[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Proposed Rules]
[Pages 58526-58550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21844]
[[Page 58525]]
Vol. 86
Thursday,
No. 201
October 21, 2021
Part V
Department of Justice
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48 CFR Chapter 28
Streamlining of DOJ Acquisition Regulations (JAR); Proposed Rule
Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 /
Proposed Rules
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DEPARTMENT OF JUSTICE
48 CFR Chapter 28
[Docket No. JMD 155]
RIN 1105-AB54
Streamlining of DOJ Acquisition Regulations (JAR)
AGENCY: Justice Management Division, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice is proposing to revise the Justice
Acquisition Regulations (JAR), in its entirety in order to update and
streamline agency procurement actions consistent with the Federal
Acquisition Reform Act, and the Federal Acquisition Streamlining Act.
The JAR supplements the executive branch-wide Federal Acquisition
Regulations (FAR) to address matters specific to the Department of
Justice relating to its procurement of goods and services. It covers
mostly internal policies and procedures, but also includes some rules
governing private entities doing business with the Department.
DATES: Electronic comments must be submitted and written comments must
be postmarked or otherwise indicate a shipping date on or before
December 20, 2021.
ADDRESSES: If you wish to provide comment regarding this rulemaking,
you must submit comments, identified by the agency name and reference
Docket No. JMD 155, by one of the two methods below.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the website instructions for submitting comments. The electronic
Federal Docket Management System at www.regulations.gov will accept
electronic comments until 11:59 p.m. Eastern Time on the comment due
date.
Mail: Paper comments that duplicate an electronic
submission are unnecessary. If you wish to submit a paper comment in
lieu of electronic submission, please direct the mail/shipment to: Tara
M. Jamison, Director, Office of Acquisition Management, 145 N Street
NE, Room 8W.210, Washington, DC 20530. To ensure proper handling,
please reference the agency name and Docket No. JMD 155 on your
correspondence. Mailed items must be postmarked or otherwise indicate a
shipping date on or before the submission deadline.
FOR FURTHER INFORMATION CONTACT: Tara M. Jamison, Director, Office of
Acquisition Management, Justice Management Division, 145 N Street NE,
Room 8W.210, Washington, DC 20530, (202) 616-3754 (not a toll-free
call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule via the one of the methods and by the deadline stated above. All
comments must be submitted in English, or accompanied by an English
translation. The Department of Justice (Department) also invites
comments that relate to the economic, environmental, or federalism
effects that might result from this rule. Comments that will provide
the most assistance to the Department in developing these procedures
will reference a specific portion of the rule, explain the reason for
any recommended change, and include data, information, or authority
that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at
www.regulations.gov. Such information includes personally identifying
information (PII) (such as your name, address, etc.). Interested
persons are not required to submit their personally identifying
information in order to comment on this rule. However, any PII that is
submitted is subject to being posted to the publicly-accessible
www.regulations.gov site without redaction.
Confidential business information identified and located as set
forth above will not be placed in the public docket file. The
Department may withhold from public viewing information provided in
comments that they determine may impact the privacy of an individual or
is offensive. For additional information, please read the Privacy Act
notice that is available via the link in the footer of
www.regulations.gov. To inspect the agency's public docket file in
person, you must make an appointment with the agency. Please see the
FOR FURTHER INFORMATION CONTACT section above for agency contact
information.
II. Discussion
A. Background--The FAR, the OFPP Act, and the JAR
When Federal agencies acquire supplies or services using
appropriated funds, the purchase is governed by the Federal Acquisition
Regulations (FAR), set forth at title 48 of the CFR, chapter 1, parts 1
through 53, and any agency regulations that implement or supplement the
FAR.
The Office of Federal Procurement Policy Act (OFPP), as codified in
41 U.S.C. 1707, provides the authority for an agency to issue
acquisition regulations that implement or supplement the FAR. This
authority ensures that Government procurements are handled fairly and
consistently, that the Government receives overall best value, and that
the Government and contractors both operate under a known set of rules.
The Justice Acquisition Regulations (JAR) are set forth at title 48
CFR, chapter 28, parts 2801 through 2852, and provide procurement
regulations that supplement the FAR to address matters specific to the
Department of Justice (``the Department'' or ``DOJ'') relating to its
acquisition of goods and services. As such, the JAR covers only those
areas where agency implementation is required by the FAR, or where DOJ
policies and procedures exist that supplement FAR coverage.
B. Purpose of the Proposed Regulatory Action
The revisions proposed in this rule will, when finalized, align
internal departmental guidance in the JAR with the FAR and remove
outdated and duplicative requirements. The revisions will revise the
existing regulation promulgated at 63 FR 16118-01 on April 2, 1998,
corrected at 63 FR 26738-01, May 14, 1998, and amended at 64 FR 37044-
01, July 9, 1999 (together, the ``current regulation''). Among other
things, the revisions will: (1) Update definitions and descriptions,
(2) streamline certain sections, (3) remove extraneous procedural
information that applies only to DOJ's internal operating procedures,
(4) delete outdated information, (5) incorporate new regulatory
sections to align with internal bureau procedures as appropriately
contained in DOJ policy orders and policy instructions, and (6)
simplify other parts for efficiency.
This rulemaking effort creates an efficient JAR that is more
straightforward and less burdensome. The revised JAR will supersede the
current regulation in its entirety.
C. Relation of the FAR to the JAR
The FAR contains many requirements related to agency procedures,
which will not be repeated in DOJ's revision of the JAR. If the JAR
does not include provisions supplementing the FAR under the
corresponding part or subpart, it is because the FAR language is
considered sufficient. Where the JAR states ``in accordance with bureau
procedures'' or ``in accordance with agency procedures,'' this does not
mean
[[Page 58527]]
that the bureau or the agency must have a procedure. It is intended
that the bureau or agency procedures are to be followed if they exist,
but does not mean that the bureau or the agency necessarily has a
formal written procedure. Where neither the JAR nor bureau procedures
address a FAR subject, the FAR guidance is to be followed. The JAR is
not a complete system of regulations and must be used in conjunction
with the FAR.
D. Summary of Noteworthy Changes
Most of the proposed changes to 48 CFR chapter 28 relate to
internal Department policies and procedures that do not impact the
public. For example, the revisions identify the individuals within the
Department who will exercise particular responsibilities set forth in
the FAR, and whether such responsibilities may be delegated. There are,
however, two provisions that impact the public. Part 2833 contains
revisions to the process for filing and deciding agency protests of
procurement decisions. In addition, the proposed revisions include a
new section 2852.212-4, which is a FAR deviation that sets forth
certain terms and conditions that will apply to all software licenses.
E. Other Changes and Effect on Non-Department Entities
While most of the changes to the JAR proposed by this rule relate
to internal policies and procedures, some changes govern matters
relating to private entities selling goods or services to the
Department. In particular, the proposed rule includes changes related
to the filing and deciding of procurement protests filed with the
Department, and also includes a FAR deviation that establishes certain
terms and conditions that will be incorporated in all software licenses
with the Department.
Some subparts/subsections that are being removed addressed matters
that are now addressed in new subparts/subsections with different
numbering, while some subparts/subsections are being removed
altogether. The removal of sub-parts as proposed by this rule merely
eliminates from the JAR provisions that are either already in the FAR
or that only pertain to internal policy guidance. None of the subparts
or subsections being removed altogether addressed matters affecting
persons or entities external to the Department. To the extent matters
addressed in such removed subpart/subsections are incorporated into
internal Department guidance documents, this will not affect persons or
entities external to the Department.
Attached to this proposed rule is an Appendix that lists the
sections of the JAR that are being proposed for removal and/or
renaming. The Appendix will not be codified.
III. Regulatory Certifications
Executive Orders 12866, and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Orders 12866 and 13563. This rule is primarily limited to
agency organization, management and personnel as described by Executive
Order 12866, section 3(d)(3) and, therefore, is not a ``regulation'' as
defined by that Executive order. Accordingly, this action has not been
reviewed by the Office of Management and Budget.
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives. JMD has
examined the economic, budgetary, and policy implications of its
regulatory action, and has determined that the impact on the public is
minimal. The regulation mainly relates to internal Department policies
and procedures that do not impact the public.
Regulatory Flexibility Act
The Attorney General in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that it will not have a significant economic impact on a
substantial number of small entities for the following reasons. The
proposed rule applies primarily to DOJ internal operating procedures
and would generally be business neutral. DOJ estimates that no cost
impact would result from this rule update for individual business.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal Governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal Governments or on the private
sector.
Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act, 5 U.S.C. 804. This rule will not result in an annual effect
on the economy of $100,000,000 or more; a major increase in costs or
prices; or 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.
The Justice Management Division has determined that this action is
a rule relating primarily to agency organization, procedure or practice
that does not substantially affect the rights or obligations of non-
agency parties, and, accordingly, is not a ``rule'' as that term is
used by the Congressional Review Act. Therefore, the reporting
requirement of 5 U.S.C. 801 does not apply.
Paperwork Reduction Act
This rule imposes no information collection or recordkeeping
requirements.
Signing Authority
In accordance with Paragraph 8 of Attorney General Order 1687-93,
the undersigned is authorized to sign and submit this document to the
Office of the Federal Register for publication electronically as an
official document of the Department of Justice.
List of Subjects
48 CFR Parts 2801, 2802, 2805, 2806, 2807, 2808, 2809, 2810, 2811,
2812, 2813, 2814, 2815, 2816, 2817, 2819, 2827, 2834, 2836, 2837, 2845,
2850, and 2852
Government procurement.
48 CFR Part 2803
Conflict of interest, Government procurement.
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48 CFR Part 2804
Classified information, Government procurement, Reporting and
recordkeeping requirements.
48 CFR Part 2822
Government procurement, Individuals with disabilities.
48 CFR Part 2823
Environmental protection, Government procurement.
48 CFR Part 2825
Foreign currencies, Foreign trade, Government procurement.
48 CFR Part 2828
Government procurement, Insurance, Surety bonds.
48 CFR Part 2829
Government procurement, Taxes.
48 CFR Parts 2830, 2831, and 2832
Accounting, Government procurement.
48 CFR Part 2833
Administrative practice and procedure, Government procurement.
48 CFR Part 2839
Computer technology, Government procurement.
48 CFR Part 2841
Government procurement, Reporting and recordkeeping requirements,
Utilities.
48 CFR Part 2842
Accounting, Freight, Government procurement, Reporting and
recordkeeping requirements.
48 CFR Part 2846
Government procurement, Reporting and recordkeeping requirements,
Warranties.
48 CFR Parts 2848 and 2849
Government procurement, Reporting and recordkeeping requirements.
Accordingly, for the reasons set out in the preamble, chapter 28 of
title 48 of the CFR is proposed to be revised to read as follows:
CHAPTER 28--DEPARTMENT OF JUSTICE
Subchapter A--General
Part 2801--Department of Justice Acquisition Regulation System
Part 2802--Definitions of Words and Terms
Part 2803--Improper Business Practices and Personal Conflicts of
Interest
Part 2804--Administrative Matters
Subchapter B--Competition and Acquisition Planning
Part 2805--Publicizing Contract Actions
Part 2806--Competition Requirements
Part 2807--Acquisition Planning
Part 2808--Required Sources of Supplies and Services
Part 2809--Contractor Qualifications
Part 2810--Market Research
Part 2811--Describing Agency Needs
Part 2812--Acquisition of Commercial Items
Subchapter C--Contracting Methods and Contract Types
Part 2813--Simplified Acquisition Procedures
Part 2814--Sealed Bidding
Part 2815--Contracting by Negotiation
Part 2816--Types of Contracts
Part 2817--Special Contracting Methods
Subchapter D--Socioeconomic Programs
Part 2819--Small Business Programs
Part 2822--Application of Labor Laws to Government Acquisitions
Part 2823--Environment, Energy and Water Efficiency, Renewable
Energy Technologies, Occupational Safety, and Drug-Free Workplace
Part 2825--Foreign Acquisition
Subchapter E--General Contracting Requirements
Part 2827--Patents, Data, and Copyrights
Part 2828--Bonds and Insurance
Part 2829--Taxes
Part 2830--Cost Accounting Standards Administration
Part 2831--Contract Cost Principles and Procedures
Part 2832--Contract Financing
Part 2833--Protests, Disputes, and Appeals
Subchapter F--Special Categories of Contracting
Part 2834--Major System Acquisition
Part 2836--Construction and Architect-Engineer Contracts
Part 2837--Service Contracting
Part 2839--Acquisition of Information Technology
Part 2841--Acquisition of Utility Services
Subchapter G--Contract Management
Part 2842--Contract Administration and Audit Services
Part 2845--Government Property
Part 2846--Quality Assurance
Part 2848--Value Engineering
Part 2849--Termination of Contracts
Part 2850--Extraordinary Contractual Actions and the Safety Act
Subchapter H--Clauses and Forms
PART 2852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subchapter A--General
PART 2801--DEPARTMENT OF JUSTICE ACQUISITION REGULATION SYSTEM
Subpart 2801.1--Purpose, Authority, Issuance
Sec.
2801.101 Purpose.
2801.105 Issuance.
2801.105-2 Arrangement of regulation.
2801.106 OMB approval under the Paperwork Reduction Act.
Subpart 2801.3--Agency Acquisition Regulations
2801.304 Agency control and compliance procedures.
Subpart 2801.4--Deviations from the FAR and JAR
2801.403 Individual deviations.
2801.404 Class deviations.
2801.404-70 Requests for class deviations.
Subpart 2801.6--Career Development, Contracting Authority, and
Responsibilities
2801.601 General.
2801.604 Contracting Officer's Representative (COR).
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2801--DEPARTMENT OF JUSTICE ACQUISITION REGULATION SYSTEM
Subpart 2801.1--Purpose, Authority, Issuance
2801.101 Purpose.
(a) The Justice Acquisition Regulation (JAR) provides agency
guidance, in accordance with Federal Acquisition Regulation (FAR)
1.301(a)(2), and establishes, in this chapter, procurement regulations
that supplement the FAR, 48 Code of Federal Regulations (CFR) chapter
1, and must be utilized conjunction with the FAR.
(b)(1) The JAR contains Department of Justice (DOJ) policies that
govern DOJ's acquisition process or otherwise control acquisition
relationships between DOJ's contracting activities and contractors. The
JAR contains -
(i) Requirements of law;
(ii) Deviations from the FAR requirements; and
(iii) Policies that either have a significant effect beyond the
internal procedures of DOJ or a significant cost or administrative
impact on contractors or offerors.
(2) Relevant internal DOJ policies, procedures, guidance, and
information not meeting the criteria in paragraph (b)(1) of this
section are issued by DOJ in other announcements, internal policies,
procedures, or guidance.
2801.105 Issuance.
2801.105-2 Arrangement of regulation.
The JAR is subdivided into parts, which correspond to FAR parts.
The numbering system permits the discrete identification of every JAR
paragraph. This numbering system permits immediate identification of
each JAR part with coverage of the same subject matter and same
numbering system as
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in the FAR. Supplementary material for which there is no counterpart in
the FAR is identified by a numerical suffix of 70 or higher in the
final position of the reference number.
[GRAPHIC] [TIFF OMITTED] TP21OC21.000
2801.106 OMB approval under the Paperwork Reduction Act.
The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) and the
Office of Management and Budget's (OMB) implementing regulations at 5
CFR part 1320, require that reporting and recordkeeping requirements
affecting ten (10) or more members of the public be cleared by OMB. The
OMB control number for the collection of information under this chapter
is 1103-0018.
Subpart 2801.3--Agency Acquisition Regulations
2801.304 Agency control and compliance procedures.
Pursuant to FAR 1.304, the Senior Procurement Executive (SPE) is
responsible for ensuring that bureau acquisition guidance and
directives do not restrain the flexibilities found in the FAR. For this
reason, bureaus shall forward any bureau acquisition guidance to the
SPE upon issuance. The SPE has the authority to revoke any guidance or
directive considered restrictive of the regulations found in the FAR.
