[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Proposed Rules]
[Pages 9005-9021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01751]
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DEPARTMENT OF AGRICULTURE
48 CFR Chapter 4
[Docket No. USDA-2022-0002]
RIN 0599-AA28
Agriculture Acquisition Regulation (AGAR)
AGENCY: United States Department of Agriculture.
ACTION: Proposed rule.
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SUMMARY: The United States Department of Agriculture (USDA) is
proposing to make amendments to the Agriculture Acquisition Regulation
(AGAR) to align the AGAR with changes to acquisition law, regulations,
and internal USDA policies since the AGAR's last major revision in
1996.
DATES: Interested parties should submit written comments on or before
March 21, 2022 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to the proposed rule to the
Federal eRulemaking portal at https://www.regulations.gov by searching
for ``AGAR.'' Follow the instructions provided on the ``Comment Now''
screen. If your comment cannot be submitted using Regulations.gov,
email the point of contact in the FOR FURTHER INFORMATION CONTACT
section of this document for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Crandall Watson, Chief, Procurement
Policy Division, Office of Contracting and Procurement, Telephone:
(202) 720-7529; Email: [email protected].
SUPPLEMENTARY INFORMATION: This rulemaking is necessary to update the
AGAR located in 48 CFR parts 401 through 499.
I. Background
The Agriculture Acquisition Regulation (AGAR) implements the
Federal Acquisition Regulation (FAR) (48 CFR ch. 1) where further
implementation is needed, and supplements the FAR when coverage is
needed for subject matter not covered by the FAR. The Department of
Agriculture (USDA) identified parts of the AGAR which required updating
or streamlining based on updates to acquisition law, regulations, and
internal USDA policies. USDA's review indicated that almost all parts
of the AGAR required revision. Accordingly, USDA has reviewed and
revised substantially all parts of the AGAR.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule is an internal rule of agency procedure and
therefore is not a significant regulatory action under Executive Order
12866.
III. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to the notice and comment
rulemaking requirements under the Administrative Procedure Act (5
U.S.C. 553) or any other statute. Under section 605(b) of the RFA,
however, if the head of an agency certifies that a rule will not have a
significant impact on a substantial number of small entities, the
statute does not require the agency to prepare a regulatory flexibility
analysis.
The proposed changes would update the AGAR to bring it up to date
and to make sure correspondence with the FAR is maintained. The
proposed rule would amend the AGAR to correct and update internal
references to the FAR; to remove sections supplementing material that
has been removed from the FAR; and to update designations of USDA.
Therefore, pursuant to section 605(b), USDA certifies that this
proposed rule, if promulgated, will not have a significant impact on a
substantial number of small entities.
IV. Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects
48 CFR Part 401
Government procurement, Reporting and recordkeeping requirements.
48 CFR Parts 402, 405 Through 406, 411 Through 416, 434 Through 437,
and 447 Through 470
Government procurement.
[[Page 9006]]
48 CFR Part 403
Antitrust, Conflict of interest, Government procurement.
48 CFR Part 404
Classified information, Government procurement.
48 CFR Part 408
Government procurement, Printing.
48 CFR Part 419
Government procurement, Small businesses.
48 CFR Part 422
Equal employment opportunity, Government procurement, Individuals
with disabilities, Labor.
48 CFR Part 423
Air pollution control, Government procurement, Occupational safety
and health, Water pollution control.
48 CFR Part 425
Foreign currencies, Foreign trade, Government procurement.
48 CFR Part 428
Government procurement, Insurance, Surety bonds.
48 CFR Parts 430 Through 432
Accounting, Government procurement.
48 CFR Part 433
Administrative practice and procedure, Government procurement.
48 CFR Part 445
Government procurement, Government property.
0
For the reasons set out in the preamble, and under the authority of 5
U.S.C. 301 and 40 U.S.C. 486(c), USDA proposes to revise 48 CFR chapter
4 to read as follows.
CHAPTER 4--DEPARTMENT OF AGRICULTURE
SUBCHAPTER A--GENERAL
PART 400--[RESERVED]
PART 401--AGRICULTURE ACQUISITION REGULATION SYSTEM
PART 402--DEFINITIONS OF WORDS AND TERMS
PART 403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS
PART 404--ADMINISTRATIVE AND INFORMATION MATTERS
SUBCHAPTER B--ACQUISITION PLANNING
PART 405--PUBLICIZING CONTRACT ACTIONS
PART 406--COMPETITION REQUIREMENTS
PART 407--[RESERVED]
PART 408--REQUIRED SOURCES OF SUPPLIES AND SERVICES
PARTS 409 and 410--[RESERVED]
PART 411--DESCRIBING AGENCY NEEDS
PART 412--ACQUISITION OF COMMERICAL ITEMS
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 413--SIMPLIFIED ACQUISITION PROCEDURES
PART 414--SEALED BIDDING
PART 415--CONTRACTING BY NEGOTIATION
PART 416--TYPES OF CONTRACTS
PARTS 417 AND 418--[RESERVED]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 419--SMALL BUSINESS PROGRAMS
PARTS 420 AND 421--[RESERVED]
PART 422--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
PART 423--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
PART 424--[RESERVED]
PART 425--FOREIGN ACQUISITION
PART 426--[RESERVED]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 427--[RESERVED]
PART 428--BONDS AND INSURANCE
PART 429--[RESERVED]
PART 430--COST ACCOUNTING STANDARDS ADMINISTRATION
PART 431--CONTRACT COST PRINCIPLES AND PROCEDURES
PART 432--CONTRACT FINANCING
PART 433--PROTESTS, DISPUTES AND APPEALS
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 434--MAJOR SYSTEM ACQUISITION
PART 435--[RESERVED]
PART 436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
PART 437--SERVICE CONTRACTING
PARTS 438 THROUGH 441--[RESERVED]
SUBCHAPTER G--CONTRACT MANAGEMENT
PARTS 442 THROUGH 444--[RESERVED]
PART 445--GOVERNMENT PROPERTY
PARTS 446 THROUGH 448--[RESERVED]
PART 449--TERMINATION OF CONTRACTS
PART 450--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
PART 451--[RESERVED]
SUBCHAPTER H--CLAUSES AND FORMS
PART 452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
PARTS 453 THROUGH 469--[RESERVED]
SUBCHAPTER I--FOOD ASSISTANCE PROGRAMS
PART 470--COMMODITY ACQUISITIONS
PARTS 471 THROUGH 499--[RESERVED]
SUBCHAPTER A--GENERAL
PART 400--[RESERVED]
PART 401--AGRICULTURE ACQUISITION REGULATION SYSTEM
Subpart 401.1--Purpose, Authority, Issuance
Sec.
401.101 Purpose.
401.103 Authority.
401.104 Applicability.
401.105 Issuance.
401.105-1 Publication and code arrangement.
401.105-2 Arrangement of regulations.
401.105-3 Copies.
401.170 Electronic access to regulatory information.
Subpart 401.2--Administration
401.201 Maintenance of the FAR.
401.201-1 The two councils.
Subpart 401.3--Agency Acquisition Regulations
401.301 Policy.
401.304 Agency control and compliance procedures.
401.370 Exclusions.
401.371 USDA Contracting Desk Book.
401.372 Departmental directives.
Subpart 401.4--Deviations From the FAR and AGAR
401.402 Policy.
401.403 Individual deviations.
401.404 Class deviations.
Subpart 401.6--Career Development, Contracting Authority, and
Responsibilities
401.601 General.
401.602 Contracting officers.
401.602-3 Ratification of unauthorized commitments.
401.603 Selection, appointment, and termination of appointment for
contracting officers.
401.603-1 General.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 401.1--Purpose, Authority, Issuance
401.101 Purpose.
The United States Department of Agriculture's (USDA's) Acquisition
Regulation (AGAR) provides for the codification and publication of
uniform policies and procedures for acquisitions by contracting
activities within USDA. The purpose of the AGAR is to implement the
Federal Acquisition Regulation (FAR), where further implementation is
needed, and to supplement the FAR when coverage is needed for subject
matter not covered in the FAR. The AGAR is not by itself a complete
document, as it must be used in conjunction with the FAR.
[[Page 9007]]
401.103 Authority.
The AGAR and subsequent amendments are issued under 5 U.S.C. 301
and 40 U.S.C. 486(c). The Senior Procurement Executive (SPE) has the
delegated authority to transmit Departmental acquisition regulations.
401.104 Applicability.
The FAR and AGAR apply to all USDA acquisitions of supplies and
services (including construction) which obligate appropriated funds,
unless otherwise specified or excepted by law.
401.105 Issuance.
401.105-1 Publication and code arrangement.
(a) The AGAR is codified in the Code of Federal Regulations (CFR)
as chapter 4 of title 48, Federal Acquisition Regulations System, to
implement and supplement chapter 1 which constitutes the FAR. Parts 400
through 499 have been assigned to USDA by the Office of the Federal
Register.
(b) The AGAR and its subsequent changes are published in:
(1) Daily issues of the Federal Register;
(2) Cumulative form in the CFR; and
(3) Electronic form on the USDA Departmental Administration
procurement website (see AGAR 401.170).
(c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C.
553, provides an exception from the standard public rulemaking
procedures to the extent that the rule involves a matter relating to
agency management or personnel or to public property, loans, grants,
benefits, or contracts.
(d) The AGAR may be revised from time to time in accordance with
the rulemaking procedures of the Administrative Procedure Act. The USDA
is also required to publish for public comment procurement regulations
in the Federal Register, pursuant to the Office of Federal Procurement
Policy Act (41 U.S.C. 418b), and FAR 1.301.
401.105-2 Arrangement of regulations.
AGAR coverage parallels the FAR in format, arrangement, and
numbering system. However, subdivisions below the section and
subsection levels may not always correlate directly to FAR designated
paragraphs and subparagraphs.
401.105-3 Copies.
Copies of the AGAR published in the CFR form may be purchased from
the Superintendent of Documents, Government Printing Office,
Washington, DC 20402. Requests should reference chapter 4 of title 48
CFR.
401.170 Electronic access to regulatory information.
The USDA procurement website provides access to the AGAR, AGAR
amendments (circulars), the USDA Contracting Desk Book, and other USDA
procurement policy and guidance.
Subpart 401.2--Administration
401.201 Maintenance of the FAR.
401.201-1 The two councils.
(a) USDA's representative on the Civilian Agency Acquisition
Council is designated by the SPE.
(b) The USDA Office of Contracting and Procurement, Procurement
Policy Division will coordinate proposed FAR revisions within USDA.
Subpart 401.3--Agency Acquisition Regulations
401.301 Policy.
(a) The SPE, subject to the authorities in AGAR 401.103 and FAR
1.301, may issue and publish Departmental regulations, that together
with the FAR constitute Department-wide policies, procedures,
solicitation provisions, and contract clauses governing the contracting
process or otherwise controlling the relationship between USDA
(including any of its contracting activities) and contractors or
prospective contractors.
