determine whether it has appropriate legal authority for 
advertising. The HCA exercising the authority delegated by 2905.502 
must do so in accordance with the procedures set forth in FAR 5.503 and 
those in this section.
    (b) Requests for procurement of advertising must be accompanied by 
written authority to advertise or publish which sets forth 
justification and includes the names of newspapers or journals 
concerned, frequency and dates of proposed advertisements, estimated 
cost, and other pertinent information.

PART 2906--COMPETITION REQUIREMENTS

Subpart 2906.3--Other Than Full and Open Competition
Sec.
2906.301 Policy.
2906.303 Justifications.
Subpart 2906.5--Competition Advocates
2906.501 Requirement.

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

Subpart 2906.3--Other Than Full and Open Competition


2906.301  Policy.

    (a) Department of Labor acquisitions must comply with the 
Department of Labor Manual Series (DLMS) 2, Chapter 830 (available by 
mail from the Director, Division of Acquisition Management Services, 
200 Constitution Ave., NW., Washington, DC 20210-0001), or 
electronically from http://www.dol.gov/oasam/programs/boc/prb.htm htm. Any proposed noncompetitive acquisition in excess of the 
simplified acquisition threshold must be fully justified and, if 
required by the DLMS, submitted to the DOL Procurement Review Board and 
approved by the Assistant Secretary for Administration and Management 
and, in the case of research and development contracts, also by the 
Assistant Secretary for Policy.
    (b) With the exception of contracts for advisory and assistance 
services or for research and development, the contracting officer has 
the authority below the simplified acquisition threshold to approve 
sole source contracts. The contracting officer is responsible for 
assuring that proposed acquisitions below the simplified acquisition 
threshold are in compliance with FAR and DOLAR requirements regarding 
competition.


2906.303  Justifications.

    The authority of the agency head to determine that only specified 
make and models of technical equipment will satisfy the agency's need 
under FAR 6.302-1 is delegated to the HCA.

Subpart 2906.5--Competition Advocate


2906.501  Requirement.

    The Assistant Secretary for Administration and Management must 
appoint a Competition Advocate for the Department of Labor. The 
appointment will be predicated on an understanding of the competition 
requirements in the FAR, and particularly small business programs.

PART 2907--ACQUISITION PLANNING

Subpart 2907.1--Acquisition Plans
Sec.
2907.105 Contents of written acquisition plans.
2907.107 Additional requirements for acquisitions involving 
bundling.
Subpart 2907.3--Contractor Versus Government Performance
02907.300 Availability of inventory.

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

Subpart 2907.1--Acquisition Plans


2907.105  Contents of written acquisition plans.

    The Department of Labor has implemented its acquisition planning 
system in compliance with FAR 7.1 and internal procedures provided in 
DLMS 2 section 834. The annual forecast is available for review from: 
http://www.apps.dol.gov/contract_grant/index.htm htm.


2907.107  Additional requirements for acquisitions involving bundling.

    The FAR requirements for justification, review, and approval of 
bundling of contract requirements also apply to an order from a Federal 
Supply Schedule contract, Governmentwide acquisition contracts, or 
other indefinite-delivery contracts if the requirements consolidated 
under the order meet the definition of ``bundling'' at FAR 2.101.

Subpart 2907.3--Contractor Versus Government Performance


2907.300  Availability of inventory.

    The Department of Labor's FAIR Act inventory of commercial 
activities performed by federal employees and inherently governmental 
functions may be accessed on the Internet at: www.dol.gov under ``Doing 
Business with DOL''.

PART 2908--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 2908.4--Federal Supply Schedules
Sec.
2908.404 Using schedules.

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

Subpart 2908.4--Federal Supply Schedules


2908.404  Using schedules.

    Small business considerations, procedures regarding both prime and 
subcontracting, and clearances specified in DOLAR 2919 apply to GSA 
Federal Supply Schedule Orders above the simplified acquisition 
threshold. Procedures to be followed may be modified by the Office of 
Small Business Program as appropriate in order to comply with GSA 
Federal Supply Schedule procedures (e.g., first tier contracts may be 
required to report their commercial subcontracting goals to the DOL 
Office of Small Business Programs).

PART 2909--CONTRACTOR QUALIFICATIONS

Subpart 2909.1--Responsible Prospective Contractors
Sec.
2909.105 Procedures.
Subpart 2909.4--Debarment, Suspension, And Ineligibility
2909.402 Policy.
2909.405 Effect of listing.
2909.405-1 Continuation of current contracts.
2909.406 Debarment.
2909.406-1 General.
2909.406-3 Procedures.
2906.407 Suspension.

[[Page 23000]]

2909.407-1 General.
Subpart 2909.5--Organizational and Consultant Conflicts of Interest
2909.503 Waiver.
2909.506 Procedures.

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

Subpart 2909.1--Responsible Prospective Contractors


2909.105  Procedures.

    Before awarding a contract, the contracting officer must make a 
written determination of the otherwise successful bidder's/offeror's 
responsibility in accordance with FAR 9.105. In addition to past 
performance information, the contracting officer must insure that the 
proposed contractor, and any subcontractor representing more than 
$25,000 in goods or services, does not appear in the ``List of Parties 
Excluded from Federal Procurement'' (available on the Internet at 
www.epls.gov). In addition, contracting officers should base their 
determination of contractor responsibility on a review of the company's 
``Summary or Financial Report'' from Dun & Bradstreet (available on the 
Internet for a fee at http://www.dnb.com/ com/).

Subpart 2909.4--Debarment, Suspension, and Ineligibility


2909.402  Policy.

    (a) This subpart prescribes DOL policies and procedures governing 
the debarment and suspension of contractors, the listing of debarred 
and suspended contractors, contractors declared ineligible (see FAR 
9.403) and distribution of the list. This subpart does not apply to 
Department of Labor debarments or suspensions issued for Davis-Bacon 
Act and Davis-Bacon Related Act violations, Service Contract Act 
violations, Affirmative Action/Equal Employment Opportunity violations, 
or violations under other statutes administered by the Department of 
Labor.
    (b) Contracting activity officials shall have the following 
responsibilities. (1) Heads of contracting activity (HCA) shall:
    (i) Provide an effective system to ensure that contracting staffs 
consult the ``List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs'' at http://epls.arnet.gov/ gov/ before soliciting 
offers, awarding or extending contracts, or consenting to subcontract.
    (ii) Consider debarment or suspension of a contractor when cause, 
as defined under FAR 9.406-2 for debarment and FAR 9.407-2 for 
suspension, is shown. Contracting officers should consult with their 
appropriate legal counsel before making a decision to initiate 
debarment or suspension proceedings. If a determination is made that 
available facts do not justify beginning debarment or suspension 
proceedings, the file should be documented accordingly. This 
determination is subject to reconsideration if warranted by new 
information.
    (iii) When the decision is made to initiate debarment and/or 
suspension of a contractor, the Senior Procurement Executive must 
prepare a notice in accordance with FAR 9.406-3(c) or FAR 9.407-3(c). 
The draft notice, along with the administrative file containing all 
relevant facts and analysis, must be forwarded to the Senior 
Procurement Executive, as the debarring and suspending official, 
following review by the activity's legal counsel.
    (2) The Senior Procurement Executive shall:
    (i) Review the notice and administrative file for sufficiency and 
provide for review by other DOL officials as considered appropriate;
    (ii) In accordance with FAR 9.406-3(c) or FAR 9.407-3(c), if it is 
determined that action is warranted, give the contractor prompt notice 
of the proposed debarment or suspension;
    (iii) Direct additional fact-finding as necessary when material 
facts are in dispute;
    (iv) Notify the contractor and any affiliates involved of the final 
decision to debar or suspend, including a decision not to debar or 
suspend, in accordance with FAR 9.406-3(c) and FAR 9.407-3(c);
    (v) Be responsible for accomplishing the actions required in FAR 
9.404(c) within five working days after debarring or suspending a 
contractor or modifying or rescinding such an action;
    (vi) Maintain Department-wide records of debarred or suspended 
contractors in accordance with FAR 9.404.


2909.405  Effect of listing.

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


2909.405-1  Continuation of current contracts.

    (a) At the time an option is being exercised, contracting officers 
must review the List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs. If a contractor or significant subcontractor 
is identified in the listing, the contracting officer must make a 
written determination either to proceed or to terminate the contract, 
and must explain the rationale for the decision. In accordance with FAR 
9.405-1, contracting officers may continue contracts or subcontracts in 
existence at the time a contractor is suspended or debarred, unless it 
is determined that termination of the contract is in the best interest 
of the Government. The contracting officer must make such determination 
in writing, after consulting with the contracting officer's technical 
representative and legal counsel. The determination must be approved by 
the HCA.
    (b) Contracting activities must not renew or otherwise extend the 
duration of current contracts, or consent to subcontracts, with 
contractors debarred, suspended, or proposed for debarment, unless the 
HCA states, in writing, the compelling reasons for renewal or extension 
and the Assistant Secretary for Administration and Management approves 
such action.


2909.406  Debarment.


2909.406-1  General.

    (a) The Senior Procurement Executive is the debarring official for 
DOL and is authorized to debar a contractor for any of the causes in 
FAR 9.406-2, using the procedures in 2909.406-3.
    (b) The Senior Procurement Executive is authorized to make an 
exception regarding debarment by another agency debarring official in 
accordance with the conditions in FAR 9.406-1(c).


2909.406-3  Procedures.

    (a) Investigation and referral. Whenever a DOL employee knows a

[[Page 23001]]

cause for debarment, as listed in FAR 9.406-2, the appropriate HCA 
affected must be notified. The contracting officer must consult with 
the Office of the Solicitor and the Office of the Inspector General, as 
appropriate, and submit a formal recommendation documenting the cause 
for debarment to the Senior Procurement Executive.
    (b) Notice of proposal to debar. Based upon review of the 
recommendation to debar and consultation with the Office of the 
Solicitor and Office of the Inspector General, as appropriate, the 
Senior Procurement Executive must initiate proposed debarment by taking 
the actions listed in FAR 9.406-3(c) and advising the contractor of 
DOL's rules under 2909.4.
    (c) Fact-finding proceedings. For actions listed under FAR 9.406-
3(b)(2), the Senior Procurement Executive must afford the contractor 
the opportunity to appear at an informal fact-finding proceeding as 
required by FAR 9.406-3(b)(2)(i). The proceeding must be conducted by 
the Office of Administrative Law Judges and must be held at a date and 
location reasonably convenient to the parties concerned. Subject to the 
provisions of 29 CFR part 18, entitled ``Rules Of Practice And 
Procedure For Administrative Hearings Before The Office Of 
Administrative Law Judges'', the contractor and any specifically named 
affiliates, may be represented by counsel or any duly authorized 
representative. Either party may call witnesses. The proceedings must 
be conducted expeditiously and in such a manner that each party will 
have a full opportunity to present all information considered pertinent 
to the proposed debarment. A transcript of the proceedings must be made 
available to the contractor under the conditions in FAR 9.406-
3(b)(2)(ii).
    (d) Decision and notice. The Senior Procurement Executive shall 
make a decision on imposing debarment in accordance with the procedures 
in FAR 9.406-3(d), findings of fact of the Administrative Law Judge, 
and the conditions in FAR 9.406-4 and 9.406-5. Notice of the decision 
must be provided to the contractor and any affiliates involved in 
accordance with the procedures in FAR 9.406-3(e).