Subpart 2801.4--Deviations from the FAR and JAR
2801.403 Individual deviations.
Individual deviations from the FAR or the JAR that affect only one
contract action shall be approved by the Head of the Contracting
Activity (HCA) or designee.
2801.404 Class deviations.
Requests for class deviations from the FAR or JAR shall be
submitted to the SPE. The SPE will consult with the chairperson of the
Civilian Agency Acquisition Council (CAAC), as appropriate, and send
his/her recommendations to the Chief Acquisition Officer (CAO). The CAO
will grant or deny requests for such deviations. Requests for
deviations involving basic ordering agreements, master type contracts,
or situations where multiple awards are made from one solicitation are
considered to involve more than one contract and, therefore, are
considered class deviation requests.
2801.404-70 Requests for class deviations.
Requests for approval of class deviations from the FAR or the JAR,
for any solicitation that will result in multiple awards, shall be
forwarded to the SPE. Such requests will be signed by the Bureau
Procurement Chief (BPC).
Subpart 2801.6--Career Development, Contracting Authority, and
Responsibilities
2801.601 General.
(a) In accordance with Attorney General Order 1687-93, the
authority vested in the Attorney General (AG) with respect to
contractual actions for goods and services is delegated to the
following officials to serve as HCAs:
(1) Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF);
(2) Director, Bureau of Prisons (BOP);
(3) Administrator, Drug Enforcement Administration (DEA);
(4) Director, Federal Bureau of Investigation (FBI);
(5) Director, Federal Prison Industries (FPI/UNICOR);
(6) Inspector General, Office of the Inspector General (OIG);
(7) Assistant Attorney General, Office of Justice Programs (OJP);
(8) Director, U.S. Marshals Service (USMS); and
(9) Assistant Attorney General for Administration (AAG/A) (for the
Offices, Boards, and Divisions).
(b) The acquisition authority delegated to the officials in
paragraph (a) of this section may be re-delegated to subordinate
officials as necessary for the efficient and proper administration of
the Department's acquisition operations, unless otherwise prohibited by
the FAR or JAR. Such re-delegated authority shall expressly state
whether it carries the power of re-delegation of authority.
2801.604 Contracting Officer's Representative (COR).
Contracting officers may appoint individuals to act as authorized
representatives in the monitoring and administration of a contract.
Such officials shall be designated as a Contracting Officer's
Representative (COR). When a COR is to be designated, contracting
officers shall include the clause at JAR 2852.201-70 in all contracts.
A COR's authority is limited to the authority set forth in the subject
clause.
PART 2802--DEFINITIONS OF WORDS AND TERMS
Subpart 2802.1--Definitions
Sec.
2802.101 Definitions.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2802--DEFINITIONS OF WORDS AND TERMS
Subpart 2802.1--Definitions
2802.101 Definitions.
Throughout this chapter, the following words and terms are used as
defined in this subpart unless the context in which they appear clearly
requires a different meaning, or a different definition is prescribed
for a particular part or portion of a part.
(a) Agency means the Department of Justice.
(b) Bureau means contracting activity. (See ``contracting
activity'' in this subpart.)
(c) Bureau Procurement Chief or BPC means the supervisory official
who is directly responsible for supervising, managing, and directing
all contracting offices of the bureau.
(d) Cardholder means an individual entrusted with a Government
Purchase Card.
(e) Chief Acquisition Officer or CAO means the official appointed
to assist the head of the agency and other agency officials to ensure
the mission of the agency is achieved through the
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management of the agency's acquisition activities.
(f) Chief of the Contracting Office means that supervisory official
who is directly responsible for supervising, managing and directing a
contracting office.
(g) Contracting activity means a component within the Department
which has been delegated procurement authority to manage contracting
functions associated with its mission (see 2801.601(a)).
(h) Department or DOJ means the Department of Justice.
(i) Head of the Contracting Activity or HCA means those officials
identified in 2801.601(a) having responsibility for supervising,
managing, and directing the operations of the contracting activity.
(j) JAR means the Department of Justice Acquisition Regulation in
this chapter.
(k) JMD means the Justice Management Division.
(l) OIG means DOJ's Office of the Inspector General.
(m) Suspension and Debarment Official or SDO means the employee
designated to impose suspension and debarment for the Department of
Justice.
(n) Senior Procurement Executive or SPE means the official
designated to be responsible for management direction of the Department
of Justice procurement system, including implementation of unique
procurement policies, regulations, and standards of the Department of
Justice.
PART 2803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 2803.1--Safeguards
Sec.
2803.101 Standards of conduct.
2803.101-3 Agency regulations.
2803.104 Procurement integrity.
2803.104-7 Violations or possible violations.
Subpart 2803.2--Contractor Gratuities to Government Personnel
2803.203 Reporting suspected violations of the Gratuities clause.
2803.204 Treatment of violations.
Subpart 2803.3--Reports of Suspected Antitrust Violations
2803.301 General.
Subpart 2803.4--Contingent Fees
2803.405 Misrepresentation or violations of the Covenant Against
Contingent Fees.
Subpart 2803.8--Limitations on the Payment of Funds to Influence
Federal Transactions
2803.806 Processing suspected violations.
Subpart 2803.9--Whistleblower Protections for Contractor Employees
2803.901 Definitions.
2803.905 Procedures for investigating complaints.
2803.906 Remedies.
2803.908 Pilot program for enhancement of contractor employee
whistleblower protections.
2803.908-70 Whistleblower protection in General Non-Disclosure
Agreement.
2803.908-71 Whistleblower protection in Intelligence Related Non-
Disclosure Agreement.
Subpart 2803.10--Contractor Code of Business Ethics and Conduct
2803.1004 Contract clauses.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 2803.1--Safeguards
2803.101 Standards of conduct.
2803.101-3 Agency regulations.
The DOJ regulations governing Standards of Conduct are contained in
5 CFR part 2635.
2803.104 Procurement integrity.
2803.104-7 Violations or possible violations.
(a) Upon receipt of information regarding a violation or possible
violation of 41 U.S.C. 2102, 2103, or 2104, the contracting officer
must make the determination required by FAR 3.104-7(a) and follow the
procedures prescribed therein.
(1) Make the determination required by FAR 3.104-7(a) and follow
the procedures prescribed therein.
(2) [Reserved]
(b) The individual referenced in FAR 3.104-7(a)(1) is the BPC.
(c) The HCA or designee must follow the criteria contained in FAR
3.104-7(g) when delegating authority under this subpart.
(d) The HCA or designee shall refer information regarding actual or
possible violations of section 41 U.S.C. 2102, 2103, or 2014 to the OIG
or other office designated in Attorney General Order 1931-94.
(e) If the HCA or designee, after receiving information relating to
a violation, or possible violation, determines that award or extension
of a contract potentially affected by the violation is justified by
urgent and compelling circumstances, or is otherwise in the interest of
the Government, then the HCA may authorize the contracting officer to
award or extend the contract after notification to the OIG or other
office designated in Attorney General Order 1931-94.
(f) The HCA will advise the contracting officer as to the action to
be taken. Criminal and civil penalties, and administrative remedies,
may apply to conduct that violates 41 U.S.C. Chapter 21, see FAR 3.104-
8.
(g) The contracting officer shall advise the SPE in writing of all
allegations of violations. The contracting officer must describe the
alleged violation as well as actions taken.
Subpart 2803.2--Contractor Gratuities to Government Personnel
2803.203 Reporting suspected violations of the Gratuities clause.
DOJ personnel shall report suspected violations of the gratuities
clause, FAR 52.203-3, to the contracting officer or chief of the
contracting office in writing. The report shall clearly state the
circumstances surrounding the incident, including the nature of the
gratuity, the time period in which it occurred, the behavior or action
the gratuity was intended to influence, and the persons involved. The
contracting officer or chief of the contracting office, after review,
shall forward the report along with his or her recommendations
regarding the treatment of the violation in accordance with FAR
3.204(c) to the HCA, or designee.
2803.204 Treatment of violations.
(a) The HCA or designee shall determine whether adverse action
against the contractor in accordance with FAR 3.204(c) may be taken. In
reaching a decision, the HCA or designee shall consult with the
contracting activity's legal advisor and the OIG or other office
designated in Attorney General Order 1931-94.
(b) The SPE shall be advised of all instances where violations have
been determined to have occurred and any action taken as a result.
(c) Prior to taking any action against the contractor, the HCA or
designee shall allow the contractor the opportunity to present opposing
arguments in accordance with FAR 3.204(b).
Subpart 2803.3--Reports of Suspected Antitrust Violations
2803.301 General.
DOJ personnel shall report suspected antitrust violations to the
Attorney General (AG) through the Assistant Attorney General (AAG) for
the Antitrust Division (ATR).
(a) The report for the AG shall be addressed to: Attorney General,
[[Page 58531]]
Attention: AAG/ATR, U.S. Department of Justice, 950 Pennsylvania Avenue
NW, Washington, DC 20530.
(b) The report shall include:
(1) A brief statement describing the suspected practice and the
reason for the suspicion; and
(2) The name, address, and telephone number of an individual in the
agency who can be contacted for further information.
Subpart 2803.4--Contingent Fees
2803.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
Employees who suspect, or have evidence of, violations by a
contractor of the Covenant Against Contingent Fees, see FAR subpart
3.4, must report the matter to the contracting officer or appropriate
higher authority, in accordance with agency procedures. Employees who
suspect or have evidence of fraudulent or criminal activities must
report the matter to the SPE and the OIG.
Subpart 2803.8--Limitations on the Payment of Funds to Influence
Federal Transactions
2803.806 Processing suspected violations.
Evidence of suspected violations of 31 U.S.C. 1352, Limitation on
the Use of Appropriated Funds to Influence Certain Federal Contracting
and Financial Transactions, may be submitted in accordance with agency
procedures to the SPE and the OIG or other office designated in
Attorney General Order 1931-94.
Subpart 2803.9--Whistleblower Protections for Contractor Employees
2803.901 Definitions.
As used in this subpart--
Covered Individual is defined as an employee of a contractor at any
tier required by the Department to sign a Non-Disclosure Agreement
(NDA), whether the NDA is directly between the Covered Individual and
the Department or between the Covered Individual and a contractor, and
whether the NDA is required by a contract or otherwise (e.g., pursuant
to a vendor demonstration, product trial, market research effort, or
other non-contract efforts).
General NDA means an NDA, other than an Intelligence-Related NDA,
required by the Department to be signed by a Covered Individual.
Intelligence-Related NDA means any NDA required by the Department
to be signed by a Covered Individual who is connected with the conduct
of an intelligence or intelligence-related activity.
Non-Disclosure Agreement means any nondisclosure or confidentiality
agreement, policy, or form, including the agreements in Standard Forms
312 (Classified Information Nondisclosure Agreement) and 4414
(Sensitive Compartmented Information Nondisclosure Agreement).
2803.905 Procedures for investigating complaints.
(a) Upon receipt of a complaint filed pursuant to FAR 3.904, the
Inspector General shall conduct an investigation and provide a written
report of findings to the HCA, or designee.
(b) The HCA or designee will ensure that the Inspector General
provides the report of finding to the individuals and entities
specified in FAR 3.905(c).
(c) The complainant and contractor shall be afforded the
opportunity to submit to the HCA or designee a written response to the
report of findings within 30 days of receipt of the report. The HCA or
designee may grant extensions of time to file a written response.
(d) The HCA or designee may request that the Inspector General
conduct additional investigative work on the complaint at any time.
2803.906 Remedies.
(a) Upon determination that a contractor has subjected one of its
employees to a reprisal for providing information as set forth in FAR
3.906(a), the HCA or designee may take one or more actions specified in
FAR 3.906(a).
(b) Whenever a contractor fails to comply with an order issued
pursuant to FAR 3.906(a), the HCA or designee shall notify the Attorney
General and request that DOJ file an action for enforcement of such
order in the United States District Court.
2803.908 Pilot program for enhancement of contractor employee
whistleblower protections.
2803.908-70 Whistleblower protection in General Non-Disclosure
Agreement.
The contracting officer shall ensure that any General NDA that DOJ
requires a Covered Individual to sign contains the required
Whistleblower Protection Provision at JAR 2852.203-70.
2803.908-71 Whistleblower protection in Intelligence-Related Non-
Disclosure Agreement.
The contracting officer shall ensure that any Intelligence-Related
NDA that DOJ requires a Covered Individual to sign contains the
required Whistleblower Protection Provision at JAR 2852.203-71.
Subpart 2803.10--Contractor Code of Business Ethics and Conduct
2803.1004 Contract clauses.
The information required to be inserted in the clause at FAR
52.203-14, Display of Hotline Poster(s), is the following:
Office of the Inspector General, Fraud Detection Office, Attn:
Poster Request, U.S. Department of Justice, 950 Pennsylvania Avenue
NW, Washington, DC20530
PART 2804--ADMINISTRATIVE MATTERS
Subpart 2804.4--Safeguarding Classified Information Within Industry
Sec.
2804.402 General.
2804.402-70 Contractor personnel security program.
Subpart 2804.9--Taxpayer Identification Number Information
2804.901 Definitions.
2804.903 Reporting contract information to the IRS.
2804.903-70 Reporting contract information.
2804.903-71 Special reporting exceptions.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2804--ADMINISTRATIVE MATTERS
Subpart 2804.4--Safeguarding Classified Information Within Industry
2804.402 General.
Classified acquisitions or contracts, which require access to
classified material, as defined in FAR 4.402, for their performance
shall be subject to the policies, procedures, and instructions
contained in departmental regulations and shall be processed in a
manner consistent with those regulations. Contractors at all tiers are
required to comply with all such policies, procedures, and
instructions.
2804.402-70 Contractor personnel security program.
It is DOJ policy that all acquisitions which allow unescorted
contractor access to Government facilities or sensitive information
contain, as appropriate, requirements for appropriate personnel
security screening by the contractor. To the maximum extent
practicable, contractors shall be made responsible for the performance
of personnel security screening. The personnel security screening may
vary from one acquisition to another, depending upon the type, context,
duration and location of the work to be performed. Classified contracts
are exempted from the
[[Page 58532]]
requirements of this section because they are governed by the
requirements of Executive Order 12829 (January 6, 1993).
Subpart 2804.9--Taxpayer Identification Number Information
2804.901 Definitions.
Classified contract, as used in this subpart, means a contract
whose existence or subject matter has been designated and clearly
marked or clearly represented, pursuant to the provisions of Federal
law or an Executive order, as requiring protection against unauthorized
disclosure for reasons of national security.
Confidential contract, as used in this subpart, means a contract,
the reporting of which to the Internal Revenue Service (IRS) as
required under 26 U.S.C. 6050M, would interfere with the effective
conduct of a confidential law enforcement activity, such as contracts
for sites for undercover operations or contracts with informants, or
foreign counterintelligence activity.
2804.903 Reporting contract information to the IRS.
2804.903-70 Reporting contract information.
(a) Pursuant to FAR 4.903, the HCA or designee shall certify to the
SPE, in the format specified in this section, that such official has
examined the information submitted by that bureau as its Federal
Procurement Data System (FPDS) data, that the data has been prepared
pursuant to the requirements of 26 U.S.C. 6050M, and that, to the best
of such official's knowledge and belief, it is compiled from bureau
records maintained in the normal course of business for the purpose of
making a true, correct, and complete return as required by 26 U.S.C.
6050M.
(b) The following certification will be signed and dated by the HCA
or designee and submitted with each bureau's annual FPDS report.
Certification
I, ________(Name), ________(Title) have examined the information to
be submitted by ________(Bureau) to the DOJ Senior Procurement
Executive, for making information returns on behalf of the Department
of Justice to the Internal Revenue Service, and certify that this
information has been prepared pursuant to the requirements of 26 U.S.C.