(b) Each designated Mission Area senior contracting official is
authorized to issue or authorize the issuance of, at any organizational
level, internal guidance which does not have a significant effect
beyond the internal operating procedures of the activity, or a
significant cost or administrative impact on offerors or contractors.
Internal guidance issued by contracting activities will not be
published in the Federal Register. Mission Area contracting leadership
shall ensure that the guidance, procedures, or instructions issued--
(1) Are consistent with the policies and procedures contained in
this regulation and the USDA Contracting Desk Book;
(2) Follow the format, arrangement, and numbering system of this
regulation to the extent practicable;
(3) Contain no material which duplicates, paraphrases, or is
inconsistent with this regulation; and
(4) Are numbered and identified by use of alphabetical suffices to
the chapter number as follows:
(i) Marketing and Regulatory Programs (MRP).
(ii) Research, Education and Economics (REE).
(iii) Food, Nutrition and Consumer Services (FNCS).
(iv) Natural Resources and Environment (NRE).
(v) Farm Production and Conservation (FPAC).
(vi) Food Safety and Inspection Services (FSIS).
(vii) [Reserved]
(viii) Departmental Administration (DA) or Departmental Management
(DM).
(ix) [Reserved]
(x) Rural Development (RD).
401.304 Agency control and compliance procedures.
(a) The AGAR System is under the direct oversight and control of
the SPE, who is responsible for review and issuance of all Department-
wide acquisition regulations published in the Federal Register to
assure compliance with FAR part 1.
(b) The SPE is also responsible for review and issuance of
unpublished, Department-wide internal guidance under the AGAR System.
(c) The Mission Area senior contracting official is responsible for
establishment and implementation of formal procedures for oversight and
control of unpublished internal guidance issued within the contracting
activity to implement FAR or AGAR requirements. These procedures shall
be subject to the review and approval by the SPE.
(d) The SPE is responsible for evaluating coverage under the AGAR
system to determine applicability to other agencies and for
recommending coverage to the FAR Secretariat for inclusion in the FAR.
(e) Recommendations for revision of existing FAR coverage or new
FAR coverage shall be submitted by the Mission Area senior contracting
official to the SPE for further action.
401.370 Exclusions.
Subject to the policies of FAR 1.3, certain USDA acquisition
policies and procedures may be excluded from the AGAR under
appropriately justified circumstances, such as:
(a) Subject matter which is effective for a period less than 12
months.
(b) Subject matter which is instituted on an experimental basis for
a reasonable period.
(c) Acquisition procedures instituted on an interim basis to comply
with the requirements of statute, regulation, Executive Order, Office
of Management and Budget (OMB) Circular, or Office of Federal
Procurement Policy (OFPP) Policy Letter.
[[Page 9008]]
401.371 USDA Contracting Desk Book.
(a) The SPE may issue and update the USDA Contracting Desk Book,
consistent with the policies of the FAR and the AGAR, for the following
purposes:
(1) To communicate Department-wide policy and/or procedural
guidance to contracting activities;
(2) To delegate to procurement officials the authority to make
determinations or to take action to implement the policies of the FAR
or the AGAR; and,
(3) To establish internal policy and procedures on an interim
basis, prior to incorporation in the AGAR or in a Departmental
Directive.
(b) The USDA Contracting Desk Book is only available in electronic
format on the USDA procurement website.
401.372 Departmental directives.
Subject to the policies of FAR 1.3, USDA from time to time may
issue internal directives to establish procedures, standards, guidance,
methods of performing duties, functions, or operations. Such directives
include Departmental Regulations (DRs), Departmental Notices, and
Secretary's Memoranda.
Subpart 401.4--Deviations From the FAR and AGAR
401.402 Policy.
Requests for authority to deviate from the provisions of the FAR or
the AGAR shall be submitted in writing as far in advance of the
situation as time will permit. Each request for deviation shall contain
the following:
(a) A statement of the deviation desired, including identification
of the specific paragraph number(s) of the FAR and AGAR;
(b) The reason why the deviation is considered necessary or would
be in the best interest of the Government;
(c) If applicable, the name of the contractor and identification of
the contract affected;
(d) A statement as to whether the deviation has been requested
previously and, if so, circumstances of the previous request;
(e) A description of the intended effect of the deviation;
(f) A statement of the period of time for which the deviation is
needed; and
(g) Any pertinent background information which will contribute to a
full understanding of the desired deviation.
401.403 Individual deviations.
In individual cases, deviations from either the FAR or the AGAR
will be authorized only when essential to effect a necessary
acquisition or where special circumstances make such deviations clearly
in the best interest of the Government. Except for cost principles, the
Head of the Contracting Activity (HCA) may approve individual
deviations from the AGAR, after coordinating with the Office of General
Counsel (OGC) and the SPE. No deviations from the FAR or AGAR may be
authorized by an individual contracting officer or an individual
contracting office. A copy of each deviation and its supporting
documents shall be provided to the SPE. Deviations from the FAR shall
not be made unless such action is authorized by the SPE after
consultation with the OGC and any other appropriate office, based on a
written justification stating clearly the special circumstances
involved.
401.404 Class deviations.
Where deviations from the FAR or AGAR are considered necessary for
classes of contracts, requests for authority to deviate shall be
submitted in writing to the SPE for approval. The SPE may authorize
class deviations from the FAR without consulting the Chairperson of the
Civilian Agency Acquisition Council (CAAC) where urgency precludes
consultation. The SPE shall subsequently inform the Chairperson of the
CAAC of the deviation, including the circumstances under which it was
required.
Subpart 401.6--Career Development, Contracting Authority, and
Responsibilities
401.601 General.
(a) The authority and responsibility vested in the Secretary to
manage USDA's acquisition function is delegated through the Assistant
Secretary for Administration to the SPE. This broad authority includes,
but is not limited to, the following responsibilities:
(1) Prescribing and publishing Departmental acquisition policies,
regulations, and procedures.
(2) Taking any necessary actions consistent with policies,
regulations, and procedures with respect to purchases, contracts,
leases, and other transactions.
(3) Designating contracting officers.
(4) Establishing clear lines of contracting authority.
(5) Evaluating and monitoring the performance of USDA's acquisition
system.
(6) Managing and enhancing career development of the acquisition
workforce.
(7) Participating in the development of Government-wide acquisition
policies, regulations, and standards; and determining specific areas
where government-wide performance standards should be established and
applied.
(8) Determining areas of Department-unique standards and developing
unique Department-wide standards.
(9) Certifying to the Secretary that the acquisition system meets
approved standards.
(b) The SPE may delegate specified contracting authority and the
responsibility to manage related acquisition functions.
(c) Unless prohibited by the FAR, the AGAR, or by other applicable
statutes and regulations, the SPE may redelegate specified authority to
make determinations in order to implement the policies and procedures
of the FAR. Such delegations shall be in writing but need not be
published. Such delegations may be made by the HCA if authority has
been delegated by the SPE.
401.602 Contracting officers.
401.602-3 Ratification of unauthorized commitments.
(a) Ratification means the signed, documented action taken by an
authorized official to approve and sanction a previously unauthorized
commitment. Unauthorized commitment means an agreement made by a
Government representative who lacked the authority to enter into a
contract on behalf of the Government.
(b) Procedures are in accordance with the USDA Contracting Desk
Book, Part 401.602-3.
401.603 Selection, appointment, and termination of appointment for
contracting officers.
401.603-1 General.
The SPE may delegate contracting authority to the extent authorized
by general written delegation of acquisition authority appointing
qualified individuals as contracting officers, in accordance with
selection and appointment procedures as stated in the USDA Contracting
Desk Book.
PART 402--DEFINITIONS OF WORDS AND TERMS
Subpart 402.1--Definitions
Sec.
402.101 Definitions.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
[[Page 9009]]
Subpart 402.1--Definitions
402.101 Definitions.
Acquisition official means an individual who has been delegated
authority to manage or to exercise acquisition functions and
responsibilities.
Agency head or head of the agency means the Secretary of
Agriculture (Secretary), Deputy Secretary, or the Assistant Secretary
for Administration (ASA).
Head of the Contracting Activity (HCA) means the official with
overall responsibility of one or more USDA contracting activities.
Mission Area senior contracting official means the official
designated by the Senior Procurement Executive or Head of the
Contracting Activity with specific responsibilities within an
individual Mission Area's contracting activity.
Senior Procurement Executive (SPE) means the agency official
appointed as such by the Head of the Agency pursuant to Executive Order
12931. The Director, Office of Contracting and Procurement, has been
designated as the USDA SPE.
PART 403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS
Subpart 403.1--Safeguards
Sec.
403.101 Standards of conduct.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 403.1--Safeguards
403.101 Standards of conduct.
(a) The standards of conduct for USDA procurement officials are the
uniform standards established by the Office of Government Ethics in 5
CFR part 2635, Standards of Ethical Conduct for Employees of the
Executive Branch, and FAR 3.104, Procurement Integrity.
(b) Procurement officials and other employees who require advice
concerning the application of standards of conduct to any acquisition
issue shall obtain opinions from the USDA Office of Ethics or the
ethics advisory officials within their agency.
PART 404--ADMINISTRATIVE AND INFORMATION MATTERS
Subpart 404.8--Government Contract Files
Sec.
404.804 Closeout of contract files.
Subpart 404.13--Personal Identity Verification
404.1303 Contract clause.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 404.8--Government Contract Files
404.804 Closeout of Contract Files.
The contracting officer shall insert the clause at AGAR 452.204-70,
Modification for Contract Closeout, in all solicitations and contracts
that use simplified acquisition procedures.
Subpart 404.13--Personal Identity Verification
404.1303 Contract clause.
FAR 4.13, Personal Identity Verification, establishes the policy
and use requirements for FAR 52.204-9. The contracting officer shall
insert a clause that contains language similar to that in AGAR 452.204-
71 in all covered solicitations and contracts which include FAR 52.204-
9.
SUBCHAPTER B--ACQUISITION PLANNING
PART 405--PUBLICIZING CONTRACT ACTIONS
Subpart 405.4--Release of Information
Sec.
405.404 Release of long-range acquisition estimates.
405.404-1 Release procedures.
Subpart 405.5--Paid Advertisements
405.502 Authority.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 405.4--Release of Information
405.404 Release of long-range acquisition estimates.
405.404-1 Release procedures.
The HCA is the agency head designee pursuant to FAR 5.404-1.
