(a) The Federal Acquisition Regulations System brings together, in title 48 of the Code of Federal Regulations (CFR), the acquisition regulations of all executive agencies of the United States Government. This subpart establishes the PAR as chapter 35 of title 48, CFR. The FAR, which is the primary document for all agencies within this system, is issued as chapter 1 of title 48, CFR.

(b) The purpose of the PAR is to implement the FAR where further implementation is needed and to supplement the FAR when coverage is needed for subject matter not contained in the FAR. The PAR is not, by itself, a complete regulation. It must be used in conjunction with, and is subordinate to, the FAR.

The PAR and amendments thereto are issued by the Administrator of the Panama Canal Commission (Commission) pursuant to the authority of section 205(c) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486(c)), as amended, and other applicable law.

The FAR and the PAR apply to all acquisitions of the Commission, except where expressly excluded.

(a) The PAR is published in—

(1) The Federal Register;

(2) Cumulated form at 48 CFR chapter 35; and

(3) A separate loose-leaf form.

(a) General. The PAR is divided into the same parts, subparts, sections, subsections and paragraphs as is the FAR. However, when the FAR coverage is adequate by itself, there will be no corresponding PAR coverage.

(b) Numbering. (1) Where the PAR implements the FAR, the implementing part, subpart, section or subsection of the PAR will be numbered and captioned, to the extent feasible, the same as the FAR part, subpart, section or subsection being implemented except that the implementation will be preceded with a 35 or a 350 such that there will always be four numbers to the left of the decimal. For example, the PAR implementation of FAR 1.104-1 is shown as 3501.104-1 and the PAR implementation of FAR subpart 24.1 is shown as subpart 3524.1. Similarly, individual paragraphs at the section and subsection levels of the PAR correspond, to the extent feasible, to the FAR paragraph designations that are being implemented.

(2) Material which supplements the FAR as new parts, subparts, sections, or subsections will be assigned the numbers 70 and up. For example, there is no FAR coverage on the preferential acquisition of supplies and services obtainable in the Republic of Panama as provided for in Article IX of the Agreement in Implementation of Article III of the Panama Canal Treaty of 1977. This supplementary material is identified as part 3570.

(3) Because the PAR implements the FAR only where further implementation is necessary, there are gaps in the PAR numbering and paragraphing sequence. For example, the PAR skips from part 3510 to part 3513, from subpart 3501.4 to subpart 3501.6, and from section 3501.301 to section 3501.303 because the FAR coverage at parts 11 and 12, subpart 1.5, and section 1.302, respectively, does not require further implementation. Similarly, section 3501.405 of the PAR begins at paragraph (d) because paragraphs (a), (b), and (c) at FAR 1.405 do not require further implementation.

(c) References and citations. (2) This regulation may be referred to as the Panama Canal Commission Acquisition Regulation or the PAR. References to PAR material outside this regulation may be cited in informal documents as PAR followed by the identifying number. For example, this subparagraph would be informally cited as PAR 3501.104-2(c)(2). In formal documents outside this regulation, such as legal briefs, references to PAR material should include reference to title 48 of the Code of Federal Regulations. For example, this subparagraph would be formally cited as 48 CFR 3501.104-2(c)(2).

(3) References to FAR or PAR material within this regulation will be made as follows:

(i) FAR parts or subparts will be referred to in those terms followed by the identifying number—for example, FAR part 1; FAR subpart 1.1. FAR subdivisions below the subpart level (i.e., sections, subsections, paragraphs, subparagraphs, or subdivisions) will simply state FAR followed by the identifying number—for example, FAR 1.104-2(c)(3)(i).

(ii) PAR parts or subparts will be referred to only as part or subpart followed by the identifying number—for example, part 1; subpart 1.1. PAR subdivisions below the subpart level will simply indicate the identifying number—for example, this subdivision would be cited as 3501.104-2(c)(3)(ii).

Copies of the PAR in Federal Register and CFR form may be purchased from the Superintendent of Documents, Government Printing Office (GPO), Washington, DC 20402. Copies of the loose-leaf PAR are distributed within the Panama Canal Commission and may be obtained from the Administrative Services Division, Records Management Branch, telephone (507) 52-7642.

The information collection and recordkeeping requirements contained in the PAR have been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-511). OMB control number 3207-0007 is assigned to the following PAR sections:

(e)(2) The Commission's Procurement Executive, in consultation with the General Counsel, is responsible for overseeing the development of the agency position on proposed revisions to the FAR and responding to the FAR Secretariat when such action is appropriate.

(a)(1) The Procurement Executive, in consultation with the General Counsel and such other agency officials as may be appropriate, is responsible for the development, preparation, and maintenance of PAR issuances by the Administrator. In addition, the Procurement Executive is authorized to issue internal policies, procedures, instructions, and guidelines to clarify or implement the FAR or PAR within the Commission. Such internal issuances are subject to review by the General Counsel.

(2) Heads of contracting activities and division chiefs are authorized to issue internal guidance of the type described in FAR 1.301(a)(2).

(b) Public participation in the promulgation of the PAR shall be in the same manner as specified for the FAR in FAR subpart 1.5. Where solicitation of public comment on significant revisions is impracticable prior to promulgation, the revisions may be set forth in temporary regulations. Comments will be solicited on the temporary regulations and considered prior to formulating the final regulations.

(a) The PAR is codified as chapter 35 in title 48, Code of Federal Regulations.

(c) The PAR replaces the former Part 87—Procurement, of the Panama Canal Administration and Regulations (PCAR), in its entirety.

(a) Whenever contracting activities and organizational components thereof wish to propose for publication in the Federal Register an agency acquisition regulation that they consider necessary to implement or supplement the FAR or PAR, they must prepare a memorandum that explains the need, background, justification, and significant aspects of the proposed regulation and send it to the Procurement Executive. The Procurement Executive and General Counsel will (1) review the proposed regulation to assure compliance with FAR part 1, and (2) either approve or disapprove it. If approved, the Procurement Executive will prepare the proposed regulation in Federal Register format for issuance by the Administrator.

A deviation from the PAR is defined in the same manner as a deviation from the FAR (see FAR 1.401).

Requests for individual deviations from the FAR and the PAR shall be submitted by the Head of the Contracting Activity (HCA) through the General Counsel to the Procurement Executive for approval. Requests submitted shall cite the specific part of the FAR or PAR from which it is desired to deviate, shall set forth the nature of the deviation(s), and shall give the reasons for the action requested. The Procurement Executive shall transmit copies of approved individual FAR deviations to the FAR Secretariat.

(d) The Procurement Executive is designated as the central control point within the Commission for transmittal of deviations from the FAR required to comply with treaties and executive agreements to which the United States is a party. Copies of the text of any deviation authorized in accordance with FAR 1.405 (b) or (c) shall be forwarded by the HCA to the Procurement Executive through the General Counsel for further transmittal to the FAR Secretariat.

(e) When a deviation required to comply with a treaty or executive agreement is inconsistent with FAR coverage based on law, the Procurement Executive shall forward a request for deviation to the FAR Secretariat for processing as required by FAR 1.405(e).

(a) Commission contracting activities are established within the General Services Bureau for the acquisition of supplies and services, and the Engineering and Construction Bureau for the acquisition of construction, including architect-engineer services and other services related to construction. The Directors of these bureaus are designated by the Administrator as Heads of Contracting Activities and are the officials who have the authority and responsibility to appoint contracting officers to contract for authorized supplies and services, including construction and architect-engineer services, that fall within the scope of their respective contracting activities.

(b) In addition, bureau directors and heads of independent units are delegated contracting authority, not to exceed amounts established by the General Services Director, for the decentralized procurement of supplies and services on Division Purchase Orders (see 3513.505-71). This authority is granted to assist Commission activities in expediting minor purchases. Such authority may be redelegated pursuant to 3513.505-71(b)(1)(ii).

(a) Definitions.

Responsible contracting officer, as used in 3501.602-370, means the individual at the appropriate level of contracting authority who can execute any contractual document that may be required to formalize an unauthorized commitment. Depending on the circumstances, the term can apply to the existing contracting officer, the prospective contracting officer (when a purchase order or contract does not exist) or, in the case of a contracting officer who acted in excess of the limits of his delegated authority, the next individual in the chain of contracting authority who has the appropriate authority to execute the necessary contractual document.

(b) Policy. (1) Unauthorized commitments do not legally obligate the Commission for the expenditure of funds. If an unauthorized commitment would have been valid had it been authorized by a contracting officer acting within the limits of his delegated authority, then the unauthorized commitment may be ratified in accordance with the procedures prescribed in 3501.602-370. If an unauthorized commitment is otherwise improper, it cannot be ratified and the Commission must deny legal liability, in which case the individual who made the unauthorized commitment may be personally liable for such action.

(2) The cognizant Head of the Contracting Activity (HCA) is the ratification official for the approval of unauthorized commitments and the Procurement Executive is the reviewing official for such approvals. The HCA may ratify an unauthorized commitment only if:

(i) The conditions in FAR 1.602-3(c) are applicable, and

(ii) The Procurement Executive concurs with the proposed ratification.

These procedures apply to all unauthorized commitments, whether written or oral and without regard to dollar value. Unauthorized commitments (other than claims to be processed in accordance with FAR subpart 33.2) shall be processed as follows:

(a) Whenever it is discovered that any person is performing or has performed work as a result of an unauthorized commitment, that person shall be advised by the cognizant contracting office that such work is being or was performed at that person's own risk pending establishment of valid contractual coverage.

(b) The individual who made the unauthorized commitment shall furnish to the responsible contracting officer all records and documents concerning the commitment and a complete, written statement of the facts including, but not limited to, a description of the work or product ordered; why the work or product was necessary to and for the benefit of the Commission; the estimated or agreed upon price; citation of funds available at time of commitment; the current status of performance by the actual or prospective contractor; the reason why normal acquisition procedures were not followed and, if a contract does not exist, a statement as to why the prospective contractor was selected including, if applicable, identification of other sources that were considered.

(c) The responsible contracting officer shall—

(1) Obtain from the head of the requisitioning office with appropriate approval authority:

(i) Affirmation that the Commission has or will obtain a benefit from the unauthorized commitment,

(ii) A written certification by the responsible funding certification officer that funds presently are available and were available at the time the unauthorized commitment was made, and when applicable,

(iii) A statement of corrective action that office will take to preclude repetition of the incident;

(2) Review and determine the adequacy of all facts, records, and documents furnished, and when necessary, obtain any additional material or information pertinent to the review and evaluation of the unauthorized commitment;

(3) Determine whether the price is fair and reasonable, and state in the record the reason therefor;

(4) Prepare, certify, and obtain any necessary written approval of a justification for other than full and open competition when required pursuant to FAR subpart 6.3;

(5) State in the record the corrective action to be taken to preclude repetition of the incident if the individual that made the unauthorized commitment is under the supervision of the responsible contracting officer; and

(6) Forward the request for ratification (i.e., all the information required in paragraphs (b) and (c) of this subsection) to the cognizant HCA, together with a written recommendation of an appropriate course of action including, at a minimum, a specific recommendation as to whether payment should be made and the reasons therefor.

(d) The cognizant HCA, upon receipt and review of the request for ratification file, shall determine whether ratification is in order. If so, the HCA shall forward the file to the Procurement Executive for review. If not, the HCA shall return the file to the responsible contracting officer, together with a written explanation for the decision and instructions for disposition of the case.

(e) The Procurement Executive shall review proposed ratifications submitted by HCAs. If the Procurement Executive concurs that ratification is in order, he shall obtain General Counsel concurrence that payment may be made and return the file to the cognizant HCA for that individual's ratification and subsequent return to the responsible contracting officer together with, when appropriate, instructions to issue a purchase order, contract, or contract modification, as applicable. If the Procurement Executive does not concur with the proposed ratification, he shall return the file to the HCA, together with a written explanation for the decision and instructions for disposition of the case. He will provide a copy to the General Counsel.

Heads of Contracting Activities may appoint as contracting officers one or more capable and qualified individuals of their respective staffs. These appointments may be made by memoranda delegating contracting authority, including any limitations to such authority, to positions or to named individuals. Appointments shall be evidenced by a “Certificate of Appointment”, as required by FAR 1.603-3. If contracting authority is delegated to a position by memorandum, the “Certificate of Appointment” shall state the name of the individual assigned to the position.

The following contract actions shall be submitted to the General Counsel for review for legal sufficiency:

(a) All proposed contracts with an estimated cost of $100,000 or more (in advance of issuance);

(b) All alleged mistakes in bids, other than apparent clerical mistakes that can be corrected pursuant to FAR 14.406-2;

(c) All determinations and findings required under the FAR;

(d) All proposed utility contracts;

(e) All proposed contracts containing insurance requirements not prescribed in the FAR or this PAR;

(f) In sealed bid procurements, all proposed awards to other than the lowest responsible and responsive bidder;

(g) Rejections of all bids and cancellations of invitations for bids;

(h) Proposed letter contracts;

(i) Written protests, whether before or after award;

(j) Unusual, novel, or unique proposed agreements, and unsolicited proposals that are to be negotiated pursuant to FAR subpart 15.5 and subpart 3515.5;

(k) Proposed ADP contracts of $25,000 or more when purchase is to be from other than a Federal Supply Service contract source;

(l) Termination actions, including pre-termination letters;

(m) All actions taken under the Disputes clause, including final decisions;

(n) Any action concerning suspension or debarment of an individual or concern;

(o) Deviations from the FAR or PAR;

(p) Any contract matter relating to litigation, disputes, or protest resolution before the courts of the United States or of the Republic of Panama, or before the Corps of Engineers Board of Contract Appeals or the Comptroller General of the United States;

(q) Determinations of nonrespon-si-bility;

(r) Any proposed contract modification, including proceed orders, which may result in a change in the contract price of more than $25,000, or any proposed contract modification or proceed order granting a time extension of more than 20 calendar days;

(s) Any proposed contract modification resulting from either a contractor's settlement proposal under the Termination for Convenience clause, or a contractor's claim under the Suspension of Work clause, regardless of the contract value or the terms of the proposed modification;

(t) Freedom of Information Act and Privacy Act matters involving contractors or arising under or in relation to any contract;

(u) Administrative setoffs to recoup Government funds under any contract; and

(v) Requests for approval of advance payments on contracts other than those excluded in FAR 32.404.

(a) The General Counsel shall conduct a review of the legal sufficiency of the contract action. The General Counsel shall provide to the contracting officer a written determination of whether the proposed action is legally sufficient, or the details of any insufficiency and a recommended course of action to overcome the insufficiency. A contracting officer shall not take action which is contrary to a written and timely determination of legal insufficiency from the General Counsel.