6050M and that, to the best of my knowledge and belief, it is a
compilation of bureau records maintained in the normal course of
business for the purpose of providing true, correct, and complete
returns as required by 26 U.S.C. 6050M.
Signature Date ________ Date _____
(c) The SPE will certify the consolidated FPDS data for the
Department, transmit the data to the Federal Procurement Data Center
(FPDC), and authorize the FPDC to make returns to the IRS on behalf of
the agency.
2804.903-71 Special reporting exceptions.
(a) The Technical and Miscellaneous Revenue Act of 1988, Public Law
100-647, amended, 26 U.S.C. 6050M, to allow exceptions to the reporting
requirements for certain classified or confidential contracts.
(b) The head of the agency has determined that the filing of
information returns, as required by 26 U.S.C. 6050M, on confidential
contracts, which involve law enforcement or foreign counterintelligence
activities, would interfere with the effective conduct of those
confidential law enforcement or foreign counterintelligence activities,
and that the special reporting exceptions added to 26 U.S.C. 6050M by
the Technical and Miscellaneous Revenue Act of 1988 apply to these
types of contracts.
Subchapter B--Competition and Acquisition Planning
PART 2805--PUBLICIZING CONTRACT ACTIONS
Subpart 2805.2--Synopses of Proposed Contract Actions
Sec.
2805.202 Exceptions.
Subpart 2805.4--Release of Information
2805.403 Requests from Members of Congress.
2805.404 Release of long-range acquisition estimates.
2805.404-1 Release procedures.
Subpart 2805.5--Paid Advertisements
2805.500 Scope.
2805.502 Authority.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2805--PUBLICIZING CONTRACT ACTIONS
Subpart 2805.2--Synopses of Proposed Contract Actions
2805.202 Exceptions.
The HCA or designee is the agency head for the purposes of the
determination required by FAR 5.202 (b).
Subpart 2805.4--Release of Information
2805.403 Requests from Members of Congress.
The SPE is the agency head for the purposes of FAR 5.403.
2805.404 Release of long-range acquisition estimates.
2805.404-1 Release procedures.
The SPE is the agency head for the purposes of FAR 5.404-1(a) and
(b).
Subpart 2805.5--Paid Advertisements
2805.500 Scope.
This subpart provides policies and procedures for the procurement
of paid advertising as covered by 44 U.S.C. 3702, 3703 and 5 U.S.C. 302
(b).
2805.502 Authority.
(a) The HCA or designee is the agency head for approving the
publication of paid advertisements in newspapers under FAR 5.502(a).
(b) Authority to place advertisements in media other than
newspapers must be granted in writing in advance by the HCA, or
designee. No advertisement, notice, or proposal should be published
prior to receipt of advance written approval for such publication by
the HCA or designee, and no voucher or invoice for any such
advertisement or publication will be paid unless there is presented,
with the voucher or invoice, a copy of the written approval. Approval
shall not be granted retroactively.
PART 2806--COMPETITION REQUIREMENTS
Subpart 2806.2--Full and Open Competition After Exclusion of
Sources
Sec.
2806.202 Establishing or maintaining alternative sources.
Subpart 2806.3--Other Than Full and Open Competition
2806.304 Approval of the justification.
Subpart 2806.5--Advocates for Competition
2806.501 Requirement.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
[[Page 58533]]
PART 2806--COMPETITION REQUIREMENTS
Subpart 2806.2--Full and Open Competition After Exclusion of
Sources
2806.202 Establishing or maintaining alternative sources.
The HCA or designee is the agency head for the purposes of FAR
6.202.
Subpart 2806.3--Other Than Full and Open Competition
2806.304 Approval of the justification.
(a) Justifications for contract actions over the contracting
officer's approval dollar threshold shall be submitted to the BPC for
concurrence before being forwarded to the bureau Competition Advocate
for approval.
(b) Justifications requiring approval by the HCA, or a designee,
shall be submitted to the {i{time} BPC and {ii{time} bureau
Competition Advocate for concurrence before being forwarded to the HCA
or designee.
(c) Justifications requiring approval by the SPE shall be submitted
to the {i{time} BPC, {ii{time} the bureau Competition Advocate, and
{iii{time} the HCA for concurrence before being forwarded to the SPE
for approval.
(d) A class justification shall be approved in accordance with
established bureau procedures and FAR 6.304(c).
Subpart 2806.5--Advocates for Competition
2806.501 Requirement.
(a) The Director, Office of Acquisition Management (OAM), Justice
Management Division (JMD), is designated as the DOJ Competition
Advocate.
(b) The HCA or designee for each bureau will appoint an official to
be the bureau Competition Advocate. The bureau Competition Advocate
shall be vested with the overall responsibility for competition
activities within his or her bureau. The delegated bureau Competition
Advocate must be at or above the level of the BPC organizationally.
PART 2807--ACQUISITION PLANNING
Subpart 2807.1--Acquisition Plans
Sec.
2807.103 Agency-head responsibilities.
2807.104 General procedures.
2807.104-70 Bundled requirements.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2807--ACQUISITION PLANNING
Subpart 2807.1--Acquisition Plans
2807.103 Agency-head responsibilities.
(a) The HCA is the agency head's designee for the purposes of FAR
7.103.
(b) The CAO may establish acquisition planning criteria and dollar
approval thresholds for those bureaus that:
(1) Fail to allow ample time for conducting competitive
acquisitions.
(2) Develop a pattern of awarding urgent requirements that
generally restrict competition.
(3) Fail to identify identical or like requirements that, where
appropriate, can be combined under one solicitation, and thereby miss
opportunities to obtain lower costs through volume purchasing, reduced
administrative costs in processing one contract action versus multiple
actions, and standardizing goods and services.
2807.104 General procedures.
2807.104-70 Bundled requirements.
In the case of bundled requirements, as defined in FAR 7.104(d)(2)
and 7.107, the contracting officer shall consult with the bureau Small
Business Technical Advisor (SBTA). After receiving concurrence from the
bureau SBTA, the contracting officer will provide a copy of the
proposed acquisition package to the Small Business Administration (SBA)
Procurement Center Representative (PCR) and a copy to the DOJ Director,
Office of Small Disadvantaged Business Unit (OSDBU), at least 30 days
prior to the solicitation issuance. The SBA PCR is required to make any
alternative recommendations to the contracting officer within 15 days
after receipt of the package. If the SBA does not respond in this
timeframe, the contracting officer may proceed as planned with the
procurement.
PART 2808--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 2808.4--Federal Supply Schedules
Sec.
2808.405 Ordering procedures for Federal Supply Schedules.
2808.405-3 Blanket purchase agreements (BPAs).
Subpart 2808.6--Acquisition from Federal Prison Industries, Inc.
2808.605 Exceptions.
2808.605-70 Clearances.
Subpart 2808.8--Acquisition of Printing and Related Supplies
2808.802 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2808--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 2808.4--Federal Supply Schedules
2808.405 Ordering procedures for Federal Supply Schedules.
2808.405-3 Blanket purchase agreements (BPAs).
The SPE is the agency head for purposes of FAR 8.405-3(a)(3)(ii).
Subpart 2808.6--Acquisition from Federal Prison Industries, Inc.
2808.605 Exceptions.
2808.605-70 Clearances.
Include the Federal Prison Industries (FPI) clearance numbers in
solicitations and award documents.
Subpart 2808.8--Acquisition of Printing and Related Supplies
2808.802 Policy.
The Director, Facilities and Administrative Services Staff (FASS),
JMD, has been designated to serve as the central printing authority for
the DOJ, for purposes of FAR 8.802(b).
PART 2809--CONTRACTOR QUALIFICATIONS
Subpart 2809.2--Qualifications Requirements
Sec.
2809.202 Policy.
Subpart 2809.4--Debarment, Suspension, and Ineligibility
2809.402 Policy.
2809.404 Exclusions in the System for Award Management.
2809.405 Effect of listing.
2809.405-1 Continuation of current contracts.
2809.405-2 Restrictions on subcontracting.
Subpart 2809.5--Organizational and Consultant Conflicts of Interest
2809.503 Waiver.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2809--CONTRACTOR QUALIFICATIONS
Subpart 2809.2--Qualifications Requirements
2809.202 Policy.
The HCA or designee is the agency head for the purposes of FAR
9.202(a)(1).
[[Page 58534]]
Subpart 2809.4--Debarment, Suspension, and Ineligibility
2809.402 Policy.
(a) The SPE is the agency head for purposes of suspension and
debarment under FAR subpart 9.4, and serves as the Suspension and
Debarment Official (SDO) for both procurement and non-procurement
matters.
(b) Contracting activities shall consider recommending suspension
or debarment of a contractor when cause is shown as listed under FAR
9.406-2 and 9.407-2.
(1) If a determination is made that available facts do not justify
debarment or suspension, the file should be documented accordingly and
no additional action is required.
(2) If the decision is made to recommend suspension or debarment of
a contractor, in coordination with the activity's BPC and legal
counsel, the bureau shall submit a memorandum to the SDO containing all
relevant facts and analysis on which the recommendation is based. The
submission also should include copies of all relevant documents.
2809.404 Exclusions in the System for Award Management exclusions.
(a) The SDO shall ensure the discharge of all agency
responsibilities prescribed in FAR 9.404(c)(1) through (6), (8), and
(9).
(b) The authority to establish procedures prescribed in FAR
9.404(c)(7) is delegated to the HCA, or designee.
2809.405 Effect of listing.
The HCA or designee is the agency head for the purposes of FAR
9.405.
2809.405-1 Continuation of current contracts.
The HCA or designee is the agency head for the purposes of FAR
9.405-1.
2809.405-2 Restrictions on subcontracting.
The HCA or designee is the agency head for the purposes of FAR
9.405-2.
Subpart 2809.5--Organizational and Consultant Conflicts of Interest
2809.503 Waiver.
The HCA is the agency head for the purpose of waiving any general
rule or procedure prescribed in FAR subpart 9.5. As prescribed in FAR
9.503, the authority delegated to the HCA to waive any general rule or
procedure prescribed in FAR subpart 9.5 may not be delegated below the
level of the HCA.
PART 2810--MARKET RESEARCH
Sec.
2810.002 Procedures.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2810--MARKET RESEARCH
2810.002 Procedures.
(a) Market research must be conducted in accordance with DOJ
sustainability policies and procedures in order to determine whether
there are any sustainable acquisition standards applicable to the
desired product or service.
(b) Ensure the statement of work includes sustainability
requirements in accordance with JAR 2823.103, when applicable.
PART 2811--DESCRIBING AGENCY NEEDS
Sec.
2811.002 Policy.
Subpart 2811.1--Selecting and Developing Requirements Documents
2811.103 Market acceptance.
Subpart 2811.5--Liquidated Damages
2811.501 Policy.
Subpart 2811.6--Priorities and Allocations
2811.603 Procedures.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2811--DESCRIBING AGENCY NEEDS
2811.002 Policy.
(a) Consistent with the policy expressed in FAR 11.002(b), the
metric system is the preferred system of weights and measures and shall
be used in DOJ solicitations and contracts.
(b) When acquiring products or services, the requirements of FAR
11.002(d)(1) and DOJ sustainability policies and procedures are to be
followed.
Subpart 2811.1--Selecting and Developing Requirements Documents
2811.103 Market acceptance.
The HCA is the agency head for the purposes of FAR 11.103(a).
Subpart 2811.5--Liquidated Damages
2811.501 Policy.
The HCA or designee is the agency head for the purposes of FAR
11.501(d).
Subpart 2811.6--Priorities and Allocations
2811.603 Procedures.
The HCA or designee is the agency head for the purposes of FAR
11.603.
PART 2812--ACQUISITION OF COMMERCIAL ITEMS
Subpart 2812.3--Solicitation Provisions and Contract Clauses for
the Acquisition of Commercial Items
Sec.
2812.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
2812.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2812--ACQUISITION OF COMMERCIAL ITEMS
Subpart 2812.3--Solicitation Provisions and Contract Clauses for
the Acquisition of Commercial Items
2812.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
Contracting Officers shall include the provisions and clauses at
JAR 2852.212-4 in all solicitations and contracts for the acquisition
of commercial items that require FAR 52.212-4, Contract Terms and
Conditions--Commercial Items.
2812.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
The HCA, or designee at a level at or above the BPC, is authorized
to approve the contracting officer's request for waiver for an
individual contract action submitted under FAR 12.302(c). The SPE is
authorized to approve the contracting officer's request for wavier for
a class of contracts submitted under FAR 12.302(c).
Subchapter C--Contracting Methods and Contract Types
PART 2813--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 2813.2--Actions at or Below the Micro-Purchase Threshold
Sec.
2813.201 General.
Subpart 2813.3--Simplified Acquisition Methods
2813.305 Imprest funds and third party drafts.
2813.307 Forms.
Subpart 2813.4--Fast Payment Procedure
2813.401 General.
[[Page 58535]]
Subpart 2813.70--Certified Invoice Procedure
2813.70-1 Policy.
2813.70-2 Procedures.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and
28 CFR 0.76(j).
PART 2813--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 2813.2--Actions at or Below the Micro-Purchase Threshold
2813.201 General.
The SPE is the agency head for the purposes of FAR 13.201(g)(1).
Subpart 2813.3--Simplified Acquisition Methods
2813.305 Imprest funds and third party drafts.
The HCA or designee is the agency head for the purposes of FAR
13.305-3(a).
2813.307 Forms.
Bureaus may use order forms other than the Standard Forms (SF) and
Optional Forms (OF) identified in FAR 13.307. They may also include on
those forms clauses suitable for the specific purchase, including
tailored clauses, provided that proper procedures and all relevant
limitations, documentation instructions, and required maintenance are
followed.
Subpart 2813.4--Fast Payment Procedure
2813.401 General.
DOJ contracting activities are authorized to use the fast payment
procedures prescribed in FAR 13.4 solely for utility service payments.
Subpart 2813.70--Certified Invoice Procedure
2813.70-1 Policy.
Supplies or services may be acquired on the open market from local
suppliers at the site of the work or usage point. Using the vendor's
invoice, instead of issuing a Government purchase order, is authorized
under the certified invoice procedure. Certified invoice procedures may
not be used to place orders under established contracts.
2813.70-2 Procedures.
(a) The certified invoice procedure for purchases may be used only
under FAR part 13 and this part, subject to the following:
(1) The individual transaction amount does not exceed the micro-
purchase threshold;
(2) Availability of sufficient funds is verified;
(3) A purchase order is not required by either the supplier or the
Government;
(4) The vendor submits approved and appropriate invoices; and,
(5) The items purchased are domestic source end products, except as
provided in FAR subpart 25.1.
(b) Using the certified invoice procedures does not eliminate the
requirements in FAR part 13 that apply to purchases at or below the
micro-purchase threshold.
(c) The chief of the contracting office, as defined in JAR
2802.101, may delegate the authority to use the certified invoice
procedure. Each delegation must specify any limitations placed on the
individual's use of these procedures, such as limits on the amount of
each purchase, or limits on the commodities, or services being
procured.
(d) Individuals using this purchasing technique shall require the
supplier to immediately submit properly prepared invoices that itemize
property or services furnished. Upon receiving the invoice, the
individual making the purchase shall annotate the invoice with the date
of receipt, verify the accuracy of the invoiced amount and verify on
the invoice that the supplies and/or services have been received and
accepted. If the invoice is valid and correct, the individual making
the purchase shall sign the invoice indicating acceptance and
immediately forward it to the appropriate administrative office.
(e) The administrative office must approve the invoice and, if
approved, forward it to the Finance Office for payment. Before
forwarding the invoice to the Finance Office, the administrative office
shall place the following statement on the invoice, along with the
accounting and appropriation data:
I certify that these goods and/or services were received on
________ (date) and accepted on ________ (date). Oral purchase was
authorized and no confirming order has been issued.
Signature ________
Date ________
_________________
Printed name or Typed Name and Title
PART 2814--SEALED BIDDING
Subpart 2814.4--Opening of Bids and Award of Contract
Sec.