Subpart 405.5--Paid Advertisements
405.502 Authority.
The authority vested in the HCA to authorize publication of paid
advertisements in newspapers (44 U.S.C. 3702) is delegated, with power
of redelegation, to Mission Area senior contracting officials. A
Mission Area senior contracting official's redelegation of this
authority shall be in writing.
PART 406--COMPETITION REQUIREMENTS
Subpart 406.2--Full and Open Competition After Exclusion of Sources
Sec.
406.202 Establishing or maintaining alternative sources.
Subpart 406.3--Other Than Full and Open Competition
406.302 Circumstances permitting other than full and open
competition.
406.302-70 Otherwise authorized by law.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 406.2--Full and Open Competition After Exclusion of Sources
406.202 Establishing or maintaining alternative sources.
The SPE is authorized to make determinations pursuant to FAR
6.202(a) and sign the determination and findings required by FAR
6.202(b).
Subpart 406.3--Other Than Full and Open Competition
406.302 Circumstances permitting other than full and open competition.
406.302-70 Otherwise authorized by law.
(a) Authority. Section 1472 of the National Agricultural Research,
Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act)
authorizes the Secretary of Agriculture to award contracts, without
competition, to further research, extension, or teaching programs in
the food and agricultural sciences.
(b) Limitations. The use of this authority is limited to those
instances where it can be determined that contracting without full and
open competition is in the best interest of the Government and
necessary to the accomplishment of the research, extension, or teaching
program. Therefore:
(1) Contracts under the authority of the Act shall be awarded on a
competitive basis to the maximum practicable extent.
(2) When full and open competition is not deemed appropriate, the
contracting officer shall make a written justification on a case-by-
case basis in accordance with procedures in FAR 6.303 and 6.304.
PART 407--[RESERVED]
PART 408--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 408.8--Acquisition of Printing and Related Supplies
408.802 Policy.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
[[Page 9010]]
Subpart 408.8--Acquisition of Printing and Related Supplies
408.802 Policy.
The Director, Office of Communications (OC) has been designated as
the central printing authority in USDA, with the authority to represent
the USDA before the Joint Committee on Printing (JCP), the Government
Printing Office, and other Federal and State agencies on all matters
related to printing.
PARTS 409 AND 410--[RESERVED]
PART 411--DESCRIBING AGENCY NEEDS
Subpart 411.1--Selecting and Developing Requirements Documents
Sec.
411.101 Order of precedence for requirements documents.
Subpart 411.2--Using and Maintaining Requirements Documents
411.202 Maintenance of standardization documents.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 411.1--Selecting and Developing Requirements Documents
411.101 Order of precedence for requirements documents.
(a) OMB Circular A-119 establishes a Federal policy requiring the
use of voluntary consensus standards in lieu of government-unique
standards except where inconsistent with law or otherwise impractical.
(b) An HCA is authorized to submit the determination required by
OMB Circular A-119 that a voluntary standard is inconsistent with law
or otherwise impracticable. The HCA must submit the determination to
OMB through the National Institute of Standards and Technology (NIST)
in accordance with the Circular with a copy provided to the SPE.
Subpart 411.2--Using and Maintaining Requirements Documents
411.202 Maintenance of standardization documents.
Recommendations for changes to standardization documents are to be
submitted through the SPE, who will coordinate the submission of these
recommendations to the cognizant preparing activity.
PART 412--ACQUISITION OF COMMERICAL ITEMS
Subpart 412.1--Acquisition of Commercial Items--General
Sec.
412.101 Policy.
Subpart 412.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
412.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 412.1--Acquisition of Commercial Items--General
412.101 Policy.
USDA has authority to issue rated orders under section 202(c) of
Executive Order 13603, and the Defense Production Act of 1950, as
Amended (DPA), 50 U.S.C. 4501 et seq. USDA has been given authority by
the Secretary of Homeland Security for priorities and allocations of
support for agriculture and food critical infrastructure, protection,
and restoration: Programs to protect or restore the agriculture and
food system from terrorist attacks, major disasters, and other
emergencies.
Subpart 412.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
412.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
The HCA is authorized to approve waivers in accordance with FAR
12.302(c). The approved waiver may be either for an individual contract
or for a class of contracts for the specific item. The approved waiver
and supporting documentation shall be incorporated into the contract
file.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 413--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 413.3--Simplified Acquisition Methods
Sec.
413.302 Purchase orders.
413.302-5 Clauses.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 413.3--Simplified Acquisition Methods
413.302 Purchase orders.
413.302-5 Clauses.
The contracting officer shall insert the clause at AGAR 452.204-70,
Modification for Contract Closeout, in all solicitations and contracts
that use simplified acquisition procedures.
PART 414--SEALED BIDDING
Subpart 414.4--Opening of Bids and Award of Contract
Sec.
414.404 Rejection of bids.
414.407 Mistakes in bids.
414.407-3 Other mistakes disclosed before award.
414.407-4 Mistakes after award.
414.409 Information to bidders.
414.409-2 Award of classified contracts.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 414.4--Opening of Bids and Award of Contract
414.404 Rejection of bids.
414.404-1 Cancellation of invitations after opening.
An acquisition official at a level above the contracting officer is
authorized to request the determinations under FAR 14.404-1(c) and
(e)(1).
414.407 Mistakes in bids.
414.407-3 Other mistakes disclosed before award.
The authority to make the determinations under FAR 14.407-3(a),
(b), and (d) is delegated, without power of redelegation, to the HCA.
The authority to make the determination under FAR 14.407-3(c) is
delegated to the contracting officer. Each determination pursuant to
FAR 14.407-3 shall have the concurrence of the Office of the General
Counsel (OGC).
414.407-4 Mistakes after award.
If a mistake in bid is disclosed after award, the contracting
officer shall make a final determination in accordance with the
provisions of FAR 14.407-4 (b) and (c) and shall coordinate each
proposed determination with OGC. Such coordination shall, at a minimum,
consist of the contracting officer providing the proposed determination
and the case file to OGC for comment.
414.409 Information to bidders.
414.409-2 Award of classified contracts.
Disposition of classified information shall be in accordance with
Departmental Regulation and Manual (3400-001 Series) and in accordance
with direction issued by the USDA Office of Homeland Security (OHS),
Personnel and Document Security Division.
[[Page 9011]]
PART 415--CONTRACTING BY NEGOTIATION
Subpart 415.2--Solicitation and Receipt of Proposals and Information
Sec.
415.204 Contract format.
Subpart 415.3--Source Selection
415.305 Proposal evaluation.
Subpart 415.6--Unsolicited Proposals
415.604 Agency points of contact.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 415.2--Solicitation and Receipt of Proposals and
Information
415.204 Contract format.
The HCA is authorized to exempt contracts from the uniform contract
format.
Subpart 415.3--Source Selection
415.305 Proposal evaluation.
Each Mission Area senior contracting official is responsible for
establishing procedures regarding the release of cost information to
the members of the technical evaluation team per FAR 15.305(a)(4).
Subpart 415.6--Unsolicited Proposals
415.604 Agency points of contact.
Each Mission Area senior contracting official is responsible for
establishing points of contact for the control of unsolicited
proposals. An unsolicited proposal must be formally submitted to the
Agency by way of the point of contact.
PART 416--TYPES OF CONTRACTS
Subpart 416.1--Selecting Contract Types
Sec.
416.102 Policies.
Subpart 416.2--Fixed-Price Contracts
416.203 Fixed-price contracts with economic price adjustment.
416.203-4 Contract clauses.
Subpart 416.6--Time-and-Materials, Labor-Hour, and Letter Contracts
416.603 Letter contracts.
416.603-2 Application.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 416.1--Selecting Contract Types
416.102 Policies.
The contracting officer shall insert the clause at AGAR 452.204-70,
Modification for Contract Closeout, in all solicitations and contracts
that use other than cost reimbursement contract types.
Subpart 416.2--Fixed-Price Contracts
416.203 Fixed-price contracts with economic price adjustment.
416.203-4 Contract clauses.
An economic price adjustment clause based on cost indexes of labor
or material may be used under the conditions listed in FAR 16.203-4(d)
after HCA approval and consultation with the Office of the General
Counsel (OGC).
Subpart 416.6--Time-and-Materials, Labor-Hour, and Letter Contracts
416.603 Letter contracts.
416.603-2 Application.
The HCA is authorized to extend the period for defining a letter
contract required by FAR 16.603-2(c) in extreme cases where it is
determined in writing that such action is in the best interest of the
Government.
PARTS 417 AND 418--[RESERVED]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 419--SMALL BUSINESS PROGRAMS
Subpart 419.2--Policies
Sec.
419.201 General Policy.
419.201-71 Small business coordinators.
419.201-72 Reports.
Subpart 419.6--Certificates of Competency and Determinations of
Responsibility
419.602 Procedures.
419.602-3 Resolving differences between the agency and the Small
Business Administration.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 419.2--Policies
419.201 General policy.
419.201-71 Small business coordinators.
The Mission Area senior contracting official shall designate, in
writing, small business coordinator(s). The number of coordinators
shall be determined by the Mission Area senior contracting official and
sufficient for the number of contracting officers or contracting
offices.
419.201-72 Reports.
The Office of Small & Disadvantaged Business Utilization (OSDBU)
Director shall be responsible for submitting reports concerning USDA's
progress and achievements in the procurement preference program.
Subpart 419.6--Certificates of Competency and Determinations of
Responsibility
419.602 Procedures.
419.602-3 Resolving differences between the agency and the Small
Business Administration.
The HCA is authorized to appeal the issuance of a Certificate of
Competency (COC) to SBA as provided by FAR 19.602-3(a).
PARTS 420 AND 421--[RESERVED]
PART 422--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 422.3--Contract Work Hours and Safety Standards Act
Sec.
422.302 Liquidated damages and overtime pay.
Subpart 422.4--Labor Standards for Contracts Involving Construction
422.404 Construction Wage Rate Requirements statute wage
determinations.
422.404-6 Modifications of wage determinations.
422.406 Administration and enforcement.
422.406-8 Investigations.
Subpart 422.8--Equal Employment Opportunity
422.804 Affirmative action programs.
422.804-2 Construction.
422.807 Exemptions.
Subpart 422.13--Equal Opportunity for Veterans
422.1305 Waivers.
Subpart 422.14--Employment of Workers With Disabilities
422.1403 Waivers.
Subpart 422.70--Labor Law Violations
422.7001 Contract clause.
422.7002 Contract clause.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 422.3--Contract Work Hours and Safety Standards Act
422.302 Liquidated damages and overtime pay.
The Mission Area senior contracting official is authorized to
review determinations of liquidated damages due under section 104(c) of
the Contract Work Hours and Safety Standards Act, and to recommend
remedial action, if appropriate, in accordance with FAR 22.302(c).