(b) The General Counsel shall complete the legal review as quickly as possible, with due regard to those procurement actions where circumstances dictate an unusually short period for completing the action.

Administrator means the chief executive officer of the Panama Canal Commission. The Administrator, subject to the direction and under the supervision of the Board of Directors, exercises general and active control over the Commission's offices, business and operations, and general supervision over its officials, agents, attorneys, and employees. As contemplated at FAR 2.101, unless otherwise indicated, “Administrator” also means the Commission's Deputy Administrator.

Agency head means the Administrator of the Panama Canal Commission.

Bureau Director means an official appointed by the Administrator to direct and manage one of the Commission's three operating bureaus.

Commission means the Panama Canal Commission.

Designated Agency Ethics Official means an individual appointed by the Administrator pursuant to the “Ethics in Government Act of 1978” to coordinate and manage the agency's ethics program and to act as the principal contact with the Office of Government Ethics.

Designated contractors (sometimes referred to as “special regime contractors”) means:

(a)(1) Natural persons who are nationals or permanent residents of the United States, or

(2) Corporations or other legal entities organized under the laws of the United States, any state thereof, or the District of Columbia, and which are under the effective control of such natural persons—

(i) To whom contracts are awarded by the Panama Canal Commission for work to be performed in whole or in part in the Republic of Panama, and

(ii) Who are so designated in writing by the Commission.

(b) The term also includes subcontractors of designated contractors (1) who are nationals or permanent residents of the United States, or (2) which are corporations or other legal entities organized under the laws of the United States, any state thereof, or the District of Columbia, and which are under the effective control of United States nationals or permanent residents.

Head of Independent Unit means an official appointed by the Administrator to direct and manage one of the Administrator's staff offices.

Head of the Contracting Activity (HCA) means the General Services Director and the Engineering and Construction Director.

Implementing Agreement means the Agreement in Implementation of Article III of the Panama Canal Treaty (TIAS 10031), signed at Washington, DC on September 7, 1977.

Inspector General means the Office of the Inspector General.

Procurement Executive means an individual designated as the senior procurement executive pursuant to 41 U.S.C. 414(3), by the Administrator from members of his staff. The Procurement Executive is delegated agency-wide responsibility to oversee development of procurement systems, establish procurement policy, evaluate procurement system performance in accordance with approved criteria, carry out specific responsibilities as assigned in this PAR, enhance career management of the procurement work force, and certify to the Administrator that procurement systems meet approved criteria.

Treaty means the Panama Canal Treaty (TIAS 10030), signed at Washington, DC on September 7, 1977.

Commission regulations on Employee Responsibilities and Conduct are contained in the Commission's “Employee Code of Conduct”. All personnel involved in acquisition actions shall become familiar with the statutory and regulatory prohibitions governing employee conduct. Any problems or questions concerning standards of conduct shall be referred to the Designated Agency Ethics Official.

(b)(3) Whenever an offer is rejected under FAR 3.103-2, or the Certificate of Independent Price Determination is suspected of being false, the contracting officer shall report the situation to the General Counsel through the cognizant Head of the Contracting Activity for referral to the Attorney General in accordance with FAR 3.303.

Any Commission employee who suspects that a violation of the Gratuities clause has occurred shall immediately report the suspected violation to the cognizant Head of the Contracting Activity. Upon being notified of the suspected violation, the HCA shall inform the Designated Agency Ethics Official and the Procurement Executive, by written memorandum, of the pertinent details of the suspected violation.

(b) When the HCA determines that there is probable cause to believe that a violation of the Gratuities clause has been committed, the case shall be handled as provided in the Commission debarment and suspension procedures in subpart 3509.4.

(c) The final decision as to which remedies the Commission may pursue if a violation of the Gratuities clause is found by the Debarment Committee (see 3509.406-3(b)), is reserved to the Administrator.

(b) The contracting officer shall report any suspected violations of antitrust laws to the General Counsel through the cognizant Head of the Contracting Activity for referral to the Attorney General and the Commission's Debarment Committee in accordance with FAR subpart 3.3.

(b) The contracting officer's documentation of the evaluation of the Standard Form 119, Statement of Contingent or Other Fees, conclusions, and any proposed actions shall be reviewed by the cognizant Head of the Contracting Activity in coordination with the General Counsel.

(a) Commission personnel who suspect or have evidence of attempted or actual exercise of improper influence, misrepresentations, or violations of the Covenant Against Contingent Fees shall report the matter promptly to the Designated Agency Ethics Official and the cognizant Head of the Contracting Activity.

Any Commission employee who suspects that a violation of the Anti-Kickback Act has occurred shall immediately report the suspected violation to the Designated Agency Ethics Official and the cognizant Head of the Contracting Activity. Suspected violations shall be treated in accordance with the debarment and suspension procedures at subpart 3509.4.

This subpart implements and supplements FAR subpart 3.6 and sets forth Commission policy and procedures for identifying and dealing with conflicts of interest and improper influence or favoritism in connection with contracts involving current or former Commission employees. This subpart does not apply to agreements with other departments or agencies of the Federal Government.

Commission employee means:

(a) Any officer or employee of the Panama Canal Commission who is employed or appointed, with or without compensation, to serve more than 130 days during any period of 365 consecutive days, or

(b) Any officer or employee of the Commission who is retained, designated, appointed or employed to perform, with or without compensation, temporary duties either on a full-time or intermittent basis for not more than 130 days during any period of 365 consecutive days and who actually served more than 60 days during such 365-day period.

Except as authorized at 3503.602 or excluded at 3503.670, no contract shall be awarded without competition to a—

(a) Former Commission employee (or to a business concern or other organization owned or substantially owned or controlled by a former Commission employee) whose employment terminated within 365 calendar days before submission of an offer to the Commission; or

(b) Prospective contractor which employs, or proposes to employ, a current Commission employee or a former Commission employee whose employment terminated within 365 calendar days before submission of an offer to the Commission, if either of the following conditions exist:

(1) The current or former Commission employee is or was involved in developing or negotiating the offer for the prospective contractor.

(2) The current or former Commission employee will be involved directly or indirectly in the management, administration, or performance of the contract.

(a) The Director, Office of Executive Administration in his capacity as the Designated Agency Ethics Official may authorize an exception, in writing, to the policy in FAR 3.601 and 3503.601 for the reasons stated in FAR 3.602, if the exception would not involve a violation of 18 U.S.C. 203, 18 U.S.C. 205, 18 U.S.C. 207, 18 U.S.C. 208, section 27 of the Office of Federal Procurement Policy Act, or Commission regulations in the “Employee Code of Conduct”. The Director, Office of Executive Administration shall consult with the cognizant Bureau or Staff Director who originated the request and with the General Counsel before authorizing any exceptions.

(b) This subpart does not apply to subcontracts, that is, agreements to undertake part of the work as an independent contractor. However, where subcontracts essentially create an “employer-employee” relationship between the Commission and the subcontractors, the subpart shall apply. In determining whether such a relationship exists, the contracting officer shall generally be guided by the standards of Chapter 304, Subchapter 1-4 of the “Federal Personnel Manual” in distinguishing between employees and independent contractors.

Before awarding a contract, the contracting officer shall obtain an authorization under 3503.602 for any of the reasons stated in FAR 3.603.

Former or current Commission employees who participated personally and substantially in the conduct of any Commission procurement of supplies or services, including those who were responsible for reviewing and approving the award, modification, or extension of any contract for such procurement, are excluded from the 365 calendar day “before submission of an offer” time period specified in 3503.601 (a) and (b). Instead, the time period for such employees shall be two years after the last date the employee participated personally and substantially in the conduct of any Commission procurement of supplies or services, or personally reviewed and approved the award, modification, or extension of any contract for such procurement. This two-year prohibition applies irrespective of whether the contract being sought is on a competitive or noncompetitive basis.

(b) As indicated in the FPDS Reporting Manual, the Commission is exempt from the reporting requirements of the Federal Procurement Data System, except for the procurement data that is required to be provided in accordance with Public Law 96-39 (Trade Agreements Act of 1979) as prescribed by OFPP Policy Letter 80-8 (as amended).

The Commission will report the information required under FAR 4.902(b) directly to the IRS.

(a)(13) The contract action is one for which participation in the acquisition will be limited to sources in Panama pursuant to the conditions prescribed in 3570.102(e). The Procurement Executive will monitor and maintain a record of proposed contract actions that are exempt from the notice requirements of FAR 5.201 by operation of this exception.

(a) Newspapers. Authority to approve the publication of paid advertisements in newspapers is vested in the HCA or designee.

(a) General. When there is a reasonable probability that supplies or services (including construction) are available in Panama that are comparable in quality and price to those which may be obtained from other sources, and when local advertising is reasonably practical, the contracting officer shall request authorization from the HCA or designee to advertise the procurement action within the appropriate Panamanian market. The request for authorization shall include—

(1) A description of the proposed procurement action and the supplies or services to be procured;

(2) A description of how the determination was made that the Panamanian preference may apply; and

(3) A summary of how the appropriate advertising market was identified.

The HCA or designee shall review the request for authorization of paid advertising and, if concurring, shall grant authorization in writing to the contracting officer to proceed. The written authorization shall specify any limitations on the advertising that are deemed appropriate. The HCA shall furnish a copy of each such authorization to the Procurement Executive.

This subpart provides guidance on:

(a) The application of the Panama Canal Treaty of 1977 between the United States and Panama as an exemption to the requirement for full and open competition, and

(b) The preparation and approval of individual and class Justifications for Other Than Full and Open Competition (JOFOC's).

(a) Authority. Article IX of the Agreement in Implementation of Article III of the Panama Canal Treaty of 1977 establishes that the Commission shall give preference to Panamanian supplies and services in its procurement activities. Such preference is understood to mean that if supplies or services (including construction) of comparable quality and price are available when required and can be obtained from sources both within and without the Republic of Panama, preference shall be afforded to those sources within the Republic of Panama to the maximum extent possible. When choosing between goods from sources within the Republic of Panama, preference shall be given to those with a larger percentage of components of Panamanian origin. This is not intended to require the purchase of Panamanian supplies and services, as defined herein, where superior quality or lower prices are available from other sources. Part 3570 sets forth specific guidance and policy with respect to the Commission's implementation of Article IX.

(c) Limitations. Solicitations above the small purchase limitation that are intended for exclusive acquisition from sources in Panama shall be supported by a class or individual determination and findings as required by 3570.102(e).

(c) The scope of the actual procurement shall not exceed the scope of the proposed procurement cited in the JOFOC. If a change to the contract exceeds this limitation, the contract change shall not be consummated until an amended JOFOC has been approved.

(d) When contract actions are subject to the Agreement on Government Procurement and the authority of FAR 6.302-3(a)(2)(i) or 6.302-7 is being cited as the basis for not providing full and open competition, a copy of the justification shall be forwarded to the Procurement Executive as the point of contact with the Office of the United States Trade Representative.

In addition to the requirements of FAR 6.303-2, the justification shall include—

(a) The type of contract;

(b) A statement of delivery requirements;

(c) The total estimated dollar value, including options, for the acquisitions covered by the justification; and

(d) A copy of the approved Acquisition Plan when the acquisitions meet the criteria for a written Acquisition Plan under subpart 3507.1.

(a) Except as noted at FAR 6.304(b), the approval of a justification for other than full and open competition shall be in writing and at the levels given below—

(1) For a proposed contract not exceeding $100,000, the HCA is the approval authority. This approval is not required when the contract is one of those cited in FAR 6.304(a)(1) (i) through (iv).

(2) For a proposed contract over $100,000, but not exceeding $1,000,000, the Competition Advocate is the approval authority.

(3) For a proposed contract over $1,000,000, but not exceeding $5,000,000, the Procurement Executive is the approval authority.

(4) For a proposed contract over $5,000,000, the Administrator is the approval authority.

(b) Contracting officers shall consult with the Competition Advocate prior to submitting any justification for approval pursuant to paragraph (a) of this section.

(a) Class justifications shall be approved in the same manner as individual justifications. To determine the approval level for a class justification, the aggregate estimated dollar value of all actions contemplated for one year shall be used to establish the appropriate dollar threshold for approval.

(b) The following are examples of appropriate class justifications:

(1) A basic ordering agreement (BOA) including all orders to be issued under the BOA for the term of the BOA;

(2) Contracts to be awarded to more than one contractor to provide Government-furnished property for assembly into an end item, in which case the circumstances of the class justification must justify all the contracts proposed under the justification.

(c) Requests for approval at any level must be submitted to the approval authority before release of the solicitation. The solicitation shall not be released until the justification is approved in writing (but see FAR 6.303-1(e)).

(d) The Procurement Executive shall maintain a list of products, materials, and services that have been granted a class justification for exclusive acquisition from sources in Panama (see 3506.302-4(c)).

The Administrator shall designate in writing one Competition Advocate who shall serve as the agency and procuring activities competition advocate for all Commission acquisitions.

(c)(1) Formal acquisition planning provided at FAR subpart 7.1 is primarily designed for complex and costly acquisitions. However, the disciplines of the prescribed planning process are useful to all acquisitions, even if on a less formal basis.

(2) Written acquisition plans shall be prepared for—

(i) All development (see FAR 35.001) acquisitions whose estimated contractual cost is $1,000,000 or more annually;

(ii) Supply, service, and construction acquisitions whose estimated contractual cost is $3,000,000 or more for any fiscal year. Excluded are repetitive requirements-type and fuel contracts.

(d) The Acquisition Plan (AP) shall include all subsystems, Government-furnished property, major component contractual actions, and all other contracts which have a significant effect on the total program.

(f) The planner for acquisitions requiring a formal, written plan shall be the program manager or other official having overall responsibility for the program concerned.

(g)(1) The planner shall obtain the written concurrence of the appropriate contracting officer for each acquisition plan.

(2) The Head of the Contracting Activity shall review and approve the acquisition plan and ensure that (i) the objectives of the AP are realistic and achievable, and (ii) solicitations and contracts are appropriately structured to equitably distribute the technical, financial, and business risks, considering the phase of the acquisition, the technical requirements, and business and legal constraints.

(3) Acquisition plans shall be furnished by the cognizant HCA to the Procurement Executive.

(j) When a need is urgent enough to require an unusually compressed delivery or performance schedule, and the preparation of a detailed written AP would interfere with the successful meeting of that schedule, the Procurement Executive may waive appropriate requirements of FAR subpart 7.1 and this subpart 3507.1. The waiver shall be in writing and shall specifically designate those requirements that are waived.