2814.404 Rejection of bids.
2814.404-1 Cancellation of invitations after opening.
2814.407 Mistakes in bids.
2814.407-3 Other mistakes disclosed before award.
2814.407-4 Mistakes after awards.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2814--SEALED BIDDING
Subpart 2814.4--Opening of Bids and Award of Contract
2814.404 Rejection of bids.
2814.404-1 Cancellation of invitations after opening.
The HCA or designee is the agency head for the purposes of FAR
14.404-1(c), (e)(1), and (f).
2814.407 Mistakes in bids.
2814.407-3 Other mistakes disclosed before award.
(a) The authority to make determinations under paragraphs (a), (b),
(c), and (d) of FAR 14.407-3 is delegated to the HCA, or designee at a
level at or above the chief of the contracting office. The HCA or
designee shall seek the advice of legal counsel before making any
determinations.
(b) The following procedures shall be followed when submitting
cases of mistakes in bids to the Comptroller General for an advance
decision.
(1) Requests for advance decisions submitted to the Comptroller
General in cases of mistakes in bids shall be made by the HCA, or
designee.
(2) Requests for advance decisions shall be in writing, dated,
signed by the requestor, addressed to the Comptroller General of the
United States, General Accounting Office, Washington, D. C. 20548, and
contain the following:
(i) The name and address of the party requesting the decision;
(ii) A statement of the question to be decided, a presentation of
all relevant facts, and a statement of the requesting party's position
with respect to the question; and,
(iii) Copies of all pertinent records and supporting documentation.
2814.407-4 Mistakes after award.
The authority to make determinations under FAR 14.407-4 is
delegated to the HCA. The HCA may re-delegate this authority at a level
at or above the chief of the contracting office. The determination must
be coordinated with the contracting activity's legal counsel.
PART 2815--CONTRACTING BY NEGOTIATION
Subpart 2815.2--Solicitation and Receipt of Proposals and
Information
Sec.
[[Page 58536]]
2815.204 Contract format.
Subpart 2815.3--Source Selection
2815.303 Responsibilities.
Subpart 2815.4--Contract Pricing
2815.404 Proposal analysis.
2815.404-2 Data to support proposal analysis.
Subpart 2815.6--Unsolicited Proposals
2815.604 Agency points of contact.
2815.605 Content of unsolicited proposals.
2815.606 Agency procedures.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and
28 CFR 0.76(j).
PART 2815--CONTRACTING BY NEGOTIATION
Subpart 2815.2--Solicitation and Receipt of Proposals and
Information
2815.204 Contract format.
The HCA or designee is the agency head for the purposes of FAR
15.204(e).
Subpart 2815.3--Source Selection
2815.303 Responsibilities.
The HCA or designee is the agency head for the purposes of FAR
15.303(a).
Subpart 2815.4--Contract Pricing
2815.404 Proposal analysis.
2815.404-2 Data to support proposal analysis.
All requests for field pricing support shall be made by the
contracting officer directly to the cognizant audit agency. In
accordance with Attorney General Order 1931-94, a copy of the request
for such services shall be sent to the OIG at the time it is mailed to
the cognizant audit agency. A copy of each report received shall also
be sent to the OIG. Requests for other audit assistance may be made to
the Assistant Inspector General for Audits.
Subpart 2815.6--Unsolicited Proposals
2815.604 Agency points of contact.
Each contracting activity shall designate a point of contact for
the receipt and handling of unsolicited proposals. Generally, the
official designated shall be the BPC or immediate subordinate.
2815.605 Content of unsolicited proposals.
To ensure against contracts between DOJ and prospective offers that
would exceed the limits of advance guidance set forth in FAR 15.604 and
potentially result in an unfair advantage to an offeror, the offeror of
an unsolicited proposal must include the following warranty in any
unsolicited proposal. Contracting officers receiving an unsolicited
proposal without this warranty shall not process the proposal until the
offeror is notified and given an opportunity to submit a proper
warranty. If no warranty is provided in a reasonable time, the
contracting officer shall reject the unsolicited proposal and notify
the offeror of the rejection and the reason therefore. The warranty
must be signed by a responsible management official of the proposing
organization authorized to contractually obligate the organization.
UNSOLICITED PROPOSAL
WARRANTY BY OFFEROR
This is to warrant that--
(a) This proposal has not been prepared under Government
supervision;
(b) The methods and approaches stated in the proposal were
developed by this offeror;
(c) Any contact with DOJ personnel has been with the limits of
appropriate advance guidance set forth in FAR 15.604; and,
(d) No prior commitments were received from DOJ personnel regarding
acceptance of this proposal.
Date: ________
Organization: ________
Name: ________
Title: ________
2815.606 Agency procedures.
The designated point of contact for each contracting activity shall
provide for and coordinate receipt, review, evaluation, safeguarding,
and final disposition of unsolicited proposals in accordance with FAR
subpart 15.6.
PART 2816--TYPES OF CONTRACTS
Subpart 2816.2--Fixed-Price Contracts
Sec.
2816.207 Firm-fixed-price, level-of-effort term contracts.
2816.207-3 Limitations.
Subpart 2816.5--Indefinite-Delivery Contracts
2816.505 Ordering.
Subpart 2816.6--Time-and-Materials, Labor-Hour, and Letter Contracts
2816.601 Time-and-materials contracts.
2816.602 Labor-hour contracts.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and
28 CFR 0.76(j).
PART 2816--TYPES OF CONTRACTS
Subpart 2816.2--Fixed-Price Contracts
2816.207 Firm-fixed-price, level-of-effort term contracts.
2816.207-3 Limitations.
The BPC or designee is the chief of the contracting office for the
purposes of FAR 16.207-3(d).
Subpart 2816.5--Indefinite-Delivery Contracts
2816.505 Ordering.
(a) Justifications for exceptions to the fair opportunity process
specified in FAR 16.505(b)(2) shall be approved in accordance with JAR
2806.304.
(b) In accordance with FAR 16.505(b)(8), the DOJ task order and
delivery order ombudsman is the DOJ Competition Advocate.
(c) HCAs shall designate a bureau task order and delivery order
ombudsman. This person may be the bureau Competition Advocate.
(d) Bureau ombudsmen shall review and resolve complaints from
contractors concerning task or delivery orders placed by the bureau.
(e) Contractors not satisfied with the resolution of a complaint by
a bureau ombudsman may request the DOJ ombudsman to review the
complaint.
Subpart 2816.6--Time-and-Materials, Labor-Hour, and Letter
Contracts
2816.601 Time-and-materials contracts.
The BPC, or designee at a level at or above the chief of the
contracting office, is the agency official authorized to approve a
determination and finding prescribed in FAR 16.601(d)(1)(ii).
2816.602 Labor-hour contracts.
The limitations set forth in 2816.601 for time-and-materials
contracts also applies to labor hour contracts.
PART 2817--SPECIAL CONTRACTING METHODS
Subpart 2817.1--Multiyear Contracting
Sec.
2817.104 General.
Subpart 2817.2--Options
2817.204 Contracts.
Subpart 2817.6--Management and Operating Contracts
2817.602 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j); and
28 CFR 0.76(j).
[[Page 58537]]
PART 2817--SPECIAL CONTRACTING METHODS
Subpart 2817.1--Multiyear Contracting
2817.104 General.
The SPE is the agency head for the purposes of FAR 17.104(b).
Subpart 2817.2--Options
2817.204 Contracts.
Deviation requests to exceed the 5-year limitations specified in
FAR 17.204(e) require advance approval from--
(a) The HCA or designee for individual contracts; and
(b) The SPE for classes of contracts.
Subpart 2817.6--Management and Operating Contracts
2817.602 Policy.
The HCA or designee is the agency head for the purposes of FAR
17.602(a).
Subchapter D--Socioeconomic Programs
PART 2819--SMALL BUSINESS PROGRAMS
Subpart 2819.5--Small Business Total Set-Asides, Partial Set-
Asides, and Reserves
Sec.
2819.505 Limitations on subcontracting and nonmanufacturer rule.
Subpart 2819.8--Contracting with the Small Business Administration (the
8(a) Program)
2819.810 SBA appeals.
2819.812 Contract administration.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2819--SMALL BUSINESS PROGRAMS
Subpart 2819.5--Small Business Total Set-Asides, Partial Set-
Asides, and Reserves
2819.505 Limitations on subcontracting and nonmanufacturer rule.
The SPE is the agency head for the purposes of FAR 19.505.
Subpart 2819.8--Contracting with the Small Business Administration
(the 8(A) Program)
2819.810 SBA appeals.
The SPE is the agency head for the purposes of FAR 19.810(c).
2819.812 Contract administration.
The HCA or designee is the agency head for the purposes of FAR
19.812(d).
PART 2822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 2822.1--Basic Labor Policies
Sec.
2822.101 Labor relations.
2822.101-70 Domestic violence, sexual assault, and stalking.
2822.103 Overtime.
2822.103-4 Approvals.
Subpart 2822.3--Contract Work Hours and Safety Standards Act
2822.302 Liquidated damages and overtime pay.
Subpart 2822.4--Labor Standards for Contracts Involving Construction
2822.406 Administration and enforcement.
2822.406-8 Investigations.
2822.406-12 Cooperation with the Department of Labor.
Subpart 2822.6--Contracts for Materials, Supplies, Articles, and
Equipment Exceeding $15,000
2822.604 Exemptions.
2822.604-2 Regulatory exemptions.
Subpart 2822.8--Equal Employment Opportunity
2822.803 Responsibilities.
2822.807 Exemptions.
2822.807-70 Cooperation in equal employment opportunity
investigations.
Subpart 2822.13--Equal Opportunity for Veterans
2822.1305 Waivers.
2822.1310 Solicitation provisions and contract clauses.
Subpart 2822.14--Employment of Workers with Disabilities
2822.1403 Waivers.
2822.1408 Contract clause.
Subpart 2822.15--Prohibition of Acquisition of Products Produced by
Forced or Indentured Child Labor
2822.1503 Procedures for acquiring end products on the List of
Products Requiring Contractor Certification as to Forced or
Indentured Child Labor.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 2822.1--Basic Labor Policies
2822.101 Labor relations.
2822.101-70 Domestic violence, sexual assault, and stalking.
Contracting officers shall insert the clause at JAR 2852.222-70,
Domestic Violence, Sexual Assault, and Stalking, in every written
solicitation when services will be performed in whole or in part on DOJ
premises.
2822.103 Overtime.
2822.103-4 Approvals.
During contract performance, contractor requests for overtime
exceeding the amount authorized in paragraph (a) of the clause at FAR
52.222-2, Payment for Overtime Premiums, must be approved at a level
above the contracting officer. Such approval should be reflected by the
signature of the approving official on the contracting officer's
written determination made in accordance with FAR 22.103-4.
Subpart 2822.3--Contract Work Hours and Safety Standards Act
2822.302 Liquidated damages and overtime pay.
The authority to make the determination prescribed in FAR 22.302(c)
is delegated to the HCA, or designee.
Subpart 2822.4--Labor Standards for Contracts Involving
Construction
2822.406 Administration and enforcement.
2822.406-8 Investigations.
The contracting officer shall prepare and forward reports of
violations under FAR 22.406-8(d)(1) to the HCA or designee at a level
at or above the BPC. That official shall be responsible for processing
the report in accordance with FAR 22.406-8(d)(2).
2822.406-12 Cooperation with the Department of Labor.
Any information furnished to the Department of Labor, as required
by FAR 22.406-12(a), shall be submitted through the HCA, or designee.
Subpart 2822.6--Contracts for Materials, Supplies, Articles, and
Equipment Exceeding $15,000
2822.604 Exemptions.
2822.604-2 Regulatory exemptions.
The SPE is the agency head for the purposes of FAR 22.604-2(b)(1).
Subpart 2822.8--Equal Employment Opportunity
2822.803 Responsibilities.
The SPE is the agency head for the purposes of FAR 22.803(c).
2822.807 Exemptions.
The SPE is the agency head for the purposes of FAR 22.807(a)(1).
2822.807-70 Cooperation in equal employment opportunity
investigations.
The contracting officer shall insert the clause at 52.222-70,
Contractor
[[Page 58538]]
Cooperation in Equal Employment Opportunity Investigations, in
solicitations, contracts, and orders that include the clause at FAR
52.222-26, Equal Opportunity.
Subpart 2822.13--Equal Opportunity for Veterans
2822.1305 Waivers.
All requests for waiver of the terms of FAR 52.222-35 pursuant to
FAR 22.1310(a)(1)(ii) or (a)(2) shall be forwarded from the HCA or
designee to Office of Acquisition Management (OAM), JMD, for review and
approval by the Attorney General (AG).
2822.1310 Solicitation provisions and contract clauses.
The SPE is the agency head for the purposes of FAR
22.1310(a)(1)(ii) and (a)(2).
Subpart 2822.14--Employment of Workers with Disabilities
2822.1403 Waivers.
The SPE is the agency head for the purposes of FAR 22.1403(b).
2822.1408 Contract clause.
The SPE is the agency head for the purposes of FAR 22.1408(a)(2).
Subpart 2822.15--Prohibition of Acquisition of Products Produced by
Forced or Indentured Child Labor
2822.1503 Procedures for acquiring end products on the List of
Products Requiring Contractor Certification as to Forced or Indentured
Child Labor.
The contracting officer shall refer to the DOJ Inspector General
for investigation, under FAR 22.1503(e), any matters relating to that
section.
PART 2823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 2823.2--Energy and Water Efficiency and Renewable Energy
Sec.
2823.204 Procurement exemptions.
Subpart 2823.3--Hazardous Material Identification and Material Safety
Data
2823.303 Contract clause.
2823.303-70 Unsafe conditions due to hazardous material.
Subpart 2823.4--Use of Recovered Materials and Biobased Products
2823.404 Agency affirmative procurement programs.
2823.404-70 Affirmative procurement program for recycled materials.
2823.405 Procedures.
Subpart 2823.7--Contracting for Environmentally Preferable Products and
Services
2823.704 Electronic products environmental assessment tool.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 2823.2--Energy and Water Efficiency and Renewable Energy
2823.204 Procurement exemptions.
The HCA or designee is the agency head for the purposes of
executing the written determination not to purchase ENERGY STAR[supreg]
or Federal Energy Management Program (FEMP)-designated products.
Subpart 2823.3--Hazardous Material Identification and Material
Safety Data
2823.303 Contract clause.
2823.303-70 Unsafe conditions due to hazardous material.
FAR clause 52.223-3 shall be included in solicitations and
contracts that will require delivery of hazardous material as defined
in FAR 23.301. In addition, the contracting officer shall insert the
clause at JAR 2852.223-70, Unsafe Conditions Due to the Presence of
Hazardous Material, in all such solicitations and contracts, where the
contract will require the performance of services on Government-owned
or Government-leased facilities.
Subpart 2823.4--Use of Recovered Materials and Biobased Products
2823.404 Agency affirmative procurement programs.
2823.404-70 Affirmative procurement program for recycled materials.
(a) Recovered materials preference program. Preference will be
given to procuring and using products containing recovered materials
rather than products made with virgin materials when adequate
competition exists, and when price, performance, and availability are
equal.
(b) Promotion program. The Department of Justice Environmental
Executive (DOJEE) has primary responsibility for actively promoting the
acquisition of products containing recycled materials throughout DOJ.
Technical and procurement personnel will cooperate with the DOJEE to
actively promote DOJ's Affirmative Procurement Program.
(c) Procedures for vendor estimation, verification, and
certification--(1) Estimation. The contractor shall provide estimates
of the total percentage(s) of recovered materials for EPA designated
items used in products or services provided.
(2) Certification. Contracting officers shall provide copies of all
vendor and subcontractor certifications required by FAR 23.404 to the
DOJEE.
(3) Verification. The DOJEE is responsible for periodically
reviewing vendor certification documents and waivers as part of the
annual review and monitoring process to determine if DOJ is in
compliance with EOs 13101, 13693, and any subsequent amendments.