2909.407  Suspension.

    (a) The Senior Procurement Executive is the suspending official for 
DOL and is authorized to suspend a contractor for any of the causes in 
FAR 9.407-2, using the procedures in 2909.406-3.
    (b) The Senior Procurement Executive is authorized to make an 
exception, regarding suspension by another agency suspending official 
under the conditions in FAR 9.407-1(d).


2909.407-1  General.

    (a) Investigation and referral. Whenever a DOL employee knows of a 
cause for suspension, as listed in FAR 9.407-2, the appropriate HCA 
affected must be notified. The HCA must consult with the Office of the 
Solicitor and the Office of the Inspector General, as appropriate, and 
submit a formal recommendation documenting the cause for suspension, to 
the Senior Procurement Executive.
    (b) Notice of suspension. Based upon review of the recommendation 
to suspend and consultation with the Office of the Solicitor and the 
Office of the Inspector General, as required, the Senior Procurement 
Executive will initiate suspension by taking the actions listed in FAR 
9.407-3(c) and advising the contractor of DOL's rules under this 
subpart.
    (c) Fact-finding proceedings. For actions listed under FAR 9.407-
3(b)(2), the Senior Procurement Executive must afford the contractor 
the opportunity to appear at informal proceedings, as required by FAR 
9.407-3(b)(2)(i). Either party may call witnesses. The proceedings must 
be conducted expeditiously and in such a manner that each party will 
have a full opportunity to present all information considered pertinent 
to the proposed suspension.
    (d) Suspension decisions. The Senior Procurement Executive must 
make a final decision on suspension as prescribed in FAR 9.407-3(d). 
Notice of the decision must be provided to the contractor and any 
affiliates involved, in accordance with the provisions in FAR 9.407-
3(d)(4).

Subpart 2909.5--Organizational and Consultant Conflicts of Interest


2909.503  Waiver.

    (a) The Senior Procurement Executive is delegated authority by the 
Assistant Secretary for Administration and Management to waive any 
general rule or procedure in FAR 9.5 when its application in a 
particular situation would not be in the Government's best interest.
    (b) Requests for waivers must be made by the HCA to the PE. Each 
request must include:
    (1) An analysis of the facts involving the potential or actual 
conflict including benefits and detriments to the Government and 
prospective contractors;
    (2) A discussion of the factors which preclude avoiding, 
neutralizing, or mitigating the conflict; and
    (3) Identification of the provision(s) in FAR 9.5 to be waived.
    (c) In making determinations under this subpart the Senior 
Procurement Executive must request the opinion of the Office of the 
Solicitor, Division of Legislation and Legal Counsel.


2909.506  Procedures.

    (a) If a prospective contractor disagrees with the decision of a 
contracting officer regarding an organizational conflict of interest 
and requests higher level review as referred to in FAR 9.506, the 
matter must be referred to the Office of the Solicitor, Associate 
Solicitor for Legislation and Legal Counsel, and the Director, Division 
of Acquisition Management Services.
    (b) Referrals must be made by the HCA concerned and include the 
contracting officer's decision and the position of the prospective 
contractor.

PART 2910--MARKET RESEARCH

Sec.
2910.002 Procedures.

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


2910.002  Procedures.

    (a) In accordance with FAR 6.302-1(c), purchase descriptions must 
not specify a product, or specific feature of a product, peculiar to a 
manufacturer unless they are justified to the contracting officer in 
writing by the office initiating the purchase request. The 
justification must state that the product, or specific product feature, 
is essential to the Government's requirements and other similar 
products or features will not meet these requirements. This 
determination must be signed by a representative of the office 
originating the request and must accompany the purchase requisition 
submitted to the appropriate contracting office. If such a 
justification is not made, the contracting officer may assume that 
another make and model or a generic product could equally meet the DOL 
requirement.
    (b) In accordance with FAR 10.002(b), the requisitioning office 
must submit to the contracting officer information demonstrating that a 
variety of products from various commercial sources have been 
considered. This requirement is not necessary for required sources (See 
FAR 8.001). Orders to be placed against non-mandatory sources, such as 
the Federal Supply Schedules, or other Governmentwide Acquisition 
Contracts, should include product information concerning multiple 
sources based on research from www.contractdirectory.gov site or other

[[Page 23002]]

sources. When documented in this manner, the contracting officer may 
rely on this information in developing a procurement strategy, or for 
documenting the comparison of catalogs or pricelists.

PART 2911--DESCRIBING AGENCY NEEDS

Subpart 2911.1--Selecting And Developing Requirements Documents
Sec.
2911.103 Market acceptance.
Subpart 2911.5--Liquidated Damages
2911.501 Policy.

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

Subpart 2911.1--Selecting And Developing Requirements Documents


2911.103  Market acceptance.

    The authority of the Head of an Agency under FAR 11.103(a), to 
require offerors to demonstrate that the items offered have either 
achieved commercial market acceptance or been satisfactorily supplied 
to an agency under current or recent contracts for the same or similar 
requirements, and otherwise meet the item description, specifications, 
or other criteria prescribed in the public notice and solicitation, is 
delegated to the HCA.

Subpart 2911.5--Liquidated Damages


2911.501  Policy.

    In accordance with FAR 11.501(d), the authority of the Head of 
Agency to recommend to the Department of Treasury, Commissioner, 
Financial Management Services, that the amount of a contractor's 
liquidated damages be waived or reduced in whole or in part, is 
delegated to the HCA.

PART 2912--ACQUISITION OF COMMERCIAL ITEMS

Subpart 2912.3--Solicitation Provisions and Contract Clauses for the 
Acquisition of Commercial Items
Sec.
2912.302 Tailoring of provisions and clauses for the acquisition of 
commercial items.

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

Subpart 2912.3--Solicitation Provisions and Contract Clauses for 
the Acquisition of Commercial Items


2912.302  Tailoring of provisions and clauses for the acquisition of 
commercial items.

    In accordance with FAR 12.302(c), a request for waiver to tailor 
terms inconsistent with customary commercial practice must be 
documented in a written justification by the contracting officer, and 
may be approved by the HCA on an individual or class basis.

PART 2913--SIMPLIFIED ACQUISITION PROCEDURES

Subpart 2913.1--Procedures
Sec.
2913.106-3 Soliciting competition, evaluation of quotations or 
offers, award and documentation.
Subpart 2913.2--Actions At Or Below The Micro-Purchase Threshold
2913.201 General.
Subpart 2913.3--Simplified Acquisition Methods
2913.301 Governmentwide commercial purchase card.
2913.307 Forms.

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

Subpart 2913.1--Procedures


2913.106-3  Soliciting competition, evaluation of quotations or offers, 
award and documentation.

    In accordance with FAR 13.106-3(b), simplified acquisition files 
must contain documentation of the factors considered in making an award 
in excess of the micro-purchase threshold. When other than the lowest 
responsive quotation from a responsible supplier is used as the basis 
for a purchase, the contracting officer must identify the basis (i.e., 
best value) of the award and include in the purchase file documentation 
of the reasons for rejecting any lower quotation and the name of the 
individual responsible for making the determination to award to other 
than the lowest priced quotation. The contracting officer has broad 
discretion in determining the award of a purchase order, which may be 
based on the factors listed in FAR 13.106-3. This requirement does not 
necessitate a separate determination if the procurement file contains 
preprinted standardized classifications for award.

Subpart 2913.2--Actions at or Below the Micro-Purchase Threshold


2913.201  General.

    The Government commercial purchase card must be used in preference 
to other methods of procurement for purchases up to the micro-purchase 
threshold. Other small purchase methods (blanket purchase agreements, 
third party drafts, and purchase orders) may be used in lieu of the 
Government purchase card when it is more cost-effective or practicable.

Subpart 2913.3--Simplified Acquisition Methods


2913.301  Governmentwide commercial purchase card.

    (a) The Government purchase card has far fewer requirements for 
documentation than other methods of purchasing. However, the same legal 
restrictions apply to credit card purchases that apply to other 
purchases using appropriated funds. If a purchase cardholder has 
questions about the lawfulness of a particular purchase, he or she must 
initially consult his or her appropriate office purchase card 
administrator, who will consult the Office of the Solicitor as 
necessary.
    (b) GAO decisions surrounding the concept of the ``availability of 
appropriations'' are often stated in terms of whether appropriated 
funds are or are not ``legally available'' for a given expenditure. 
Restrictions on the purposes for which appropriated funds may be used 
come from a variety of sources, including the DOL Appropriations Acts, 
and decisions of the Comptroller General and his predecessor, the 
Comptroller of the Treasury.
    (c) HCAs, administrative officers, and contracting officers are 
encouraged to review the GAO publication entitled Principles of Federal 
Appropriations Law. This document must be consulted when developing 
Office/Agency Purchase/Credit Card Program procedures. A number of the 
more common restrictions which ``accounting officers of the 
Government'' have had frequent occasion to consider and apply include, 
for example:
    (1) Payment of attorney's fees;
    (2) Purchase of food, entertainment or recreation;
    (3) Payment of personal membership fees; and
    (4) Payment of personal expense items such as gifts for employees, 
and entry fees for contests.


2913.307  Forms.

    (a) In accordance with FAR 13.307, contracting officers are 
encouraged to use the Standard Form (SF) SF-1449, when executing 
commercial acquisitions. Agencies may use forms other than the SF-1449 
and may print on those forms the clauses considered to be suitable for 
these purchases. In these instances, alternate forms should conform 
with the Standard Form to the maximum extent practicable.
    (b) The SF-30 is to be used to modify a purchase order.

[[Page 23003]]

PART 2914--SEALED BIDDING

Subpart 2914.4--Opening of Bids and Award of Contract
Sec.
2914.404-1 Cancellation of invitations after opening.
2914.407-3 Other mistakes disclosed before award.
2914.408 Award.
2914.408-1 General.