(a) For the purposes of OMB Circular No. A-76, a commercial source is defined as “a business or other non-Federal activity located in the United States, its territories and possessions, the District of Columbia or the Commonwealth of Puerto Rico, which provides a commercial product or service.” Accordingly, by virtue of the Commission's location in the Republic of Panama, FAR subpart 7.3 is not applicable to the Panama Canal Commission because commercial services would have to be contracted out to sources located in Panama. Commission policy regarding commercial services to be contracted out to sources in Panama is set forth in paragraph (b) of this section.

(b) Commercial work and services shall be contracted out when there are available reliable local contractors and the expected cost is beneficial to the Commission. However, when commercial work/service to be done requires skills that the Commission should have and/or develop, then a careful evaluation shall be made before such work/service is contracted outside the agency. The cognizant Head of the Contracting Activity shall be the approving official for commercial work and services to be contracted out pursuant to this policy.

When supplies or services are procured from sources in Panama under the preference requirement of Article IX, as stated in 3508.001(a), the mandatory use of a Federal Supply Schedule for a like item of supply or service shall not be applicable. When a procurement is not made under the Panamanian preference of Article IX, and delivery or performance is to be made in Panama, the mandatory supply schedule should be carefully evaluated for the following exceptions to mandatory use:

(d) Geographic coverage. Each Federal Supply Schedule delineates the specific geographic area for which it is mandatory for use. The geographic area applies to the location where final delivery of the supplies is to be made, or the service to be performed, and not to the location of the ordering office. In most cases, the Republic of Panama will not be within the geographic limitations of the schedule and mandatory use will not be applicable. The mandatory use provisions of FAR 8.4 and 41 CFR 101-26.4 are applicable to Commission offices located in the United States when ordering supplies or services to be delivered or performed in the United States for their own use.

(e) Lower prices for identical items. The Commission may purchase products from any source pursuant to the conditions set forth in FAR 8.404-1(e).

(c) Satisfactory performance record. If the contracting officer invokes the presumption of nonresponsibility required by FAR 9.104-3(c), the contracting officer shall give notice, together with the reasons for invoking the presumption, to the Procurement Executive.

(a) Generally, preaward surveys are not performed for acquisition of professional type services such as those provided by medical doctors, lawyers or other licensed and/or regulated professions.

(b) To assist in making a determination of responsibility for professional type services, the types of information listed below shall be obtained from the offeror when applicable:

(1) Organizational structure and plan contemplated to accomplish the service;

(2) Summary of experience in performing the same or similar service;

(3) Resumes of key personnel with particular emphasis on academic accomplishments pertinent to the service to be performed;

(4) Evidence of professional liability insurance, or evidence such insurance can be obtained;

(5) Membership in professional organizations;

(6) Information on pertinent state and local licenses; and

(7) Information on the firm or key individuals that reflect their status or professional recognition in their field of endeavor, such as awards and published articles in professional journals or magazines.

(c) When the statement of work includes a review of credentials by the requiring activity, this review should be considered a part of the preaward survey, and other information requested from the offeror should be minimized.

(a)(1) The contracting officer shall ensure that the written justification required by FAR 9.202(a)(1) is prepared prior to establishing a requirement for testing or other quality assurance demonstration that must be completed by an offeror before the offeror is awarded a contract.

(b) The contracting officer is designated to make the determination required by FAR 9.206-1(b).

This subpart supplements, and shall be applied in conformity with, FAR subpart 9.4.

Debarring official means the Administrator of the Panama Canal Commission (hereinafter “Commission”). In the event the Administrator is ineligible from participating personally in Commission actions with respect to the particular contractor, named individual or affiliate subject to the proposed debarment due to a conflict of interest or in view of a previously established recusal statement, the Commission Deputy Administrator shall be the debarring official.

Fact-finding official means a person not employed by the Commission or any agency of the U.S. Government retained at Commission expense to conduct fact-finding under this subpart. The individual must have no prior knowledge of the particular subject matter and no conflict of interest with respect to any of the parties involved in the debarment or suspension action. He shall have knowledge of the laws and regulations governing the federal procurement system, and shall have experience in receiving evidence and formulating findings of fact.

Suspending official means the Commission Administrator. In the event the Administrator is ineligible from participating personally in Commission actions with respect to the particular contractor, named individual or affiliate subject to the proposed suspension due to a conflict of interest or in view of a previously established recusal statement, the Commission Deputy Administrator shall be the suspending official.

(c) The Commission Procurement Executive (hereinafter “PE”) shall perform the actions required by FAR 9.404(c).

The PE is the designee of the agency head for the purposes of FAR 9.405(a) and (d)(2) and (3) and may, upon the written recommendation of the pertinent Head of the Contracting Activity (hereinafter “HCA”), make the determinations referenced therein.

(a) The PE is the designee of the agency head for the purposes of FAR 9.405-2(a) and may, upon the written recommendation of the pertinent HCA, take the action referenced therein.

(c) The PE is the designee of the agency head for the purposes of FAR 9.406-1(c) and may, upon the written recommendation of the pertinent HCA, take the action referenced therein.

In addition to the causes listed in FAR 9.406-2, the use of a Panama Canal Commission employee or a member of the Commission's Board of Directors as an agent or advocate for a Commission contractor, or prospective contractor, shall be a cause for debarment.

(a) Investigation and referral.

(1)(i) Any Commission official or employee who suspects or has knowledge of any conduct, statement, act, or omission of, or attributable to, a Commission contractor or a potential Commission contractor which could justify debarment under FAR subpart 9.4 or this subpart shall immediately report this information to the Commission General Counsel (hereinafter “GC”) or to the appropriate contracting officer.

(ii) Any Commission official or employee who suspects or has knowledge that a debarred individual or company has reestablished itself under a new name shall immediately report this information to the GC or to the appropriate contracting officer.

(2) When the GC receives such information he shall refer the matter to the appropriate contracting officer for investigation and shall notify the PE and the pertinent HCA. When the contracting officer receives such information he shall notify the PE and the pertinent HCA.

(3) The contracting officer shall, in coordination with the pertinent HCA, promptly investigate the matter, assemble all relevant information and prepare a written report containing all available evidentiary material, including copies of indictments and conviction notices when applicable, and the names of the owners and officers, as well as any affiliates, of the contractor in question. The written report shall include a recommendation whether a debarment action should be commenced and, if so, shall identify the causes for debarment, see FAR 9.406-2 and 3509.406-2 of this subpart, and identify each company and individual, including divisions of companies and affiliates, which the contracting officer recommends should be specifically named in the action.

(4) The contracting officer shall submit his report to the pertinent HCA and a copy thereof to the PE and the GC. The HCA shall study the report and promptly advise the PE, in writing, whether or not he concurs in the contracting officer's recommendation and shall explain the reasons for his concurrence or nonconcurrence.

(5) The PE shall study the contracting officer's report and the recommendation of the HCA. If the HCA and the PE agree that a debarment action should not be commenced, the PE shall so inform the debarring official and shall prepare a memorandum for record describing and closing the matter. If, however, either the HCA or the PE recommend that a debarment action should be commenced, the PE shall forward the contracting officer's report to the debarring official, together with the recommendation of the HCA as well as the PE's own written recommendation.

(b) Decisionmaking process.

(1) If the debarring official, after reviewing the contracting officer's report and the recommendations of the HCA and the PE, considering fully the provisions of FAR 9.402 and 9.406-1(a), and consulting with the GC, determines there is a reasonable basis to commence a debarment action, the debarring official shall instruct the PE to sign and send to each specifically named company, individual or affiliate to which the action is to apply, via certified mail, return receipt requested, either:

(i) An informal notice of the Commission's intention to propose debarment, see 3509.406-3(b)(2) of this subpart; or

(ii) A formal notice of the Commission's proposal to debar under FAR 9.406-3(c).

(2) An informal notice of the Commission's intention to propose debarment shall advise the addressee, in writing, of the following:

(i) The issuance under FAR 9.406-3(c) of a formal notice of proposal to debar the addressee is seriously being considered by the Commission;

(ii) The basic factual reasons for the contemplated debarment;

(iii) The causes relied upon under FAR 9.406-2 and 3509.406-2 of this subpart;

(iv) The Commission's procedures governing the debarment process;

(v) The addressee's right to reply to the PE in writing within 21 calendar days of receipt of the informal notice, and show cause why the Commission should not issue, to the addressee, a formal notice of proposal to debar under FAR 9.406-3(c) for the reasons and causes cited by the Commission;

(vi) That, if the PE does not receive a reply from the addressee to the informal notice within 21 calendar days of the addressee's receipt of the informal notice, the Commission will issue to the addressee a formal notice of proposal to debar;

(vii) The effect of the issuance of a formal notice of proposal to debar;

(viii) The potential effect of an actual debarment; and

(ix) That, while the Commission will carefully consider the content of a timely reply to the informal notice, the Commission reserves the right to issue a formal notice of proposal to debar without additional discussion or correspondence.

(3) The PE shall study the timely reply of an addressee to an informal notice and shall forward the reply to the GC and the debarring official with the PE's evaluation and recommendation.

(4) If, after reviewing a timely reply to an informal notice, as well as the views of the PE and the GC, the debarring official determines, considering fully the provisions of FAR 9.402 and 9.406-1(a), that a formal debarment action should commence, the debarring official shall instruct the PE to sign and send a formal notice of proposal to debar to the addressee.

(c) Notice of proposal to debar. In addition to the matters listed at FAR 9.406-3(c), a formal notice of proposal to debar shall advise the contractor and any specifically named individual or affiliate of the specific, fundamental allegations of material fact supporting the proposed debarment.

(d) Debarring official's decision.

(1) A submission in opposition to the Commission's formal notice of proposal to debar presented by a contractor, or any named individual or affiliate, shall include information and argument in opposition to the proposed debarment, including any additional specific information or documents that raise a genuine dispute over material facts. The submission shall be addressed to the PE.

(2) If a timely submission in opposition to a formal notice of proposal to debar is not presented by a named contractor, individual or affiliate to whom a formal notice was sent, the PE shall, with respect only to each such contractor, individual or affiliate that failed to present a timely submission, study all the information in the administrative record and shall forward the entire record to the debarring official with an evaluation and recommendation whether to debar the nonresponding contractor, individual or affiliate and, if so, for what period of time.

(3) If a timely submission in opposition to a formal notice of proposal to debar is submitted in actions based upon a conviction or civil judgment, the PE shall evaluate all the information in the administrative record, including the submission in opposition, and shall forward these materials to the debarring official with a recommendation whether to debar and, if so, for what period of time.

(4)(i) If a timely submission in opposition to a formal notice of proposal to debar is presented in actions not based upon a conviction or civil judgment, the PE shall evaluate the formal notice of proposal to debar and the submission in opposition and shall determine, with the advice of the GC, if the submission raises a genuine dispute over any facts material to the proposed debarment. If it does not, the PE shall forward the entire administrative record, including the submission in opposition, to the debarring official with an evaluation and a recommendation whether to debar and, if so, for what period of time.

(ii) If, however, the PE determines, in consultation with the GC, that a timely submission in opposition to a formal notice of proposal to debar in actions not based upon a conviction or civil judgment raises a genuine dispute over any fact material to the proposed debarment, the PE shall so advise the contractor, named individual or affiliate, and shall inquire whether a fact-finding hearing is desired. If a fact-finding hearing is not requested by the contractor, named individual or affiliate, the PE shall forward the entire administrative record, including the submission in opposition, to the debarring official with an evaluation and a recommendation whether to debar and, if so, for what period of time.

(iii) If a fact-finding hearing is requested, the PE shall appoint a fact-finding official to whom all matters involving disputed material facts shall be referred. The PE will provide the fact-finding official with a copy of the entire administrative record including the submission in opposition. The fact-finding official shall study the Commission's notice(s) of proposal to debar and the submission(s) in opposition, and shall identify specifically the material facts in genuine dispute and so advise the pertinent contractor, named individual or affiliate, as well as the Commission's designated advocate in the Office of General Counsel. A fact-finding hearing shall be scheduled and conducted by the fact-finding official, and shall take place in a Commission facility in Panama unless the fact-finding official determines that fundamental fairness compels the use of another location. The rules governing the fact-finding hearing shall be established by the fact-finding official but shall conform fully with FAR 9.406-3(b)(2) and (d)(2) and (3).

(5) The fact-finding official shall present written findings of fact and the transcribed record of the hearing, if made, to the debarring official within 21 calendar days from his receipt of the transcript or from the final day of the hearing if no transcript is ordered. The findings shall resolve each material fact previously determined to be in genuine dispute based on a preponderance of the evidence presented.

(6) Upon receiving the complete administrative record and the evaluation and recommendation of the PE or, if there was a fact-finding hearing, upon receiving the hearing record and the findings of fact of the fact-finding official and the evaluation and recommendation of the PE, the debarring official shall, considering fully the provisions of FAR 9.402 and 9.406-1(a), make a final decision whether to impose debarment. If debarment is chosen, the debarring official shall also determine the period of debarment.

(e) Notice of debarring official's decision. The debarring official shall promptly notify the contractor and any named individual or affiliate of the final decision in writing by certified mail, return receipt requested.

(a) At any time prior to the debarring official's issuance of a final decision whether to debar, the debarring official may, in the best interests of the U.S. Government, forgo or withdraw a proposed debarment by entering into a written agreement with the contractor, named individual or affiliate, in which the contractor, individual or affiliate agrees to perform, accomplish or implement such remedial measures or mitigating factors as are listed at FAR 9.406-1(a). The contractor, individual or affiliate shall also agree that its failure to observe any term or condition of the agreement shall constitute sufficient cause for the immediate imposition of debarment by the debarring official without entitlement to a fact-finding hearing.

(b) The debarring official shall not enter into a settlement agreement if the proposed debarment is based on a conviction of or civil judgment for any of the causes in FAR 9.406-2(a).

(a)(1) At any time prior to the debarring official's issuance of a final decision whether to debar, the debarring official may, in the best interests of the U.S. Government, forgo or withdraw a proposed debarment by entering into a written agreement with the contractor, named individual or affiliate, in which the contractor, individual or affiliate agrees to voluntarily refrain, for a specified period of time, from attempting to obtain, and from entering into, any contract, purchase agreement or other form of contractual relationship, regardless of dollar amount, with, as the debarring official may determine, either: (i) the Commission; or (ii) the Commission and one or more, or all, other agencies, departments or entities of the U.S. Government.