2823.405 Procedures.
The contracting officer is the approving official for
justifications made pursuant to FAR 23.405(b)(2).
Subpart 2823.7--Contracting for Environmentally Preferable Products
and Services
2823.704 Electronic products environmental assessment tool.
The HCA or designee is the agency head for the purposes of
executing the written determination not to purchase EPEAT[supreg]-
registered products.
PART 2825--FOREIGN ACQUISITION
Subpart 2825.1--Buy American--Supplies
Sec.
2825.103 Exceptions.
2825.105 Determining reasonableness of cost.
Subpart 2825.2--Buy American--Construction Materials
2825.202 Exceptions.
2825.204 Evaluating offers of foreign construction material.
2825.206 Noncompliance.
Subpart 2825.10--Additional Foreign Acquisition Regulations
2825.1001 Waiver of right to examination of records.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2825--FOREIGN ACQUISITION
Subpart 2825.1--Buy American--Supplies
2825.103 Exceptions.
The authority to make the determination prescribed in FAR 25.103(a)
is delegated to the HCA, or designee.
[[Page 58539]]
2825.105 Determining reasonableness of cost.
The authority to make the determinations prescribed in FAR
25.105(a)(1) is delegated to the HCA, or designee.
Subpart 2825.2--Buy American--Construction Materials
2825.202 Exceptions.
The authority to make the determinations prescribed in FAR
25.202(a)(1) is delegated to the HCA, or designee.
2825.204 Evaluating offers of foreign construction material.
The HCA, or designee at a level at or above the BPC, is the agency
official authorized to make the determination in accordance with FAR
25.204(b) that using a particular domestic construction material would
unreasonably increase the cost of the acquisition or would be
impracticable.
2825.206 Noncompliance.
Potentially fraudulent noncompliance under FAR 25.206(c)(4) shall
be referred to the OIG for investigation.
Subpart 2825.10--Additional Foreign Acquisition Regulations
2825.1001 Waiver of right to examination of records.
The HCA, or designee at a level at or above the BPC, is the agency
official authorized to make determinations under FAR
25.1001(a)(2)(iii).
Subchapter E--General Contracting Requirements
PART 2827--PATENTS, DATA, AND COPYRIGHTS
Subpart 2827.3--Patent Rights Under Government Contracts
Sec.
2827.303 Contract clauses.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2827--PATENTS, DATA, AND COPYRIGHTS
Subpart 2827.3--Patent Rights Under Government Contracts
2827.303 Contract clauses.
The SPE is the agency head for the purposes of FAR 27.303(e)(4).
PART 2828--BONDS AND INSURANCE
Subpart 2828.1--Bonds and Other Financial Protections
Sec.
2828.101 Bid guarantees.
2828.101-1 Policy on use.
2828.106 Administration.
2828.106-6 Furnishing information.
Subpart 2828.2--Sureties and Other Security for Bonds
2828.203 Acceptability of individual sureties.
2828.203-7 Exclusion of individual sureties.
Subpart 2828.3--Insurance
2828.307 Insurance under cost-reimbursements contracts.
2828.307-1 Group insurance plans.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2828--BONDS AND INSURANCE
Subpart 2828.1--Bonds and Other Financial Protections
2828.101 Bid guarantees.
2828.101-1 Policy on use.
The HCA or designee is the agency head for the purposes of
authorizing class waivers in accordance with FAR 28.101-1(c).
2828.106 Administration.
2828.106-6 Furnishing information.
In accordance with FAR 28.106-6(c), the HCA, or designee at a level
at or above the BPC, is the agency official authorized to furnish the
certified copy of the bond and the contract.
Subpart 2828.2--Sureties and Other Security for Bonds
2828.203 Acceptability of individual sureties.
All assets pledged by individual sureties must be eligible
obligations as defined in 31 CFR part 225, ``Acceptable Collateral for
Pledging to Federal Agencies.'' This collateral will be placed in the
custody of the U.S. Treasury, with a Federal Reserve Bank acting as the
depositary until the completion of the obligation.
2828.203-7 Exclusion of individual sureties.
The SDO is the agency head for the purposes of FAR 28.203-7(a).
Subpart 2828.3--Insurance
2828.307 Insurance under cost-reimbursements contracts.
2828.307-1 Group insurance plans.
Under cost-reimbursement contracts, the contractor, before buying
insurance under a group insurance plan, shall submit the plan to the
contracting officer for review and approval. During review, the
contracting officer may utilize all sources of information available
such as audit, industry practices, etc., to determine if acceptance of
the group insurance plan is in the Government's best interest.
PART 2829--TAXES
Subpart 2829.3--State and Local Taxes
Sec.
2829.302 Application of State and local taxes to the Government.
2829.303 Application of State and local taxes to Government
contractors and subcontractors.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2829--TAXES
Subpart 2829.3--State and Local Taxes
2829.302 Application of State and local taxes to the Government.
Generally, purchases and leases made by the Federal Government are
immune from State and local taxation.
2829.303 Application of State and local taxes to Government
contractors and subcontractors.
(a) It is DOJ policy that DOJ contracts shall not contain clauses
expressly designating prime contractors as agents of the Government for
the purpose of avoiding State and local taxes.
(b) A DOJ contracting activity may request to the CAO, through the
HCA, that a contractor be considered an agent of the Government for the
purpose of claiming immunity from State and local sales and use taxes.
The CAO will review such requests to ensure compliance with DOJ policy
and applicable law. Each case forwarded will be reviewed by the HCA or
designee for approval before referral to the CAO.
PART 2830--COST ACCOUNTING STANDARDS ADMINISTRATION
Subpart 2830.2--CAS Program Requirements
Sec.
2830.201 Contract requirements.
2830.201-5 Waiver.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2830--COST ACCOUNTING STANDARDS ADMINISTRATION
Subpart 2830.2--CAS Program Requirements
2830.201 Contract requirements.
2830.201-5 Waiver.
The SPE is the agency head for the purposes of FAR 30.201-5.
Pursuant to FAR 30.201-5, this authority may not be
[[Page 58540]]
delegated to any official in the agency below the senior contract
policymaking level.
PART 2831--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 2831.1--Applicability
Sec.
2831.101 Objectives.
2831.109 Advance agreements.
Subpart 2831.2--Contracts With Commercial Organizations
2831.205 Selected costs.
2831.205-6 Compensation for personal services.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2831--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 2831.1--Applicability
2831.101 Objectives.
(a) The SPE is the official authorized to grant individual
deviations from the cost principles of FAR part 31.
(b) Requests for class deviations from the cost principles set
forth in FAR part 31 will be forwarded through the SPE prior to
submission to the Civilian Agency Acquisition Council (CAAC).
2831.109 Advance agreements.
(a) DOJ and bureau contracting officers are encouraged to negotiate
advance agreements concerning the treatment of special or unusual costs
to avoid possible subsequent disputes or disallowance of costs based
upon unreasonableness or nonallowability. All such agreements shall be
negotiated in accordance with FAR 31.109, prior to the contractor
incurring such costs.
(b) All determinations required by this subpart shall be reviewed
and approved at a level above the contracting officer prior to
negotiation of the proposed agreement. The approved determination shall
be placed in the contract file.
(c) Advance agreements will be signed by both the contractor and
the contracting officer, and made a part of the contract file. Copies
of executed advance agreements will be distributed to the cognizant
audit office, when applicable.
Subpart 2831.2--Contracts With Commercial Organizations
2831.205 Selected costs.
2831.205-6 Compensation for personal services.
The HCA or designee is the agency head for the purposes FAR 31.205-
6(g)(6).
PART 2832--CONTRACT FINANCING
Sec.
2832.006 Reduction or suspension of contract payments upon finding
of fraud.
2832.006-1 General.
2832.006-2 Definition.
2832.006-3 Responsibilities.
2832.006-4 Procedures.
Subpart 2832.1--Non-Commercial Item Purchase Financing
2832.114 Unusual contract financing.
Subpart 2832.2--Commercial Item Purchase Financing
2832.201 Statutory authority.
Subpart 2832.4--Advance Payments for Non-Commercial Items
2832.402 General.
2832.407 Interest.
Subpart 2832.5--Progress Payments Based on Costs
2832.502 Preaward matters.
2832.502-2 Contract finance office clearance.
2832.503 Postaward matters.
2832.503-6 Suspension or reduction of payments.
Subpart 2832.7--Contract Funding
2832.703 Contract funding requirements.
2832.703-3 Contracts crossing fiscal years.
Subpart 2832.9--Prompt Payment
2832.903 Responsibilities.
Subpart 2832.11--Electronic Funds Transfer
2832.1110 Solicitation provision and contract clauses.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2832--CONTRACT FINANCING
2832.006 Reduction or suspension of contract payments upon finding of
fraud.
2832.006-1 General.
The SPE is the agency head for the purposes of FAR 32.006-1.
2832.006-2 Definition.
The SPE is the ``remedy coordination official'' for the purposes of
FAR 32.006-2.
2832.006-3 Responsibilities.
DOJ personnel shall immediately report, in writing, to the
contracting officer and the OIG any apparent or suspected contractor
request for advance, partial, or progress payments based on fraud.
2832.006-4 Procedures.
The SPE is the agency head for the purposes of FAR 32.006-4.
Subpart 2832.1--Non-Commercial Item Purchase Financing
2832.114 Unusual contract financing.
The HCA, or designee at a level at or above the BPC, is the
official authorized to approve unusual contract financing as set forth
in FAR 32.114.
Subpart 2832.2--Commercial Item Purchase Financing
2832.201 Statutory authority.
The HCA or designee is the agency head for the purposes of FAR
32.201.
Subpart 2832.4--Advance Payments for Non-Commercial Items
2832.402 General.
(a) The authority to make the determinations prescribed in FAR
32.402 and sign written determinations and findings with respect to
making advance payments is vested in the HCA or designee.
(b) Prior to awarding a contract which contains provisions for
making advanced payments, the contract terms and conditions concerning
advance payments shall be approved at a level above the contracting
officer.
(c) In ensuring that all FAR and agency requirements are met, the
contracting officer shall coordinate with the activity that is to
provide contract financing for advance payments, the bureau's
disbursing or finance office, or the Treasury Department, as
appropriate.
2832.407 Interest.
In accordance with FAR 32.407(d), advance payments may be made on
an interest free basis. A determination to make such interest free
advance payments, and the circumstance permitting interest free advance
payments, shall be set forth in the original determination and findings
and be approved in accordance with JAR 2832.402.
Subpart 2832.5--Progress Payments Based on Costs
2832.502 Preaward matters.
2832.502-2 Contract finance office clearance.
Before taking any of the actions prescribed in FAR 32.502-2, the
contracting officer shall obtain advice
[[Page 58541]]
and assistance from the bureau's Chief Financial Officer.
2832.503 Postaward matters.
2832.503-6 Suspension or reduction of payments.
The HCA or designee is the approving official for any action
recommended under FAR 32.503-6. Upon approval, the contracting officer
shall request the finance office to suspend or reduce payments.
Subpart 2832.7--Contract Funding
2832.703 Contract funding requirements.
2832.703-3 Contracts crossing fiscal years.
The HCA or designee is the agency head for the purposes of FAR
32.703-3(b).
Subpart 2832.9--Prompt Payment
2832.903 Responsibilities.
The HCA or designee is responsible for promulgating policies and
procedures to implement FAR 32.9.
Subpart 2832.11--Electronic Funds Transfer
2832.1110 Solicitation provision and contract clauses.
When the clause at FAR 52.232-34, Payment by Electronic Funds
Transfer (EFT)--Other than System for Award Management, is required,
the contracting officer may insert in paragraph (b)(1) of the clause a
particular time after award, such as a fixed number of days, or an
event such as the submission of the first request for payment, to
establish the point at which contractors' EFT information shall be
provided.
PART 2833--PROTESTS, DISPUTES, AND APPEALS
Subpart 2833.1--Protests
Sec.
2833.101 Definitions. 2833.102 General. 2833.103 Protests to the
agency.
Subpart 2833.2--Disputes and Appeals
2833.203 Applicability.
2833.209 Suspected fraudulent claims. 2833.211 Contracting officer's
decision.
2833.214 Alternative dispute resolution (ADR).
2833.214-70 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C 486(c); 28 CFR 0.75(j) and 28
CFR 0.76(j).
PART 2833--PROTESTS, DISPUTES, AND APPEALS
Subpart 2833.1--Protests
2833.101 Definitions.
(a) Agency Protest Official (APO) means the Deciding Official for a
procurement protest filed with a contracting activity of DOJ when the
contracting officer will not be the Deciding Official because of the
protestor's election under JAR 22833.103(b). The HCA will designate the
individual who will serve as the APO for a given protest subject to the
following:
(1) The APO will be at an organizational level above that of the
contracting officer, will be knowledgeable about the acquisition
process in general, and will not have had any previous personal
involvement or programmatic interest in the procurement that is the
subject of the protest.
(2) The departmental or bureau Competition Advocate may serve as
the APO.
(b) Deciding Official means the official who will review and decide
a procurement protest filed with the agency. The Deciding Official will
be the contracting officer unless the protestor requests pursuant to
JAR 2833.103(b) that the protest be decided by an individual above the
level of the contracting officer, in which case the HCA will designate
an APO to serve as the Deciding Official.
(c) Interested party means an actual or prospective offeror whose
direct economic interest would be affected by the award of a contract
or by the failure to award a contract.
2833.102 General.
(a) This part prescribes policies and procedures for processing
protests to DOJ in accordance with FAR 33.103 and Executive Order
12979, Agency Procurement Protests, dated October 25, 1995.
(b) Contracting officers and contractors are encouraged to use
their best efforts to resolve concerns outside of the protest process
through frank and open discussion as required by FAR 33.103(b) or
through alternative dispute resolution techniques where appropriate.
(c) Responsibilities are as follows:
(1) Contracting officers. (i) Include the provision at JAR
2852.233-70 in all solicitations that are expected to exceed the
simplified acquisition threshold.
(ii) When serving as the Deciding Official, decide the protest
using the procedures in this subpart and FAR 33.103(d)(2).
(iii) If the protestor requests that the protest be decided at a
level above the contracting officer, the contracting officer shall
ensure that the Agency Protest Official, once designated, receives a
copy of the protest and any other materials the protestor has provided
to the contracting officer in support of the protest.
(2) Agency Protest Official. The APO shall use the procedures in
this subpart and FAR 33.103 to provide an independent review of and
decision on the issues raised in the protest.
2833.103 Protests to the agency.
(a) The filing time frames in FAR 33.103(e) apply. An agency
protest is filed when the protest is received at the location the
solicitation designates for serving protests.
(b) Only interested parties may file a protest.
(c) An interested party filing an agency protest has the choice of
requesting either that the contracting officer or an individual above
the level of the contracting officer decide the protest.
(d) In addition to the information required by FAR 33.103(d)(2),
the protest shall:
(1) Indicate that it is a protest to the agency.
(2) Be filed with the contracting officer or other official
designated to receive protests.
(3) State whether the protestor chooses to have the contracting
officer or an individual above the level of the contracting officer
decide the protest. If the protest is silent on this matter, the
contracting officer will decide the protest.
(4) Indicate whether the protestor prefers to make an oral or
written presentation of arguments in support of the protest to the
Deciding Official.
(e) Upon receipt of a protest by the agency, the contracting
officer, even when not serving as the Deciding Official, will notify
other vendors competing in the procurement of the protest, any stay of
award or suspension of performance, and/or any determination under FAR
33.103(f)(1) or (3) if and when made.
(f) Intervenors to the protest are not permitted.
(g) The decision by the Agency Protest Official is an alternative
to a decision by the contracting officer on a protest. The Agency
Protest Official will not consider appeals from a contracting officer's
decision on an agency protest and a decision by the Agency Protest
Official is final and not appealable.