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

Subpart 2914.4--Opening of Bids and Award of Contract


2914.404-1  Cancellation of invitations after opening.

    The authority of the agency head in FAR 14.404-1(c) and (f) to make 
a written determination to cancel an invitation for bids and reject all 
bids after opening and to authorize completion of the acquisition 
through negotiation is delegated to the HCA.


2914.407-3  Other mistakes disclosed before award.

    (a) The authority to make determinations, as conferred by FAR 
14.407-3(e) is delegated to the HCA, without power of redelegation, but 
only after consultation with the Office of the Solicitor. All such 
determinations shall be documented in the contract file.
    (b) The following procedures must be followed when submitting 
doubtful cases of mistakes in bids to the Comptroller General for an 
advance decision, as provided by FAR 14.407-3(i).
    (1) Requests must be made by the HCA after consultation with the 
Office of the Solicitor.
    (2) Requests must be in writing, dated, signed by the requestor, 
addressed to the Comptroller General of the United States, General 
Accounting Office, Washington, DC 20548, and contain the following:
    (i) The name and address of the party requesting the decision; and
    (ii) A statement of the question to be decided, a presentation of 
all relevant facts, a statement of the requesting party's position with 
respect to the question, and copies of all pertinent records and 
supporting documentation.


2914.408  Award.


2914.408-1  General.

    (a) When only one bid is received in response to an invitation for 
bids, such bid may be considered and accepted if the contracting 
officer makes a written determination that:
    (1) The specifications used in the invitation were not unduly 
restrictive;
    (2) Adequate competition was solicited and it could have been 
reasonably assumed that more than one bid would have been submitted;
    (3) The price is reasonable; and
    (4) The bid is otherwise in accordance with the invitation for 
bids.
    (b) Such a determination must be placed in the contract file.

PART 2915--CONTRACTING BY NEGOTIATION

Subpart 2915.4--Contract Pricing
Sec.
2915.405-70 Determining fair and reasonable price.
Subpart 2915.5--Preaward, Award, and Postaward Notifications, Protests, 
and Mistakes
2915.508 Discovery of mistakes.
Subpart 2915.6--Unsolicited Proposals
2915.604 Agency points of contact.
2915.605 Content of unsolicited proposals.
2915.606 Agency procedures.

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

Subpart 2915.4--Contract Pricing


2915.405-70  Determining fair and reasonable price.

    (a) Where the contractor insists on a price or demands a profit or 
fee that the contracting officer considers unreasonable and the 
contracting officer has taken all authorized actions to resolve the 
matter (see FAR 15.402), the contract action must be referred to the 
HCA for final resolution.
    (b) Resolution under paragraph (a) of this section must be 
documented and signed by the HCA and included in the contract file.

Subpart 2915.5--Preaward, Award, and Postaward Notifications, 
Protests, and Mistakes


2915.508  Discovery of mistakes.

    (a) The HCA is authorized to make the administrative determinations 
in FAR 15.508 after consultation with the Office of the Solicitor as 
required by FAR 14.407-4. This authority may not be redelegated.
    (b) The contracting officer must process a mistake and prepare a 
case file in accordance with the requirements of FAR 14.407-4(e)(2). 
The file must be submitted to the HCA for final determination.

Subpart 2915.6--Unsolicited Proposals


2915.604  Agency points of contact.

    (a) HCAs shall be the preliminary contacts for unsolicited 
proposals. This responsibility may be delegated.
    (b) HCAs must establish within their agencies procedures for 
handling unsolicited proposals to ensure that unsolicited proposals are 
controlled, evaluated, safeguarded and disposed of in accordance with 
FAR 15.6.
    (c) The HCA must not forward for consideration an unsolicited 
proposal, if the proposal resembles an upcoming solicitation or a 
procurement identified in the current annual acquisition plan.


2915.605  Content of unsolicited proposals.

    In addition to the contents required by FAR 15.605, unsolicited 
proposals for research should contain a commitment by the offeror to 
include cost-sharing or should represent a significant cost savings to 
the Department of Labor.


2915.606  Agency procedures.

    When an unsolicited proposal is received by an official of the 
Department of Labor, the recipient of the proposal must forward it to 
the HCA. The HCA must address the requirements of FAR 15.604. The HCA 
must determine if there is an office(s) within the Department of Labor 
whose mission could be impacted by the proposal. If there is, the HCA 
must designate a recipient within that office as an ``assignee'', and 
take the following action:
    (a) Within seven (7) working days of receipt, the HCA must forward 
the proposal to the assignee along with instructions concerning the 
security, review and disposition of the document.
    (1) Inform the offeror of this transfer in writing (preferably by 
facsimile or other electronic means).
    (2) Within one (1) month of receipt of the unsolicited proposal by 
the assignee, the office receiving the proposal must determine the 
merit of the unsolicited proposal.
    (i) If the office finds insufficient merit to consider the 
unsolicited proposal further, then a letter will be sent to inform the 
offeror that their proposal will not be considered further, and is not 
being retained.
    (ii) If, after a comprehensive evaluation as defined by FAR 15.606-
2, the office finds merit in the proposal, it must consult with a 
Department of Labor contracting officer for direction in complying with 
FAR 15.607. If not excluded by a condition of FAR 15.607(a), a 
requisition may be prepared in accordance with FAR 15.607(b). If the 
requirement exceeds the simplified acquisition threshold inclusive of 
options then a request must be prepared for the Procurement Review 
Board in accordance with Department of Labor procedures stated in 
Department of Labor Manual Series 2-830 (available by

[[Page 23004]]

mail from the Division of Acquisition Management Services).
    (b) If within one (1) month of receipt (by the HCA) no assignee can 
be identified, the HCA must notify the offeror that the proposal is not 
being considered further.

PART 2916--CONTRACT TYPES

Sec.
2916.000 Scope of part.
Subpart 2916.5--Indefinite-Delivery Contracts
2916.505 Ordering.
Subpart 2916.6--Time-and-Materials, Labor-Hour, and Letter Contracts
2916.603-2 Application.

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


2916.000  Scope of part.

    This part describes types of contracts that may be used in 
acquisitions. It further prescribes policies and procedures for 
implementing contracts.

Subpart 2916.5--Indefinite-Delivery Contracts


2916.505  Ordering.

    In accordance with FAR 16.505(b)(5), the Department of Labor Task 
Order and Delivery Order Ombudsman is the DOL Competition Advocate (see 
DOLAR part 2902).

Subpart 2916.6--Time-and-Materials, Labor-Hour, and Letter 
Contracts

    Task orders against DOL contracts and orders against multi-agency 
or Governmentwide contracts for services above the micropurchase 
threshold must comply with the provisions of FAR 16.505.


2916.603-2  Application.

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

PART 2917--SPECIAL CONTRACTING METHODS

Sec.
2917.000 Scope of part.
Subpart 2917.2-Options
2917.202 Use of options.
2917.207 Exercising options.
Subpart 2917.5--Interagency Acquisitions Under The Economy Act
2917.500 Scope of subpart.
2917.501 Definitions.
2917.502 General.
2917.503 Determinations and findings requirements.
2917.504 Ordering procedures.
2917.504-70 Signature authority and internal procedures.

    Authority: 5 U.S.C. 301; 31 U.S.C. 1535; 40 U.S.C. 486(c).


2917.000  Scope of part.

    This part implements polices and procedures stated in FAR part 17.

Subpart 2917.2--Options


2917.202  Use of options.

    The HCA may, in unusual circumstances, approve option quantities in 
excess of the 50 percent limit prescribed in FAR 17.203(g)(2). The 
documentation required by FAR 17.205(a) must include a written 
justification to fully support the need for such action.


2917.207  Exercising options.

    The contracting officer must use a standardized determination and 
finding before exercising an option in accordance with FAR 17.207(f).

Subpart 2917.5--Interagency Acquisitions Under The Economy Act


2917.500  Scope of subpart.

    This subpart establishes DOL policy and procedures to assure the 
appropriate and consistent use of interagency acquisitions under the 
Economy Act (31 U.S.C. 1535) as prescribed by FAR 17.5.


2917.501  Definitions.

    Interagency Acquisition means a procedure by which a DOL agency 
obtains needed supplies or services from, or through, another DOL 
agency or Federal agency, and appropriated funds are obligated.
    Interagency Agreement means the legal instrument used for an 
interagency acquisition to exchange funds or property between two DOL 
organizations or between a DOL agency and another Federal agency. This 
instrument is used when the DOL organization meets the definition of 
either the Requesting Agency or the Servicing Agency. ``Interagency 
Agreement'' and ``Interagency Acquisition'' does not include:
    (1) Agreements involving supplies and services acquired from or 
through mandatory sources, as described in FAR part 8;
    (2) Contracts with the Small Business Administration based upon 
Section 8(a) of the Small Business Act or a HUBZone small business 
under the Historically Underutilized Business Zone (HUBZone) Act of 
1997;
    (3) Cooperative agreements and grants; or
    (4) Any agreement or acquisition where a statute authorizes 
exception.
    Military Interdepartmental Procurement Request (MIPR) means a type 
of interagency agreement used to place orders for supplies and non-
personal services with a military department.
    Requesting Agency means the Federal agency that needs the supplies 
or services, and is obligating the funds to provide for the costs of 
performance.
    Servicing Agency means the Federal agency which is providing the 
supplies or performing the services, directly or indirectly, and will 
be receiving the funds to provide for the costs of performance.


2917.502  General.

    (a) Policy. It is the policy of DOL to require that interagency 
agreements are written to assure that the obligation of fiscal year 
funds is valid, that statutory authority exists to obtain or perform 
the stated requirements, that the stated requirements are consistent 
with DOL's mission responsibilities, and that each agreement complies 
with applicable laws and regulations.
    (b) Applicability. The provisions of this subpart apply to 
interagency acquisitions and agreements under the Economy Act.
    (c) Appropriations principles. The appropriate use of interagency 
acquisitions embodies several principles of Federal appropriations law.
    (1) In order to record a valid obligation of appropriations, 31 
U.S.C. 1501 imposes the requirements that interagency agreements be:
    (i) A binding written agreement for specific goods or services to 
meet an existing bona fide need;
    (ii) For a purpose authorized by law; and
    (iii) Executed and obligated by the receiving agency before the 
expiration of available funds.
    (2) The Economy Act authorizes interagency acquisitions and 
provides for payment in advance, as well as reimbursement to the 
appropriation account to which the performance costs have been charged. 
The Economy Act further authorizes the servicing agency, as an 
alternative to fulfilling the requirement through internal resources, 
to obtain the needed supplies or services by contract.
    (3) An agreement entered into under the Economy Act is recorded as 
an obligation by the requesting agency the same as a contract. However, 
under the Economy Act, the obligated appropriations must be deobligated 
upon the date of ``expiration'' of the appropriation account to the 
extent that the servicing agency has not incurred

[[Page 23005]]

obligations through charged costs or under a contract.
    (4) Within DOL, the DOL agencies have a number of statutory 
authorities available for entering into interagency agreements. Each 
DOL agency, in consultation with the Office of the Solicitor, must be 
responsible for determining those authorities, as well as constraints 
applicable to the use of advance payments and contractors, and set-up 
procedures.