(2) A voluntary exclusion will not be reported to the GSA nor appear in the “List of Parties Excluded from Federal Procurement and Nonprocurement Programs,” and if the contractor, individual or affiliate is currently listed due to a Commission notice of proposal to debar the PE will advise the GSA of the voluntary exclusion and request the immediate cessation of the listing. The contractor, individual or affiliate shall agree that its failure to observe any term or condition of the voluntary exclusion shall constitute sufficient cause for the immediate imposition of debarment by the debarring official without entitlement to a fact-finding hearing.

(b) The debarring official shall not enter into a voluntary exclusion agreement if the proposed debarment is based on a conviction of or civil judgment for any of the causes in FAR 9.406-2(a).

In addition to the causes listed in FAR 9.407-2, the cause for debarment identified in 48 CFR (PAR) 3509.406-2 also applies to suspension actions.

(a) The procedures set forth in 48 CFR (PAR) 3509.406-3 for debarment also apply, insofar as they are compatible with the procedures set forth in FAR 9.407-3, to suspension actions except those procedures identified in paragraph (b) of this subsection.

(b) The following procedures in 48 CFR (PAR) 3509.406-3 do not apply to suspension actions: 3509.406-3(b)(1)(i), 3509.406-3(b) (2) through (4) and 3509.406-3(c).

(c) Notice of suspension. In addition to the matters listed at FAR 9.407-3(c), in actions not based on an indictment, a notice of suspension shall advise the contractor and any specifically named individual or affiliate of the specific, fundamental allegations of material fact supporting the suspension.

Where a suspension is being considered, the suspending official may enter into a settlement agreement in the same manner and under the same terms as are provided in 48 CFR (PAR) 3509.406-70.

Where a suspension is being considered, the suspending official may enter into a voluntary exclusion agreement in the same manner and under the same terms as are provided in 48 CFR (PAR) 3509.406-71.

The Commander in Chief, United States Southern Command, shall be notified by the Procurement Executive of the issuance of any Commission notice of proposal to debar and of any debarment or suspension decision made by the debarring or suspending official.

These procedures for debarment and suspension apply equally to all firms, individuals and affiliates doing business with the Panama Canal Commission regardless of their nationality, residence or location.

(a) The requirements of Public Law 95-507 relating to setting aside acquisitions of supplies or services with an anticipated dollar value of $25,000 or less do not apply to such purchases when delivery or performance is to be made to or within the Republic of Panama. The requirements do apply to Commission offices located in the United States for the purchase of supplies or services for their own use and not for delivery or performance in Panama.

(a) Forms. (4) The following Commission forms may be used by the Logistical Support Division in lieu of Standard Form 18 for requesting small purchase price quotations:

(i) Panama Canal Form No. 1821, Request For Quotation. This form may be used by the Purchasing and Contracts Branch for the solicitation of nonstock items and services. It must be used in conjunction with forms 7071 and 7074 (see paragraph (a)(4)(iv) of this section).

(ii) Panama Canal Form No. 1822, Request For Quotation Continuation. This form may be used with Panama Canal Form No. 1821 when additional space is needed.

(iii) Panama Canal Form No. 2008, This Is A Request For Prices; It Is Not An Order. This form may be used by the Inventory Management Branch for the solicitation of standard stock items. It must be used in conjunction with forms 7071 and 7074 (see paragraph (a)(4)(iv) of this section).

(iv) Panama Canal Commission Form 7071, General Contract Clauses And Provisions, Small Purchases; and Panama Canal Commission Form 7074, Information Sheet. These two forms shall be forwarded to prospective suppliers together with either Panama Canal Form No. 1821 or Panama Canal Form No. 2008, as applicable.

(a) Except for the rental of construction equipment, blanket purchase agreements (BPA's) may be established only by contracting officers within the General Services Bureau. The contracting officers authorized to establish BPA's are:

(1) Chief, Inventory Management Branch for acquisition of inventory stocks;

(2) Chief, New Orleans Branch for acquisition of parts in the New Orleans area for the Motor Transportation Division and such other items as may be designated by the General Services Director;

(3) Chief, Construction Division, Engineering and Construction Bureau, for the rental of construction equipment; and

(4) Chief, Purchasing and Contracts Branch for acquisition of supplies or services not covered under paragraphs (a) (1) through (3) of this section.

(a) Blanket purchase agreements may be established for supplies or services which are readily available and for which their purchase does not require detailed technical specifications, technical inspection, or complex terms and conditions.

(b) Only the contracting officer (CO) and officials authorized by a CO and designated in the BPA shall be permitted to request deliveries. Delivery (call) orders shall usually be made by telephone or in person. Before placing a call order against the BPA, each requirement shall be screened for availability from Commission inventory sources and from the mandatory sources of supply prescribed in FAR part 8. Necessary controls shall be maintained by the person placing the call orders under the BPA to ensure that any limitation stated therein is not exceeded. The BPA identification number shall be specified each time a delivery is requested.

(c) The procedure for establishing and using BPA's is prescribed in the Commission's Financial Systems Manual 14.020, covering BPA's in general, and 14.007, covering BPA's for automotive parts.

(a) Individual call orders under a BPA shall not exceed the dollar limitation specified in the BPA, which limitation shall not exceed the dollar limitations established by the:

(1) Engineering and Construction Director for the rental of construction equipment, and

(2) General Services Director for all other BPA's.

(b) Purchases under BPA's shall be documented on Panama Canal Form No. 3099, Request For Purchase/Call Order.

The following Commission order forms may be used in lieu of Optional Forms 347 and 348 for the purposes described below:

(a) Panama Canal Form No. 1010, Purchase Order. This form may be used by the Inventory Management Branch (1) for the small purchase acquisition of standard stock items, and (2) as a delivery order for ordering or scheduling deliveries against established contracts or from Government sources of supply.

(b) Panama Canal Form No. 1820, Purchase Order. This form may be used by the Purchasing and Contracts Branch (1) for the small purchase acquisition of non-stock items and services, and (2) as a delivery order for ordering or scheduling deliveries against established contracts or from Government sources of supply.

(c) Panama Canal Form No. 3083, Purchase Order Continuation. This form may be used with Panama Canal Form No. 1820 when additional space is needed.

(d) Panama Canal Form No. 3163, Division Purchase Order. This form may be used by all activities having contracting authority for the decentralized procurement of supplies and services (see 3513.505-71).

(e) Panama Canal Form No. 3163-MTD, Division Purchase Order. This form may be used by the Motor Transportation Division and the New Orleans Branch, Logistical Support Division for purchases of nonstandard stock automotive repair parts that do not exceed dollar amounts established by the General Services Director.

Panama Canal Form No. 1821, Purchase Requisition, shall be used by requiring activities to request purchasing action by the Purchasing and Contracts Branch, Logistical Support Division. The procedure for using purchase requisitions is prescribed in the Commission's Financial Systems Manual 14.010.

(a) General. The Division Purchase Order (DPO), PCC Form No. 3163, may be used by all activities that have contracting authority for the decentralized procurement of supplies and services (see 3501.601(b)). When repetitive purchases within the authorized DPO dollar limitation are made for the same supplies or services, the activity shall request the Chief, Purchasing and Contracts Branch to establish a BPA (see subpart 3513.2). A detailed procedure for the use of the DPO is prescribed in the Commission's Financial Systems Manual 14.005, covering DPO's in general, and 14.007, covering DPO's for automotive parts.

(b) Responsibilities. (1) Bureau directors and heads of independent units that use the DPO shall—

(i) Ensure that, whenever practicable, the functions of procurement approval, receipt documentation, and payment approval in the use of a DPO are performed by three separate persons. In no case shall the same person be permitted to perform all three functions.

(ii) Approve and sign all DPO's, subject to the conditions specified in paragraphs (b) (2)(iii) and (3) of this subsection, or appoint in writing by position or by name one or more purchasing agents to act as approval and signatory authority. Such appointees shall be at an organizational level sufficient to ensure responsible control over the obligation of funds that the DPO represents.

(2) Designated purchasing agents shall—

(i) Approve and sign DPO's within their delegated dollar authority.

(ii) Supervise the use and issuance of DPO's and verify that such use and issuance are in compliance with the FAR, this PAR, and the Commission's Financial Systems Manual.

(iii) Ensure that the following conditions exist before approving purchases to be made on DPO's:

(A) There is a valid need for the supplies or services;

(B) A unit fund controller has certified the availability of funds for the proposed purchase;

(C) The vendor is reputable and the price is reasonable; and

(D) The DPO is not being used as a means to purchase a known requirement in excess of the authorized DPO dollar limitation by fragmentizing the requirement (i.e., by breaking the total quantity of the requirement into smaller quantities that can be purchased on two or more DPO's, each of which does not exceed the authorized dollar limitation but which, collectively, will result in the purchase of the total quantity of the requirement).

(3) Individuals authorized to approve and sign DPO's shall ensure that Government funds are not expended for standard stock items, unauthorized office supplies, furnishings, appliances, or for items that are intended solely for personal convenience or to satisfy personal desires of an official or that are nonessential to the needs of the Government and do not contribute to the fulfillment of the Commission's mission.

(4) The General Services Director shall delegate authority for contracting by means of DPO's to bureau directors and heads of independent units. Such delegation shall be published from time to time in bulletin or memorandum form and shall conform to dollar limitations approved by the Administrator.

(c) Panama Preference. DPO purchases shall conform to the Treaty preference given to supplies and services obtainable in Panama, as prescribed in subpart 3570.1.

(a) In addition to the provisions prescribed in FAR 15.407, the contracting officer shall insert in solicitations the provisions at—

(1) 3552.215-70, Price; and

(2) 3552.215-71, Caution.

(b) The contracting officer shall insert the provision at 3552.215-72, All or None Award, in solicitations for supplies or services if the contracting officer determines that award will be made on an “all or none” basis to one offeror for all items because of the nature of the items (e.g., supply items must interface or otherwise be fully compatible with each other; items covering services are so interrelated that it would be impracticable to split the award). This provision may also be used in solicitations for construction if the contracting officer determines that its use is appropriate.

This subpart implements and supplements the policies and procedures governing unsolicited proposals prescribed in FAR subpart 15.5. It also establishes the Commission contact point for coordinating the receipt, evaluation, and disposition of unsolicited proposals.

It is the policy of the Commission to receive, review, and consider for acceptance unsolicited proposals, as that term is defined in FAR 15.501 and further described in FAR 15.503(c). As indicated in FAR 15.502, such proposals may be accepted for sole source negotiation only when appropriate authority exists in FAR subpart 6.3 and when all conditions in FAR 15.507(b) have been complied with.

(f) Unsolicited proposals for the performance of services are, except as discussed in this paragraph, unacceptable as the performance of services is unlikely to necessitate innovative and unique concepts. There may be rare instances in which an unsolicited proposal offers an innovative and unique approach to the accomplishment of a service. If such a proposal offers a previously unknown or an alternative approach to generally recognized techniques for the accomplishment of a specific service, and such approach will provide significantly greater economy or enhanced quality, it may be considered for acceptance, provided that such acceptance can be made in conformance with the policy in 3515.502.

(a) It is not uncommon for sales representatives and engineers to approach field personnel of the Commission to discuss their products or proposals. Bureau Directors and Heads of Independent Units shall take the necessary steps to ensure that Commission employees do not make any commitments, explicit or implied, on behalf of the Commission to eventually procure such products or proposals. Whenever any person orally makes an “unsolicited proposal”, Commission personnel shall inform the offeror that unsolicited proposals must be in writing and that further information should be obtained from the Commission's Procurement Executive or Assistant Procurement Executive before the offeror proceeds with the submission of a written proposal. Commission personnel may provide copies, if practicable, of FAR subpart 15.5 and subpart 3515.5 of this regulation to persons interested in submitting unsolicited proposals.

(a) The Procurement Executive shall conduct an initial review of each unsolicited proposal to determine if it appears to (1) constitute a valid unsolicited proposal as described in FAR 15.503(c), and (2) meet the requirements contained in FAR 15.506-1(a). If so, the Procurement Executive shall acknowledge its receipt to the sender and initiate processing of the proposal for evaluation in accordance with 3515.506-2 of this subpart. If the proposal does not meet the requirements of FAR 15.506-1(a), or otherwise does not qualify as an unsolicited proposal, the Procurement Executive shall return it to the sender with appropriate comments.

(a) Promptly after receipt of an unsolicited proposal deemed to satisfy the requirements of 3515.506-1(a), the Procurement Executive shall forward the original and all copies to the cognizant contracting officer for further coordination of the technical evaluation of the proposal. The cognizant contracting officer shall (1) determine the appropriate Commission organization that would fund the acquisition (see FAR 15.507(b)(3)) in the event the unsolicited proposal would be acceptable for a negotiated award pursuant to FAR 15.507(b), and (2) forward a copy to that organization for technical evaluation. If more than one organization has a potential interest in the proposal, or should otherwise be included in the evaluation phase because of its technical expertise, copies of the proposal shall be circulated to each such office.

(b) Evaluating organizations shall complete their evaluations as quickly as practicable and forward them, together with all copies of the unsolicited proposal, to the cognizant contracting officer. Evaluations shall take into consideration the factors in FAR 15.506-2(a), shall be in writing, and shall include, in addition to a comprehensive technical analysis and conclusion(s), a recommendation as to the ultimate disposition of the proposal. When the recommendation is to accept the unsolicited proposal, the evaluation shall include the documentation required in FAR 15.507(b)(3).

(a) If the unsolicited proposal is not recommended for acceptance after technical evaluation, the cognizant contracting officer shall return the proposal and all copies thereof to the offeror, citing the reasons why the proposal is not acceptable. A copy of the letter shall be furnished to the Procurement Executive.

(c) If the unsolicited proposal is acceptable as a basis for negotiation, the cognizant contracting officer shall:

(1) Obtain the concurrence of the General Counsel before proceeding with negotiations, and

(2) Advise the Procurement Executive in writing of such action.

(b) All unsolicited proposals received by units of the Commission shall be treated “FOR OFFICIAL USE ONLY” and shall be protected from unauthorized disclosure. No copies shall be made except as authorized by the Procurement Executive or cognizant contracting officer, as appropriate. All Commission personnel who handle a proposal are responsible for safeguarding the information therein, and shall not disclose the information to unauthorized personnel within or outside of the Commission.

It is the policy of the Commission to obtain the cost or pricing data required pursuant to FAR 15.804 from all U.S. or foreign (including Panama) prime contractors and subcontractors.

When determining the contract amount for purposes of applying the dollar threshold at FAR 15.804-2(a) for requesting certified cost or pricing data, the value of the contract shall include any priced options. Exercise of a priced option is not considered a price adjustment and does not require submission of cost or pricing data.