(h) The protestor has only one opportunity to support or explain
the
[[Page 58542]]
substance of its protest. DOJ procedures do not provide for any
discovery. The Deciding Official has discretion to request additional
information from the agency or the protestor.
(i) A protestor may represent itself or be represented by legal
counsel. DOJ will not reimburse the protester for any legal fees or
costs related to the agency protest.
(j) If an agency protest is received before contract award, the
contracting officer shall not make award unless the HCA or designee
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 5
days after a debriefing date has been offered to the protester under a
timely debriefing request under FAR 15.505 or 15.506, whichever is
later, the contracting officer shall suspend contract performance
unless the HCA or designee makes a determination to proceed under FAR
33.103(f)(3). Any stay of award or suspension of performance remains in
effect until the agency protest is decided, dismissed, or withdrawn.
(k) The Deciding Official's decision may be oral or written. If
oral, the Deciding Official shall send a confirming letter after the
decision using a means that allows proof of receipt, including
electronic mail. The letter shall:
(1) State whether the protest was denied, sustained, or dismissed;
(2) Indicate the date the decision was provided; and
(3) Provide the rationale for the decision.
(l) If the Deciding Official sustains the protest, relief may
consist of any of the following:
(1) Termination of the contract for convenience or cause.
(2) Recompeting the requirement.
(3) Amending the solicitation.
(4) Refraining from exercising contract options.
(5) Reevaluating the offers or bids and making a new award
determination.
(6) Other action that the Deciding Official determines is
appropriate.
(m) Proceedings on an agency protest shall be dismissed if a
protest on the same or similar basis is filed with a protest forum
outside of DOJ.
Subpart 2833.2--Disputes and Appeals
2833.203 Applicability.
The SPE is the agency head for the purposes of FAR 33.203(b).
2833.209 Suspected fraudulent claims.
Contracting officers shall report suspected fraudulent claims to
the OIG for investigation.
2833.211 Contracting officer's decision.
The Civilian Board of Contract Appeals (CBCA) hears and decides
contract disputes originating from DOJ.
2833.214 Alternative dispute resolution (ADR).
2833.214-70 Policy.
It is DOJ's goal to resolve contract disputes before the issuance
of a contracting officer's final decision under the Contract Disputes
Act. Therefore, contracting officers will consider all possible means
of reaching a negotiated settlement consistent with the Government's
best interest, before issuing a final decision on a contractor claim
under the process outlined in FAR 33.206 through 33.211.
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 2834--MAJOR SYSTEM ACQUISITION
Subpart 2834.0--General
Sec.
2834.002 Policy.
2834.003 Responsibilities.
2834.005 General requirements.
2834.005-6 Full production.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2834--MAJOR SYSTEM ACQUISITION
Subpart 2834.0--General
2834.002 Policy.
The Small Business and Federal Procurement Competition Enhancement
Act of 1984 allows an executive agency to establish a dollar threshold
for the designation of a major system, in accordance with Public Law
98-577. Dollar thresholds for a major system under Office of Management
and Budget (OMB) Circular A-109 are designated in this section.
(a) Major automated information system. Within DOJ, a major
automated information system is one whose life-cycle cost is in excess
of $100 million.
(b) Major real property system. (1) By purchase, when the assessed
value of the property exceeds $60 million.
(2) By lease, when the annual rental charges, including basic
services (e.g., cleaning, guards, maintenance), exceed $1.8 million.
(3) By transfer from another agency at no cost when the assessed
value of the property exceeds $12 million.
(c) Research and development (R&D) system. Any R&D activity
expected to exceed $500,000 for the R&D phase is subject to OMB
Circular A-109, unless exempted by the HCA or designee under paragraph
(e) of this section.
(d) Any other system or activity. The HCA or designee responsible
for the system may designate any system or activity as a Major System
under OMB Circular A-109, e.g., selected systems designed to support
more than one principal organizational unit.
(e) Exemption. The CAO, upon recommendation by the HCA or designee
responsible for the system, may determine that, because of the routine
nature of the acquisition, the system (e.g., an information system
utilizing only off-the-shelf hardware or software) will be exempt from
the OMB Circular A-109 process, even where by virtue of the life cycle
costs it would otherwise be identified as ``major'' in response to OMB
Circular A-109.
2834.003 Responsibilities.
(a) The SPE is the agency head for the purposes of FAR 34.003(a).
(b) The CAO is the agency head for the purposes of FAR 34.003(c).
2834.005 General requirements.
2834.005-6 Full production.
The CAO is the agency head for the purposes of FAR 34.005-6.
PART 2836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 2836.2--Special Aspects of Contracting for Construction
Sec.
2836.204 Disclosure of the magnitude of construction projects.
Subpart 2836.6--Architect-Engineer Services
2836.602 Selection of firms for architect-engineer contracts.
2836.602-1 Selection criteria.
2836.602-4 Selection authority.
2836.602-5 Short selection process for contracts not to exceed the
simplified acquisition threshold.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 2836.2--Special Aspects of Contracting for Construction
2836.204 Disclosure in solicitations of the magnitude of construction
projects.
For construction projects over $10,000,000, present the magnitude
in ranges as follows:
(a) Between $10,000,001 and $25,000,000;
(b) Between $25,000,001 and $100,000,000;
(c) Between $100,000,001 and $250,000,000;
(d) Between $250,000,001 and $500,000,000; and
[[Page 58543]]
(e) Over $500,000,000.
Subpart 2836.6--Architect-Engineer Services
2836.602 Selection of firms for architect-engineer contracts.
2836.602-1 Selection criteria.
The HCA or designee is the agency head for purposes of FAR 36.602-
1(b).
2836.602-4 Selection authority.
The HCA or designee is the agency head for purposes of FAR 36.602-
4(a).
2836.602-5 Short selection process for contracts not to exceed the
simplified acquisition threshold.
(a) The short selection process, described in FAR 36.602-5, is
authorized for use in DOJ contracts not expected to exceed the
simplified acquisition threshold.
(b) The HCA or designee is the agency head for purposes of FAR
36.602-5(b)(2).
PART 2837--SERVICE CONTRACTING
Subpart 2837.1--Service Contracts--General
Sec.
2837.106 Funding and term of service contracts.
Subpart 2837.2--Advisory and Assistance Services
2837.204 Guidelines for determining availability of personnel.
Subpart 2837.5--Management Oversight of Service Contracts
2837.503 Agency-head responsibilities.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2837--SERVICE CONTRACTING
Subpart 2837.1--Service Contracts--General
2837.106 Funding and term of service contracts.
The HCA or designee is the agency head for purposes of FAR
37.106(b).
Subpart 2837.2--Advisory and Assistance Services
2837.204 Guidelines for determining availability of personnel.
The HCA or designee is the agency head for purposes of FAR 37.204.
Subpart 2837.5--Management Oversight of Service Contracts
2837.503 Agency-head responsibilities.
The HCA or designee or designee is the agency head for purposes of
FAR 37.503.
PART 2839--ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 2839.1--General
Sec.
2839.101 Policy.
2839.102 Management of risk.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2839--ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 2839.1--General
2839.101 Policy.
DOJ's Chief Information Officer (CIO) and SPE are responsible for
issuing policies and procedures to manage the agency information
technology (IT) acquisition process.
2839.102 Management of risk.
Contracts involving DOJ Information and Information Systems shall
comply with the security requirements prescribed in FAR 39.102 and all
applicable DOJ security requirements, including without limitation all
DOJ Policy Statements and DOJ Policy Instructions established under the
DOJ Acquisition Management Order relating to the Management of Risk of
DOJ Information and Information Systems.
PART 2841--ACQUISITION OF UTILITY SERVICES
Subpart 2841.2--Acquiring Utility Services
Sec.
2841.201 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2841--ACQUISITION OF UTILITY SERVICES
Subpart 2841.2--Acquiring Utility Services
2841.201 Policy.
The HCA or designee is the agency head for the purposes of FAR
41.201(d)(2)(i) and (d)(3).
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 2842--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 2842.6--Corporate Administrative Contracting Officer
Sec.
2842.602 Assignment and location.
Subpart 2842.7--Indirect Cost Rates
2842.703 General.
2842.703-2 Certificate of indirect costs.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2842--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 2842.6--Corporate Administrative Contracting Officer
2842.602 Assignment and location.
The HCA or designee is the agency head for the purposes of FAR
42.602(a).
Subpart 2842.7--Indirect Cost Rates
2842.703 General.
2842.703-2 Certificate of indirect costs.
The HCA or designee is the agency head for the purposes of FAR
42.703-2(b).
PART 2845--GOVERNMENT PROPERTY
Subpart 2845.1--General
Sec.
2845.105 Contractors' property management system compliance.
2845.105-70 Contractor reporting of Government-furnished property.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2845--GOVERNMENT PROPERTY
Subpart 2845.1--General
2845.105 Contractors' property management system compliance.
The contractor's records for Government-furnished property may be
kept as a separate account in the bureau's internal property management
system, in which case the contracting officer or formally designated
property administrator shall serve as custodian of the account.
2845.105-70 Contractor reporting of Government-furnished property.
(a) In compliance with FAR 45.105, by January 31 of each year, DOJ
contractors shall furnish the cognizant contracting officer an annual
report of the DOJ property for which they are accountable as of the end
of the calendar year.
(b) By March 1 of each year, bureaus shall submit to the Facilities
and Administrative Services Staff (FASS), JMD, a summary report of
agency property furnished under each contract as of the end of the
calendar year. The report shall include a listing of Government-
furnished property for all contracts for which the bureau maintains the
official Government records.
[[Page 58544]]
PART 2846--QUALITY ASSURANCE
Subpart 2846.6--Material Inspection and Receiving Reports
Sec.
2846.601 General.
Subpart 2846.7--Warranties
2846.704 Authority for use of warranties.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2846--QUALITY ASSURANCE
Subpart 2846.6--Material Inspection and Receiving Reports
2846.601 General.
Bureaus shall prescribe procedures and instructions for the use,
preparation, and distribution of material inspection and receiving
reports and commercial shipping document/packing lists to evidence
Government inspection (FAR 46.401) and acceptance (FAR 46.501).
Subpart 2846.7--Warranties
2846.704 Authority for use of warranties.
The use of a warranty in an acquisition shall be approved at a
level above the contracting officer.
PART 2848--VALUE ENGINEERING
Subpart 2848.1- Policies and Procedures
Sec.
2848.102 Policies.
Subpart 2848.2--Contract Clauses
2848.201 Clauses for supply or service contracts.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2848--VALUE ENGINEERING
Subpart 2848.1--Policies and Procedures
2848.102 Policies.
The HCA is the agency head for purposes of FAR 48.102(a).
Subpart 2848.2--Contract Clauses
2848.201 Clauses for supply or service contracts.
The HCA or designee is the agency head for purposes of FAR
48.201(a)(6).
PART 2849--TERMINATION OF CONTRACTS
Subpart 2849.1--General Principles
Sec.
2849.106 Fraud or other criminal conduct.
2849.111 Review of proposed settlements.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2849--TERMINATION OF CONTRACTS
Subpart 2849.1--General Principles
2849.106 Fraud or other criminal conduct.
If the contracting officer has reason to suspect fraud or other
criminal conduct related to the settlement negotiations of a terminated
contract, the contracting officer shall discontinue the negotiations
and report the facts supporting the suspicion through the HCA or
designee to the OIG.
2849.111 Review of proposed settlements.
The HCA or designee may establish procedures for the review and
approval of settlement agreements at a level above the contracting
officer. In addition, all proposed termination settlements shall be
reviewed by legal counsel.
PART 2850--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
Subpart 2850.1--Extraordinary Contractual Actions
Sec.
2850.100 Definition.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2850--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
Subpart 2850.1--Extraordinary Contractual Actions
2850.100 Definition.
Approving authority as used in this part means the Attorney
General.
SUBCHAPTER H--CLAUSES AND FORMS
PART 2852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Sec.
2852.000 Scope of part.
Subpart 2852.1--Instructions for Using Provisions and Clauses
2852.102 Incorporating provisions and clauses.
Subpart 2852.2--Text of Provisions and Clauses
2852.200 Scope of subpart.
2852.201-70 Contracting Officer's Representative (COR).
2852.203-70 General Non-Disclosure Agreement.
2852.203-71 Intelligence Related Non-Disclosure Agreement.
2852.212-4 Contract Terms and Conditions--Commercial Items (FAR
Deviation).
2852.222-70 Domestic Violence, Sexual Assault, and Stalking.
2852.223-70 Unsafe Conditions Due to the Presence of Hazardous
Material.
2852.233-70 Protests Filed Directly with the Department of Justice.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
PART 2852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
2852.000 Scope of part.
This part provides the text of provisions and clauses which are
unique to DOJ or supplement the FAR.
Subpart 2852.1--Instructions for Using Provisions and Clauses
2852.102 Incorporating provisions and clauses.
JAR provisions and clauses in this part may be incorporated in
solicitations and contracts by reference.
Subpart 2852.2--Text of Provisions and Clauses
2852.200 Scope of subpart.
This subpart sets forth the text of all DOJ provisions and clauses.
It also cross-references to the location in the JAR that prescribes the
use of each provision and clause.
2852.201-70 Contracting Officer's Representative (COR).
As prescribed in JAR 2801.604, insert the following clause:
CONTRACTING OFFICER'S REPRESENTATIVE (COR) (NOV 2020)
(a) Mr./Ms. (Name) of (Organization), (Address), (Area Code &
Telephone No.), is hereby designated to act as Contracting Officer's
Representative (COR) under (contract #), for the period of (specify
the performance period of the contract that the designation covers).
(b) Performance of work under this contract is subject to the
technical direction of the COR identified above, or another
representative designated in writing by the Contracting Officer. The
term ``technical direction'' includes, without limitation, the
following:
(i) Receiving all deliverables;
(ii) Inspecting and accepting the supplies or services provided
in accordance with the terms and conditions of this contract;
(iii) Clarifying, directing, or redirecting the contract effort,
including shifting work between work areas and locations, filling in
details, or otherwise serving to accomplish the contractual
statement of work to ensure the work is accomplished satisfactorily;
(iv) Evaluating performance of the Contractor; and
(v) Certifying all invoices/vouchers for acceptance of the
supplies or services furnished for payment.
(c) The COR does not have the authority to issue direction that:
[[Page 58545]]
(i) Constitutes a change of assignment or work outside the
contract specification/work statement/scope of work.
(ii) Constitutes a change as defined in the clause entitled
``Changes'' or other similar contract term.
(iii) Causes, in any manner, an increase or decrease in the
contract price or the time required for contract performance;
(iv) Causes, in any manner, any change in a term, condition, or
specification or the work statement/scope of work of the contract;
(v) Causes, in any manner, any change or commitment that affects
price, quality, quantity, delivery, or other term or condition of
the contract or that, in any way, directs the contractor or its
subcontractors to operate in conflict with the contract terms and
conditions;
(vi) Interferes with the contractor's right to perform under the
terms and conditions of the contract;
(vii) Directs, supervises, or otherwise controls the actions of
the Contractor's employees or a Subcontractor's employees.
(d) The Contractor shall proceed promptly with performance
resulting from the technical direction of the COR. If, in the
opinion of the Contractor, any direction by the COR or the
designated representative falls outside the authority of (b) above
and/or within the limitations of (c) above, the Contractor shall
immediately notify the Contracting Officer.
(e) Failure of the Contractor and Contracting Officer to agree
that technical direction is within the scope of the contract is a
dispute that shall be subject to the ``Disputes'' clause and/or
other similar contract term.
(f) COR authority is not re-delegable.
(End of Clause)
2852.203-70 General Non-Disclosure Agreement.