2917.503  Determinations and findings requirements.

    Applicability. Before the execution of an interagency agreement 
under the Economy Act, the contracting officer, or other authorized 
official, must sign the determination required in FAR 17.503 and 31 
U.S.C. 1535.


2917.504  Ordering procedures.

    (a) Requests for the processing of interagency agreements must be 
submitted to the procurement office serving the requisitioning office.
    (b) The procurement request must state whether the work is to be 
performed by a DOL organization, a Federal agency other than DOL, or 
through one of these entities by a contractor.
    (c) Where the Economy Act is to be used as the authority for an 
interagency acquisition, the requisitioning office must include the 
facts which support the conclusion that it is more economical to obtain 
the required supplies or services through the proposed interagency 
agreement, rather than by direct contract with a commercial concern. 
Current market prices or recent procurement prices may be used in this 
process.
    (d) Orders placed under interagency agreements may take any form 
that is legally sufficient and reflects the agreement of the parties.
    (e) The contracting officer, or authorized official, must assure 
compliance with the ordering procedures and payment provisions 
prescribed in FAR 17.504 and FAR 17.505, and require inclusion of the 
following provisions in all interagency agreements and/or orders placed 
against them:
    (1) Legislative authority;
    (2) Period of performance;
    (3) Dollar amount of agreement;
    (4) Billing provisions, including the name and address of the 
following offices:
    (i) Designated office to receive the required deliverables; and
    (ii) Designated office to receive billings and process payments;
    (5) Modification and termination provisions; and
    (6) Other provisions, as appropriate.
    (f) The contracting officer must assure that each interagency 
agreement or order placed against it includes a reference number 
assigned by each of the parties. Such numbers must be assigned in 
accordance with the existing procedures established by the respective 
organizations.
    (g) Modifications to existing interagency agreements may be 
accomplished through the use of an SF 30, Amendment of Solicitation/
Modification of Contract, or through any other format acceptable to the 
parties.


2917.504-70  Signature authority and internal procedures.

    (a) A DOL contracting officer, HCA, Agency Head, or another 
official designated by the Assistant Secretary for Administration and 
Management in accordance with FAR 17.503(c), must sign interagency 
agreements and/or orders placed against them which will result in a 
procurement action by the requesting or servicing agency.
    (b) Internal procedures (DLMS 3-1700) require DOL Agency Heads to 
provide notice to the Director, Executive Secretariat of the signing of 
all new Federal Interagency Agreements and deleting expired agreements.
    (c) Agencies should be aware that, in addition to the requirements 
of this subpart, there are various other internal Departmental 
procedures that apply to various types of agreements. Agencies should 
consult with the Office of the Solicitor and the Office of the 
Assistant Secretary for Administration and Management, as appropriate.

PART 2918--[RESERVED]

PART 2919--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS

Sec.
2919.000 Scope of part.
Subpart 2919.2--Policies
2919.201 General policy.
2919.202 Specific policies.
2919.202-1 Encouraging small business participation in acquisitions.
2919.202-2 Locating small business sources.
Subpart 2919.5--Set-Asides for Small Business
2919.502 Setting aside acquisitions.
2919.505 Rejecting Small Business Administration recommendations.
Subpart 2919.7--The Small Business Subcontracting Program
2919.704 Subcontracting plan requirements.
2919.705-1 General support for the program.
2919.705-5 Awards involving subcontracting plans.
2919.705-6 Post-award responsibilities of the contracting officer.
2919.706 Responsibilities of the cognizant administrative 
contracting officer.
Subpart 2919.8--Contracting with the Small Business Administration (The 
8(a) Program)
2919.812 Contract administration.

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


2919.000  Scope of part.

    This part implements FAR part 19 and small business programs at the 
Department of Labor.

Subpart 2919.2--Policies


2919.201  General policy.

    (a) It is the policy of the Department of Labor to provide maximum 
practicable opportunities to small businesses in acquisitions.
    (b) Management responsibilities for small and disadvantaged 
business utilization are the responsibility of the Director, Office of 
Small Business Programs. This individual is responsible for performing 
all functions and duties prescribed in FAR 19.2 including appointing, 
as prescribed in FAR 19.201(d)(8), a small business specialist (SBS) 
for each contract office. The Department of Labor Manual Series (DLMS), 
Chapter 2 1000, addresses the implementation of the preference programs 
in procurement including HUBZone, Subcontracting Plans, Standard Form 
294 (Subcontracting Report for Individual Contracts), and the report, 
Standard Form 295 (Summary Subcontracting Report) submission, et al.
    (c) All DOL procurements over the simplified acquisition threshold, 
whether being conducted via open market or by ordering from a pre-
existing contract vehicle such as GSA Schedule, must be reviewed and 
receive a recommendation by the Office of Small Business Programs, the 
Department of Labor's Office of Small Disadvantaged Business 
Utilization, prior to being advertised. The Acquisition Screening and 
Review Form DL-1-2004 shall be used for this purpose and the statement 
of work and market survey documentation shall be submitted to Office of 
Small Business Programs with the request for review.


2919.202  Specific policies.

    Contracting officers, administrative officers and program 
management shall ensure that procurements are structured and conducted 
to afford small businesses the maximum practicable opportunity to 
participate in DOL's prime and subcontracts. Administrative

[[Page 23006]]

officers will review requisitions that will result in an award of $2 
million or more using available information to certify whether the 
acquisition would constitute a ``bundled contract'' under the 
definition provided in FAR 2.101 in accordance with procedures 
established by the Office of Small Business Programs. Each 
certification will be submitted to the Division of Acquisition 
Management Services, and included with the requisition to the 
contracting officer. Reports will be provided to the Office of Small 
Business Programs.


2919.202-1  Encouraging small business participation in acquisitions.

    During the performance of a contract, the contracting officer will 
consider performance against subcontracting plan goals, objectives and 
planned efforts before exercising an optional period of performance. 
The contracting officer will document the evaluation of the 
contractor's actual performance using SF-294 data compared to their 
approved subcontracting plan goals.


2919.202-2  Locating small business sources.

    Any procurement conducted on an unrestricted basis will include 
solicitations to small businesses of each category with legislatively 
established government-wide procurement goals (e.g., small, small 
disadvantaged, women-owned small, HUBZone and service disabled veteran-
owned small businesses) to the extent practicable.

Subpart 2919.5--Set-Asides for Small Business


2919.502  Setting aside acquisitions.

    Contracting officers will conduct market surveys specifically to 
determine whether procurements should be conducted via 8(a) procedures, 
HUBZone procedures or as small business set-asides. If a reasonable 
expectation exists that at least two responsible small businesses may 
submit offers at fair market prices (three responsible small businesses 
in procurements via GSA Federal Supply Schedule), then the procurement 
will be set aside for small business. Market surveys will be documented 
in all procurement actions not reserved for small businesses.


2919.505  Rejecting Small Business Administration recommendations.

    When the SBA Procurement Center Representative appeals a 
``rejection of an SBA recommendation'' as referenced in FAR 19.505(b) 
and (c), the appeal must be referred to the Assistant Secretary for 
Administration and Management who is authorized to make a final 
decision.

Subpart 2919.7--The Small Business Subcontracting Program


2919.704  Subcontracting plan requirements.

    Contracting Officers will refer subcontracting plans to the Office 
of Small Business Programs for review and recommendation before 
awarding contracts that require subcontracting plans. Contracting 
officers will document the substance of any agreement with the 
contractor that permits performance at less than the stated goals 
recommended by the Office of the Small Business Programs.


2919.705-1  General support for the program.

    Contracting officers will make available a significant number of 
award points for quality of the subcontracting plan. High-rated 
subcontract plans will incorporate the highest yield of subcontracting 
to all categories of small businesses when compared to DOL or 
separately negotiated agency subcontracting goals on a dollar and 
percentage basis. Conversely, prime small businesses will be compared 
favorably to large businesses with subcontract goals, but may also be 
given the maximum score for qualifying under multiple small business 
categories. Contracting officers may also make available a significant 
number of award points for performance against previous subcontracting 
plan goals and efforts to achieve those goals.


2919.705-5  Awards involving subcontracting plans.

    The Office of Small Business Programs will review subcontracting 
plans and SF 295 submissions for performance against business goals 
negotiated between the Department of Labor and the Small Business 
Administration.


2919.705-6  Post-award responsibilities of the contracting officer.

    (a) Even when a subcontracting plan was submitted to and approved 
by the Office of Small Business Programs before award, the contracting 
officer upon award, amendment, or significant modification of a 
contract, must forward to the Director, Office of Small Business 
Programs, a copy of the subcontracting plan that was incorporated into 
a contract or contract modification.
    (b) Each contracting activity must maintain a list of active prime 
contracts containing subcontracting plans.


2919.706  Responsibilities of the cognizant administrative contracting 
officer.

    Contracting officers must collect annual and semiannual 
subcontracting reports from contractors with established subcontracting 
plans. Copies of the report, Standard Form 294 (Subcontracting Report 
for Individual Contracts), and the report, Standard Form 295 (Summary 
Subcontracting Report), must be forwarded to the Director, Office of 
Small Business Programs, not later than the 30th day of the month 
following the close of the reporting period. If the contractor has not 
met the goals for the reporting period, the contracting officer will 
provide an acknowledgement to the contractor and request corrective 
action to be taken. If goals are not met in subsequent periods, the 
contracting officer must consider factors that would demonstrate a good 
faith effort, and take appropriate action including assessing 
liquidated damages in accordance with FAR 52.219-16, and/or not 
exercising subsequent option periods.

Subpart 2919.8--Contracting with the Small Business Administration 
(The 8(a) Program)


2919.812  Contract administration.

    (a) Contracting officers, or designees, must conduct periodic 
evaluations of the performance of an 8(a) contract at various stages of 
the contract period of performance. Any problems encountered during the 
performance evaluation, which cannot be resolved, must be referred to 
the Office of Small Business Programs for subsequent review and 
discussion with the appropriate SBA official.
    (b) The Office of Small Business Programs and the SBA should be 
notified at least 45 days before initiating final action to terminate 
an 8(a) contract.