All findings rendered pursuant to FAR 15.804-3 (b)(2)(iii) and (c)(8) shall be approved by the cognizant HCA with the concurrence of the General Counsel. The exemptions permitted under FAR 15.804-3(g) and the waivers permitted under FAR 15.804-3(i) shall be authorized by the cognizant HCA with the concurrence of the General Counsel.

For requests for proposals or modifications not exceeding $25,000, the contracting officer may require contractors to submit information for cost or price analysis on Panama Canal Form No. 6122, Cost Breakdown, at 3553.215.

(a) The Commission shall use a structured approach to determine the profit or fee prenegotiation objective in acquisition actions of $500,000 or more that require cost analysis based on the profit analysis factors in FAR 15.905.

(b) The following types of acquisitions are exempt from the requirements of the structured approach, but the contracting officer shall comply with FAR 15.905-1 when analyzing profit for these contracts or actions:

(1) All actions which do not require cost analysis;

(2) Architect-engineer contracts;

(3) Construction contracts;

(4) Contracts primarily requiring delivery of material supplied by subcontractors;

(5) Termination settlements; and

(6) Other professional services.

(c) In developing a profit or fee prenegotiation objective, the contracting officer shall comply with the requirements in FAR 15.903.

(d) When profit analysis is required, any amount proposed by the prospective contractor for the cost of money for facilities capital allowable under FAR 31.205-10 shall be deducted from the prenegotiation cost base objective before calculating the profit objective.

(e) The cognizant HCA is responsible for establishing procedures to ensure compliance with this subpart.

(c) Limitations. The format prescribed in 3516.301-3(c) shall be used and executed by the contracting officer as the determination and findings authorizing the use of either a time-and-materials contract or a labor-hour contract, except that in lieu of the final paragraph insert the following:

(a) It is the policy of the Panama Canal Commission to refrain from issuing letter contracts. Exceptions to this policy will be permitted only in those cases in which all matters of a substantive nature, such as statements of work, delivery schedules, and general and special clauses have been resolved and agreed upon. Exceptions to this policy must be approved by the Administrator.

The cognizant HCA is designated to execute the prescribed determination that no other contract is suitable. However, if the cognizant HCA is to sign the letter contract as the contracting officer, the Procurement Executive shall execute the determination.

The following information should be included by the contracting officer in any memorandum requesting approval to issue a letter contract:

(a) Name and address of proposed contractor.

(b) Location where contract is to be performed.

(c) Contract number, including modification number, if possible.

(d) Brief description of work and services to be performed.

(e) Performance or delivery schedule.

(f) Amount of letter contract.

(g) Estimated total amount of definitized contract.

(h) Type of contract to be executed (fixed price, cost-reimbursement, etc.)

(i) Statement of the necessity and advantage to the Commission of the use of the proposed letter contract.

(j) Statement of the percentage of the estimated cost of the proposed acquisition that the obligation of funds represents. In those rare instances in which the obligation represents 50 percent or more of the proposed estimated cost of the acquisition, a justification for that obligation must be included describing the basis and necessity for the obligation (e.g., the contractor requires a large initial outlay of funds for major subcontract awards or an extensive purchase of materials to meet an urgent delivery requirement). In every case, documentation must ensure that the amount to be obligated is not in excess of an amount reasonably required to perform the work.

(k) Period of effectiveness of the proposed letter contract.

(l) Statement of any substantive matters that need to be resolved.

All letter contract modifications must be approved by the cognizant HCA responsible for the acquisition. Requests for authority to issue letter contract modifications shall be processed in the same manner as requests for authority to issue letter contracts and shall include the following:

(a) Name and address of the contractor.

(b) Description of work and services.

(c) Date original request was approved and approving official.

(d) Letter contract number and date issued.

(e) Complete justification as to why the letter contract cannot be definitized at this time.

(f) Complete justification as to why the level of funding must be increased.

(g) Complete justification as to why the period of effectiveness is increased, if applicable.

(h) If the funding of letter contracts is to be increased to more than 50 percent of the estimated cost of the acquisition, the information required by 3516.603-70(j) must be included.

This subpart does not apply to contracts for services involving:

(a) Construction, alteration, or repair of real property;

(b) Architect-engineer services;

(c) Automatic data processing equipment systems; and

(d) Telecommunication equipment and services.

(g)(2) The use of options for increased quantities of supplies or services which exceed 50 percent of the base quantity specified in the contract for a particular period shall be approved by the cognizant HCA prior to issuing the solicitation. In the case of supplies, the 50 percent limitation applies only to contracts which have a base quantity of more than one.

(e) The use of option periods which, when combined with the base contract period, results in a total contract period of performance exceeding twelve months shall be approved by the cognizant HCA prior to issuing the solicitation. In no event, however, shall the total of the base and option periods exceed sixty (60) months in duration.

(h) The contracting officer, if the contract so provides, may, subject to the conditions in FAR 17.204(d) and FAR 32.703-2, exercise an option contingent upon the availability of funds. Under no circumstances shall any action be taken which could be construed as creating a legal liability on the part of the Commission until a formal notice of availability of funds in the form of a contract modification has been issued by the contracting officer.

This subpart prescribes policies and procedures applicable to the use of Interservice Support Agreements and Memorandums of Understanding.

Interservice Support Agreement (ISA) means an agreement entered into between the Panama Canal Commission and any other department or agency of the United States for the use of facilities, furnishing of supplies or services, or performance of functions. ISA's may be based upon Memorandums of Understanding.

Memorandum of Understanding (MOU) means the basic document which outlines host-tenant relationships. MOU's serve as the standard for relationships between host units and supporting or supported activities.

The General Services Director is the Commission official authorized to enter into ISA's. The Director, by written appointment, may delegate this authority to one or more contracting officers in the General Services Bureau. The determination and findings required by FAR 17.503 shall be made by the General Services Director or the appointee(s), as applicable.

(a) The procedures in FAR 17.504 shall apply to Commission ISA's.

(b) When the other agency to an ISA is a DOD activity, the DOD forms and format normally shall be followed.

(a) Any acquisition which requires the solicitation of bids, proposals, or quotes from sources within Panama and also from sources within the United States shall not be restricted by any United States statute that is inconsistent with Article IX of the Agreement in Implementation of Article III of the Panama Canal Treaty.

(d) The Chief, New Orleans Branch, Logistical Support Division, shall discharge the functions of the Small and Disadvantaged Business Utilization Specialist (SDBUS).

In the event of equal low bids, contracts shall be awarded in the order of priority set forth in 3514.407-6.

Subject to the order of precedence in FAR 19.504, the Panama Canal Commission shall award appropriate contracts to eligible labor surplus area (LSA) concerns and encourage contractors to place subcontracts with LSA concerns only when all of the following circumstances exist:

(a) The acquisition is to be performed within the United States, its territories and possessions, the Commonwealth of Puerto Rico, and the Trust Territory of the Pacific Islands.

(b) The concern, together with its first-tier subcontractors, will perform substantially in labor surplus areas as defined in FAR 20.101; and

(c) The value of the acquisition is estimated to exceed the small purchase limitation in FAR part 13.

(b) The contract clause at FAR -52.220-1, Preference for Labor Surplus Area Concerns, shall be included in solicitations and contracts only as prescribed by FAR 20.103(b) and under those conditions set forth in 3520.102.

The contracting officer shall set aside the entire amount of an individual acquisition or class of acquisitions for LSA concerns only under those conditions set forth in 3520.102.

The provisions of FAR subpart 20.3 apply only under those conditions set forth in 3520.102.

Personal information obtained by the agency to be used in determining an individual's right to a benefit, or to otherwise incur an obligation, will be solicited directly from the subject of the record to the extent practicable. The system manager responsible for the maintenance and dissemination of personal information about individuals shall ensure that the information is collected and disclosed in compliance with the provisions of the Privacy Act of 1974 and part 10 of 35 CFR, this agency's regulations implementing the Act.

Freedom of Information Act (FOIA) requests for contractual information shall be processed in accordance with part 9 of 35 CFR.

(a) Upon receipt, all FOIA requests shall be forwarded immediately to the Agency Records Officer (Chief, Administrative Services Division) for acknowledgment and processing within the statutory time limitations as stipulated in the Act.

(b) Prior to release of any contractual information to FOIA requesters, the Agency Records Officer shall coordinate with other agency offices or officials having a substantial subject matter interest.

The Buy American Act does not apply to purchases of supplies, or services that involve the furnishing of supplies, for use in the Republic of Panama because such use is outside the United States, as provided in FAR 25.102(a)(1).

The Buy American Act does not apply to contracts for the construction, alteration, or repair of any public building or public work in the Republic of Panama. The Act applies only to acquisitions for use inside the United States, as provided in FAR 25.202.

In accordance with Article IX of the Agreement in Implementation of Article III of the Panama Canal Treaty, the Balance of Payments provisions limiting purchase of foreign products or services shall not apply to purchases for use by the Commission of—

(a) Articles, materials, or supplies that are produced in Panama (mined, produced, or manufactured);

(b) End products, the largest percentage of which are components of Panamanian origin; and

(c) Services which are available in Panama.

(a) The cognizant HCA is the official designated to make the determination required by FAR 25.302(b)(3) that a requirement can only be filled by a foreign end product or service, and that it is not feasible to forego filling it or to provide a domestic substitute.

(b)(6) The Procurement Executive is the official designated to make the determination, with the assistance of legal counsel, that the acquisition of foreign end products or services is required by a treaty or executive agreement between governments.

(c) Pursuant to a delegation from the United States Trade Representative under the authority provided by section 302(b)(2) of the Trade Agreements Act, the Administrator of the Panama Canal Commission is authorized to waive, on a case-by-case basis, the purchasing prohibition of section 302(a)(1) of the Act. The Administrator has delegated this waiver authority to the Procurement Executive.

(a) Article XVI of the Agreement in Implementation of Article III of the Panama Canal Treaty provides that all property imported into the Republic of Panama for the official use or benefit of the Commission, including that imported by its contractors or subcontractors in connection with the various activities authorized under said Agreement, shall be exempt from the payment of all customs duties or other import taxes and charges and from all license requirements.

(b) All property imported into the Republic of Panama free of customs duties and other taxes may be exported free of customs duties, export permits, export taxes, and other assessments. All property acquired in the Republic of Panama by, or in the name of, the Commission may be exported free of customs duties, export licenses, and other export taxes or charges.

When requested by the contractor or its representative, the contracting officer will initiate a cargo certification document stating that the property being imported is for the official use or benefit of the Commission. The cargo certification document is then processed by the Cargo Documentation Section of the Commission's Administrative Services Division for presentation by the contractor or representative to the appropriate authorities in the Republic of Panama.

The Panama Canal Treaty and the Agreement in Implementation of Article III of the Treaty affect the contracting activities of the Commission. Contracting officers shall give particular attention to the provisions in these agreements that pertain to acquisition procedures, contractors’ taxes, facilities, and other matters relating to contracting.

(a) Solicitations and contracts shall be issued in the English language.

(b) All offers, correspondence and documents related to solicitations and contracts shall be submitted in the English language.

(c) Where inconsistencies between the terms of solicitations or contracts and any translation into another language occur, the English language meaning shall control.

All matters relating to the validity, construction, interpretation, performance, and enforcement of any contract awarded by the Commission shall be determined in accordance with the applicable Federal law of the United States.

Under Article VIII of the Treaty, agencies and instrumentalities of the Government of the United States of America operating in the Republic of Panama pursuant to the Treaty and related agreements shall be immune from the jurisdiction of the Republic of Panama, and their installations, official archives and documents, shall be inviolable.

(a) Definition.

Designated contractors means:

(1)(i) Natural persons who are nationals or permanent residents of the United States, or

(ii) Corporations or other legal entities organized under the laws of the United States, any state thereof, or the District of Columbia, and which are under the effective control of such natural persons—

(A) To whom contracts are awarded by the Commission, and

(B) Who are so designated in writing by the Commission.

(2) The term also includes subcontractors of designated contractors:

(i) Who are nationals or permanent residents of the United States, or

(ii) Which are corporations or other legal entities organized under the laws of the United States, any state thereof, or the District of Columbia, and which are under the effective control of United States nationals or permanent residents.

(3) Because Article XI of the Treaty's Implementing Agreement (see paragraph (b) of this subsection and 3502.101) imposes certain obligations and confers certain benefits on designated contractors, all of which are dependent upon their or their employees’ physical presence in Panama, the term is understood to mean only those contractors and/or subcontractors that will perform all or a portion of the contract work in the Republic of Panama. Such contractors are normally designated at the time of contract award.

(b) Obligations and benefits. Designated contractors are subject to the laws and regulations of the Republic of Panama except for certain obligations and benefits established in Article XI of the Agreement in Implementation of Article III of the Treaty. These obligations and benefits are cited below.

(1) The contractor must engage exclusively in activities related to the execution of the work for which the contractor has been contracted by the Commission or related to other works or activities authorized by the Republic of Panama.

(2) The contractor must refrain from carrying out practices which may constitute violations of the laws of the Republic of Panama.

(3) The contractor shall enter and depart from the territory of the Republic of Panama in accordance with procedures prescribed for United States citizen employees in Article XII of the Implementing Agreement.

(4) The contractor must obtain a document indicating his/her identity as a contractor, which the proper authorities of the United States shall issue when they are satisfied that the contractor is duly qualified. This certificate shall be sufficient to permit the contractor to operate under Panamanian law as a contractor of the United States. Nevertheless, the authorities of the Republic of Panama may require the registration of the appropriate documents to establish juridical presence in the Republic of Panama.

(5) The contractor shall not be obliged to pay any tax or other assessment to the Republic of Panama on income derived under a contract with the Commission, so long as the contractor is taxed in the United States at a rate substantially equivalent to the corresponding taxes and assessments of the Republic of Panama.

(6) The contractor may move freely within the Republic of Panama, and shall have exemptions from customs duties and other charges, as provided for United States citizen employees in the Implementing Agreement.

(7) The contractor may use public services and installations in accordance with the terms and conditions of Article XIII of the Implementing Agreement and, on a non-discriminatory basis, shall pay the Republic of Panama highway tolls and taxes on plates for private vehicles.

(8) The contractor shall be exempt from any taxes imposed on depreciable assets belonging to the contractor, other than real estate, which are used exclusively for the execution of contracts with the United States.

(9) The contractor may use the services and facilities provided for in Articles X and XVIII of the Agreement in Implementation of Article IV of the Panama Canal Treaty, to the extent such use is authorized by the United States; provided, however, that after five years from the entry into force of the Implementing Agreement, the use of military postal services by such contractors shall be limited to that related to the execution of contracts with the United States.