As prescribed in JAR 2803.908-70, insert the following provision:
GENERAL NON-DISCLOSURE AGREEMENT (AUG 2016)
The provisions of this Non-Disclosure Agreement (NDA) are
consistent with and do not supersede, conflict with, or otherwise
alter the employee obligations, rights, or liabilities created by
existing statute or Executive Order relating to (1) classified
information, (2) communications to Congress, (3) the reporting to an
Inspector General of a violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety, or (4)
any other whistleblower protection. The definitions, requirements,
obligations, rights, sanctions, and liabilities created by
controlling Executive Orders and statutory provisions are
incorporated into this agreement and are controlling.
(End of Provision)
2852.203-71 Intelligence Related Non-Disclosure Agreement.
As prescribed in JAR 2803.908-71, insert the following provision:
INTELLIGENCE RELATED NON-DISCLOSURE AGREEMENT (AUG 2016)
(1) The signatory will not disclose any classified information
received in the course of such intelligence or intelligence-related
activity unless specifically authorized to do so by the United
States Government; and
(2) The Non-Disclosure Agreement (NDA) does not bar disclosures
to Congress, or to an authorized official of an executive agency or
the Department of Justice, which are essential to reporting a
substantial violation of law.
(End of Provision)
2852.212-4 Contract Terms and Conditions, Commercial Items (FAR
Deviation).
As prescribed in JAR 2812.301, insert the following provision:
TERMS AND CONDITIONS--COMMERCIAL ITEMS (NOV 2020)
When a commercial item is contemplated (using FAR Part 12
procedures or otherwise) and the contract will include FAR 52.212-4,
the following replaces subparagraph (g)(2); paragraph (h);
subparagraph (i)(2); paragraph (s); and paragraph (u), Unauthorized
Obligations, of the basic FAR clause, and adds paragraph (w), as
follows:
(g)(2) Invoices will be handled in accordance with the Prompt
Payment Act (31 U.S.C. 3903) and Office of Management and Budget
(OMB) prompt payment act regulations at 5 CFR part 1315, as modified
by subparagraph (i)(2), Prompt payment, of this clause.
* * *
(h) Patent indemnity. Contractor shall indemnify and hold
harmless the Government and its respective affiliates, officers,
directors, employees, agents, successors and assigns (collectively,
``Indemnities'') from and against any and all liability and losses
incurred by the Indemnities that are (i) included in any settlement
and/or (ii) awarded by a court of competent jurisdiction arising
from or in connection with any third party claim of infringement
made against Indemnities asserting that any product or service
supplied under this contract constitutes infringement of any patent,
copyright, trademark, service mark, trade name or other proprietary
or intellectual right. This indemnity shall not apply unless
Contractor shall have been informed within a reasonable time by the
Government of the claim or action alleging such infringement and
shall have been given such opportunity as is afforded by applicable
laws, rules, or regulations to participate in its defense. This
indemnity also shall not apply to any claim unreasonably settled by
the Government which obligates Contractor to make any admission or
pay any amount without written consent signed by an authorized
officer of Contractor, unless required by final decree of a court of
competent jurisdiction.
* * *
(i)(2) Prompt payment. The Government will make payment in
accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt
payment regulations (5 CFR part 1315), with the following
modification regarding the due date: For the sole purpose of
computing an interest penalty due the Contractor, the Government
agrees to inspect and determine the acceptability of any supply
delivered or service performed specified in the invoice within
thirty (30) days of receipt of a proper invoice from the Contractor,
after which time, if no affirmative action has been taken by the
Government to accept such supply or service, the supply or service
will be deemed accepted and payment due thirty (30) days from the
date of deemed acceptance. If the Government makes the determination
that the item delivered or service performed is deficient or
otherwise unacceptable, or the invoice is otherwise determined not
to be a proper invoice, the terms and conditions of this paragraph
regarding prompt payment will apply to the date the Contractor
corrects the deficiency in the item delivered or service performed
or submits a proper invoice. If actual acceptance occurs within the
constructive acceptance period, the Government will base the
determination of an interest penalty on the actual date of
acceptance. The constructive acceptance requirement does not,
however, compel Government officials to accept supplies or services,
perform contract administration functions, or make payment prior to
fulfilling their responsibilities.
* * *
(s) Order of precedence. Any inconsistencies in this
solicitation or contract shall be resolved by giving precedence in
the following order:
(1) The schedule of supplies/services.
(2) The Assignments, Payments, Invoice, Other Compliances, and
Compliance with Laws Unique to Government Contracts provisions of
the basic FAR clause at 52.212-4, and the Unauthorized Obligations
and Contractor's Commercial Supplier Agreements--Unenforceable
Clauses provisions of JAR 2852.212-4.
(3) FAR 52.212-5.
(4) Other paragraphs of the basic FAR clause at 52.212-4, with
the exception of paragraph (o), Warranty, and those paragraphs
identified in this deviation of 52.212-4.
(5) Addenda to this solicitation, contract, or order, including
contractor's Commercial supplier agreements incorporated into the
contract.
(6) Solicitation provisions if this is a solicitation.
(7) Paragraph (o), Warranty, of the basic FAR clause at 52.212-
4.
(8) The Standard Form 1449.
(9) Other documents, exhibits, and attachments.
(10) The specification.
* * *
(u) Unauthorized obligations.
(1) Except as stated in paragraph (u)(2) of this clause, when
any supply or service acquired under this contract or order is
subject to any Commercial supplier agreement that includes any
language, provision, or clause requiring the
[[Page 58546]]
Government to indemnify the Contractor or any person or entity for
damages, costs, fees, or any other loss or liability that would
create an Anti-Deficiency Act violation (see 31 U.S.C. 1341), the
following shall govern:
(i) Any such language, provision, or clause is unenforceable
against the Government.
(ii) Neither the Government nor any Government authorized end
user shall be deemed to have agreed to such clause by virtue of it
appearing in the commercial supplier agreement. If the commercial
supplier agreement is invoked through an ``I agree'' click box or
other similar mechanism (e.g., ``click-wrap'' or ``browse-wrap''
agreements), execution does not bind the Government or any
Government authorized end user to such clause.
(iii) Any such language, provision, or clause is deemed to be
stricken from the commercial supplier agreement and have no effect.
(2) Paragraph (u) (1) of this clause does not apply to
indemnification by the Government that is expressly authorized by
statute and specifically authorized under applicable agency
regulations and procedures.
* * *
(w) Commercial supplier agreements--unenforceable clauses. When
any supply or service acquired under this contract or order is
subject to a contractor's commercial supplier agreement, the
following shall be deemed incorporated into such agreement and
modifies and replaces any similar language, provision, or clause in
such agreement. As used herein, ``this agreement'' means any
contractor commercial supplier agreement:
(1) Notwithstanding any other provision of this agreement, when
the end user is an agency or instrumentality of the U.S. Government,
the following shall apply:
(i) Applicability. This agreement is a part of a contract
between commercial supplier and the U.S. Government for the
acquisition of the supply or service that necessitates a license or
other similar legal instrument (including all contracts, task
orders, and delivery orders under FAR Part 12).
(ii) End user. This agreement shall bind the Government as end
user but shall not operate to bind the Government employee or person
acting on behalf of the Government in his or her personal capacity.
(iii) Law and disputes. This agreement is governed by Federal
law.
(A) Any language, provision, or clause purporting to subject the
U.S. Government to the laws of any U.S. state, territory, district,
or municipality, or the laws of a foreign nation, except where
Federal law expressly provides for the application of such laws, is
hereby deleted and shall have no effect.
(B) Any language, provision, or clause requiring dispute
resolution in a specific forum or venue that is different from that
prescribed by applicable Federal law is hereby deleted and shall
have no effect.
(C) Any language, provision, or clause prescribing a different
time period for bringing an action than that prescribed by
applicable Federal law in relation to a dispute is hereby deleted
and shall have no effect.
(iv) Continued performance. Notwithstanding any other provision
in this agreement, if the Contractor believes the Government to be
in breach of this contract, order, or agreement, it shall pursue its
rights under the Contract Disputes Act or other applicable Federal
statute while continuing performance as set forth in subparagraph
(d), Disputes, of FAR 52.212-4.
(v) Arbitration; equitable or injunctive relief. In the event of
a claim or dispute arising under or relating to the contract, order,
or this agreement, (A) binding arbitration shall not be used unless
otherwise specifically authorized by agency guidance, and (B)
equitable or injunctive relief, including the award of attorney
fees, costs or interest, may be awarded against the Government only
when explicitly provided by statute.
(vi) Updating terms.
(A) After award, the contractor may unilaterally revise terms if
they are not material. Material terms are defined as:
(1) Terms that change Government rights or obligations;
(2) Terms that increase Government prices;
(3) Terms that decrease the overall level of service; or
(4) Terms that limit any other Government right addressed
elsewhere in this contract.
(B) For revisions that materially change the terms of the
contract, the revised commercial supplier agreement must be
incorporated into the contract using a bilateral modification.
(C) Any agreement terms or conditions unilaterally revised
subsequent to award that are inconsistent with any material term or
provisions of this contract shall not be enforceable against the
Government, and the Government shall not be deemed to have consented
to them.
(vii) Order of precedence. Any Order of Precedence clause in any
commercial supplier agreement is not enforceable against the
Government. The applicable Order of Precedence for this contract,
order, or agreement is FAR 52.212-4(s), as revised by JAR 2812.302
and 2852.212-4(s).
(viii) No automatic renewals. If any license or service tied to
period payment is provided under this agreement (e.g., annual
software maintenance or annual lease term), such license or service
shall not renew automatically upon expiration of its current term
without prior express consent by a properly warranted contracting
officer, and any provision or term of any license or service
purporting to provide for automatic renewal is unenforceable against
the Government.
(ix) Indemnification by the Government or end-user. Any
language, provision, or clause of this commercial supplier agreement
requiring the Government or End-user to indemnify the commercial
supplier or licensor is not enforceable against the Government.
(x) Indemnification by the commercial supplier or licensor. Any
clause of this agreement requiring or permitting the commercial
supplier or licensor to defend the Government as a condition of
indemnifying the Government for any claim of infringement is hereby
amended to provide that the U.S. Department of Justice has the sole
right to represent the United States in any such action, in
accordance with 28 U.S.C. 516.
(xi) Audits. Any language, provision, or clause of this
commercial supplier agreement permitting Contractor to audit the end
user's compliance with this agreement is not enforceable against the
Government. To the extent any language, provision or clause of this
agreement permits Contractor to audit the Government's compliance
under this contract, order, or agreement, such language, provision,
or clause of this agreement is hereby stricken and replaced as
follows:
``(A) If Contractor reasonably believes that the Government has
violated the terms of this agreement with regard to the restrictions
on authorized use and/or the number of authorized users, upon
written request from Contractor, including an explanation of the
basis for the request, DOJ will provide a redacted version of the
Government's most recent Security Assessment and Authorization
package (SAA) to Contractor on a confidential basis, so that
Contractor may reasonably verify the Government's compliance with
its obligations under this agreement. Contractor understands and
agrees that the Government will remove or redact any information
from the SAA that it reasonably believes may compromise (a) the
security of the Government's information technology environment; (b)
the confidentiality of any third-party proprietary or confidential
information; (c) any confidential, sensitive law enforcement
information; and (d) any other information that the Government
believes may compromise a past, current, or prospective
investigation, prosecution, or litigation. Notwithstanding the
preceding, and subject to the Government's policies and procedures
for such review, including but not limited to complying with all
Government security requirements prior to being granted access to
the Government's facilities, including the execution of appropriate
confidentiality and/or non-disclosure agreements, the Government
will arrange, upon Contractor's written request, for Contractor to
view an un-redacted version of the SAA on Government premises.
Contractor understands that Contractor will be provided a copy of
the un-redacted SAA on Government premises only and that no un-
redacted copy of the SAA, or any medium containing information
relating to it, will be permitted to be removed from Government
premises.
(B) The Contractor also understands and agrees that the
Contractor shall make a request under this paragraph no more than on
an annual basis and only during the period of the contract, and that
any activities performed by Contractor under this clause will be
performed at Contractor's expense, without reimbursement by the
Government.
(C) Discrepancies found with regard to the restrictions on
authorized use and/or the number of authorized users may result in a
charge by Contractor to the Government. Any resulting invoice must
comply with the proper invoicing and payment requirements specified
in the contract. This charge, if disputed by the Government, will be
resolved through the Disputes clause at 52.212-4(d); no payment
obligation shall arise on the part of the Government until the
conclusion of the dispute process.''
(xii) Taxes or surcharges. Any taxes or surcharges which the
Contractor seeks to
[[Page 58547]]
pass along to the Government as end user will be governed by the
terms of the underlying Government contract and, in any event, must
be submitted to the Contracting Officer for a determination of
applicability prior to invoicing unless specifically agreed to
otherwise in the Government contract.
(xiii) Non-assignment. This agreement may not be assigned, nor
may any rights or obligations thereunder be delegated, without the
Government's prior approval, except as expressly permitted under FAR
52.212-4 (b), Assignment.
(xiv) Confidential information.
(A) During the term of this contract or order, either party may
identify information as ``confidential information,'' and there
shall be no disclosure, dissemination, or publication of any such
information except to the extent required for the performance of
this contract or order and otherwise provided in this clause or by
statute or regulation. Specifically, the parties agree that the
party receiving confidential information may only disclose such
information to its employees and contractors on a ``need-to-know''
basis to carry out the obligations of this contract or order, and
that subcontractors performing under this Agreement are subject to
the same stipulations provided in this provision. The parties also
agree that this provision shall survive the termination of this
contract or order, and any confidential information obtained or
received which comes within these restrictions shall remain
confidential, provided that the obligation to treat information as
confidential shall not apply to information which is or becomes
publicly available through no improper action of the receiving
party; is or comes to be in the receiving party's possession
independent of its relationship with the disclosing party; is
developed by or becomes known to the receiving party without use of
any confidential information of the disclosing party; or is obtained
rightfully from a third party not bound by an obligation of
confidentiality. Additionally, nothing in this contract or order
shall restrict disclosure by the receiving party pursuant to any
applicable law, including but not limited to the Freedom of
Information Act, 5 U.S.C. 552, et seq., or an order of any court of
competent jurisdiction, provided that in either such case the
receiving party gives prompt notice to the disclosing party to allow
the disclosing party to interpose an objection to such disclosure,
take action to assure confidential handling of the confidential
information, or take such other action as it deems appropriate to
protect its confidential information.
(B) The Government considers and hereby identifies as
confidential any and all information related to any inquiries and/or
searches performed by the Government or by contractor at the
Government's direction under this contract or order, including the
subject of any such inquiry or search and any and all search terms,
regardless of whether provided in writing or orally to Contractor,
and Contractor agrees that it may only disclose such information to
its employees and contractors on a ``need-to-know'' basis to carry
out the obligations of this contract or order and that it will not
share, reveal, divulge, disclose, disseminate, or publicize any such
information to any third party except as provided in this provision
without the prior written approval of the Contracting Officer.
Contractor also understands and agrees that any subcontractors
performing under this contract or order are subject to the same
stipulations and that Contractor may be held responsible for any
violations of confidentiality by a subcontractor.
(C) These provisions are consistent with and do not supersede,
conflict with, or otherwise alter an employee's obligations, rights,
or liabilities created by existing statute or Executive order
relating to (1) classified information, (2) communications to
Congress, (3) the reporting to an Inspector General of a violation
of any law, rule, or regulation, or mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger
to public health or safety, or (4) any other whistleblower
protection. The definitions, requirements, obligations, rights,
sanctions, and liabilities created by Executive orders and statutory
provisions relating to whistleblower protection are incorporated
into this contract and are controlling.
(D) The Government may share the terms, conditions and prices
set forth in this Order with, and provide a copy of the Order to,
other Executive branch agencies of the U.S. Government, provided
that the Government shall ensure that other Executive branch
agencies to which it provides such information will be required to
treat all such information consistent with terms and conditions set
forth in this Order.
(E) Notwithstanding anything in this agreement, the Government
may retain any confidential information as required by law,
regulation, or its internal document retention procedures for legal,
regulatory, or compliance purposes; provided, however, that all such
retained confidential information will continue to be subject to the
confidentiality obligations of this Order.