PARTS 2920--2921 [RESERVED]

PART 2922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 2922.1--Basic Labor Policies
Sec.
2922.101-3 Reporting labor disputes.
2922.101-4 Removal of items from contractor's facilities affected by 
work stoppages.
2922.103-4 Approvals.
Subpart 2922.8--Equal Employment Opportunity
2922.802 General.

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

[[Page 23007]]

Subpart 2922.1--Basic Labor Policies


2922.101-3   Reporting labor disputes.

    Potential or actual labor disputes that may interfere with contract 
performance must be reported by the contracting activity to the Office 
of the Solicitor for legal advice or assistance. It may also become 
necessary to seek advice or assistance from the National Office of the 
Federal Mediation and Conciliation Service, 2100 K Street, NW., 
Washington, DC 20006, or other mediation agencies.


2922.101-4  Removal of items from contractor facilities affected by 
work stoppages.

    Before initiating any action under FAR 22.101-4 for removal of 
items from contractors' facilities, the contracting officer must obtain 
legal advice from the Office of the Solicitor.


2922.103-4  Approvals.

    The ``agency approving official'' as identified in FAR 22.103-4(a) 
and (b) is a manager, supervisor, or executive responsible for the 
contracting officer's technical representative (see 2901.603-71).

Subpart 2922.8--Equal Employment Opportunity


2922.802  General.

    Executive Order 11246, as amended, sets forth the Equal Opportunity 
clause and requires that the Secretary of Labor promote full 
realization of equal opportunity for all persons regardless of race, 
color, religion, sex, or national origin. No DOL contracting officer 
may contract for supplies or services in a manner to avoid 
applicability of the requirements of E.O. 11246.

PART 2923 ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Subpart 2923.2--Energy And Water Efficiency and Renewable Energy.
Sec.
2923.271 Purchase and use of environmentally sound and energy 
efficient products and services.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c); 42 U.S.C. 8262(g).

Subpart 2923.2--Energy And Water Efficiency and Renewable Energy


2923.271  Purchase and use of environmentally sound and energy 
efficient products and services.

    The Department will implement policies and procedures that comply 
with the intent and specific goals mandated by the following statutes 
and executive orders and any other issuances as may be mandated to 
maximize cost efficient energy management:
    (a) The GSA Federal Supply Schedule Products Guide identifies the 
recycled and recycled-content items available in the GSA FSS supply 
system. Copies of the guide may be obtained, without cost, from the 
GSA, Centralized Mailing List Service, P.O. Box 6477, Fort Worth, 
Texas, 76115, or by calling (817) 334-5215. See also GSA Advantage! at: 
www.gsaadvantage.gov.
    (b) Executive Order 13123, Greening the Government Through 
Efficient Energy Management, dated June 8, 1999, requires agencies to 
select for procurement those energy consuming goods or products which 
are the most life cycle cost-effective (see FAR 7.101). Green 
purchasing includes the acquisition of recycled content products, 
environmentally preferable products and services, biobased products, 
energy- and water-efficient products, alternate fuel vehicles, and 
products using renewable energy.
    (1) To the extent practicable, each program official must require 
vendors of goods or products to provide appropriate data that can be 
used to assess the life cycle cost of each good or product, including 
building energy system components, lighting systems, office equipment 
and other energy using equipment.
    (2) In preparing solicitations and evaluating and selecting offers 
for award, contracting personnel must consider the life cycle cost data 
along with other relevant evaluation criteria. If life cycle costing is 
not used, the contract file must be documented to reflect the rationale 
for not obtaining and evaluating the data.
    (c) Executive Order 13101, Greening the Government Through Waste 
Prevention, Recycling, and Federal Acquisition, dated September 14, 
1998, requires agencies to comply with executive branch policies for 
the acquisition and use of environmentally preferable products and 
services and implement cost-effective procurement preference programs 
favoring the purchase of these products and services.
    (d) Executive Order 13148, Greening the Government Through 
Leadership in Environmental Management Systems, dated April 21, 2000. 
This Executive Order assists with developing an environmental 
management system. The following sources are provided as references for 
the subject matter indicated:
    (1) The Office of the Federal Environmental Executive provides 
references to all greening the Government executive orders, web links 
to other relevant cites, and information on biobased and bioenergy 
products. http://www.ofee.gov/gp/gp.htm htm.
    (2) The Comprehensive Procurement Guidelines program is part of the 
Environmental Protection Agency's continued effort to promote the use 
of materials recovered from solid waste. This listing provides 
information on products made from recycled materials, such as the 
carpeting and insulation used in office buildings, or reams of office 
paper. www.epa.gov/cpg.
    (3) ENERGY STAR is a government-backed program helping businesses 
and individuals protect the environment through superior energy 
efficiency. See also http://www.eere.energy.gov/femp/procurement procurement. 
www.energystar.gov.
    (4) The Alternative Fuels Data Center is a one-stop shop for agency 
alternative fuel and vehicle information needs. http://www.afdc.nrel.gov gov.
    (5) The Defense Logistics Agency has created an electronic mall for 
buying environmentally preferable products. www.emall.dla.mil.

PARTS 2924-2927 [RESERVED]

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

PART 2928--BONDS AND INSURANCE

Subpart 2928.2--Sureties and Other Security for Bonds
Sec.
2928.204 Alternatives in lieu of corporate or individual sureties.
Subpart 2928.3--Insurance
2928.305 Overseas workers' compensation and war hazard insurance.

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

Subpart 2928.2--Sureties and Other Security for Bonds


2928.204  Alternatives in lieu of corporate or individual sureties.

    Upon receipt of any of the types of securities listed in FAR 28.20l 
or FAR 28.203, the contracting officer must verify the validity of the 
security and coordinate the retention of the security with the Chief 
Financial Officer. Contracting officers may obtain access to Department 
of Treasury Circular 570 through the Internet at http://www.fms.treas.gov/c570/index.html html.

[[Page 23008]]

Subpart 2928.3--Insurance


2928.305  Overseas workers' compensation and war hazard insurance.

    The authority of the Agency Head to recommend to the Secretary of 
Labor waiver of the applicability of the Defense Base Act (42 U.S.C. 
1651, et seq.) to any contract, subcontract, work location, or 
classification of employees, is delegated to the HCA.

PART 2929--TAXES

Subpart 2929.1--General
Sec.
2929.101 Resolving tax problems.
Subpart 2929.3--State and Local Taxes
2929.303 Application of state and local taxes to Government 
contractors and subcontractors.

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

Subpart 2929.1--General


2929.101   Resolving tax problems.

    Contract tax problems or questions must be referred by the 
contracting officer to the Office of the Solicitor for resolution.

Subpart 2929.3--State and Local Taxes


2929.303  Applications of state and local taxes to Government 
contractors and subcontractors.

    (a) Contractors may only be treated as agents of the Government for 
the purposes set forth in FAR 29.303(a) upon the written review and 
approval of the Assistant Secretary for Administration and Management.
    (b) Requests for approval under paragraph (a) of this section must 
be submitted by the HCA through the Office of the Solicitor, to the 
Division of Acquisition Management Services, for further action.

PART 2930--COST ACCOUNTING STANDARDS ADMINISTRATION

Subpart 2930.2--CAS Program Requirements
Sec.
2930.201-5 Waiver.

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

Subpart 2930.2--CAS Program Requirements


2930.201-5   Waiver.

    (a) The HCA is authorized to waive CAS requirements as provided in 
FAR 30.201-5.
    (b) Requests for waivers under paragraph (a) of this subsection 
must be prepared by the contracting officer as prescribed in FAR 
30.201-5(e) and submitted to the HCA.

PART 2931--CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 2931.1--Applicability
Sec.
2931.101 Objectives.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2931.1--Applicability


2931.101  Objectives.

    Individual and class deviations from cost principles in FAR part 31 
must be processed as prescribed in DOLAR subpart 2901.4.

PART 2932--CONTRACT FINANCING

Subpart 2932.4--Advance Payments for Non-Commercial Items
Sec.
2932.402 General.
2932.407 Interest.
Subpart 2932.7--Contract Funding.
2932.703 Contract funding requirements.

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

Subpart 2932.4--Advance Payments for Non-Commercial Items


2932.402  General.

    The HCA is authorized to approve determinations and findings as 
well as contract terms for advance payments. The contracting officer 
must submit a recommendation for approval or disapproval of the 
contractor's request to the HCA.


2932.407  Interest.

    The HCA may authorize advance payments without interest pursuant to 
FAR 32.407.

Subpart 2932.7--Contract Funding


2932.703  Contract funding requirements.

    (a) Except in unusual circumstances, the contracting office may not 
issue solicitations until an approved procurement request (PR), 
containing a certification that funds are available, has been received. 
However, the contracting office may take all necessary actions up to 
the point of contract obligation before receipt of the PR certifying 
that funds are available when:
    (1) The Assistant Secretaries, Inspector General, Bureau Chief, 
Deputy Under Secretary, Solicitor of Labor, Commissioner, or Director 
of the Women's Bureau certifies that such action is necessary to meet 
critical program schedules for their program area;
    (2) The Budget Officer certifies that program authority has been 
issued and funds to cover the acquisition will be available before the 
date set for receipt of proposals;
    (3) The solicitation includes the clause at FAR 52.232-18, 
Availability of Funds.
    (b) The contracting office may not open bids/close solicitations 
until a PR, either planning or final, has been received that contains a 
certification of fund availability. Only the project or program 
official with the authority to commit funds from the agency that 
initiated the PR may make that written certification.
    (c) The project or program office that initiated the PR is 
responsible for obtaining required certifications.

PART 2933--PROTESTS, DISPUTES, AND APPEALS

Subpart 2933.1--Protests
Sec.
2933.102 General.
2933.103 Protests to the agency.
2933.104 Protests to GAO.
Subpart 2933.2--Disputes And Appeals
2933.203 Applicability.
2933.209 Suspected fraudulent claims.
2933.211 Contracting officer's decision.
2933.212 Contracting officer's duties upon appeal.
2933.213 Obligation to continue performance.
2933.270 Department of Labor Board of Contract Appeals.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c); E.O. 12979, 60 FR 
55171, 3 CFR, 1995 Comp., p. 417.