(c) Notification of designation. The contracting officer shall, through the Director, Office of Executive Administration, advise contractors that they are “designated contractors” within the meaning of Article XI of the Implementing Agreement and advise them to review their obligations thereunder. Such designations shall be communicated to the authorities of the Republic of Panama by the authorities of the United States. Contracting officers shall maintain current lists of “designated contractors” at all times.

(d) Withdrawal of designation. The Commission shall withdraw the designation of a contractor when any of the following circumstances occur:

(1) Completion or termination of the contract with the Commission.

(2) Proof that during the life of the contract such contractors have engaged in the Republic of Panama in business activities not related to their contracts with the United States nor authorized by the Republic of Panama.

(3) Proof that such contractors are engaged in practices which in the view of the Republic of Panama constitute serious violations of the laws of the Republic of Panama.

(e) Impact on subcontractors, employees, and dependents. The provisions of this 3525.801-73 shall similarly apply to the subcontractors and to the employees of the contractors and subcontractors and their dependents who are nationals or residents of the United States. These employees and dependents shall not be subject to the Panamanian Social Security system.

(a) Article IX of the Agreement in Implementation of Article III of the Treaty provides that:

(b) Part 3570 provides guidance on the implementation of the Panamanian preference provisions of the Treaty's Implementing Agreement.

In acquisitions conducted in the Republic of Panama, customary local business usage, where not inconsistent with the applicable Federal law of the United States, may be followed. When conflicts develop between local business usage and the requirements of the Federal Acquisition Regulation, the matter shall be referred to the Procurement Executive, who shall seek the opinion of legal counsel, as a deviation for processing as required by 3501.405 and FAR 1.405.

As used in this subsection, the term “foreign” means any country other than the United States. The contracting officer shall insert the following clauses in solicitations and contracts, as indicated below:

(a) In lieu of FAR clause 52.225-14, Inconsistency Between English Version and Translation of Contract, the clause at 3552.225-70, Language, whenever foreign offers are anticipated or contracts are awarded to foreign contractors.

(b) The clause at 3552.225-71, Notice of Applicability of United States Federal Law, whenever foreign offers are anticipated or contracts are awarded to foreign contractors.

(c) The clause at 3552.225-72, Designated Contractors, whenever the contract work is to be performed in whole or in part in the Republic of Panama and offers are anticipated from, or contracts are awarded to, U.S. contractors.

(d) The clause at 3552.225-73, Responsibility for Observance of Laws, Orders, and Regulations, whenever the contract work is to be performed in whole or in part in the Republic of Panama.

(b) The contracting officer shall insert the clause at 3552.227-70, Government Rights, in all solicitations and contracts for architect-engineer services or for construction involving architect-engineer services, except those that call for or can be expected to involve only “standard types of construction” to be built by previously developed equipment, methods, and processes. (See FAR 27.304-3(b) for the meaning of the term “standard types of construction”.)

Bid or proposal guarantees, performance bonds, and payment bonds in Panama Canal Commission acquisitions may be required in contracts for construction as that term is defined at FAR 36.102, and in contracts for other than construction as explained at FAR 28.103.

(a) When a guarantee is required, the contracting officer shall insert the clause at 3552.228-70, Bid Guarantee Amount, in sealed bid solicitations and contracts, or the clause at 3552.228-75, Proposal Guarantee, in negotiated solicitations and contracts, as applicable.

(b) If the contract is to be negotiated, the contracting officer shall insert the clause at 3552.228-75, Proposal Guarantee, in lieu of the bid guarantee clause at FAR 52.228-1.

(a) The Miller Act (40 U.S.C. 270a-270f) requires performance and payment bonds for any construction contract (including contracts for alteration, or repair of any public building or public work) exceeding $25,000, except that this requirement may be waived by the contracting officer for work to be performed in a foreign country upon the finding contemplated in FAR 28.102-1(a)(1). It has been determined by the Panama Canal Commission General Counsel, however, that the contracting officer may also establish requirements for such bonds for lesser dollar value contracts when it has been determined that the financial protection against damages is in the best interests of the Government. Accordingly, the provisions of 3528.102-3 regarding solicitation requirements must be followed.

When performance or payment bonds are required, the contracting officer shall insert the clauses at 3552.228-71, Bonds and Insurance, and 3552.228-72, Bonds, in the solicitation and contract.

(a) Contracts for high dollar acquisitions of vital supplies, such as cargo lot shipments of Bunker C fuel oil, is another situation that may warrant a performance bond.

(a) A payment bond may be considered to be in the Government's interest when substantial progress payments are made before delivery of end items starts (for example, in the acquisition of tugboats and dredges).

(a) Performance bonds. When a performance bond for other than construction contracts is required pursuant to FAR 28.103-2(a), but a payment bond is not required, the contracting officer shall insert the clause at 3552.228-76, Performance Bond, in all such solicitations and contracts. If a payment bond is also required (see FAR 28.103-3(a) and 3528.103-3(a)), the contracting officer shall insert the clause at 3552.228-77, Performance and Payment Bonds, in lieu of clause 3552.228-76.

(b) Payment bonds. When a payment bond for other than construction contracts is required pursuant to FAR 28.103-3(a) and 3528.103-3(a), the contracting officer shall insert the clause at 3552.228-77, Performance and Payment Bonds, in all such solicitations and contracts.

(a) In addition to those acceptable forms of security enumerated in FAR 28.201, contracting officers may accept such Panamanian sureties as may be approved in accordance with 3528.202(b).

(b) Contracting officers may not preclude the use by any offeror of any type of security or surety permitted by FAR subpart 28.2 or this subpart.

(b) The authority delegated to contracting officers in FAR 28.202(b) to determine the acceptability of sureties not appearing on Treasury Department Circular 570 for contracts performed in a foreign country is vested in the Chief Financial Officer of the Panama Canal Commission. The procedure for approving such sureties is prescribed in the Commission's Financial Systems Manual 99.333.

(a) In the event that a “Corporate Seal,” as required in the instructions for preparation of any standard form or document, is not used due to the dictates of custom, practice, or law within Panama or other foreign countries, such bonds shall be accepted provided the contracting officer is satisfied, with the concurrence of legal counsel, that the person signing the bond is authorized to bind the surety (see FAR 4.102).

(b) In the case of acquisitions conducted using the sealed bid method described in FAR part 14, bids which do not include required bid bonds must be rejected as nonresponsive except as provided in FAR 28.101-4. See also FAR 14.405 regarding minor informalities or irregularities in bids.

(b) In addition to the requirements of FAR 28.301(b), designated contractors (see 3525.801-73(a)), as prescribed at paragraph 7 of Article XVIII of the Agreement in Implementation of Article III of the Panama Canal Treaty of 1977, shall, upon initiation of work or construction activities, obtain appropriate insurance to cover civil liabilities in the Republic of Panama that may arise as a result of acts or omissions done in the performance of official duty by their employees. The insurance coverage shall include coverage for the tortious conduct of their employees. Such insurance may be obtained from insurance companies licensed to engage in such business within the Republic of Panama.

(d) Pursuant to a waiver granted by the Secretary of Labor, effective January 22, 1980, the provisions of the Defense Base Act are not applicable to any public-work contract awarded by the Panama Canal Commission in the Panama Canal area with respect to non-U.S. citizen employees, i.e., any Panamanian or other foreign national, employed under such contracts. The waiver does not apply, however, to employees who are:

(1) Hired in the United States by any contractor;

(2) Residents of the United States; or

(3) Citizens of the United States.

(a) In addition to FAR clause 52.228-3, Workers’ Compensation Insurance (Defense Base Act), prescribed at FAR 28.309(a)(1), the contracting officer shall insert the clause at 3552.228-73, Non-U.S. Workers’ Compensation Insurance, in all public-work solicitations and contracts in which the employment of Panamanian or other foreign nationals is anticipated (see 3528.305(d)).

The contracting officer shall insert the clause at 3552.228-74, Special Panama Insurance, in all public-work solicitations and contracts:

(a) Which are to be performed in whole or in part in the Republic of Panama, and

(b) For which offers are anticipated from, or contracts are awarded to, U.S. contractors.

(a) Procedures regarding FAR clause 52.229-6. In recognition of the fundamental purpose of paragraph 2(e) of Articles XI and XII of the Agreements in Implementation of Articles III and IV of the Panama Canal Treaty of 1977, respectively, representatives of the Governments of the United States and Panama approved an Agreement on Taxation of Contractors on August 6, 1986. This taxation agreement impacts on U.S. contractors in certain circumstances. In order to alert prospective contractors to this possibility, the following procedures shall apply regarding FAR clause 52.229-6:

(1) The contracting officer shall supplement FAR clause 52.229-6, Taxes—Foreign Fixed-Price Contracts, by inserting the following note at the end of the clause in all solicitations and contracts, unless the acquisition is a small purchase under FAR part 13 that:

(i) Will not require the contractor's presence in Panama, or

(ii) Does not solicit U.S. offerors:

(2) If clause 52.229-6 is incorporated by reference, rather than in full text, insert the note directly below the title of the clause.

(3) Include elsewhere in the body of the solicitation the following note to alert offerors that clause 52.229-6 has been supplemented. In supply and service solicitations, this note should normally be inserted in Section B following the blanks provided for offerors to insert line item prices. In construction solicitations, the note should normally be attached to Standard Form 1442 or inserted in the solicitation's Special Conditions. In small purchase acquisitions, the note is to be included in the document requesting prices or by separate attachment to the document. If a U.S. contractor wins the small purchase award, the note shall be incorporated either (i) in full text, or (ii) by reference, on the purchase order or other award document.

(4) If additional information regarding the taxation agreement is requested of Panama Canal Commission employees, either before or after award, the individual who receives the request shall promptly notify the contracting officer and the Office of General Counsel who shall determine, in conjunction with the Office of Executive Administration, the appropriate action to be taken.

(5) Contracting officers shall serve as the official liaison, for purposes of the taxation agreement, between offerors/contractors and the Commission. The taxation agreement provides for the classification of contractors into two categories, resident and non-resident, by representatives of the Governments of the United States and Panama according to criteria set forth in the agreement. The representative of the United States Government is the Assistant Director, Policy and Programs, Office of Executive Administration. Classifications, when confirmed by the two representatives, will be communicated to the respective contractors by the contracting officer.

(a) Fixed-price type contracts that provide for separate reimbursement of travel and per diem shall state that such reimbursement will not exceed rates established in applicable Federal Travel Regulations.

(b) The clause at 3552.231-70, Travel Costs, shall be included in contracts as described in paragraph (a) of this subsection.

(a)(7) The clause at 3552.232-70, Contract Payments, in solicitations and contracts for construction when the contracting officer determines that the value of materials delivered to the work site may be taken into account in preparing the progress payment estimate.

(8) The clause at 3552.232-73, Invoices, in all solicitations and contracts except small purchases. The clause or a modified version of the clause may be used in small purchases.

(e)(1) The Procurement Executive is responsible for approving findings and determinations supporting the use of advance payments and approving contract terms concerning advance payments. These approvals must have the concurrence of the General Counsel.

(2) The contracting officer shall coordinate proposed advance payment authorizations with the Accounting Division.

(d) The Procurement Executive is authorized to approve advance payments without interest.

This subpart assigns responsibilities and provides procedures for the collection of contract debts, including collection of debts under contracts for the transportation of household goods.

Responsible official, as used in this subpart, means the contracting officer.

In addition to the examples cited in FAR 32.602, contract debts may include those arising from claims under contracts for the transportation of household goods.

When the Commission withholds payments due a contractor to satisfy a contractor's debt to the Government, the Debt Collection Act of 1982 and FAR subpart 32.6 apply. As a claim arising under a Government contract, any offset is governed by the Contract Disputes Act of 1979.

The Commission shall adhere to the following procedures prior to withholding a payment due a contractor to satisfy a debt owed by the contractor.

(a) The Commission shall use all proper means available for collecting a contract debt as rapidly as possible. This includes direct communication to obtain full payment or to negotiate an appropriate settlement.

(b) If the contractor fails to respond expeditiously and in good faith to contacts from the contracting officer, and if justifiable under the contract, the contracting officer shall promptly make a unilateral determination of the amount the contractor owes the Commission. The unilateral debt determination is made when neither payment nor a settlement has been reached. The unilateral debt determination is issued to the contractor by the contracting officer as a final decision under the Contract Disputes Act.

(c) A demand for payment of the contract debt shall be made contemporaneously with the contracting officer's issuance of the unilateral debt determination to the contractor.

(b) Demands for payment shall include, in addition to those items listed in FAR 32.610(b), the following:

(1) The offer of an opportunity to inspect and copy the records of the Commission related to the debt, 31 U.S.C. 3716(a)(2).

(2) The offer of an opportunity of a review of the Commission's decision relating to the debt, 31 U.S.C. 3716(3).

(3) The offer of an opportunity to enter into an agreement with the Commission to repay the amount of the debt.

(c) With respect to contracts for the transportation of household goods, claims by employees and, in turn, by the Commission, must be processed in a timely manner. The usual commercial terms for bills of lading require that any claim be filed against the contractor within nine months of shipment delivery. Government bills of lading are subject to these same rules and conditions. FAR clause 52.247-23, which is included in contracts for the transportation of household goods, specifies that the contractors will be notified of any damages within a maximum of 45 days from date of delivery.

In lieu of either of the clauses prescribed at FAR 32.705-1(a) and (b), the contracting officer may insert the clause at 3552.232-71, Availability of Funds, in solicitations and contracts—

(a) That are to be awarded in one fiscal year with performance to begin in the following fiscal year, or

(b) That are to extend into the following fiscal year, or

(c) In situations when the circumstances in paragraphs (a) and (b) of this subsection both apply.

(b) Panamanian firms may assign contracts to a local bank in accordance with recognized local banking practice.

(a) In addition to the clauses prescribed in FAR 32.806, the contracting officer may insert the clause at 3552.232-72, Presentation of Statement of Release from Claims, in solicitations and contracts when appropriate, unless the contract will prohibit the assignment of claims.

In consonance with subpart 3570.1, Panamanian Preference, the Administrator has determined, pursuant to FAR 32.904, to extend coverage of the interest penalty provisions of FAR subpart 32.9 to contracts awarded to Commission vendors located in the Republic of Panama.

(a) Construction, which includes alteration, maintenance, and repair of real property, and architect-engineer contracts are subject to the requirements in other parts of this regulation, which shall be followed when applicable.

(b) When a requirement in this part is inconsistent with a requirement in another part of this regulation, this part 3536 shall take precedence if the acquisition of architect-engineer services is involved.