Contractors or subcontractors may request review of administrative
determinations of liquidated damages by written notice to the
contracting officer. The contracting officer shall promptly forward
appeals of liquidated
[[Page 9012]]
damages determinations to the Mission Area senior contracting official.
Subpart 422.4--Labor Standards for Contracts Involving Construction
422.404 Construction Wage Rate Requirements statute wage
determinations.
422.404-6 Modifications of wage determinations.
The Mission Area senior contracting official is authorized to
process the request for extension of the 90-day period for award after
bid opening as provided in FAR 22.404-6(b)(6).
422.406 Administration and enforcement.
422.406-8 Investigations.
The HCA is authorized to submit reports of violations to the agency
head in accordance with FAR 22.406-8(d).
Subpart 422.8--Equal Employment Opportunity
422.804 Affirmative action programs.
422.804-2 Construction.
The Mission Area senior contracting official shall ensure that each
contracting office awarding nonexempt construction contracts maintains
a current listing of covered geographical areas subject to affirmative
action requirements specifying goals for minorities and women in
covered construction trades, as provided in FAR 22.804-2(b).
422.807 Exemptions.
The HCA oversees exemptions of all or part of the requirements of
E.O. 11246 pursuant to FAR 22.807(c).
Subpart 422.13--Equal Opportunity for Veterans
422.1305 Waivers.
The Assistant Secretary for Administration (ASA) is authorized to
make the waiver determination in FAR 22.1305(b) that a contract is
essential to the national security. The waiver shall be prepared for
the ASA's signature and submitted by the Mission Area senior
contracting official to the SPE for referral to the ASA.
Subpart 422.14--Employment of Workers With Disabilities
422.1403 Waivers.
The ASA is authorized to make the waiver determinations under FAR
22.1403(a) and FAR 22.1403(b) with the concurrence of the Deputy
Assistant Secretary for Federal Contract Compliance Programs,
Department of Labor. The waiver shall be prepared for the ASA's
signature and submitted by the Mission Area senior contracting official
to the SPE for referral to the ASA.
Subpart 422.70--Labor Law Violations
422.7001 Contract clause.
The clause at AGAR 452.222-70, Labor Law Violations, is to be
inserted in solicitations and contracts that exceed the simplified
acquisition threshold. Contracting officers shall work with their
Mission Area senior contracting official to report violations to the
HCA within two working days following notification by the contractor.
Assertions pertaining to AGAR 452.222-70 are binding and incorporated
by reference into the contract.
422.7002 Contract clause.
The clause at AGAR 452.222-71, Past Performance Labor Law
Violations, is to be inserted in solicitations that exceed the
simplified acquisition threshold. Assertions pertaining to AGAR
452.222-71 are binding and incorporated by reference into the contract.
PART 423--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 423.4--Use of Recovered Materials and Biobased Products
Sec.
423.404 Agency affirmative procurement programs.
Subpart 423.5--Drug-Free Workplace
423.506 Suspension of payments, termination of contract, and
debarment and suspension actions.
Subpart 423.6--Notice of Radioactive Material
423.601 Requirements.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 423.4--Use of Recovered Materials and Biobased Products
423.404 Agency affirmative procurement programs.
The USDA affirmative procurement program (APP) policy applicable to
all USDA agencies and staff offices is hereby established. Components
of the APP are in the USDA Contracting Desk Book, 423.404.
Subpart 423.5--Drug-Free Workplace
423.506 Suspension of payments, termination of contract, and debarment
and suspension actions.
The SPE will submit the request for a waiver to the agency head
with a recommendation for action per FAR 23.506(e).
Subpart 423.6--Notice of Radioactive Material
423.601 Requirements.
The HCA shall establish a system of instructions to identify the
installation/facility radiation protection officer.
PART 424--[RESERVED]
PART 425--FOREIGN ACQUISITION
Subpart 425.6--American Recovery and Reinvestment Act--Buy American
Statute--Construction Materials
Sec.
425.603 Exceptions.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 425.6--American Recovery and Reinvestment Act--Buy American
Statute--Construction Materials
425.603 Exceptions.
The Secretary, without power of redelegation, has the authority to
make the necessary determination(s) and authorize award(s) of
contract(s) in accordance with FAR 25.603(b).
PART 426--[RESERVED]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 427--[RESERVED]
PART 428--BONDS AND INSURANCE
Subpart 428.1--Bonds and Other Financial Protections
Sec.
428.101 Bid guarantees.
428.101-1 Policy on use.
428.106 Administration.
428.106-6 Furnishing information.
Subpart 428.2--Sureties and Other Security for Bonds
428.203 Individual sureties.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 428.1--Bonds and Other Financial Protections
428.101 Bid guarantees.
428.101-1 Policy on use.
The SPE may authorize class waivers of the requirement to obtain
bid guarantees per FAR 28.101-1(c).
428.106 Administration.
428.106-6 Furnishing information.
HCAs or their designees may furnish certified copies of bonds and
the contracts for which they were given as
[[Page 9013]]
provided by FAR 28.106-6(c). Requesters may be required to pay costs of
certification and copying established by the Departmental Fee Schedule
for records requests (7 CFR part 1, subpart A, appendix A).
Subpart 428.2--Sureties and Other Security for Bonds
428.203 Individual sureties.
Evidence of possible criminal or fraudulent activities by an
individual surety shall be reported to the OIG in accordance with
Departmental Regulations (1700 series). The Mission Area senior
contracting official shall establish procedures to ensure protection
and conveyance of deposited securities of the types listed in FAR
28.204-1 through 28.204-3.
PART 429--[RESERVED]
PART 430--COST ACCOUNTING STANDARDS ADMINISTRATION
Subpart 430.2--CAS Program Requirements
Sec.
430.201 Contract requirements.
430.201-5 Waiver.
430.202 Disclosure requirements.
430.202-2 Impracticality of submission.
430.202-8 Subcontractor disclosure statements.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 430.2--CAS Program Requirements
430.201 Contract requirements.
430.201-5 Waiver.
The SPE, without the authority to further redelegate, is authorized
to request the Cost Accounting Standards Board to waive the application
of the Cost Accounting Standards (CAS) in accordance with FAR 30.201-5.
430.202 Disclosure requirements.
430.202-2 Impracticality of submission.
The Secretary, without the power to redelegate, is authorized to
determine, in accordance with 48 CFR 9903.202-2, that the Disclosure
Statement is impractical to secure and to authorize award without
obtaining the Disclosure Statement.
430.202-8 Subcontractor disclosure statements.
The Secretary, without the power to redelegate, is authorized to
determine, in accordance with 48 CFR 9903.202-2, that the Disclosure
Statement for a subcontractor is impractical to secure and to authorize
award without obtaining the Disclosure Statement.
PART 431--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 431.1--Applicability
Sec.
431.101 Objectives.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 431.1--Applicability
431.101 Objectives.
(a) The SPE is designated as the official authorized to give
advance approval of an individual deviation concerning cost principles.
(b) The SPE is designated as the official authorized to give
advance approval of a class deviation concerning cost principles after
coordination with the Civilian Agency Acquisition Council (CAAC).
PART 432--CONTRACT FINANCING
Sec.
432.001 Definitions.
432.006 Reduction or suspension of contract payments upon finding of
fraud.
432.006-5 Reporting.
432.007 Contract financing payments.
Subpart 432.1--Non-Commercial Item Purchase Financing
432.114 Unusual contract financing.
Subpart 432.2--Commercial Item Purchase Financing
432.206 Solicitation provisions and contract clauses.
Subpart 432.3--Loan Guarantees for Defense Production
432.301 Definitions.
Subpart 432.4--Advance Payments for Non-Commercial Items
432.402 General.
432.406 Letters of credit.
432.407 Interest.
432.412 Contract clause.
Subpart 432.7--Contract Funding
432.703 Contract funding requirements.
432.770 USDA specific funding limitations.
Subpart 432.8--Assignment of Claims
432.802 Conditions.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
432.001 Definitions.
Agency contract finance office is the office, other than the office
of the requisitioner, providing funding or performing funding record
keeping for the contract action.
Head of agency. For the purposes of this part, head of the agency
means, exclusively, the Secretary or the Deputy Secretary.
Remedy coordination official (RCO). The USDA RCO is the Assistant
Secretary for Administration.
Responsible fiscal authority is that officer in the agency contract
finance office with the responsibility to ensure that adequate funds
are available and usable for the intended purpose.
432.006 Reduction or suspension of contract payments upon finding of
fraud.
432.006-5 Reporting.
The annual report required by FAR 32.006-5 is to be prepared by the
SPE and submitted to the Secretary within 90 calendar days after the
end of the fiscal year. When signed by the Secretary, the report is to
be maintained by the SPE.
432.007 Contract financing payments.
The Mission Area senior contracting official may prescribe, on a
case- by-case basis, a shorter period for financing payments.
Subpart 432.1--Non-Commercial Item Purchase Financing
432.114 Unusual contract financing.
The HCA is authorized to approve unusual contract financing.
Subpart 432.2--Commercial Item Purchase Financing
432.206 Solicitation provisions and contract clauses.
The responsibility for administration of the liquidation provisions
of a contract may not be transferred from the contracting officer.
Subpart 432.3--Loan Guarantees for Defense Production
432.301 Definitions.
Within this subpart, the agency or guaranteeing agency is the HCA
and may not be redelegated.
Subpart 432.4--Advance Payments for Non-Commercial Items
432.402 General.
An HCA is designated as the individual responsible for making the
findings and determination, and for approval of the contract terms
concerning advance payments.
432.406 Letters of credit.
The HCA is designated as the individual responsible for
coordination with the Department of Treasury concerning letters of
credit.
432.407 Interest.
(a) The HCA is designated as the individual who may authorize, on a
case-by-case basis, advance payments without interest for the contract
types described in FAR 32.407(d)(1), through (4). The signed
determination and
[[Page 9014]]
findings supporting these authorizations shall be included in the
contract files.
(b) The SPE is designated as the individual who may authorize
advance payments without interest other than those described in
paragraph (a) of this section.
432.412 Contract clause.
The decision to use Alternates I or III to FAR 52.232-12 must be
supported by a determination and finding.
Subpart 432.7--Contract Funding
432.703 Contract funding requirements.
Use the clause AGAR 452.232-70, Limitation of Government's
Obligation, in solicitations and resultant incrementally funded fixed-
price contracts.
432.703-3 Contracts crossing fiscal years.
Funds appropriated to USDA may be used for one-year contracts which
are to be performed in two fiscal years so long as the total amount for
such contracts is obligated in the year for which the funds are
appropriated (7 U.S.C. 2209c).
432.770 USDA specific funding limitations.
The expenditure of any USDA appropriation for any consulting
service through any contract, pursuant to section 3109 of Title 5 of
the U.S. Code shall be limited to those contracts where such
expenditures are a matter of public record and available for public
inspection, except where otherwise provided under existing law, or
under existing Executive Order issued pursuant to existing law (7
U.S.C. 2225a).