Subpart 2933.1--Protests


2933.102  General.

    (a) The Division of Acquisition Management Services, 200 
Constitution Ave., NW., S-1513 B, Washington, DC 20210-0001, telephone 
(202) 693-7285, facsimile (202) 693-7290 (or the Office acting in that 
capacity), is responsible for coordinating procurement protests filed 
with the General Accounting Office.
    (b) The authority of the Assistant Secretary for Administration and 
Management under FAR 33.102(b) to determine that a solicitation, 
proposed award, or award does not comply with the requirements of law 
or regulation may be delegated to the HCA.


2933.103  Protests to the agency.

    (a) In accordance with Executive Order 12979, the following 
procedures apply to agency protests:
    (1) The filing time frames in FAR 33.103(e) apply to agency 
protests. An agency protest is filed when the protest complaint is 
received at the location the solicitation designates for serving 
protests; or if none is designated, when filed with a contracting 
officer or HCA.

[[Page 23009]]

    (2) An interested party filing an agency protest may request either 
that the contracting officer or the Agency Protest Official decide the 
protest. The ``Agency Protest Official'' is an individual above the 
level of the contracting officer and designated by the Assistant 
Secretary for Administration and Management, such as the Competition 
Advocate. The deciding official, whether a contracting officer or 
Agency Protest Official, must work in consultation with the Office of 
the Solicitor to resolve the protest.
    (3) In addition to the information required by FAR 33.103(d)(2), 
the protest must:
    (i) Indicate that it is a protest to the agency;
    (ii) Be contemporaneously filed with the contracting officer;
    (iii) State whether the protestor chooses to have the contracting 
officer or the Agency Protest Official decide the protest. If the 
protest is silent on this matter, the contracting officer will decide 
the protest.
    (b) ``Interested Party'' means an actual or prospective offeror 
whose direct economic interest would be affected by the award of a 
contract or by the failure to award a contract.
    (c) If the Agency Protest Official is chosen by the protestor to 
decide the protest, this is an alternative to a decision by the 
contracting officer, not an appeal. The Agency Protest Official will 
not consider appeals from a contracting officer's decision on an agency 
protest.
    (d) The deciding official should consider conducting a scheduling 
conference with the protestor within five (5) days after the protest is 
filed. The scheduling conference will establish deadlines for written 
arguments in support of the agency protest and for agency officials to 
present information in response to the protest issues. Alternative 
Dispute Resolution techniques will be considered if determined 
appropriate by the deciding official.
    (e) Oral conferences may take place either by telephone or in 
person. Other parties may attend at the discretion of the deciding 
official.
    (f) Apart from its protest document, the protestor will be given 
only one opportunity to support or explain in writing the substance of 
its protest. Department of Labor procedures do not provide for any 
discovery. The deciding official has discretion to request additional 
information from either the agency or the protestor. However, the 
deciding official will normally decide protests on the basis of 
information provided by the protestor and the agency.
    (g) The preferred practice is to resolve protests through informal 
oral discussion.
    (h) An interested party may represent itself or be represented by 
legal counsel. The Department of Labor will not reimburse the protester 
for any legal fees or costs related to the agency protest.
    (i) If an agency protest is received before contract award, the 
contracting officer may only make award if the HCA makes a 
determination to proceed under FAR 33.103(f)(1). Similarly, if an 
agency protest is filed within ten (10) days after award, or within 
five (5) days of the offer of a debriefing required by FAR 15.505 or 
15.506, whichever is later, the contracting officer must suspend 
performance of the contract unless the HCA makes a determination to 
proceed under FAR 33.103(f)(3). Any stay of award or suspension of 
performance remains in effect until the protest is decided, dismissed, 
or withdrawn.
    (j) The deciding official must make a best effort to issue a 
decision on the protest within twenty (20) days after the filing date. 
The decision may be oral or written, dependent upon advice of legal 
counsel.
    (k) The deciding official must send a confirming letter within 
three (3) days after the decision using a means that provides evidence 
of receipt. The confirming letter must include the following 
information:
    (1) State whether the protest was denied, sustained or dismissed.
    (2) Indicate the date the decision was provided.
    (3) If the deciding official sustains the protest, relief may 
consist of any of the following:
    (i) Recommendation that the contract be terminated for convenience 
or cause, or that the solicitation be canceled.
    (ii) Recompeting the requirement from the beginning of the 
solicitation or from the last round of negotiations.
    (iii) Amending the solicitation.
    (iv) Refraining from exercising contract options.
    (v) Awarding a contract consistent with statute, regulation, and 
the terms of the solicitation.
    (vi) Other action that the deciding official determines is 
appropriate.
    (l) If the deciding official sustains a protest, then within 30 
days after receiving the official's recommendations for relief, the 
contracting officer must either:
    (1) Fully implement the recommended relief; or
    (2) Notify the deciding official, if the contracting officer was 
not the deciding official, in writing, if any recommendations have not 
been implemented and explain why.
    (m) If the protest is denied, and contract performance has been 
suspended under paragraph (i) of this section, the contracting officer 
will not lift such suspension until five (5) days after the protest 
decision has been issued, to allow the protester to file a protest with 
the General Accounting Office, unless the HCA makes a new finding under 
FAR 33.103(f)(3). The contracting officer shall consider allowing such 
suspension to remain in effect pending the resolution of any GAO 
proceeding.
    (n) Proceedings on an agency protest may be dismissed or stayed if 
a protest on the same or similar basis is filed with a protest forum 
outside of the Department of Labor.


2933.104  Protests to GAO.

    (a) General procedures. The HCA has the responsibility to prepare 
and provide to the General Accounting Office (GAO) the agency report 
with the information required by FAR 33.104(a). The agency report must 
be coordinated with the Office of the Solicitor before the report is 
signed and sent to the GAO.
    (b) Protests before award. The authority of the HCA under FAR 
33.104(b) to authorize a contract award when the agency has received 
notice from the GAO of a protest filed directly with the GAO is 
nondelegable. The HCA has the responsibility to prepare and provide to 
the GAO the written finding with the information required by FAR 
33.104(b)(1). The written finding must be coordinated with Office of 
the Solicitor before the HCA affirms its approval by signing the 
written finding and sending it to the GAO. Copies of the signed written 
finding and the signed written notice to the GAO must be provided to 
the Senior Procurement Executive within two (2) working days after they 
are sent to the GAO.
    (c) Protests after award. The authority of the HCA under FAR 
33.104(c) to authorize contract performance when the agency has 
received notice from the GAO of a protest filed directly with the GAO 
is nondelegable. The HCA has the responsibility to prepare and provide 
to the GAO the written finding with the information required by FAR 
33.104(c)(2). The written finding must be coordinated with the Office 
of the Solicitor before the notice is signed by the HCA and sent to the 
GAO.
    (d) Notice to the GAO. The authority of the HCA under FAR 
33.104(g), to report to the GAO the failure to fully implement the GAO 
recommendations with respect to a solicitation for a

[[Page 23010]]

contract or an award or a proposed award of a contract within 60 days 
of receiving the GAO recommendations, is nondelegable. The written 
notice must be coordinated with the Office of the Solicitor before the 
notice is signed by the HCA and sent to the GAO. A copy of all notices 
to the GAO submitted in accordance with FAR 33.104(g) must be provided 
to the Senior Procurement Executive within (two) working days after 
they are sent to the GAO.

Subpart 2933.2--Disputes and Appeals


2933.203  Applicability.

    The authority of the Agency Head to determine that the application 
of the Contract Disputes Act of 1978 to any contract with a foreign 
government or agency of that government, or an international 
organization or a subsidiary body of that organization, would not be in 
the public interest is delegated to the HCA.


2933.209  Suspected fraudulent claims.

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


2933.211  Contracting officer's decision.

    The written decision required by FAR 33.211(a)(4) must include, in 
the paragraph listed under FAR 33.211(a)(4)(v), specific reference to 
the Department of Labor Board of Contract Appeals (LBCA), 800 K Street, 
NW, Suite 400 North, Washington, DC 20001-8002.


2933.212  Contracting officer's duties upon appeal.

    (a) When a notice of appeal has been received, the contracting 
officer must endorse on the appeal the date of mailing (or the date of 
receipt if the notice was not mailed). The contracting officer must 
also notify the Solicitor of Labor of the appeal.
    (b) The contracting officer should prepare and transmit the 
administrative file for the Office of the Solicitor and assist with the 
appeal.


2933.213  Obligation to continue performance.

    The contracting officer must include the clause at FAR 52.233-1, 
Disputes (Alternate I), in contracts where continued performance is 
necessary pending resolution of any claim arising under or relating to 
the contract.


2933.270  Department of Labor Board of Contract Appeals.

    (a) The Department of Labor Board of Contract Appeals (LBCA) is 
authorized by the Secretary to consider and determine appeals from 
decisions of contracting officers arising under a contract, or relating 
to a contract, made by the Department or any other executive agency 
when such agency or the Administrator of the Office of Federal 
Procurement Policy has designated the LBCA to decide the appeal.
    (b) The LBCA rules of procedure are contained in 41 CFR part 29-
60.104, appearing in the July 1, 1983, edition of 41 CFR, subtitle A, 
chapters 19-100.

PARTS 2934-2935 [RESERVED]

PART 2936--CONSTRUCTION AND ARCHITECT--ENGINEER CONTRACTS

Subpart 2936.2--Special Aspects of Contracting for Construction
Sec.
2936.201 Evaluation of contractor performance.
2936.209 Construction contracts with architect-engineer firms.
Subpart 2936.5--Contract Clauses
2936.516 Quality surveys.
Subpart 2936.6--Architect-Engineer Services
2936.602 Selection of firms for architect-engineer contracts.
2936.602-1 Selection criteria.
2936.602-2 Evaluation boards.
2936.602-3 Evaluation board functions.
2936.602-4 Selection Authority.
2936.602-5 Short selection processes for contracts not to exceed 
$100,000.
2936.603 Collecting data on and appraising firms' qualifications.
2936.604 Performance evaluation.

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

Subpart 2936.2--Special Aspects of Contracting for Construction


2936.201  Evaluation of contractor performance.

    The HCA must establish procedures to evaluate construction 
contractor performance and prepare performance reports as required by 
FAR 36.201.


2936.209  Construction contracts with architect-engineer firms.

    As required by FAR 36.209, no contract for construction of a 
project may be awarded to the firm that designed the project, or to its 
subsidiaries or affiliates, without the written approval of the 
Assistant Secretary for Administration and Management. Any request for 
approval must include the reason(s) why award to the design firm is 
required; an analysis of the facts involving potential or actual 
organizational conflicts of interest including benefits and detriments 
to the Government and the prospective contractor; and the measures 
which are to be taken to avoid, neutralize, or mitigate conflicts of 
interest.