(a) Notwithstanding the exception in FAR 36.103(a) for contracts to be performed outside the United States, construction in Panama shall be acquired using sealed bid procedures, unless one of the four conditions in FAR 6.401(a) cannot be met. In that event, the contracting officer shall document the contract file in accordance with FAR 6.401.

(b) Contracting officers shall acquire architect-engineer services by negotiation, and select sources in accordance with applicable law, FAR subpart 36.6, and subpart 3536.6 of this regulation.

(a) Preparation of performance evaluation reports. The authorized representative of the contracting officer (COR) shall prepare the contractor performance report prescribed in FAR 36.201 within two weeks after final acceptance of the work or contract termination. Prior to submitting any report of unsatisfactory performance to the reviewing official, the COR shall advise the contractor of any proposed unsatisfactory rating and include any written comments from the contractor regarding such rating in the report (see FAR 36.201(a)(3)).

(b) Review of performance reports. The contracting officer shall review each performance report.

(c) Distribution and use of performance reports. Information from the performance report shall not be released outside of the Commission, except to other Government agencies at their written request, and on condition that the information will not be made available outside the Government. Requests from non-Government sources for information from performance reports shall be processed in accordance with 35 CFR part 9.

(c) The overall amount of the Government's estimate shall not be disclosed prior to award under any circumstance to persons other than Commission personnel whose official duties, as determined by the contracting officer, require knowledge of the estimate.

Any of the forms of indefinite-delivery contracts described in FAR subpart 16.5 may be used to contract for construction when deemed appropriate by the contracting officer.

No contract for construction shall be awarded to the firm, or its subsidiaries or affiliates, that designed the project except with the approval of the Head of Contracting Activity.

In contracts which are entered into with Panamanian or other foreign contractors for performance in Panama, the term “United States” shall appear before the word “Government.”

When construction is to be performed in the Republic of Panama by designated United States contractors, Panamanian contractors, or others, the solicitation and contract should include references to the applicable laws, regulations, treaties, and agreements of the United States and the Republic of Panama (see subpart 3525.8) relating to:

(a) The duty-free importation of material and equipment;

(b) The payment of taxes applicable to contractors, personnel, materials, and equipment (see parts 3525 and 3529);

(c) The applicability of workmen's compensation laws and other labor laws to citizens of the United States, citizens of Panama, and citizens of other countries (see subpart 3528.3);

(d) The provision of utility services;

(e) The provision of Commission or Government-owned materials or services;

(f) The disposition of surplus materials and equipment;

(g) The need for civil liability insurance for employees of contractors and subcontractors (see 3528.301);

(h) The handling of claims and litigation;

(i) The requirements for bid or proposal guarantees, performance bonds, and payment bonds (see subpart 3528.1);

(j) Acceptability of sureties not listed in Treasury Department Circular 570 (see subpart 3528.2);

(k) Consideration of Panamanian preference in accordance with part 3570;

(l) Any other special solicitation provisions prescribed in subpart 3536.3; and

(m) Any other problems which can be foreseen and appropriately resolved contractually.

Prior to the issuance of an invitation for bids, the contracting officer shall ascertain that adequate funds have been certified as being available for the proposed acquisition. However, if funds appear to be insufficient for all features of the Government's requirement, the contracting officer shall insert in the invitation a solicitation provision for a base bid and one or more additive items, as prescribed at 3536.371(a) (7) or (8).

(a) The contracting officer shall insert the following provisions in invitations for bids for construction when applicable:

(1) The provision at 3552.214-70, Price—Sealed Bidding, as prescribed at 3514.201-6(a)(1);

(2) The provision at 3552.214-71, Additional Data To Be Submitted, as prescribed at 3514.201-6(b)(1);

(3) The provision at 3552.214-72, Rejection of Bids, as prescribed at 3514.201-6(b)(2);

(4) The provision at 3552.214-73, Caution—Sealed Bidding, as prescribed at 3514.201-6(a)(2);

(5) The provision at 3552.214-75, All or None Award—Sealed Bidding—Construction, as prescribed at 3514.201-6(d);

(6) The provision at 3552.236-70, Mailing of Correspondence and Bids, in all invitations for bids for construction;

(7) The provision at 3552.236-71, Additive Items, in invitations for bids for construction that contain one or more additive bid items to be awarded with the base bid item in the numerical order of priority that the additive bid items appear in the bid schedule within the funds available;

(8) The provision at 3552.236-71, Additive Items—Alternate I, in invitations for bids for construction that contain one or more additive bid items to be awarded with the base bid item in any combination within the funds available; and

(9) The provision at 3552.236-72, Cost Limitation, in invitations for bids for construction that contain one or more items subject to statutory cost limitations, except when a waiver has been granted pursuant to FAR 36.205.

(b) The contracting officer shall insert the following provisions in negotiated solicitations for construction when applicable:

(1) The provision at 3552.215-70, Price, as prescribed at 3515.407(a)(1);

(2) The provision at 3552.215-71, Caution, as prescribed at 3515.407(a)(2); and

(3) The provision at 3552.215-72, All or None Award, as prescribed at 3515.407(b).

(c) The contracting officer shall insert the provision at 3552.209-70, Organizational Conflict of Interest Certification/Disclosure, in invitations for bids and negotiated solicitations for construction when applicable, as prescribed at 3509.508-1.

The contracting officer shall insert the following clauses in solicitations and contracts for construction when applicable:

(a) The clause at 3552.225-70, Language, as prescribed at 3525.801-76(a);

(b) The clause at 3552.225-71, Notice of Applicability of United States Federal Law, as prescribed at 3525.801-76(b);

(c) The clause at 3552.225-72, Designated Contractors, as prescribed at 3525.801-76(c);

(d) The clause at 3552.225-73, Responsibility for Observance of Laws, Orders, and Regulations, as prescribed at 3525.801-76(d);

(e) The clause at 3552.228-70, Bid Guarantee Amount, or the clause at 3552.228-75, Proposal Guarantee, as prescribed at 3528.101-3(a). If the proposal guarantee clause is used, the bid guarantee clause at FAR 52.228-1 shall not be used (see 3528.101-3(b));

(f) The clause at 3552.228-71, Bonds and Insurance, as prescribed at 3528.102-3;

(g) The clause at 3552.228-72, Bonds, as prescribed at 3528.102-3;

(h) In addition to FAR clause 52.228-3, Workers’ Compensation Insurance (Defense Base Act), the clause at 3552.228-73, Non-U.S. Workers’ Compensation Insurance, as prescribed at 3528.309(a);

(i) The clause at 3552.228-74, Special Panama Insurance, as prescribed at 3528.370;

(j) In addition to FAR clause 52.232-5, Payments Under Fixed-Price Construction Contracts, the clause at 3552.232-70, Contract Payments, as prescribed at 3532.111(a)(7), the clause at 3552.232-72, Presentation of Statement of Release from Claims, as prescribed at 3532.806(a), and the clause at 3552.232-73, Invoices, as prescribed at 3532.111(a)(8);

(k) The clause at 3552.236-73, Scope of Work, in all solicitations and contracts for construction;

(l) In addition to FAR clause 52.236-10, Operations and Storage Areas, the clause at 3552.236-74, Work Sites, Yards, Shops, and Offices, when a fixed-price construction contract is contemplated;

(m) The clause at 3552.236-75, Work Time Limitations, in all solicitations and contracts for construction;

(n) In lieu of FAR clause 52.236-13, Accident Prevention, insert the clause at 3552.236-76, Accident Prevention, when a fixed-price construction contract is contemplated;

(o) The clause at 3552.236-77, Working in Confined Spaces, when the contracting officer anticipates that the contractor may have to work in confined or enclosed spaces;

(p) The clause at 3552.236-78, Safety Sign, when the contracting officer determines that the location of the work site warrants its inclusion;

(q) The clause at 3552.236-79, Protection of Material and Work, in all solicitations and contracts for construction;

(r) The clause at 3552.236-80, Toilet Facilities, when the contracting officer determines that the location of the work site warrants its inclusion;

(s) The clause at 3552.236-81, Drinking Water, when the contracting officer determines that the location of the work site warrants its inclusion;

(t) In addition to FAR clause 52.236-15, Schedules for Construction Contracts, the clause at 3552.236-82, Contract Bid Breakdown, when a fixed-price construction contract is contemplated and the period of actual work performance is expected to exceed 60 days;

(u) In addition to FAR clause 52.236-21, Specifications and Drawings for Construction, and FAR clause 52.236-5, Material and Workmanship, the clauses at: 3552.236-83, Descriptive Data and Correspondence, 3552.236-84, Instruction Books, and 3552.236-85, Record Drawings, when a fixed-price construction contract is contemplated;

(v) The clause at 3552.236-86, Restricted Areas, when the contracting officer anticipates that any portion of the contract work may have to be performed in a restricted area;

(w) The clause at 3552.243-70, Modification Proposals—Price Breakdown, as prescribed at 3543.205;

(x) The clause at 3552.244-70, Subcontractors, in all solicitations and contracts for construction;

(y) The clause at 3552.236-87, Surplus Space, in all solicitations and contracts for construction. The clause may also be used in solicitations and contracts for supplies or services if the contracting officer determines that its use is appropriate.

(z) The clause at 3552.209-71, Organizational Conflict of Interest, as prescribed at 3509.508-2.

Panama Canal Form 3062, Submittal Data For Approval, shall be used by contractors as a transmittal document when data and/or samples are to be submitted for the contracting officer's approval pursuant to FAR clause 52.236-5 or clause 3552.236-83 of this regulation.

(a) The Panama Canal Commission Architect-Engineer Evaluation Board is established as a central board within the Commission under authority delegated to the Director, Engineering and Construction Bureau. The Board shall perform all Commission architect-engineer evaluations, data collection, and files maintenance. The Commission Board shall be composed of not less than three nor more than five voting members and one non-voting advisory member from the contracting office. The following constitutes the minimum composition of the Board:

(1) Member and Chairman—A designee of the Chief, Engineering Division;

(2) Member—A professional engineer or architect from a division of one of the Commission's other bureaus, to be designated by the Chairman;

(3) Member—A program official initiating the requirement or a designated representative; and

(4) Advisory Member—A contracting officer or representative.

(b) The Chief, Engineering Division may appoint additional voting members as may be appropriate for a particular project.

(c) In the event of an emergency or extended absence, a member may designate, in writing, with the concurrence of the Chairman, an alternate experienced in architecture, engineering, or construction to serve in the member's absence.

(d) The duties of the advisory member shall include, but not be limited to, assuring that—

(1) The criteria set forth in the public notice are applied in the evaluation process; and

(2) Actions taken during the evaluation process do not compromise subsequent procurement actions.

The Director, Engineering and Construction Bureau shall serve as the Commission's selection authority for the evaluation board.

Both short selection processes permitted by FAR 36.602-5 are authorized.

Evaluation of architect-engineer contracts shall be in accordance with the procedures prescribed in 3536.201, except that SF 1421, Performance Evaluation (Architect-Engineer), shall be used in lieu of SF 1420, and that a copy of the performance evaluation shall be provided to the Architect-Engineer Evaluation Board for its files pursuant to FAR 36.604(c).

(b) The overall amount of the Government's cost estimate shall not be disclosed under any circumstance to persons other than Government personnel whose official duties, in the judgment of the contracting officer, require knowledge of the estimate.

(a) Negotiations shall be conducted with the first selected architect-engineer until a price which is fair and reasonable and not in excess of the Government estimate, revised to correct errors of fact or judgment, has been obtained. When the negotiations result in a price in excess of the Government estimate, as revised, the contracting officer shall terminate the negotiations and request a proposal from the architect-engineer next in order of preference.

(1) In no event shall a contract for architect-engineer services for the preparation of designs, plans, drawings and specifications exceed the statutory limitation of six percent (6 percent) of the estimated construction costs of the project. If the contract also covers any type of services other than the preparation of designs, plans, drawings and specifications, the part of the contract price for such other services shall not be subject to the six percent (6 percent) limitation.

When a modification involves work not initially included in the contract, the limitation on the total contract price set forth in 3536.606(a)(1) is applicable, as applied to the revised total estimated construction costs. When redesign is required and the contract is modified, the following method shall be used to insure that the six percent (6 percent) statutory limitation is not exceeded:

(a) The estimated construction cost of the redesigned features will be added to the original estimated construction cost;

(b) The contract cost for the original design will be added to the contract cost for redesign; and

(c) The total contract design cost obtained by paragraph (b) of this subsection will be divided by the total construction cost obtained by paragraph (a) of this subsection. The resulting percentage may not exceed the six percent (6 percent) statutory limitation.

(a) The Commission's policy regarding the contracting out of commercial services is set forth at 3507.301.

(b) Authority for the acquisition by contract of the personal services of experts and consultants is found at 5 U.S.C. 3109 which provides that, when authorized by an appropriation or other statute, the head of an agency may acquire by contract the temporary (not to exceed one year) or intermittent services of experts or consultants. For the purpose of this section, the terms “experts” and “consultants” are not interchangeable. Consequently, their meanings are distinguishable from the meaning of the collective term “Individual experts and consultants” at FAR 37.203(a). As used herein, an “expert” is an individual who is a recognized professional or highly skilled practitioner normally used to perform or supervise an operating function, rather than to provide advisory or consulting services. A “consultant”, as used herein, is an individual possessing special, current knowledge or skill who primarily serves in an advisory capacity in a particular field, rather than in the performance or supervision of an operating function. Acquiring the personal services of individual experts or consultants shall be subject to the limitations applicable to advisory and assistance services at FAR 37.202(c). In addition, the services of individual experts and consultants shall be acquired through personal services contracts only—

(1) When the services required cannot be obtained by appointment in accordance with standard Commission personnel procedures, and

(2) If the nature of the duties to be performed is temporary (not more than one year) or intermittent (not cumulatively more than 130 days in one year). Accordingly, no such contract shall be entered into for longer than one year at a time.

Requests for the acquisition of personal services should include:

(a) A description of the services to be performed;

(b) Name and address of the person or firm;

(c) Background material to show the unique qualifications of such person or firm to accomplish the requirement;

(d) Place where the duties are to be performed and the period of service;

(e) The estimated cost; and

(f) Determinations that:

(1) It is not feasible to obtain personnel with the necessary skills through standard Commission personnel appointment procedures;

(2) A nonpersonal services contract is not practicable; and

(3) Existing staffing is inadequate to furnish the services.

This subpart provides additional policy and management controls for the acquisition of personal and nonpersonal advisory and assistance services.