Subpart 432.8--Assignment of Claims
432.802 Conditions.
Written notices of assignment and a true copy of the assigned
instrument are to be sent to the contracting officer rather than the
agency head per FAR 32.802(e)(1). Other copies are distributed as
directed in FAR 32.802.
PART 433--PROTESTS, DISPUTES AND APPEALS
Subpart 433.1--Protests
Sec.
433.102 General.
Subpart 433.2--Disputes and Appeals
433.203 Applicability.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 433.1--Protests
433.102 General.
The SPE is responsible for coordinating the processing of bid
protests lodged with the Government Accountability Office (GAO).
Subpart 433.2--Disputes and Appeals
433.203 Applicability.
The Assistant Secretary for Administration is authorized to
determine the applicability of the Contract Disputes Act to contracts
with foreign governments pursuant to FAR 33.203.
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 434--MAJOR SYSTEM ACQUISITION
Sec.
434.001 Definition.
434.002 Policy.
434.003 Responsibilities.
434.005 General requirements.
434.005-6 Full production.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
434.001 Definition.
Pursuant to OMB Circular No. A-11 (Circular A-11) and the
definition at FAR 2.101, within USDA, a system shall be considered a
major system if:
(a) The system has been identified as a Major IT Investment
pursuant to USDA Departmental Regulation 3030-008, Definition of Major
Information Technology Investments,
(b) The total non-IT acquisition costs are estimated to be $50
million or more, or
(c) The system, regardless of estimated acquisition or life cycle
costs, has been specifically designated to be a major system by the
USDA Acquisition Executive or by the Major Information Technology
Systems Executive. The Assistant Secretary for Administration (ASA) is
the USDA Acquisition Executive for major system acquisition other than
acquisitions of information technology.
434.002 Policy.
In addition to the policy guidance at FAR 34.002 and other parts of
the FAR, the policies outlined in part 7 of Circular A-11 should serve
as guidelines for all contracting activities in planning and developing
systems, major or otherwise.
434.003 Responsibilities.
(a) The key executives of USDA (Secretary, Deputy Secretary, Under
Secretaries and Assistant Secretaries) individually or as a group will
participate in making four key decision in each major system
acquisition process.
(1) Identification and definition of a specific mission need to be
fulfilled, the relative priority assigned within the agency, and the
general magnitude of resources that may be invested.
(2) Selection of competitive system design concepts to be advanced
to a test/demonstration phase or authorization to proceed with the
development of a noncompetitive (single concept) system.
(3) Commitment of a system to full-scale development and limited
production.
(4) Commitment of a system to full production.
(b) The Chief Information Officer (CIO) is the Major Information
Technology Systems Executive. For acquisitions of information
technology, the CIO will ensure that Circular A-11 is implemented in
USDA and that the management objectives of Circular A-11 are realized.
The CIO is responsible for designating the program manager for each
major information technology system acquisition, designating an
acquisition to be a major information technology system acquisition,
and approving the written charter and project control system for each
major information technology system acquisition.
(c) The ASA will ensure that Circular A-11 is implemented in USDA
and that the management objectives of Circular A-11 are realized. The
ASA is responsible for designating the program manager for each major
system non-IT acquisition, designating an acquisition to be a major
system non-IT acquisition, and approving the written charter and
project control system for each major system non-IT acquisition.
(d) The Mission Area senior contracting official must:
(1) Ensure compliance with the requirements of Circular A-11, FAR
part 34, and AGAR part 434.
(2) Ensure that potential major system acquisitions are brought to
the attention of the USDA Acquisition Executive or the Major
Information Technology Systems Executive, as appropriate.
(3) Coordinate with Mission Area Program Managers (MASPMs) to
recommend qualified candidates for designation as program managers for
each major system acquisition within their jurisdiction.
(4) Coordinate with MASPMs to verify that program managers fulfill
their responsibilities and discharge their duties.
(5) Cooperate with the ASA and Major Information Technology Systems
Executive in implementing the requirements of Circular A-11.
(e) The program manager is responsible for planning and executing
the major system acquisition, ensuring
[[Page 9015]]
appropriate coordination with the USDA Acquisition Executive, Major
Information Technology Systems Executive, and other key USDA
executives.
434.005 General requirements.
434.005-6 Full production.
The Secretary or the Secretary's designee for the specific program
is the agency head for the purposes of FAR 34.005-6.
PART 435--[RESERVED]
PART 436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 436.2--Special Aspects of Contracting for Construction
Sec.
436.205 Statutory cost limitations.
436.209 Construction contracts with architect-engineer firms.
436.213 Special procedures for sealed bidding in construction
contracting.
436.213-2 Presolicitation notices.
Subpart 436.5--Contract Clauses
436.500 Scope of subpart.
436.570 Emergency response, fire suppression and liability.
Subpart 436.6--Architect-Engineer Services
436.602 Selection of firms for architect-engineer contracts.
436.602-1 Selection criteria.
436.602-5 Short selection process for contracts not to exceed the
simplified acquisition threshold.
436.603 Collecting data on and appraising firm's qualifications.
436.609 Contract clauses.
436.609-1 Design within funding limitations.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 436.2--Special Aspects of Contracting for Construction
436.205 Statutory cost limitations.
(a) When it appears that funds may be insufficient for all the
desired features of construction, the contracting officer may provide
in the solicitation for a base bid item covering the work as specified
and for one or more additive or deductive bid items which progressively
add or omit specified features of the work in a stated order of
priority.
(b) In the alternative, the contracting officer may use the
policies and procedures found in FAR 17.2, Options.
436.209 Construction contracts with architect-engineer firms.
The HCA is authorized to approve a contract to construct a project,
in whole or in part, to the firm that designed the project (inclusive
of its subsidiaries or affiliates).
436.213 Special procedures for sealed bidding in construction
contracting.
436.213-2 Presolicitation notices.
The authority to waive a presolicitation notice on any construction
requirement when the proposed contract is expected to exceed the
simplified acquisition threshold is restricted to the HCA.
Subpart 436.5--Contract Clauses
436.500 Scope of subpart.
This subpart prescribes clauses for insertion in USDA solicitations
and contracts for construction and for dismantling, demolition, or
removal of improvements or structures. The contracting officer shall
use the clauses as prescribed in contracts that exceed the simplified
acquisition threshold. The contracting officer may use the clauses if
the contract amount is expected to be at or below the simplified
acquisition threshold.
436.570 Emergency response, fire suppression and liability.
The contracting officer shall insert the clause at AGAR 452.236-70,
Emergency Response, Fire Suppression and Liability, in Integrated
Resource Service Contracts (IRSCs) awarded for the Forest Service. The
clause AGAR 452.236-70, Emergency Response, Fire Suppression and
Liability, is optional for non-IRSCs.
Subpart 436.6--Architect-Engineer Services
436.602 Selection of firms for architect-engineer contracts.
436.602-1 Selection criteria.
The Mission Area senior contracting official is authorized to
approve the use of design competition under the conditions in FAR
36.602-1(b).
436.602-2 Evaluation boards.
The Mission Area senior contracting official shall establish
written procedures for providing permanent or ad hoc architect-engineer
evaluation boards as prescribed in FAR 36.602-2.
436.602-5 Short selection process for contracts not to exceed the
simplified acquisition threshold.
The Mission Area senior contracting official may include either or
both procedures in FAR 36.602-5(a) and (b) in the procedures for
evaluation boards.
436.603 Collecting data on and appraising firm's qualifications.
Mission Area senior contracting officials for Mission Areas that
require architect- engineer services shall establish procedures to
comply with the requirements of FAR 36.603.
436.609 Contract clauses.
436.609-1 Design within funding limitations.
(a) Should the HCA appoint a designee to make the determination in
FAR 36.609-1(c)(1), the appointment may be to one no lower than the
official authorized to commit program funds for the work being
acquired.
(b) The contracting officer, with the advice of appropriate
technical representatives, may make the determination in FAR 36.609-
1(c)(2) or (3).
PART 437--SERVICE CONTRACTING
Subpart 437.1--Service Contracts--General
Sec.
437.104 Personal services contracts.
Subpart 437.2--Advisory and Assistance Services
437.204 Guidelines for determining availability of personnel.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 437.1--Service Contracts--General
437.104 Personal services contracts.
USDA has the following specific statutory authorities to contract
for personal services:
(a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225)
authorizes contracting with persons or organizations on a temporary
basis, without regard to civil service compensation classification
standards in 5 U.S.C., chapter 51 and subchapter III of chapter 53,
Provided:
(1) That no expenditures shall be made unless specifically provided
for in the applicable appropriation, and
(2) Expenditures do not exceed any limitations prescribed in the
appropriation.
(b) Title 7 U.S.C., section 1627 authorizes the Secretary of
Agriculture to contract with technically qualified persons, firms or
organizations to perform research, inspection, classification,
technical, or other special services, without regard to the civil-
service laws, Provided: it is for a temporary basis and for a term not
to exceed six months in any fiscal year.
Subpart 437.2--Advisory and Assistance Services
437.204 Guidelines for determining availability of personnel.
The HCA is authorized to request the use of non-Government
evaluators in
[[Page 9016]]
proposal evaluations. Each decision shall be supported by a written
determination in accordance with FAR 37.204.
PARTS 438 THROUGH 441--[RESERVED]
SUBCHAPTER G--CONTRACT MANAGEMENT
PARTS 442 THROUGH 444--[RESERVED]
PART 445--GOVERNMENT PROPERTY
Subpart 445.1--General
Sec.
445.103 General.
Subpart 445.3--Authorizing the Use and Rental of Government Property
445.301 Use and rental.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 445.1--General
445.103 General.
The Mission Area senior contracting official is authorized to make
determinations for charging rent on the basis of use under the Use and
Charges clause in FAR 52.245-9 as prescribed in FAR 45.103(a)(5).
Subpart 445.3--Authorizing the Use and Rental of Government
Property
445.301 Use and rental.
(a) The Mission Area senior contracting official is authorized to
make determinations for providing facilities to contractors as
prescribed in FAR 45.301(f).
(b) Requests for non-Government use of plant equipment as
prescribed in FAR 45.301 shall be submitted by the HCA to the SPE for
approval.
PARTS 446 THROUGH 448--[RESERVED]
PART 449--TERMINATION OF CONTRACTS
Subpart 449.5--Contract Termination Clauses
Sec.
449.501 General.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 449.5--Contract Termination Clauses
449.501 General.
Use of special purpose termination clauses pursuant to the
authority of FAR 49.501 shall be approved in advance by the HCA.
PART 450--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
Subpart 450.1--Extraordinary Contractual Actions
Sec.