Subpart 2936.5--Contract Clauses


 2936.516  Quality surveys.

    The HCA is authorized to make the determination regarding the 
impracticability of Government performance of original and final 
surveys as prescribed in FAR 36.516.

Subpart 2936.6--Architect-Engineer Services


2936.602  Selection of firms for architect-engineer contracts.


2936.602-1  Selection criteria.

    HCAs are authorized to approve the use of design competition under 
the conditions in FAR 36.602-1(b).


2936.602-2  Evaluation boards.

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


2936.602-3  Evaluation board functions.

    The selection report required in FAR 36.602-3(d) must be prepared 
for the approval of the HCA.


2936.602-4  Selection Authority.

    The HCA is authorized to serve as the designated Selection 
Authority in accordance with FAR 36.602-1.


2936.602-5  Short selection processes for contracts not to exceed 
$100,000.

    The selection process prescribed in FAR 36.602-5(b) must be used 
for architect-engineer contracts not exceeding the simplified 
acquisition threshold.


2936.603  Collecting data on and appraising firms'qualifications.

    (a) HCAs who acquire architect-engineer services must establish 
procedures to comply with the requirements of FAR 36.603.
    (b) Copies of procedures established under paragraph (a) of this 
section must be submitted to the Division of Acquisition Management 
Services, for review and recommendation for approval to the HCA when 
updated. These procedures must include a list of names, addresses, and 
telephone numbers of offices or boards assigned to

[[Page 23011]]

maintain architect-engineer qualification data files.


2936.604  Performance evaluation.

    (a) The HCA must establish procedures to evaluate architect-
engineer contractor performance as required in FAR 36.604. Normally, 
the performance report must be prepared by the contracting officer's 
authorized representative or other official who was responsible for 
monitoring contract performance and who is qualified to evaluate 
overall performance. DOL Agency/Office procedures must prescribe 
instructions for review of the report, before distribution, as 
prescribed in FAR 36.604(b).
    (b) Performance reports must be made using Standard Form 1421, 
Performance Evaluation (Architect-Engineer) as prescribed in FAR 
36.702(c). Details covering unsatisfactory performance, including 
Government notification to the contractor and written comments by the 
contractor, must also be attached to the report.

PART 2937--SERVICE CONTRACTING

Subpart 2937.1--Service Contracts-General
Sec.
2937.103 Contracting officer responsibility.
2937.103-70 Department of Labor checklist to aid analysis and review 
of requirements for service contracts.
Subpart 2937.2--Advisory and Assistance Services
2937.203 Policy.
Subpart 2937.6--Preference for Performance-Based Contracting (PBC)
2937.602 Elements of performance-based contracting.

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

Subpart 2937.1--Service Contracts-General


2937.103  Contracting officer responsibility.

    The HCA is responsible for establishing internal review and 
approval procedures for service contracts in accordance with OFPP 
Policy Letter 93-1 (Reissued), ``Management Oversight of Service 
Contracting''. As defined by FAR 37.101, contracts for personal 
services are permitted under the circumstances in 5 U.S.C. 3109.


2937.103-70  Department of Labor checklist to aid analysis and review 
of requirements for service contracts.

    Contracting specialists and contracting officers must work in close 
collaboration with the beneficiaries of the services being purchased to 
ensure that contractor performance meets contract requirements and 
performance standards.
    (a) General. Following is a checklist to aid analysis and review of 
requirements for service contracts.
    (1) Is the statement of work complete, with a clear-cut division of 
responsibility between the contracting parties?
    (2) Is the statement of work discussed in terms the market can 
satisfy?
    (3) Does the statement of work encompass all commercially available 
services that can meet the actual functional need (eliminates any 
nonessential preferences that may thwart full and open competition)?
    (4) Is the statement of work performance-based to the maximum 
extent possible (i.e., is the acquisition structured around the purpose 
of the work to be performed, as opposed to either the manner by which 
the work is to be performed or a broad and imprecise statement of 
work)?
    (b) Cost effectiveness. If the response to any of the following 
questions is negative, the agency may not have a valid requirement or 
not be obtaining the requirement in the most cost effective manner.
    (1) Is the statement of work written so that it supports the need 
for a specific service?
    (2) Is the statement of work written so that it permits adequate 
evaluation of contractor versus in-house cost and performance?
    (3) Are the choices of contract type, quality assurance plan, 
competition strategy, or other related acquisition strategies and 
procedures in the acquisition plan appropriate to ensure good 
contractor performance to meet the user's needs?
    (4) If a cost reimbursement contract is contemplated, is the 
acquisition plan adequate to ensure that the contractor will have the 
incentive to control costs under the contract?
    (5) Is the acquisition plan adequate to address the cost 
effectiveness of using contractor support (either long-term or short-
term) versus in-house performance?
    (6) Is the cost estimate or other supporting cost information 
adequate to enable the contracting office to effectively determine 
whether costs are reasonable?
    (7) Is the statement of work adequate to describe the requirement 
in terms of ``what'' is to be performed as opposed to ``how'' the work 
is to be accomplished?
    (8) Is the acquisition plan adequate to ensure that there is proper 
consideration given to ``quality'' and ``best value?''
    (c) Control. If the response to any of the following questions is 
negative, there may be a control problem.
    (1) Are there sufficient resources to evaluate contractor 
performance when the statement of work requires the contractor to 
provide advice, analysis and evaluation, opinions, alternatives, or 
recommendations that could significantly influence agency policy 
development or decision-making?
    (2) Does the quality assurance plan provide for adequate monitoring 
of contractor performance?
    (3) Is the statement of work written so that it specifies a 
contract deliverable or requires progress reporting on contractor 
performance?
    (4) Is agency expertise adequate to independently evaluate the 
contractor's approach, methodology, results, options, conclusions or 
recommendations?
    (d) Conflicts of interest. If the response to any of the following 
questions is affirmative, there may be a conflict of interest.
    (1) Can the potential offeror perform under the contract to devise 
solutions or make recommendations that would influence the award of 
future contracts to that contractor?
    (2) If the requirement is for support services (such as system 
engineering or technical direction), were any of the potential offerors 
involved in developing the system design specifications or in the 
production of the system?
    (3) Has a potential offeror participated in earlier work involving 
the same program or activity that is the subject of the present 
contract, wherein the offeror had access to source selection or 
proprietary information not available to other offerors competing for 
the contract?
    (4) Will the contractor be evaluating a competitor's work?
    (5) Does the contract allow the contractor to accept its own 
products or activities on behalf of the Government?
    (6) Will the work under this contract put the contractor in a 
position to influence government decision-making, e.g., developing 
regulations that will affect the contractor's current or future 
business?
    (7) Will the work under this contract affect the interests of the 
contractor's other clients?
    (8) Are any of the potential offerors, or their personnel who will 
perform the contract, former agency officials who--while employed by 
the agency--personally and substantially participated in the 
development of the requirement for, or the procurement of, these 
services within the past two years?

[[Page 23012]]

    (e) Competition. If the response to any of the following questions 
is negative, competition may be unnecessarily limited.
    (1) Is the statement of work defined so as to avoid overly 
restrictive specifications or performance standards?
    (2) Is the contract formulated in such a way as to avoid creating a 
continuous and dependent arrangement with the same contractor?
    (3) Is the use of an indefinite quantity or term contract 
arrangement appropriate to obtain the required services?
    (4) Will the requirement be obtained through the use of full and 
open competition?

Subpart 2937.2--Advisory and Assistance Services


2937.203  Policy.

    (a) HCAs having a requirement for certain advisory and assistance 
services are required by the Department of Labor Manual Series (See 
DLMS 2 836) to prepare a written justification for such services. 
Written justification must be submitted to the Assistant Secretary for 
Administration and Management for review by the Procurement Review 
Board, for Assistant Secretary for Administration and Management 
approval.
    (b) Regardless of the type of action planned, the justification in 
paragraph (a) of this section must include the following:
    (1) A statement of need, which certifies that the requested 
services do not unnecessarily duplicate any previously performed work.
    (2) Nature and scope of the need, and the results expected.
    (3) Extent to which in-house staff availability was assessed, and 
the reasons why procurement of outside services is necessary.
    (4) Any additional information or data that support the requirement 
for a contract.
    (5) Name(s) and title(s) of official(s) who will be assigned as 
project officer(s) to work with the contractor, and who can be 
contacted for additional Information.
    (6) A statement that the Government policy on advisory and 
assistance services has been reviewed and complies with FAR 37.203.

Subpart 2937.6--Preference for Performance-Based Contracting (PBC)


2937.602  Elements of performance-based contracting.

    (a) Performance-based contracting is defined in FAR 37.101 and 
discussed in FAR 37.6. Although FAR Part 37 primarily addresses 
services contracts, PBC is not limited to these contracts. PBC is the 
preferred way of contracting for services. (See exceptions listed in 
FAR 37.102.) Generally, when contract performance risk under a PBC 
specification can be shifted to the contractor to allow for the 
operation of objective incentives, a contract type with objectively 
measurable incentives (e.g., Firm-Fixed-Price, Fixed-Price-Incentive-
Fee, or Cost-Plus-Incentive-Fee) is appropriate. However, when 
contractor performance (e.g., cost control, schedule, or quality/
technical) is best evaluated subjectively using qualitative measures, a 
Cost-Plus-Award-Fee contract may be used.
    (b) A labor hour level-of-effort contract is not considered a PBC.

PARTS 2938--2941 [RESERVED]

Subchapter G--Contract Management

PART 2942--CONTRACT ADMINISTRATION AND AUDIT SERVICES

Subpart 2942.1--Contract Audit Services
Sec.
2942.101 Policy.
Subpart 2942.15--Contractor Performance Information
2942.1501 Scope.
2942.1502 Policy.
2942.1503 Procedures.

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

Subpart 2942.1--Contract Audit Services


2942.101  Policy.

    The OASAM Division of Cost Determination is responsible for 
establishing billing rates and indirect cost rates as prescribed in FAR 
42.7 for the Department of Labor.

Subpart 2942.15--Contractor Performance Information


2942.1501  Scope.

    This subpart provides policies and procedures for evaluating, 
maintaining, and releasing contractor performance information under DOL 
contracts.


2942.1502  Policy.

    DOL contracting officers are required to use or interface with the 
Past Performance Information Retrieval System (PPIRS), and specifically 
the National Institutes of Health's Contractor Performance System. The 
HCA is responsible for ensuring that a contractor performance 
evaluation system is generated to meet the requirements of FAR subpart 
42.15, including compliance with subcontracting plans. Contracts, task 
orders, and delivery orders, exceeding the simplified acquisition 
threshold, should be formally evaluated in writing. Interim evaluations 
should be performed on contracts exceeding one year in duration. This 
will assist contractors with improving marginal performance and 
identifying any major deficiencies. It will also facilitate performance 
evaluations at contract completion, as well as determining whether to 
exercise contract options, if any.