(d) The acquisition of advisory and assistance services shall conform to the Competition in Contracting Act of 1984. Preference shall, however, be given to sources located in the Republic of Panama when the services are available as required and are comparable in quality and price to those which may be obtained from other sources (see part 3570). However, see subpart 3503.6 concerning contracts with current or former Commission employees.

In addition to the exclusions or exemptions identified at FAR 37.204, the services of arbitrators for the resolution of labor disputes are exempted from the definition of advisory and assistance services. As authorized by section 7121 of the Federal Service Labor-Management Relations Act, 5 U.S.C. 7121, the procedure for the contracting of arbitrators shall be governed by the negotiated grievance procedure set forth in the individual collective bargaining agreements between the Commission and the various certified representatives (i.e., unions).

(c) Requests for the acquisition of advisory and assistance services shall include the documentation required at FAR 37.206 (a), (b), and (d), and shall be prepared by the initiating bureau director or head of independent unit and forwarded to the Administrator for approval, through, in turn, the Personnel Director; General Counsel; Chief Financial Officer; and the General Services Director for their review and concurrence. Before the proposal is routed to the Administrator, the General Services Director will add the cognizant contracting officer's determination as to whether or not the requested acquisition constitutes advisory and assistance services as described in FAR subpart 37.2. As mandated by FAR 37.207, the contracting officer's determination shall be final.

(a) When a request has been approved pursuant to 3537.206(c), the initiating bureau director or head of independent unit shall—

(1) Forward all papers to the cognizant contracting officer for processing the contract action. If not already included in the request for approval, the forwarding official shall provide the contracting officer with a work statement that is specific and complete, including: a detailed description of services to be performed; the place where the services are to be performed; the period of performance; the names and addresses of potential contractors (if applicable); and any other information the contracting officer considers to be pertinent.

(2) Coordinate with the Director, Office of Executive Administration or the contracting officer, as applicable, to obtain certification as a Panama Canal Commission designated contractor, entry/exit permits, identification cards, and any other required legal documents.

(3) Prepare replies to all inquiries from the General Accounting Office, the Office of Management and Budget, and the Congress, in coordination with the Personnel Director, Chief Financial Officer, General Counsel and the contracting officer, as may be necessary.

(b) At the conclusion of the contract, the initiating bureau director or head of independent unit shall furnish to the contracting officer the written evaluation required at FAR 37.205.

No contract for advisory and assistance services shall be entered into for longer than one year at a time. In unusual circumstances, and when approved by the Administrator, options for additional one-year extensions may be used when the need for continuity of services carries beyond a one-year period. In no case shall the total period under a specific contract exceed the basic year plus four additional optional years.

When “CORPORATE SEALS,” as required in the instructions for preparation and execution of novation agreements in FAR 42.1204 and in agreements to recognize contractor's change of name in FAR 42.1205, are not used due to the dictates of custom, practice, or law within the Republic of Panama or other foreign countries, the contracting officer may execute such agreements, provided the contracting officer, with the concurrence of legal counsel, is satisfied that the persons signing such agreements are authorized to bind their companies.

The contracting officer shall insert the clause at 3552.243-70, Modification Proposals—Price Breakdown, in all solicitations and contracts for construction.

For purposes of evaluating comparability of costs of supplies obtainable in the Republic of Panama with those obtainable from other sources, pursuant to the Panamanian preference provisions of the Panama Canal Treaty's Implementing Agreement (see part 3570), consideration shall be given to transportation costs to the Republic of Panama, including freight, insurance and handling of supplies.

The contracting officer shall insert the provision at 3552.247-70, Evaluation of Delivery Terms in Contract Awards, in solicitations that include alternate terms of delivery, i.e., f.o.b. destination (New Orleans) and c.i.f. destination (Panama).

(a) When a contractor is performing one of the types of contracts specified in FAR 51.101, the contracting officer shall consider whether to allow the contractor to use Government supply sources. In addition to the factors listed for consideration at FAR 51.102(a), the contracting officer shall consider whether—

(1) Materials necessary to the performance of the contract are not available locally except at Government sources; and

(2) Materials, though available to the contractor, require such a long lead time for delivery that contractor performance is threatened if Government sources are not used.

(e)(4) In those instances where contractor-furnished equipment and materials required by a contract have been authorized by the contracting officer to be obtained through Government sources as Government-furnished equipment and materials, for reasons established by FAR part 51, the contracting officer shall negotiate a change to the contract reducing the price by the commercial cost plus transportation costs.

(b) “Contracting agency” as used in FAR 51.103(b) shall mean the cognizant Commission contracting officer.

As prescribed in 3509.508-1, insert the following provision:

As prescribed in 3509.508-2, insert the following clause:

As prescribed in 3510.011(h), insert the following provision:

As prescribed in 3514.201-6(a)(1), insert the following provision:

As prescribed in 3514.201-6(b)(1), insert the following provision:

As prescribed in 3514.201-6(b)(2), insert the following provision:

As prescribed in 3514.201-6(a)(2), insert the following provision:

As prescribed in 3514.201-6(c), insert the following provision:

As prescribed in 3514.201-6(d)(1), insert the following provision:

As prescribed in 3515.407(a)(1), insert the following provision:

As prescribed in 3515.407(a)(2), insert the following provision:

As prescribed in 3515.407(b), insert the following provision:

As prescribed in 3525.801-76(a), Language, insert the following clause:

As prescribed in 3525.801-76(b), insert the following clause:

As prescribed in 3525.801-76(c), insert the following clause:

As prescribed in 3525.801-76(d), insert the following clause:

As prescribed in 3527.304-3(b), insert the following clause:

As prescribed in 3528.101-3(a), insert the following clause:

As prescribed in 3528.102-3, insert the following clause:

As prescribed in 3528.102-3, insert the following clause:

As prescribed in 3528.309(a), insert the following clause:

As prescribed in 3528.370, insert the following clause:

As prescribed in 3528.101-3 (a) and (b), insert the following clause:

As prescribed in 3528.103-70(a), insert the following clause:

As prescribed in 3528.103-70 (a) and (b), insert the following clause:

As prescribed in 3531.205-46(b), insert the following clause:

As prescribed in 3532.111(a)7, insert the following clause:

As prescribed in 3532.705-1, insert the following clause:

As prescribed in 3532.806(a), insert the following clause:

As prescribed in 3532.111(a)(8), insert a clause substantially as follows:

As prescribed in 3536.371(a)(6), insert the following provision:

As prescribed in 3536.371(a)(7), insert the following provision:

As prescribed in 3536.371(a)(9), insert the following provision:

As prescribed in 3536.570(k), insert the following clause:

As prescribed in 3536.570(l), insert the following clause:

As prescribed in 3536.570(m), insert the following clause:

As prescribed in 3536.570(n), insert the following clause:

As prescribed in 3536.570(o), insert the following clause:

As prescribed in 3536.570(p), insert the following clause:

As prescribed in 3536.570(q), insert the following clause:

As prescribed in 3536.570(r), insert the following clause:

As prescribed in 3536.570(s), insert the following clause:

As prescribed in 3536.570(t), insert the following clause:

As prescribed in 3536.570(u), insert the following clause:

As prescribed in 3536.570(u), insert the following clause:

As prescribed in 3536.570(u), insert the following clause:

As prescribed in 3536.570(v), insert the following clause:

As prescribed in 3536.570(y), insert the following clause:

As prescribed in 3543.205 insert the following clause:

As prescribed in 3536.570(x), insert the following clause:

As prescribed in 3547.370, insert the following provision:

Commission forms may be obtained from the cognizant Commission contracting office or by written request as indicated below:

(a) For all forms prescribed at 3553.213, write to: Panama Canal Commission, Logistical Support Division, APO Miami 34011-5000;

(b) For the forms prescribed at 3553.215 and 3553.236, write to: Panama Canal Commission, Construction Division, APO Miami 34011-5000.

This subpart prescribes Commission forms for use in the acquisition of supplies and services, including construction. The subpart is arranged by subject matter in the same order as, and is keyed to, the parts of the PAR in which the form usage requirements are addressed.

The following forms are prescribed as stated below for use in small purchases, orders under existing contracts or agreements, and orders from required sources of supplies and services:

(a) Panama Canal Form No. 1010, Purchase Order. This form may be used by the Inventory Management Branch in lieu of Optional Forms 347 and 348 for the purposes specified in 3513.505-2(a).

(b) Panama Canal Form No. 1820, Purchase Order. This form may be used by the Purchasing and Contract Branch in lieu of Optional Form 347 for the purposes specified in 3513.505-2(b).

(c) Panama Canal Form No. 1821, Purchase Requisition. This is a 6-sheet snap-out form. The first, fifth, and sixth sheets are entitled “Purchase Requisition” (the second, third and fourth sheets are explained in following paragraph (d)). The purchase requisition is an internal document that is prescribed for use only by Commission activities to request purchasing action by the Purchasing and Contracts Branch (see 3513.505-70).

(d) Panama Canal Form No. 1821, Request for Quotation. This is a 6-sheet snap-out form. The second, third and fourth sheets are entitled “Request for Quotation” (the first, fifth, and sixth sheets are explained in paragraph (c) of this section). As specified at 3513.107(a)(4)(i), this form may be used by the Purchasing and Contracts Branch in lieu of Standard Form 18 for the solicitation of nonstock items and services.

(e) Panama Canal Form No. 1822, Request For Quotation Continuation. As specified at 3513.107(a)(4)(ii), this form may be used with Panama Canal Form No. 1821 when additional space is needed.

(f) Panama Canal Form No. 2008, This Is A Request For Prices; It Is Not An Order. As specified at 3513.107(a)(4)(iii), this form may be used by the Inventory Management Branch in lieu of Standard Form 18 for the solicitation of standard stock items.

(g) Panama Canal Form No. 3083, Purchase Order Continuation. As specified at 3513.505-2(c), this form may be used with Panama Canal Form No. 1820, in lieu of Optional Form 348, when additional space is needed.

(h) Panama Canal Form No. 3163, Division Purchase Order. As specified at 3513.505-2(d), this form may be used by all activities having contracting authority in lieu of Optional Form 347 for the decentralized procurement of supplies and services.

(i) Panama Canal Form No. 3163-MTD, Division Purchase Order. As specified at 3513.505-2(e), this form may be used by the Motor Transportation Division and the New Orleans Branch, Logistical Support Division in lieu of Optional Form 347 for purchases of nonstandard stock automotive repair parts that do not exceed dollar amounts established by the General Services Director.

(j) Panama Canal Commission Form 7071, General Contract Clauses and Provisions, Small Purchases. As specified at 3513.107(a)(4)(iv), this form shall be forwarded to prospective suppliers together with either Panama Canal Form No. 1821 or Panama Canal Form No. 2008, as applicable.

(k) Panama Canal Commission Form 7074, Information Sheet. As specified at 3513.107(a)(4)(iv), this form shall be forwarded to prospective suppliers together with either Panama Canal Form No. 1821 or Panama Canal Form No. 2008, as applicable.

As specified at 3515.804-6, Panama Canal Form No. 6122, Cost Breakdown, may be used by the contracting officer to require contractors to submit information for cost or price analysis in connection with requests for proposals or modifications not exceeding $25,000.

As specified at 3536.571, Panama Canal Form 3062, Submittal Data For Approval, shall be used by contractors as a transmittal document when data is to be submitted for the contracting officer's approval pursuant to FAR clause 52.236-5 or clause 3552.236-83 of this regulation.

PAR forms are not illustrated in the PAR. Persons wishing to obtain copies of Commission forms prescribed in the PAR may do so in accordance with 3553.107.

(a) It has been determined by the Administrator of the Panama Canal Commission that the acquisition of supplies and services obtainable in the Republic of Panama is required under the conditions contemplated by Article IX.

(b) For the purposes of this determination, the following words and terms, as used in Article IX and this part 3570, shall have the meanings stated below:

Comparable in quality and price means the supplies or services (1) must conform to the purchase description, specifications, or statement of work that sets forth the Commission's requirements; and (2) can be acquired at a price equal to or lower than the price for similarly conforming supplies or services obtainable from sources outside the Republic of Panama.

Goods means manufactured or unmanufactured articles, materials and supplies.

Obtainable in the Republic of Panama means the supplies or services can be obtained from sources in the Republic of Panama.

Panamanian origin means goods that are grown, mined, or produced in the Republic of Panama; or in the case of goods which consist in whole or in part of materials from another country, have been substantially transformed by processes performed in the Republic of Panama into new and different articles of commerce with a name, character, or use distinct from that of the article or articles from which they were so transformed.

Supplies, pursuant to the definition in FAR 2.101, means “all property except land or interest in land.” Accordingly, the term includes construction.

(a) When supplies or services can be obtained from sources both within and without the Republic of Panama, and the following conditions exist, preference shall be afforded to those sources within Panama to the maximum extent possible:

(1) The supplies or services can be provided at the time they are required;

(2) The supplies or services are comparable in quality and price to those that can be obtained from sources outside Panama; and

(3) The sources in Panama:

(i) Are determined to be responsible prospective contractors pursuant to FAR subpart 9.1, and

(ii) Can comply in all material respects with the terms and conditions of the acquisition document.

(b) In the comparison of prices with respect to subparagraph (a)(2) of this section, there shall be taken into account the cost of transport to the Republic of Panama, including freight, insurance, and handling. The cost of insurance shall be calculated at one percent (1%) of the value of the supplies, or any supplies incidental to services, in the event the contract does not require insurance.

(c) When choosing between goods from sources within Panama that are otherwise equal, preference shall be given to those goods having a larger percentage of components of Panamanian origin.

(d) When conducting an acquisition of supplies or services for which the estimated cost is not expected to exceed the small purchase limitation in FAR part 13, participation may be limited to sources in Panama unless the contracting officer determines that there is no reasonable expectation of obtaining quotations from two or more such sources that:

(1) Will be responsive to the required delivery time, and

(2) Will be comparable in quality and price to supplies or services from sources outside Panama.

(e)(1) In order to conduct an acquisition of supplies or services above the small purchase limitation and limit participation in the acquisition to sources in Panama, the contracting officer shall:

(i) Prepare and submit a class or an individual determination and findings to the Procurement Executive, and

(ii) Obtain that official's written approval of such determination and findings.

(2) The determination and findings must clearly document that:

(i) An acquisition limited to such sources would result in obtaining supplies or services at the time they are required that would be comparable in quality and price to those obtainable from sources outside Panama, or

(ii) An acquisition from sources outside Panama would be impracticable because of the nature of the acquisition (e.g., a requirements type contract where deliveries must be made within a very short time span by trucks or pipeline from stockpiles or storage facilities located in Panama).