450.100 Definitions.
450.102 Delegation of and limitations on exercise of authority.
450.102-1 Delegation of authority.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 450.1--Extraordinary Contractual Actions
450.100 Definitions.
Approving authority, as used in this part, means the Assistant
Secretary for Administration.
Secretarial level, as used in this part means the Assistant
Secretary for Administration.
450.102 Delegation of and limitations on exercise of authority.
450.102-1 Delegation of authority.
The Assistant Secretary for Administration is authorized to approve
all actions under FAR part 50 except indemnification actions listed in
FAR 50.102-1(d), which must be approved by the Secretary, without power
of redelegation.
PART 451--[RESERVED]
SUBCHAPTER H--CLAUSES AND FORMS
PART 452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 452.2--Texts of Provisions and Clauses
Sec.
452.204-70 Modification for Contract Closeout
452.204-71 Personal Identity Verification of Contractor Employees.
452.222-70 Labor Law Violations.
452.222-71 Past Performance Labor Law Violations.
452.232-70 Limitation of Government's Obligation.
452.236-70 Emergency Response, Fire Suppression, and Liability.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 452.2--Texts of Provisions and Clauses
452.204-70 Modification for Contract Closeout.
As prescribed in AGAR 404.804, 413.302-5, and 416.102, insert the
following clause:
Modification for Contract Closeout (Month Year)
Upon contract closeout for contracts utilizing anything other
than cost reimbursement (i.e., Simplified Acquisition Procedures
(SAP), non-SAP, and/or not Firm Fixed Price): if unobligated funds
in the amount of $1000 or less remain on the contract, the
Contracting Officer (CO) shall issue a unilateral modification for
deobligation. The contractor will receive a copy of the modification
but will not be required to provide a signature. The CO shall
immediately proceed with contract closeout upon completion of the
period of performance, receipt and acceptance of supplies or
services, and final payment.
Upon contract closeout for contracts utilizing SAP: if
unobligated funds of more than $1000 remain on the contract, the CO
shall issue a bilateral modification for deobligation. The
contractor will receive a copy of the modification and will be
required to provide a signature. (The CO may also request a
``Contractor Release of Claims'' be completed by the contractor,
although not required for contracts and orders using SAP
procedures.) If the bilateral modification and Release of Claims are
not returned to the CO within 60 days, the CO shall release the
modification as unilateral and proceed with contract closeout upon
completion of the period of performance, receipt and acceptance of
supplies or services, and final payment.
Upon contract closeout for contracts utilizing anything other
than cost reimbursement (i.e., non-SAP and/or not FFP): if
unobligated funds of more than $1000 remain on the contract, the CO
shall issue a bilateral modification for deobligation. The
contractor will receive a copy of the modification and a
``Contractor Release of Claims'' and will be required to provide a
signature on both forms. If the bilateral modification and Release
of Claims are not returned to the CO within 120 days, the CO shall
release the modification as unilateral and proceed with contract
closeout upon completion of the period of performance, receipt and
acceptance of supplies or services, and final payment.
(End of Clause)
452.204-71 Personal Identity Verification of Contractor Employees.
As prescribed in AGAR 404.1303, insert the following clause:
Personal Identity Verification of Contractor Employees (Month Year)
(a) The contractor shall comply with the personal identity
verification (PIV) policies and procedures established by the United
States Department of Agriculture (USDA) Directives 4620-002 series.
(b) Should the USDA Directives 4620-002 require the exclusion of
a contractor's employee, the contracting officer will notify the
contractor in writing.
(c) The contractor must appoint a representative to manage
compliance with the PIV policies established by the USDA Directives
4620-002 and to maintain a list of employees eligible for a USDA
LincPass required for performance of the work.
[[Page 9017]]
(d) The responsibility of maintaining a sufficient workforce
remains with the contractor. Contractor employees may be barred by
the Government from performance of work should they be found
ineligible or to have lost eligibility for a USDA LincPass. Failure
to maintain a sufficient workforce of employees eligible for a USDA
LincPass may be grounds for termination of the contract.
(e) The contractor shall insert this clause in all subcontracts
when the subcontractor is required to have routine unaccompanied
physical access to a Federally controlled facility and/or routine
unaccompanied access to a Federally controlled information system.
(f) The PIV Sponsor for this contract is a designated program
point of contact, which in most cases is the COR, unless otherwise
specified in this contract. The PIV Sponsor will be available to
receive contractor identity information from [hours and days to be
added by CO] to [hours and days to be added by CO] at [office
address for registration to be added by CO]. The Government will
notify the contractor if there is a change in the PIV Sponsor, the
office address, or the office hours for registration; however, it is
the contractor's responsibility to meet all aspects of paragraphs
(c), (d), and (e).
(End of Clause)
452.222-70 Labor Law Violations.
As prescribed in AGAR 422.7001, insert the following clause:
Labor Law Violations (Month Year)
In accepting this contract award, the contractor certifies that
it is in compliance with all applicable labor laws and that, to the
best of its knowledge, its subcontractors of any tier, and
suppliers, are also in compliance with all applicable labor laws.
The Department of Agriculture will vigorously pursue corrective
action against the contractor and/or any tier subcontractor (or
supplier) in the event of a violation of labor law(s) made in the
provision of supplies and/or services under this or any other
government contract. The contractor is responsible for promptly
reporting to the contracting officer if and when adjudicated
evidence of noncompliance occurs. The Department of Agriculture
considers certification under this clause to be a certification for
purposes of the False Claims Act. The Department will cooperate as
appropriate regarding labor laws applicable to the contract which
are enforced by other agencies. Applicable Labor Laws include:
(a) The Fair Labor Standards Act;
(b) The Occupational Safety and Health Act;
(c) The Migrant and Seasonal Agricultural Workers Protection
Act;
(d) The National Labor Relations Act;
(e) The Davis-Bacon Act;
(f) The Service Contract Act;
(g) Executive Order 11246 (Equal Employment Opportunity);
(h) Section 503 of the Rehabilitation Act of 1973;
(i) The Vietnam Era Veterans' Readjustment Assistance Act;
(j) The Family and Medical Leave Act;
(k) Title VII of the Civil Rights Act of 1964;
(l) The Americans with Disabilities Act of 1990;
(m) The Age Discrimination in Employment Act of 1967;
(n) Executive Order 13658 of February 12, 2014 (Establishing a
Minimum Wage for Contractors);
(o) Equivalent State laws, as defined by the Secretary of Labor
in guidance.
(p) Executive Order 13627 (Strengthening Protections Against
Trafficking in Persons in Federal Contracts)
The contractor and any subcontractors shall incorporate into
lower tier subcontracts a requirement that the information described
above be provided to the contractor.
(End of clause)
452.222-71 Past Performance Labor Law Violations.
As prescribed in AGAR 422.7002, insert the following clause:
Past Performance Labor Law Violations (Month Year)
In submitting this offer, the offeror (prospective contractor)
certifies to the best of the offeror's knowledge and belief, that
they, and any subcontractor at any tier, are in compliance with all
previously required corrective actions for adjudicated labor law
violations (see applicable labor laws in 452.222-70).
Prior to receiving an award, a contractor shall provide a list
of the specific violations of the legal requirements listed above,
if any, and be given an opportunity to disclose any steps taken to
correct the violations of, or improve compliance with, such legal
requirements. The contracting officer in coordination with their
Mission Area senior contracting official will consider any
information provided and determine whether a contractor is a
responsible source that has a satisfactory record of integrity and
business ethics. The contracting officer shall ensure that
contractors update the information provided every 6 months and that
they require their subcontractors to update them on the
aforementioned information every 6 months.
The contractor and any subcontractors shall incorporate into
lower-tier subcontracts a requirement that the information described
above be provided to the contractor.
(End of Clause)
452.232-70 Limitation of Government's Obligation.
As prescribed in AGAR 432.703, insert the following clause:
Limitation of Government's Obligation (Month Year)
(a) Contract line item(s) listed below is/are incrementally
funded. For this/these item(s), the sum of $ [Contracting Officer
insert after negotiations] of the total price is presently available
for payment and allotted to this contract. An allotment schedule is
set forth in paragraph (j) below.
Line Item Price Currently Allotted Funding Funds Required for
Complete Funding
(b) For item(s) identified in paragraph (a) as not fully funded,
the Contractor agrees to perform up to the point at which the total
amount payable by the Government, including reimbursement of costs
in the event of termination of those item(s) for the Government's
convenience, approximates the total amount currently allotted to the
contract. The Contractor is not authorized to continue work on those
item(s) beyond that point. The Government will not be obligated in
any event to reimburse the Contractor more than the amount allotted
to the contract for those item(s) regardless of anything to the
contrary in the clause entitled ``Termination for Convenience of the
Government''. The total amount payable by the Government in the
event of termination of applicable contract line item(s) for
convenience includes costs, profit, and estimated termination
settlement costs for those item(s).
(c) Notwithstanding the dates specified in the allotment
schedule in paragraph (j), the Contractor will notify the
contracting officer in writing at least [30, 60, or 90, as
appropriate] days prior to the date when, in the Contractor's best
judgment, the work will reach the point at which the total amount
payable by the Government, including any cost for termination for
convenience, will approximate 85 percent of the total amount
currently allotted to the contract for performance of the applicable
item(s). The notification will state (1) the estimated date when
that point will be reached and (2) an estimate of additional
funding, if any, needed to continue performance of applicable line
items up to the next scheduled date for allotment of funds
identified in paragraph (j), or to a mutually agreed upon substitute
date. The notification will also advise the contracting officer of
the estimated amount of additional funds that will be required for
the timely performance of the item(s) funded, for a subsequent
period as may be specified in the allotment schedule in paragraph
(j) or otherwise agreed to by the parties. If after such
notification additional funds are not allotted by the date
identified in the Contractor's notification, or by an agreed
substitute date, the contracting officer will terminate any item(s)
for which additional funds have not been allotted, pursuant to the
clause of this contract entitled ``Termination for Convenience of
the Government''.
(d) When additional funds are allotted for continued performance
of the contract line item(s) identified in paragraph (a) above, the
parties will agree as to the period of contract performance which
will be covered by the funds. The provisions of paragraphs (b)
through (d) will apply similarly to the additional allotted funds
and agreed substitute date, and the contract will be modified
accordingly.
(e) If, solely by reason of failure of the Government to allot
additional funds, by the dates indicated below, in amounts
sufficient for timely performance of the contract line item(s)
identified in paragraph (a), the Contractor incurs additional costs
or is delayed in the performance of the work under this contract and
if additional funds are allotted, an equitable adjustment will be
[[Page 9018]]
made in the price or prices (including appropriate target, billing,
and ceiling prices where applicable) of the item(s), or in the time
of delivery, or both. Failure to agree to any such equitable
adjustment hereunder will be a dispute concerning a question of fact
within the meaning of the clause entitled ``Disputes.''