2942.1503  Procedures.

    (a) In accordance with FAR 42.1502, the contracting officer will 
prepare an interim evaluation of a contractor's performance at least 
annually for submission to the Past Performance Information Retrieval 
System (PPIRS), and specifically the Contractor Performance System 
maintained by the National Institutes of Health.
    (b) The contracting officer, or designee, must determine who will 
evaluate a contractor's performance. The contracting officer's 
technical representative, program manager, contract specialists or 
administrators, and users are candidates likely to be selected to 
perform the evaluation.
    (c) A contractor's performance evaluation should be obtained from a 
person who monitored contractor performance when that individual's 
assignment of duties or employment terminates before physical 
completion of the contract. The areas of performance to be selected for 
evaluation should be tailored to the type of supplies or services 
normally acquired by the contracting activities and the type of 
contract. HCAs must ensure uniformity of the evaluation criteria within 
their contracting activities.
    (d) Release of contractor performance evaluation information.
    (1) Requests for performance evaluation information from the public 
must be processed in accordance with FOIA, as implemented by DOL under 
29 CFR part 70.
    (2) Release of a contractor's performance evaluation information to 
other Federal agencies is subject to FAR 42.1502. When the performance 
evaluation information is released to other federal agencies, it should 
be provided with a written statement that it is nonpublic information 
that must be processed under FOIA principles if a request for its 
disclosure is received.
    (e) Even though the retention period for past performance 
evaluation information is three years (see FAR 42.1503), the 
contractor's performance evaluation, any contractor rebuttal, and

[[Page 23013]]

final decision become a part of the contract file. Therefore, disposal 
of the contractor's evaluation information must be accomplished in 
accordance with FAR 4.804.

PART 2943--CONTRACT MODIFICATIONS

Subpart 2943.2--Change Orders
Sec.
2943.205 Contract clauses.
Subpart 2943.3--Forms
2943.301 Use of forms.

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

Subpart 2943.2--Change Orders


2943.205  Contract clauses.

    HCAs may establish procedures, or office policies, when appropriate 
for authorizing the contracting officer to vary the 30-day period for 
submission of adjustment proposals to the clauses prescribed by FAR 
43.205.

Subpart 2943.3--Forms


2943.301  Use of forms.

    (a) FAR 43.301(a)(1)(vi) requires the use of Standard Form 30 (SF-
30) to execute any obligation or deobligation of contract funds after 
award. FAR 13.307(c)(3) allows, and the Department of Labor prefers, 
the use of the SF-30 for simplified acquisitions. The SF-30 also must 
be used to deobligate funds when effecting contract closeout when 
obligated funds exceed the final contract costs. In such an instance, 
the SF-30 may be issued as an administrative modification on a 
unilateral basis if the contractor's financial release has been 
separately obtained.
    (b) The contracting officer must include, in any unilateral 
contract modification issued for contract closeout, a statement that 
the contractor has signed a release of claims and indicate the date the 
release of claims was signed by the contractor.

PART 2944--SUBCONTRACTING POLICIES AND PROCEDURES

Subpart 2944.1--General
Sec.
2944.101 Waiver.
Subpart 2944.2--Consent To Subcontract
2944.201-1 Consent requirements.
2944.202 Contracting officer's evaluation.
2944.202-2 Considerations.
2944.203 Consent limitations.
Subpart 2944.3--Contractors' Purchasing Systems Reviews
2944.302 Requirements.

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

Subpart 2944.1--General.


2944.101  Waiver.

    The waiver of consent must be in writing, signed by the contracting 
officer, and included in the contract file. The waiver must include all 
supporting facts, including the rationale for waiving the consent to 
subcontract requirements.

Subpart 2944.2--Consent To Subcontract


2944.201-1  Consent requirements.

    In accordance with FAR 44.201-1(b) or FAR 44.201-2, advance 
notification and agreement are required for all cost-reimbursement, 
time-and-materials, or labor-hour subcontracts exceeding the simplified 
acquisition threshold.


2944.202  Contracting officer's evaluation.


2944.202-2  Considerations.

    The review required by FAR 44.202-2(a) must be documented in 
writing (including supporting facts and rationale), signed by the 
contracting officer, and included in the contract file.


2944.203  Consent limitations.

    Any limitations placed on the consent to subcontract must be 
documented in writing (including supporting facts and rationale), 
signed by the contracting officer, and included in the contract file.

Subpart 2944.3--Contractors' Purchasing Systems Reviews


2944.302  Requirements.

    The authority of the Assistant Secretary for Administration and 
Management under FAR 44.302(a), to raise or lower the $25 million 
review level for a contractor's purchasing system, may not be 
delegated. When a contractor's purchasing system review is required by 
the contracting officer, the effort must be coordinated with the OASAM 
Business Operations Center's Division of Acquisition Management 
Services and the Division of Cost Determination.

PART 2945--GOVERNMENT PROPERTY

Subpart 2945.1--General
Sec.
2945.104 Review and correction of contractors' property control 
systems.
2945.105 Records of Government property.
Subpart 2945.3--Providing Government Property to Contractors
2945.302 Providing facilities.
Subpart 2945.4--Contractor Use and Rental of Government Property
2945.403 Rental-use and charges clause.

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

Subpart 2945.1--General


2945.104  Review and correction of contractors' property control 
systems.

    When the Government's property administrator determines that review 
and approval of the contractor's property control system rests with 
DOL, the Government's property administrator must review the system to 
determine whether the contractor will be able to meet the requirements 
of FAR 45.104. The review must be completed, signed by the appointed 
property administrator, and retained in the contract file.


2945.105  Records of Government property.

    Contracting officers must maintain a file on any Government-
furnished property (GFP) in the possession of contractors. As a 
minimum, the file must contain the following:
    (a) A copy of the applicable portions of the contract that list the 
GFP;
    (b) Contracting officer's letters assigning the GFP administrator 
to the contract;
    (c) Written evidence that the contractor's property control system 
was reviewed and approved as required by FAR 45.104;
    (d) If applicable, documentation of the request and approval or 
denial of the contractor's requests to acquire or fabricate special 
test equipment in accordance with FAR 45.307 or other property;
    (e) The contractor's written notice of receipt of the GFP and any 
reported discrepancies thereto, as required by FAR 45.502-1 and 45.502-
2, respectively;
    (f) Any other documents pertaining to or affecting the status of 
the GFP in the possession of contractors or subcontractors under the 
contract;
    (g) Documentation of the screening and disposal of all GFP as 
required by FAR 45.6.

Subpart 2945.3--Providing Government Property to Contractors


2945.302  Providing facilities.

    The HCA is authorized to make the determination to provide 
facilities to a contractor as prescribed in FAR 45.302-1(a)(4).

Subpart 2945.4--Contractor Use and Rental of Government Property


2945.403  Rental-use and charges clause.

    The HCA must make the determination to charge rent on the basis of 
use under the clause at FAR 52.245-9 when the contracting officer 
provides access to Government

[[Page 23014]]

production and research property, as prescribed in FAR 45.403(a).

PARTS 2946-2951 [RESERVED]

PART 2952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 52.2--Text of Provisions and Clauses
Sec.
2952.201-70 Contracting Officer's Technical Representative (COTR).

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

Subpart 52.2--Text of Provisions and Clauses


2952.201-70  Contracting Officer's Technical Representative (COTR).

    Insert the following clause into contracts requiring COTR 
representation under 2901.603.71:

    Contracting officer's technical representative (COTR) May 2004
    (a) Mr./Ms. (Name) of (Organization) (Room No.), (Building), 
(Address), (Area Code & Telephone No.), is hereby designated to act 
as contracting officer's technical representative (COTR) under this 
contract.
    (b) The COTR is responsible, as applicable, for: receiving all 
deliverables; inspecting and accepting the supplies or services 
provided hereunder in accordance with the terms and conditions of 
this contract; providing direction to the contractor which clarifies 
the contract effort, fills in details or otherwise serves to 
accomplish the contractual scope of work; evaluating performance; 
and certifying all invoices/vouchers for acceptance of the supplies 
or services furnished for payment.
    (c) The COTR does not have the authority to alter the 
contractor's obligations under the contract, and/or modify any of 
the expressed terms, conditions, specifications, or cost of the 
agreement. If, as a result of technical discussions, it is desirable 
to alter/change contractual obligations or the scope of work, the 
contracting officer must issue such changes.

PART 2953--FORMS

Subpart 2953.1--General
Sec.
2953.100 Request for Recommendation by Procurement Review Board DL 
1-490.
2953.101 Simplified Acquisition Documentation Checklist DL 1-2216.
2953.102 Quotation for Simplified Acquisitions DL 1-2078.
2953.103 Acquisition Screening and Review--over $100,000 DL 1-2004.

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

Subpart 2953.1--General


2953.100  Request for Recommendation by Procurement Review Board DL 1-
490.

    The following form must be used by the requisitioning office to 
submit a request for review by the Procurement Review Board as 
specified in DOLAR 2901 and 2943. This form must be submitted through 
the Assistant Secretary for the program office to the Director, 
Division of Acquisition Management Services, for scheduling before the 
Procurement Review Board.
BILLING CODE 4910-23-P

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[[Page 23018]]


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2953.101  Simplified Acquisition Documentation Checklist DL 1-2216.

    The following checklist must be used to document all simplified 
acquisitions at or below the simplified acquisition threshold.
[GRAPHIC] [TIFF OMITTED] TR27AP04.004


[[Page 23020]]




2953.102  Quotation for Simplified Acquisitions DL 1-2078.

    The following form must be used to document all simplified 
acquisitions above the micro-purchase threshold and below the 
simplified acquisition threshold. This form may also be used to 
document commercial acquisitions on a fixed price basis up to $5 
million.
[GRAPHIC] [TIFF OMITTED] TR27AP04.005


[[Page 23021]]




2953.103  Acquisition Screening and Review--over $100,000 DL 1-2004.

    The requiring organization must complete the following form for all 
acquisitions above the simplified acquisition threshold. This form will 
then be submitted through the contracting officer to the Office of 
Small Business Programs for review.
[GRAPHIC] [TIFF OMITTED] TR27AP04.006

[FR Doc. 04-8571 Filed 4-26-04; 8:45 am]
BILLING CODE 4510-23-C