(xv) Authorized users. Authorized users may include full and
part-time employees of the Government, including those working at or
from remote locations, and contractors and contractor employees
working within the scope of their contract with the Government,
including those at or from remote locations.
(xvi) Authorized use. Authorized users are authorized to use the
product or service acquired under this contract in performing
business on behalf of the Government. Any information obtained or
acquired by the Government under this contract may be used by the
Government in the performance of Government business.
(2) If any language, provision, or clause of this agreement
conflicts or is inconsistent with the preceding paragraph (w)(1),
the language, provisions, or clause of paragraph (w)(1) shall
prevails to the extent of such inconsistency.
2852.222-70 Domestic Violence, Sexual Assault, and Stalking.
As prescribed in JAR 2822.101-70, insert the following clause:
DOMESTIC VIOLENCE, SEXUAL ASSAULT, AND STALKING (DEC 2014)
(a) It is DOJ policy to enhance workplace awareness of and
safety for victims of domestic violence, sexual assault, and
stalking. This policy is summarized in ``DOJ Policy Statement
1200.02, Federal Workforce Responses to Domestic Violence, Sexual
Assault, and Stalking,'' available in full for public viewing at:
https://www.justice.gov/sites/default/files/ovw/legacy/2013/12/19/federal-workplacee-responses-to-domesticviolence-sexualassault-stalking.pdf.
Vendor agrees, upon contract award, to provide notice of this
Policy Statement, including at a minimum the above-listed URL, to
all Vendor employees and employees of subcontractors who will be
assigned to work on DOJ premises.
(b) Upon contract award, DOJ will provide the Contractor with
the name and contact information of the point of contact for victims
of domestic violence, sexual assault, and stalking for the component
or components where the Contractor will be performing. The
Contractor agrees to inform its employees and employees of
subcontractors, who will be assigned to work on DOJ premises, with
the name and contact information of the point of contact for victims
of domestic violence, sexual assault, and stalking.
(End of Clause)
2852.223-70 Unsafe Conditions Due to the Presence of Hazardous
Material.
As prescribed in JAR 2823.303-70, insert the following clause:
UNSAFE CONDITIONS DUE TO THE PRESENCE OF HAZARDOUS MATERIAL (NOV 2020)
(a) ``Unsafe condition'' as used in this clause means the actual
or potential exposure of Contractor or Government employees to a
hazardous material.
(b) ``Hazardous Material'' as used in this clause includes any
material defined as hazardous under the latest version of Federal
Standard No. 313 (including revisions adopted during the term of the
contract), any other potentially hazardous material requiring safety
controls, or any other material or working condition designated as
hazardous by the Contracting Officer's Representative (COR).
(c) The Occupational Safety and Health Administration (OSHA) is
responsible for issuing and administering regulations that require
Contractors to apprise its employees of all hazards to which they
may be exposed in the course of their employment; proper conditions
and precautions for safe use and exposure; and related symptoms and
emergency treatment in the event of exposure.
(d) Prior to commencement of work, Contractors are required to
inspect for and report to the Contracting Officer the presence of,
or suspected presence of, any unsafe condition including asbestos or
other hazardous materials or working conditions in areas in which
they will be working.
[[Page 58548]]
(e) If during the performance of the work under this contract,
the Contractor or any of its employees, or subcontractor employees,
discovers the existence of an unsafe condition, the Contractor shall
immediately notify the Contracting Officer, or designee (with
written notice provided not later than three (3) working days
thereafter), of the existence of an unsafe condition. Such notice
shall include the Contractor's recommendations for the protection
and the safety of Government, Contractor and subcontractor personnel
and property that may be exposed to the unsafe condition.
(f) When the Government receives notice of an unsafe condition
from the Contractor, the parties will agree on a course of action to
mitigate the effects of that condition and, if necessary, the
contract will be amended. Failure to agree on a course of action
will constitute a dispute under the Disputes clause of this
contract.
(g) Nothing contained in this clause shall relieve the
Contractor or subcontractors from complying with applicable Federal,
State, and local laws, codes, ordinances and regulations (including
the obtaining of licenses and permits) in connection with hazardous
material including but not limited to the use, disturbance, or
disposal of such material.
(End of Clause)
2852.233-70 Protests Filed Directly with the Department of Justice.
As prescribed in JAR 2833.102(d), insert a clause substantially as
follows:
PROTESTS FILED DIRECTLY WITH THE DEPARTMENT OF JUSTICE (NOV 2020)
(a) The following definitions apply in this provision:
(1) ``Agency Protest Official'' (APO) means the Deciding
Official for a procurement protest filed with a contracting activity
of DOJ when the contracting officer will not be the Deciding
Official because of the protestor's election under JAR 2833.103(b)
(2) ``Deciding Official'' means the official who will review and
decide a procurement protest filed with the agency. The Deciding
Official will be the contracting officer unless the protestor
requests pursuant to JAR 2833.103(b) that the protest be decided by
an individual above the level of the contracting officer, in which
case the HCA will designate an APO to serve as the Deciding
Official.
(3) ``Interested Party'' means an actual or prospective offeror
whose direct economic interest would be affected by the award of a
contract or by the failure to award a contract.
(b) Only interested parties may file a protest.
(c) An interested party filing a protest with the DOJ has the
choice of requesting either that the Contracting Officer or the APO
decide the protest.
(d) A protest filed directly with the DOJ shall:
(1) Indicate that it is a protest to DOJ.
(2) Be filed with the Contracting Officer.
(3) State whether the protestor chooses to have the Contracting
Officer or the Agency Protest Official decide the protest. If the
protestor is silent on this matter, the Contracting Officer will
decide the protest.
(4) Indicate whether the protestor prefers to make an oral or
written presentation of arguments in support of the protest to the
deciding official.
(5) Include the information required by FAR 33.103(d)(2):
(i) Name, address, facsimile number and telephone number of the
protestor.
(ii) Solicitation or contract number.
(iii) Detailed statement of the legal and factual grounds for
the protest, to include a description of resulting prejudice to the
protestor.
(iv) Copies of relevant documents.
(v) Request for a ruling by the agency.
(vi) Statement as to the form of relief requested.
(vii) All information establishing that the protestor is an
interested party for the purpose of filing a protest.
(viii) All information establishing the timeliness of the
protest.
(e) The decision by the APO is an alternative to a decision by
the Contracting Officer. The APO will not consider appeals from the
Contracting Officer's decision on an agency protest and a decision
by the APO is final and not appealable.
(f) The Deciding Official may conduct a scheduling conference.
The scheduling conference, if conducted, will establish deadlines
for oral or written arguments in support of the agency protest and
for agency officials to present information in response to the
protest issues. The deciding official may hear oral arguments in
support of the agency protest at the same time as the scheduling
conference, depending on availability of the necessary parties.
(g) Oral conferences may take place either by telephone or in
person.
(h) The protestor has only one opportunity to support or explain
the substance of its protest. DOJ procedures do not provide for any
discovery. The deciding official may request additional information
from the agency or the protestor. The deciding official will resolve
the protest through informal presentations or meetings to the
maximum extent practicable.
(i) A protestor may represent itself or be represented by legal
counsel. The DOJ will not reimburse the protester for any legal fees
related to the agency protest.
(j) The DOJ will stay award or suspend contract performance in
accordance with FAR 33.103(f), unless the contract award is
justified, in writing, for urgent and compelling reasons or is
determined, in writing, to be in the best interest of the
Government. The justification or determination shall be approved at
a level above the Contracting Officer. The stay or suspension,
unless over-ridden, remains in effect until the protest is decided,
dismissed, or withdrawn.
(k) The deciding official will make a best effort to issue a
decision on the protest within thirty-five (35) days after the
filing date. The decision shall be written, and provided to the
protestor using a method that provides for evidence of receipt.
(l) The DOJ may dismiss or stay proceedings on an agency protest
if a protest on the same or similar basis is filed with a forum
outside DOJ.
(End of Clause)
Dated: September 30, 2021.
Lee Lofthus,
Assistant Attorney General for Administration.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix--Sections of the JAR That Are Being Proposed for Removal and/or
Renaming
------------------------------------------------------------------------
Current JAR provision Disposition
------------------------------------------------------------------------
2801.2 Administration.................. Not Replaced. New 2801.1
Purpose, Authority, Issuance.
2801.270-1 Revisions................... Not Replaced.
2801.470 Requests for Class Deviations. Now 2801.404.
2801.602 Contracting Officer........... Not Replaced.
2801.602-3 Ratification of Unauthorized Not Replaced.
Commitments.
2801.603 Selection, Appointment and Not Replaced.
Termination of Appointment.
2801.603-1 Department of Justice Not Replaced.
Acquisition Career Management Program.
2801.603-3 Appointment................. Not Replaced. [Addressed
Contracting Officer's
Representative (COR)
appointment below Micro
Threshold.]
2801.70 Contracting Officer's Technical New 2801.604 addresses COR.
Representative (COTR).
2801.7001-701 General.................. New 2801.604 addresses COR.
2801.7001-702 Selection, Appointment New 2801.604 addresses COR.
and Limitation of Authority.
2803.104-10 Violations or Possible Now 2803.104-7.
Violations.
2803.104-70 Ethics Program Training Not Replaced.
Requirements.
2804.403 Responsibilities of Not Replaced.
Contracting Officers.
[[Page 58549]]
2804.470 Contractor Personnel Security Now 2804.402-70--Contractor
Program. Personal Security Program.
2804.470-1 Policy...................... See 2804.402-70.
2804.470-2 Responsibilities............ See 2804.402-70.
2804.5 Electronic Commerce in Not Replaced.
Contracting.
2804.506 Exemptions.................... Not Replaced.
2804.6 Contract Reporting.............. Now 2804.903-70.
2804.602 Federal Procurement Data Now 2804.903-70.
System.
2804.8 Government Contract Files....... Not Replaced.
2804.805 Storage, Handling, and Not Replaced.
Contract Files.
2804.902 Contract Information.......... Now addressed in 2804.903-70.
2804.970 Special Reporting Exceptions.. Now addressed in 2804.903-71.
2805.201-70 Departmental Notification.. Not Replaced.
2805.3 Synopses of Contract Awards..... Now 2805.2 Synopsis of Proposed
Contract Actions.
2805.302-70 Departmental Notification.. Not Replaced.
2805.503-70 Procedures................. Not Replaced.
2806.302 Circumstances Permitting Other Now addressed in 2806.3.
Than Full and Open Competition.
2806.302-7 Public Interest............. Not Replaced.
2806.302-70 Determinations and Findings Now addressed in 2806.304
Approval of the Justification.
2806.303 Justifications................ See above.
2806.303-1 Requirements................ See above.
2806.303-2 Content..................... See above.
2806.502 Duties and Responsibilities... Now 2806.5 Advocates for
Competition.
2807.102 Policy........................ Now 2807.1 addresses
Acquisition Planning.
2807.102-70 Applicability.............. Now 2807.1 addresses
Acquisition Planning.
2807.103-70 Other Officials' Now 2807.1 addresses
Responsibilities. Acquisition Planning.
2807.105 Contents of Written Now 2807.1 addresses
Acquisition Plans. Acquisition Planning.
2807.5 Inherently Governmental Not Replaced.
Functions.
2807.503 Policy........................ Not Replaced.
2809.404 List of Parties Excluded From Not Replaced.
Federal Procurement and Nonprocurement
Programs.
2811.001 Definitions................... [Not replaced, but 2811.001
Still ``Describing Agency's
Needs''].
2811.104-70 Brand-Name or Equal Not Replaced.
Description.
2813.7001 Policy....................... Now 2813.70-1. [2813.70-1
addresses Simplified
Acquisitions].
2813.7002 Procedures................... Now in 2813.70-2.
2814.409 Information to Bidders........ Not Replaced.
2814.409-2 Award of Classified Not Replaced.
Contracts.
2815.205 Issuing Solicitations......... Not Replaced.
2815.404-2 Information to Support Renamed ``Data to Support
Proposal Analysis. Proposal Analysis''.
2815.207 Handling Proposals and Not Replaced.
Information.
2815.404-4 Profit...................... Not Replaced.
2815.407-4 Should-Cost Review.......... Not Replaced.
2816.6 Time-And-Materials, Labor-Hour, Not Replaced.
and Letter Contracts.
2816.601 Time-And-Material Contracts... Not Replaced.
2816.603-2 Application................. Not Replaced.
2816.603-3 Limitations................. Not Replaced.
2817.108 Congressional Notification.... Not Replaced. [But Multi-Year
Contracting now at part 2817].
2817.605 Award, Renewal and Extension.. Not Replaced. [Multi-Year
Contracting now at part 2817].
2819.506 Withdrawing or Modifying Set- Not Replaced.
Asides.
2819.6 Certificates of Competency and Not Replaced.
Determinations of Eligibility.
2819.602 Procedures.................... Not Replaced.
2819.602-1 Referral.................... Not Replaced.
2819.70 Forecasts of Expected Contract Not Replaced.
Opportunities.
2819.7001 General...................... Not Replaced.
2819.7002 Procedures................... Not Replaced.
2822.13 SERVICE DISABLED AND VIETNAM Renamed Equal Opp. For
ERA VETERANS. Veterans.
2822.303 Waivers....................... Not Replaced.
2823 ENVIRONMENT CONSERVATION, Renamed ENVIRONMENT, ENERGY AND
OCCUPATIONAL SAFETY, AND DRUG-FREE WATER EFFICIENCY, RENEWABLE
WORKPLACE. ENERGY TECHNOLOGIES,
OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE.
2823.1 Pollution Control and Clean Air Not Replaced.
and Water.
2823.107 Compliance Responsibilities... Not Replaced.
2823.303-70 Departmental Contract Renamed Unsafe Conditions Due
Clause. to Hazardous Material.
2823.4 USE OF RECOVERED MATERIALS...... Now ``USE OF RECOVERED
MATERIALS AND BIOBASED
PRODUCTS''.
2823.403 Policy........................ Not Replaced.
2823.404 Procedures.................... Renamed ``Agency affirmative
procurement programs''.
Part 2824 Protection of Privacy and Not Replaced.
Freedom of Information.
2824.2 Freedom of Information Act...... Not Replaced.
2824.202 Policy........................ Not Replaced.
2825.203 Evaluating Offers............. Now 2825.204.
2825.3 BALANCE OF PAYMENT PROGRAM...... Not Replaced.
[[Page 58550]]
2825.3 Policy.......................... [There were two sections
labelled 2825.3] Not Replaced.
2825.9 Additional Foreign Acquisition Not Replaced.
Clause.
2825.901 Omission of Audit Clause...... Not Replaced.
2828.1 Bonds........................... Now BONDS AND OTHER FINANCIAL
PROTECTIONS.
2828.2 Sureties........................ Now SURETIES AND OTHER SECURITY
FOR BONDS.
2831.205-32 Precontract Costs.......... Not Replaced.
2832.903 Policy [under PROMPT PAYMENT]. Renamed ``Responsibilities.''
2842.15 Contractor Performance Not Replaced.
Information.
2842.1502 Policy....................... Not Replaced.
2842.1503 Procedures................... Not Replaced.
2845.105 Records of Government Property Renamed, but still at 2845.105.
2845.505-14 Report of Government Renamed, now at 2845.105-70.
Property.
2845.6 Reporting, Redistribution, and Now part of 2845.105-70.
Disposal of Contactor Inventory.
2845.603 Disposal Methods.............. Not Replaced.
2852.102-270 Incorporation in Full Text Not Replaced.
2852.201-70 Contracting Officer's Renamed Contracting Officer's
Technical Representative. Representative (COR).
2852.211-70 Brand Name or Equal........ Not Replaced.
------------------------------------------------------------------------
[FR Doc. 2021-21844 Filed 10-20-21; 8:45 am]
BILLING CODE 4410-AR-P