(f) The Government may at any time prior to termination allot
additional funds for the performance of the contract line item(s)
identified in paragraph (a) above.
(g) The termination provisions do not limit the rights of the
Government under the clauses entitled ``Default'' and ``Termination
for Cause''. The provisions are limited to the work and allotment of
funds for the contract line item(s) set forth in paragraph (a)
above. These terms no longer apply once the contract is fully funded
except with regard to the rights or obligations of the parties
concerning equitable adjustments negotiated under paragraphs (e) and
(f) above.
(h) Nothing herein affects the right of the Government to
terminate this contract pursuant to the clause of this contract
entitled ``Termination for Convenience of the Government''.
(i) Nothing herein shall be construed as authorization of
voluntary services whose acceptance is otherwise prohibited under 31
U.S.C. 1342.
(j) The parties agree that the Government will allot funds to
this contract in accordance with the following schedule:
On execution of contract...................... $
(month) (day), (year)......................... $
(month) (day), (year)......................... $
(month) (day), (year)......................... $
(End of Clause)
452.236-70 Emergency Response, Fire Suppression, and Liability.
As prescribed in AGAR 436.570, the following clause shall be used
in Forest Service Integrated Resource Service Contracts (IRSCs), and is
optional for non-IRSCs:
Emergency Response, Fire Suppression and Liability (Month Year)
(a) Contractor's Responsibility for Responding to Emergencies.
When directed by the contracting officer, the Contractor shall allow
the Government to temporarily use employees and equipment from the
work site for emergency work (anticipated to be restricted to
firefighting). This is considered to be within the general scope of
the contract. An equitable adjustment for the temporary use of
employees and equipment will be made under the CHANGES clause, FAR
52.243-4.
(b) Contractor's Responsibility for Fire Fighting. The
Contractor, under the provisions of FAR 52.236-9, Protection of
Existing Vegetation, Structures, Equipment, Utilities, and
Improvements, shall immediately extinguish all fires on the work
site other than those fires in use as a part of the work. The
Contractor may be held liable for all damages and for all costs
incurred by the Government for labor, subsistence, equipment,
supplies, and transportation deemed necessary to control or suppress
a fire set or caused by the Contractor or the Contractor's agents,
subcontractors, or employees subject to the fire classifications
listed in subsection (c).
(c) Fire Suppression Costs. The Contractor's obligations for
cost of fire suppression vary according to three classifications of
fires as follows:
(1) Operations Fire. An ``operations fire'' is a fire caused by
the Contractor's operations other than a negligent fire. The
Contractor agrees to reimburse the Forest Service for such cost for
each operations fire, subject to a maximum dollar amount of
[Contracting Officer insert amount]. The cost of the Contractor's
actions, supplies, and equipment expended or used on suppressing any
such fire, or otherwise provided at the request of Forest Service,
shall be credited toward such maximum. If the Contractor's actual
cost exceeds the contractor's maximum obligation stated above, the
Forest Service shall reimburse the contractor for the excess.
(2) Negligent Fire. A ``negligent fire'' is a fire caused by the
negligence or fault of the Contractor's operations including, but
not limited to, one caused by smoking by persons engaged in the
Contractor's operations during the course of their employment, or
during rest or lunch periods; or if the Contractor's failure to
comply with requirements under this contract results in a fire
starting or permits a fire to spread. Damages and the cost of
suppressing negligent fires shall be borne by the Contractor.
(3) Other Fires on Contract Area. The Forest Service shall pay
the Contractor, at firefighting rates common in the area or at prior
agreed rates, for equipment or personnel furnished by the Contractor
at the request of the Forest Service, on any fire on the contract
area other than an operations fire or a negligent fire.
(d) Contractor's Responsibility for Notification in Case of
Fire. The Contractor shall immediately notify the Government of any
fires sighted on or in the vicinity of the work site.
(e) Performance by the Contractor. Where the Contractor's
employees, agents, contractors, subcontractors, or their employees
or agents perform the Contractor's operations in connection with
fire responsibilities, the Contractor's obligations shall be the
same as if performance was by the Contractor.
(f) State Law. The Contractor shall not be relieved by the terms
of this contract of any liability to the United States for fire
suppression costs recovered in an action based on State law, except
for such costs resulting from operations fires. Amounts due to the
Contractor for firefighting expenditures on operations fires shall
not be withheld pending settlement of any such claim or action based
on State law.
(End of Clause)
PARTS 453 THROUGH 469--[RESERVED]
SUBCHAPTER I--FOOD ASSISTANCE PROGRAMS
PART 470--COMMODITY ACQUISITIONS
Sec.
470.000 Scope of part.
470.101 Definitions.
470.102 Policy.
470.103 United States origin of agricultural products.
470.201 Acquisition of commodities and freight shipment for Foreign
Agricultural Service (FAS) programs.
470.202 Acquisition of commodities for United States Agency for
International Development (USAID) programs.
470.203 Cargo preference.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
470.000 Scope of part.
This part sets forth the policies, procedures and requirements
governing the procurement of agricultural commodities by the Department
of Agriculture for use:
(a) Under child nutrition programs such as the National School
Lunch Program, The Emergency Food Assistance Program, Commodity
Supplemental Food Program, Food Distribution Program on Indian
Reservations, and any other domestic food assistance program.
(b) Under Title II of the Food for Peace Act (7 U.S.C. 1721 et
seq.), the Food for Progress Act of 1985, the McGovern-Dole
International Food for Education and Child Nutrition Program, and any
other international food assistance program.
470.101 Definitions.
The following definitions are applicable to this subpart:
Commingled product means grains, oilseeds, rice, pulses, other
similar commodities and the products of such commodities, when such
commodity or product is normally stored on a commingled basis in such a
manner that the commodity or product produced in the United States
cannot be readily distinguished from a commodity or product not
produced in the United States.
Foreign Agriculture Service (FAS) means such agency located within
the Department of Agriculture.
Free alongside ship (f.a.s.) (* * named port of shipment) means a
term of sale where the seller fulfills its obligation to deliver when
the goods have been placed alongside the vessel on the quay
[[Page 9019]]
or in lighters at the named port of shipment. The buyer bears all costs
and risks of loss of or damage to the goods from that moment.
Grantee organization means an organization which will receive
commodities from the United States Agency for International Development
under Title II of the Food for Peace Act (7 U.S.C. 1721 et seq.) or
from the Foreign Agricultural Service under the Food for Progress Act
of 1985; the McGovern-Dole International Food for Education and Child
Nutrition Program; and any other international food assistance program.
Ingredient means spices, vitamins, micronutrients, desiccants, and
preservatives when added to an agricultural commodity product.
Last contract lay day means the last day specified in an ocean
freight contract by which the carriage of goods must start for contract
performance.
Lowest landed cost means with respect to an agricultural product
acquired under this part, the lowest aggregate cost for the acquisition
of such product and the shipment of such product to a foreign
destination.
Multi-port or multi-trip voyage charter means the charter of an
ocean carrier in which the carrier will stop at two or more ports to
discharge cargo.
470.102 Policy.
(a) Policy. USDA follows the policies and procedures set forth in
the FAR as supplemented by the AGAR, in the procurement of agricultural
commodities and products of agricultural commodities that are used in
domestic and international food assistance and nutrition programs.
(b) Electronic submission. To the maximum extent possible, the use
of electronic submission of solicitation-related documents shall be
used with respect to the acquisition of agricultural commodities and
related freight. However, to the extent that a solicitation allows for
the submission in paper or hard copy format in addition to information
in an electronic format and there is a discrepancy in such submissions,
the information submitted in paper or hard copy format shall prevail
unless the electronic submission states that a specific existing
written term is superseded by the electronic submission.
(c) Freight. With respect to the acquisition of freight for the
shipment of agricultural commodities and products of agricultural
commodities, the provisions of the FAR, including part 47, shall be
utilized as applicable and various types of services to be obtained may
include multi-trip voyage charters.
470.103 United States origin of agricultural products.
(a) Products for use in international food assistance programs. As
provided by 7 U.S.C. 1732(2) and 1736o-1(a) commodities and the
products of agricultural commodities acquired for use in international
feeding and development programs shall be products of United States
origin. A product shall not be considered to be a product of the United
States if it contains any ingredient that is not produced in the United
States if that ingredient is:
(1) Produced in the United States; and
(2) Commercially available in the United States at fair and
reasonable prices from domestic sources.
(b) Products for use in domestic food assistance programs.
Commodities and the products of agricultural commodities acquired by
USDA for use in domestic food assistance programs shall be a product of
the United States, except as may otherwise be required by law, and
shall be considered to be such a product if it is grown, processed, and
otherwise prepared for sale or distribution exclusively in the United
States except with respect to ingredients as defined above. Ingredients
from non-domestic sources will be allowed to be utilized as a United
States product if such ingredients are not otherwise:
(1) Produced in the United States; and
(2) Commercially available in the United States at fair and
reasonable prices from domestic sources.
(c) Commingled product. (1) Except as provided in paragraph (c)(2)
of this section, a commingled product shall be considered to be a
product of the United States if the offeror can establish that the
offeror has in inventory at the time the contract for the commodity or
product is awarded to the offeror, or obtains during the contract
performance period specified in the solicitation, or a combination
thereof, a sufficient quantity of the commodity or product that was
produced in the United States to fulfill the contract being awarded,
and all unfulfilled contracts that the offeror entered into to provide
such commingled product to the United States.
(2) To the extent USDA has determined a commodity is one that is
generally commingled but is also one which can be readily stored on an
identity preserved basis with respect to its country of origin, USDA
may require that the commodity procured shall be of 100 percent United
States origin.
(d) Product derived from animals. With respect to the procurement
of products derived from animals, the solicitation will set forth any
specific requirement that is applicable to the country in which the
animal was bred, raised, slaughtered or further processed.
470.201 Acquisition of commodities and freight shipment for Foreign
Agricultural Service (FAS) programs.
(a) Lowest landed cost and delivery considerations.
(1) Except as provided in paragraphs (a)(3) and (4) of this
section, in contracts for FAS for commodities and related freight
shipment for delivery to foreign destinations, the contracting officer
shall consider the lowest landed cost of delivering the commodity to
the intended destination. This lowest landed cost determination will be
calculated on the basis of rates and service for that portion of the
commodities being purchased that is determined is necessary and
practicable to meet cargo preference requirements and on an overall
(foreign and U.S. flag) basis for the remaining portion of the
commodities being procured and the additional factors set forth in this
section. Accordingly, the solicitations issued with respect to a
commodity procurement, or a related freight procurement will specify
that in the event an offer submitted by a party is the lowest offered
price, the contracting officer reserves the right to reject such offer
if the acceptance of another offer for the commodity or related
freight, when combined with other offers for commodities or related
freight, results in a lower landed cost.
(2) USDA may contact any port prior to award to determine the
port's cargo handling capabilities, including the adequacy of the port
to receive, accumulate, handle, store, and protect the cargo. Factors
considered in this determination may include, but not be limited to:
The adequacy of building structures, proper ventilation, freedom from
insects and rodents, cleanliness, and overall good housekeeping and
warehousing practices. USDA may consider the use of another coastal
range or port if a situation exists at a port that may adversely affect
the ability of USDA to have the commodity delivered in a safe and
timely manner. Such situations include:
(i) A port is congested;
(ii) Port facilities are overloaded;
(iii) A vessel would not be able to dock and load cargo without
delay;
(iv) Labor disputes or lack of labor may prohibit the loading of
the cargo onboard a vessel in a timely manner; or
(v) Other similar situation that may adversely affect the ability
of USDA to have the commodity delivered in a timely manner.
[[Page 9020]]
(3) Use of other than lowest landed cost. In order to ensure that
commodities are delivered in a timely fashion to foreign destinations
and without damage, the contracting officer may award an acquisition
without regard to the lowest land cost process set forth in paragraph
(a)(1) of this section if:
(i) The solicitation specifies that the lowest land cost process
will not be followed in the completion of the contract; or
(ii) After issuance of the solicitation, it is determined that:
(A) Internal strife at the foreign destination or urgent
humanitarian conditions threatens the lives of persons at the foreign
destination;
(B) A specific port's cargo handling capabilities (including the
adequacy of the port to receive, accumulate, handle, store, and protect
commodities) and other similar factors may adversely affect the
delivery of such commodities through damage or untimely delivery. Such
similar factors include, but are not limited to: Port congestion;
overloaded facilities at the port; vessels not being able to dock and
load cargo without delay due to conditions at the port; labor disputes
or lack of labor may prohibit the loading of the cargo onboard a vessel
in a timely manner; and the existence of inadequate or unsanitary
warehouse and other supporting facilities;
(C) The total transit time of a carrier, as it relates to a final
delivery date at the foreign destination may impair the timely delivery
of the commodity;
(D) Other similar situations arise that materially affect the
administration of the program for which the commodity or freight is
being procured; or
(E) The contracting officer determines that extenuating
circumstances preclude awards on the basis of lowest-landed cost, or
that efficiency and cost-savings justify use of types of ocean service
that would not involve an analysis of freight. However, in all such
cases, commodities would be transported in compliance with cargo
preference requirements. Other types of services may include, but are
not limited to, multi-trip voyage charters, indefinite delivery/
indefinite quantity (IDIQ), delivery cost and freight (C & F), delivery
cost insurance and freight (CIF), and indexed ocean freight costs.
(4) If the contracting officer determines that action may be
appropriate under paragraph (a)(3) of this section, prior to the
acceptance of any applicable offer, the contracting officer will
provide to the Head of Contracting Activity or Designee a written
request to obtain commodities and freight in a manner other than on a
lowest landed cost basis consistent with title 48 of the CFR. This
request shall include a statement of the reasons for not using lowest
landed cost basis. The HCA, or the designee one level above the
contracting officer, may either accept or reject this request and shall
document this determination.
(b) Multiple offers or delivery points. If more than one offer for
the sale of commodities is received or more than one delivery point has
been designated in such offers, in order to achieve a combination of a
freight rate and commodity award that produces the lowest landed cost
for the delivery of the commodity to the foreign destination, the
contracting officer shall evaluate offers submitted on a delivery point
by delivery point basis; however, consideration shall be given to
prioritized ocean transport service in determining lowest landed cost.
(c) Freight shipping and rates. (1) In determining the lowest-
landed cost, USDA shall use the freight rates offered in response to
solicitations issued by USDA or, if applicable, the grantee
organization.
(2) Freight rates offered must be submitted as specified in the
solicitation issued by USDA or, if applicable, the grantee
organization. Any such solicitation issued by a grantee organization
must contain the following elements:
(i) If directed by USDA, include a closing time for the receipt of
written freight offers and state that late written freight offers will
not be considered;
(ii) Provide that freight offers are required to have a canceling
date no later than the last contract lay day specified in the
solicitation;
(iii) Provide the same deadline for receipt of written freight
offers from both U.S. flag vessel and non-U.S. flag vessels; and
(iv) Be received and opened prior to any related offer for
acquisition of commodities to be shipped.
(3) USDA may require organizations that will receive commodities
from USDA to submit information relating to the capacity of a U.S.
port, or, if applicable, a terminal, prior to the acquisition of such
commodities or freight.
(d) Freight rate notification. If USDA is not the party procuring
freight with respect to a shipment of an agricultural commodity for
delivery to a foreign destination, the organization that will receive
commodities from USDA, or its shipping agent, shall be notified by USDA
of the vessel freight rate used in determining the commodity contract
award and the organization will be responsible for finalizing the
charter or booking contract with the vessel representing the freight
rate.
470.202 Acquisition of commodities for United States Agency for
International Development (USAID) programs.
(a) Lowest landed cost and delivery considerations. (1) Except as
provided in paragraphs (a)(3) and (e)(2) of this section, with respect
to the acquisition of agricultural commodities for delivery to foreign
destinations and related freight to transport such commodities under
Title II of Public Law 83-480, contracts will be entered into in a
manner that will result in the lowest landed cost of such commodity
delivery to the intended destination. This lowest landed cost
determination shall be calculated on the basis of rates and service for
that portion of the commodities being purchased that is determined is
necessary and practicable to meet cargo preference requirements and on
an overall (foreign and U.S. flag) basis for the remaining portion of
the commodities being procured and the additional factors set forth in
this section. Accordingly, the solicitations issued with respect to a
commodity procurement, or a freight procurement will specify that in
the event an offer submitted by a party is the lowest offered price,
the contracting officer reserves the right to reject such offer if the
acceptance of another offer for the commodity or freight, when combined
with other offers for commodities or freight, results in a lower landed
cost.
(2) USDA may contact any port prior to award to determine the
port's cargo handling capabilities, including the adequacy of the port
to receive, accumulate, handle, store, and protect the cargo. Factors
which will be considered in this determination will include, but not be
limited to, the adequacy of building structures, proper ventilation,
freedom from insects and rodents, cleanliness, and overall good
housekeeping and warehousing practices. USDA may consider the use of
another coastal range or port if a situation exists at a port that may
adversely affect the ability of USDA to have the commodity delivered in
a safe and/or timely manner. Such situations include:
(i) A port is congested;
(ii) Port facilities are overloaded;
(iii) A vessel would not be able to dock and load cargo without
delay;
(iv) Labor disputes or lack of labor may prohibit the loading of
the cargo onboard a vessel in a timely manner; or
(v) Other similar situation that may adversely affect the ability
of the
[[Page 9021]]
Department to have the commodity delivered in a timely manner.
(3) In order to ensure that commodities are delivered in a timely
fashion to foreign destinations and without damage, USDA may complete
an acquisition without regard to the lowest land cost process set forth
in paragraph (a)(1) of this section, if:
(i) The solicitation specifies that the lowest land cost process
will not be followed in the completion of the contract; or
(ii) After issuance of the solicitation, it is determined that:
(A) Internal strife at the foreign destination or urgent
humanitarian conditions threatens the lives of persons at the foreign
destination;
(B) A specific port's cargo handling capabilities (including the
adequacy of the port to receive, accumulate, handle, store, and protect
commodities) and other similar factors will adversely affect the
delivery of such commodities without damage or in a timely manner. Such
similar factors include, but are not limited to: Port congestion;
overloaded facilities at the port; vessels would not be able to dock
and load cargo without delay; labor disputes or lack of labor may
prohibit the loading of the cargo onboard a vessel in a timely manner;
and the existence of inadequate or unsanitary warehouse and other
supporting facilities;
(C) The total transit time of a carrier, as it relates to a final
delivery date at the foreign destination may impair the ability of USDA
to achieve timely delivery of the commodity; or
(D) Other similar situations arise that materially affect the
administration of the program for which the commodity or freight is
being procured.
(4) If the contracting officer determines that action may be
appropriate under paragraph (a)(3) of this section, prior to the
acceptance of any applicable offer, the contracting officer shall
provide to the HCA or Designee and to USAID, a written request to
obtain commodities and freight in a manner other than on a lowest
landed cost basis. This request shall include a statement of the
reasons for not using lowest landed cost basis. The HCA or Designeeone
level above the contracting officer, with the concurrence of USAID,
shall, on an expedited basis, either accept or reject this request and
shall document this determination in writing and provide a copy to
USAID.
(b) Freight shipping and rates. (1) In determining lowest-landed
cost as specified in paragraph (a) of this section, USDA shall use
vessel rates offered in response to solicitations issued by USAID or
grantee organizations receiving commodities under 7 U.S.C. 1721 et seq.
(2) USAID may require, or direct a grantee organization to require,
an ocean carrier to submit offers electronically through a Web-based
system maintained by USDA. If electronic submissions are required, USDA
may, at its discretion, accept corrections to such submissions that are
submitted in a written form other than by use of such Web-based system.
(c) Delivery date. The contracting officer shall consider total
transit time, as it relates to a final delivery date, in order to
satisfy program requirements for Title II of Public Law 83-480.
(d) Multiple awards or delivery points. (1) If more than one offer
for the sale of commodities is received or more than one delivery point
has been designated in such offers, in order to achieve a combination
of a freight rate and commodity award that produces the lowest landed
cost for the delivery of the commodity to the foreign destination, the
contracting officer shall evaluate offers submitted on a delivery point
by delivery point basis; however, consideration shall be given to
prioritized ocean transport service in determining lowest landed cost.
(2) The contracting officer may determine that extenuating
circumstances preclude awards on the basis of lowest landed cost.
However, in all such cases, commodities may be transported in
compliance with cargo preference requirements as determined by USAID.
(3) The contracting officer shall notify USAID or, if applicable,
the grantee organization, that its shipping agent will be notified of
the vessel freight rate used in determining the commodity contract
award. The grantee organization or USAID will be responsible for
finalizing the charter or booking contract with the vessel representing
the freight rate so used.
470.203 Cargo preference.
An agency having responsibility under this subpart shall administer
its programs, with respect to this subpart, in accordance with
regulations prescribed by the Secretary of Transportation.
PARTS 471 THROUGH 499--[RESERVED]
Tiffany J. Taylor,
Senior Procurement Executive (SPE), Director, Office of Contracting and
Procurement.
[FR Doc. 2022-01751 Filed 2-16-22; 8:45 am]
BILLING CODE P